HomeMy Public PortalAboutORD16250BILL NO. 2022-031
SPONSORED BY Councilmember Fitzwater
ORDINANCE NO. 6'2,50
AN ORDINANCE AUTHORIZING THE CITY OF JEFFERSON, MISSOURI, TO ISSUE ITS
TAXABLE INDUSTRIAL REVENUE BONDS (SIMONSEN REDEVELOPMENT PROJECT),
SERIES 2022, IN A PRINCIPAL AMOUNT NOT TO EXCEED $25,000,000, FOR THE PURPOSE
OF PROVIDING FUNDS TO PAY THE COSTS OF ACQUIRING, CONSTRUCTING AND
IMPROVING A FACILITY FOR AN INDUSTRIAL DEVELOPMENT PROJECT IN THE CITY;
APPROVING A PLAN FOR THE PROJECT; AND AUTHORIZING THE CITY TO ENTER INTO
CERTAIN AGREEMENTS AND TAKE CERTAIN OTHER ACTIONS IN CONNECTION
THEREWITH.
WHEREAS, the City of Jefferson, Missouri (the "City"), is authorized and empowered pursuant to
the provisions of Article VI, Section 27(b) of the Missouri Constitution and Sections
100.010 through 100.200 of the Revised Statutes of Missouri (collectively, the "Act")
and the City Charter to purchase, construct, extend and improve certain projects (as
defined in the Act), 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, office
industry, warehousing and industrial development purposes upon such terms and
conditions as the City deems advisable; and
WHEREAS, in Attorney General Opinion 180-81, the Missouri Attorney General determined that
the construction and rental of multi -family apartments for profit is a commercial
enterprise; and
WHEREAS, the Plan for an Industrial Development Project (the "Plan") has been prepared in the
form of Exhibit A, attached hereto and incorporated herein by reference; and
WHEREAS, notice of the City's consideration of the Plan has been given in the manner required
by the Act, and the City Council has fairly and duly considered all comments
submitted to the City Council regarding the proposed Plan; and
WHEREAS, the City Council hereby finds and determines that it is desirable for the improvement
of the economic welfare and development of the City and within the public purposes
of the Act that the City: (1) issue its Taxable Industrial Revenue Bonds (Simonsen
Redevelopment Project), Series 2022, in the maximum principal amount of
$25,000,000 (the "Bonds"), for the purpose of acquiring a leasehold interest in
certain real property located at 501 E. Miller in the City (the "Project Site," as more
fully described in the below -defined Indenture) and renovating the existing historic
school building thereon for use as approximately 60-75 residential apartments and
amenity space (the "Project Improvements," as more fully described in the Indenture,
and together with acquisition of a leasehold interest in the Project Site, the "Project"),
and (2) lease the Project to TD — Simonsen, LLC or an affiliate thereof (the
"Developer"); and
WHEREAS, the Project is also the subject of the Development Plan for the Simonsen
Redevelopment Project (the “Development Plan”) and the Development Agreement
among the City, the Developer and the Jefferson Redevelopment Corporation (the
“Development Agreement”) approved by Ordinance No. _____ (Bill No. _____),
which Development Plan and Development Agreement allow for real property tax
abatement for the Project; and
WHEREAS, the Development Agreement also contemplates the issuance of the Bonds for the
purpose of facilitating a sales tax exemption on construction materials used to
construct the Project Improvements; and
WHEREAS, the City Council further finds and determines that it is necessary and desirable in
connection with the implementation of the Plan and the issuance of the Bonds that
the City enter into certain documents and take certain other actions as herein
provided.
NOW, THEREFORE, BE IT ENACTED BY THE COUNCIL OF THE CITY OF JEFFERSON,
MISSOURI, AS FOLLOWS:
Section 1. Approval of the Plan. The City Council hereby approves the Plan.
Section 2. Authorization for the Project. The City is hereby authorized to provide for the
purchase and construction of the Project, in the manner and as more particularly described in the
Indenture and the Lease Agreement hereinafter authorized.
Section 3. Authorization of the Bonds. The City is hereby authorized to issue and sell the
Bonds as described in the recitals hereto for the purpose of providing funds to pay the costs of
the Project. The Bonds shall be issued and secured pursuant to the Indenture and shall have
such terms, provisions, covenants and agreements as are set forth in the Indenture.
Section 4. Limitation on Liability. The Bonds and the interest thereon shall be limited
obligations of the City, payable solely out of certain payments, revenues and receipts derived by
the City from the Lease Agreement. Such payments, revenues and receipts shall be pledged and
assigned to the bond trustee named in the Indenture (the “Trustee”), as security for the payment
of the Bonds as provided in the Indenture. The Bonds and the interest thereon shall not constitute
general obligations of the City, the State of Missouri (the “State”) or any other political subdivision
thereof, and neither the City nor the State shall be liable thereon. The Bonds shall not constitute
an indebtedness within the meaning of any constitutional, statutory or charter debt limitation or
restriction and are not payable in any manner by taxation.
Section 5. Authorization of Documents. The City is hereby authorized to enter into the
following documents (collectively, the “City Documents”), in substantially the forms presented to
and approved by the City Council and attached to this Ordinance, with such changes therein as
shall be approved by the officials of the City executing the City Documents, such officials’
signatures thereon being conclusive evidence of their approval thereof:
(a) Base Lease between the City and the Developer, in substantially the form of
Exhibit B, attached hereto and incorporated herein by reference, pursuant to
which the Developer will lease the Project to the City pursuant to the terms and
conditions contained therein.
(b) Lease Agreement (the “Lease Agreement”) between the City and the Developer,
in substantially the form of Exhibit C, attached hereto and incorporated herein by
reference, pursuant to which the City will lease the Project to the Developer
pursuant to the terms and conditions contained therein, in consideration of rental
payments by the Developer that will be sufficient to pay the principal of and interest
on the Bonds.
(c) Trust Indenture (the “Indenture”) between the City and the Trustee, in substantially
the form of Exhibit D, attached hereto and incorporated herein by reference,
pursuant to which the Bonds will be issued and the City will pledge the Project and
assign certain of 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 set forth therein.
(d) Bond Purchase Agreement between the City and the Developer, in substantially
the form of Exhibit E, attached hereto and incorporated herein by reference,
pursuant to which the Developer will purchase the Bonds.
Section 6. Developer Substitution. Notwithstanding the forms of the City Documents
approved in substantially final form pursuant to Section 5, at the request of the Developer, any
entity controlled by the Developer or under common control with the Developer may be inserted
as the Developer in the City Documents prior to execution.
Section 7. Execution of Documents. The Mayor is hereby authorized 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 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 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 8. Further Authority. The City shall, and the officials, agents and employees of
the City are hereby authorized 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. The Mayor and the City Administrator are hereby
authorized, through the term of the Lease Agreement, to execute all documents on behalf of the
City (including documents pertaining to the financing or refinancing of the Project by the
Developer) as may be required to carry out and comply with the intent of this Ordinance, the
Indenture and the Lease Agreement. The Mayor and the City Administrator are further
authorized, on behalf of the City, to grant such consents, estoppels and waivers relating to the
Bonds, the Indenture or the Lease Agreement as may be requested during the term thereof;
provided, such consents, estoppels and/or waivers shall not increase the principal amount of the
Bonds, increase the term of the Lease Agreement or the economic incentives provided therein,
waive an event of default or materially change the nature of t he transaction. The City Clerk is
authorized to attest to and affix the seal of the City to any document authorized by this Section.
Section 9. Severability. It is hereby declared to be the intention of the City Council that
each and every part, section and subsection of this Ordinance shall be separate and severable
from each and every other part, section and subsection hereof and that the City Council intends
to adopt each said part, section and subsection separately and independently of any other part,
section or subsection. If any part, section or subsection of this Ordinance shall be determined to
be or to have been unlawful or unconstitutional, the remaining parts, sections and subsections
shall be and remain in full force and effect, unless the court making such finding shall determine
that the valid portions standing alone are incomplete and are incapable of being executed in
accord with the legislative intent.
Section 10. Effective Date. This Ordinance shall be in full force and effect from and after
the date of its passage and approval.
Passed: A
Presiding Officer
ATTEST:
Approved:
nt,4;14-
.z, 0 -02 -7 -
Mayor Carrie Tergin
APPROVED AS TO FORM:
EXHIBIT A
PLAN FOR AN INDUSTRIAL DEVELOPMENT PROJECT
(On file in the office of the City Clerk)
____________________________
JEFFERSON CITY, MISSOURI
PLAN FOR AN INDUSTRIAL DEVELOPMENT PROJECT
AND
COST-BENEFIT ANALYSIS
SIMONSEN REDEVELOPMENT PROJECT
_____________________________
TABLE OF CONTENTS
Page
I. PURPOSE OF THIS PLAN ......................................................................................................... 1
II. DESCRIPTION OF CHAPTER 100 FINANCINGS ................................................................ 1
General ........................................................................................................................................... 1
Issuance and Sale of Bonds .......................................................................................................... 1
Sales and Use Tax Exemption ...................................................................................................... 2
Property Tax Abatement .............................................................................................................. 2
III. DESCRIPTION OF THE PARTIES........................................................................................... 2
TD – Simonsen, LLC .................................................................................................................... 2
Jefferson City, Missouri ............................................................................................................... 2
IV. REQUIREMENTS OF THE ACT .............................................................................................. 2
Description of the Project ............................................................................................................. 2
Estimate of the Costs of the Project ............................................................................................ 2
Sources of Funds to be Expended for the Project ...................................................................... 2
Statement of the Terms Upon Which the Project is to be Leased or Otherwise
Disposed of by the City .......................................................................................................... 2
Affected School District, Community College District, Emergency Service
Providers, County and City ................................................................................................... 3
Current Assessed Valuation ......................................................................................................... 3
Payments in Lieu of Taxes ........................................................................................................... 3
Sales and Use Tax Exemption ...................................................................................................... 3
Cost-Benefit Analysis .................................................................................................................... 3
V. ASSUMPTIONS AND BASIS OF PLAN ................................................................................... 4
* * *
I. PURPOSE OF THIS PLAN
Jefferson City, Missouri (the “City”), intends to issue taxable industrial revenue bonds in a
principal amount not to exceed $25,000,000 (the “Bonds”) to finance the costs of a proposed industrial
development project (the “Project”) for the benefit of TD – Simonsen, LLC (including any affiliate of TD
– Simonsen, LLC used to implement the Project, the “Developer”). The Bonds will be issued pursuant to
the provisions of Sections 100.010 to 100.200 of the Revised Statutes of Missouri (“Chapter 100”),
Article VI, Section 27(b) of the Missouri Constitution (collectively with Chapter 100, the “Act”) and the
City Charter. The Bonds will initially be owned by the Developer and cannot be transferred, other than to
the Developer’s affiliates and lenders, without the City’s prior approval.
Gilmore & Bell, P.C. has prepared this Plan for an Industrial Development Project and Cost-
Benefit Analysis (this “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 revenue
bonds to finance the Project and to facilitate a sales and use tax exemption on construction materials used
to complete the Project.
II. DESCRIPTION OF CHAPTER 100 FINANCINGS
General. Chapter 100 authorizes cities, counties, towns and villages to issue industrial
development revenue 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, and industrial plants, including
the real estate either within or without the limits of such municipalities, buildings, fixtures, and
machinery. In addition, Article VI, Section 27(b) of the Missouri Constitution authorizes cities, counties,
towns and villages to issue revenue bonds for the purpose of paying all or part of the cost of purchasing,
constructing, extending or improving any facility for manufacturing, commercial, warehousing and
industrial development purposes, including the real estate, buildings, fixtures and machinery. Under
Attorney General Opinion 180-81, the Missouri Attorney General determined that the construction and
rental of multi-family apartments for profit is a commercial enterprise.
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 a lease or other disposition of the project.
The municipality issues its bonds and in exchange, the benefited company promises to make 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.
Concurrently with the closing of the bonds, the benefitted company will lease the site on which
the project will be located to the municipality. The municipality will immediately lease the project site
and the improvements thereon back to the benefited company pursuant to a lease agreement. The lease
agreement will require the benefitted company, acting on behalf of the municipality, to use the bond
proceeds to purchase and construct the project.
Under the lease agreement, the benefitted company typically: (1) unconditionally agrees to make
payments sufficient to pay the principal of and interest on the bonds as they become due; (2) agrees, 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) may, at its own expense, 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) covenants to maintain its
corporate existence during the term of the bond issue; and (6) agrees to indemnify the municipality for
certain liability the municipality might incur as a result of its participation in the transaction.
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Sales and Use Tax Exemption. The purpose of this Plan is to provide a sales and use tax
exemption on qualified building materials. Under the Act and other applicable state law, qualified
building materials can be exempt from sales and use tax if approved by the municipality. The sales and
use tax exemption is evidenced by a project exemption certificate issued by the municipality.
Property Tax Abatement. While the Act is often used to facilitate real or personal property tax
abatement, the Developer is not seeking, and this Plan does not authorize, any real or personal property
tax abatement or exemption. However, a separate Development Plan for the Simonsen Redevelopment
Project to the City, requesting 25 years of real property tax abatement pursuant to Chapter 353 of the
Revised Statutes of Missouri (“Chapter 353”) has been prepared. As required by Chapter 353, a written
tax impact statement regarding the proposed real property tax abatement will be provided to the affected
taxing districts.
III. DESCRIPTION OF THE PARTIES
TD – Simonsen, LLC. The Developer has been formed for the sole purpose of acquiring,
constructing and owning the Project. One of the Developer’s managers has been involved in several
similarly sized multi-family and mixed-use projects, including Wildhorse Village in Chesterfield,
Missouri, and Riverpointe in St. Charles, Missouri.
Jefferson City, Missouri. The City is a charter city and political subdivision of the State of
Missouri. The City is authorized and empowered pursuant to the provisions of the Act to purchase,
construct, extend, equip and improve certain projects (as defined in the Act), 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
A. Description of the Project. The Project consists of acquiring approximately 3.68 acres of
real property located at 501 E. Miller in the City (the “Project Site”) and renovating the existing historic
Simonsen school building thereon for use as approximately 60-75 residential apartments (the “Project
Improvements” and, together with the acquisition of the Project Site, the “Project”). The Project is
expected to be completed within 24 months of commencement.
B. Estimate of the Costs of the Project. The acquisition and construction of the Project are
estimated to cost approximately $23,000,000. The Bonds will be issued in the maximum principal
amount of $25,000,000 to provide for contingencies.
C. Sources 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 $25,000,000 and
other available funds of the Developer. 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. No tax
revenues will be used to repay the Bonds.
D. Statement of the Terms Upon Which the Project is to be Leased or Otherwise Disposed
of by the City. During construction of the Project Improvements, the City will lease or sublease the
Project to the Developer for lease payments equal to the principal of and interest on the Bonds. Under the
terms of the lease agreement with the City, the Developer will have the option to purchase the Project at
any time for nominal consideration. All leases or subleases entered into in furtherance of this Plan in
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connection with the Project Improvements will terminate following completion of the Project
Improvements.
E. Affected School District, Community College District, Emergency Service Providers,
County and City. The Jefferson City School District is the school district affected by the Project. No
community college, fire or ambulance districts are affected by the Project. Cole County, Missouri, is the
county affected by the Project. Jefferson City, Missouri, is the city affected by the Project. A Cost-
Benefit Analysis showing the impact of the proposed sales and use tax exemption on qualified building
materials is included below. As noted above, this Plan does not provide for real or personal property tax
abatement; however, a separate Development Plan submitted to the City pursuant to Chapter 353 requests
25 years of real property tax abatement. Accordingly, no property tax districts are impacted by this Plan,
except to the extent (1) such districts receive additional tax revenues associated with the Project’s
assessed value (after conclusion of the 25-year tax abatement period proposed pursuant to Chapter 353)
and (2) such districts also impose a sales or use tax. A written tax impact statement regarding the
Chapter 353 real property tax abatement will be provided to the affected taxing districts.
F. Current Assessed Valuation. The most recent equalized assessed valuation (2021) of the
real property included in the Project is $14,100. The total equalized assessed valuation of real property
included in the Project after construction of the Project Improvements is estimated to be approximately
$2,250,018.
G. Payments in Lieu of Taxes. This Plan does not provide for any real property tax
abatement or any payments in lieu of taxes. However, as noted above, a written tax impact statement
regarding real property tax abatement under Chapter 353 and associated payments in lieu of taxes will be
provided to the affected taxing districts.
H. Sales and Use Tax Exemption. Qualified building materials purchased for the
construction of the Project Improvements are expected to be exempt from sales and use tax pursuant to
the provisions of Section 144.062 of the Revised Statutes of Missouri and the Bond documents upon
delivery of a project exemption certificate by the City to the Developer.
I. Cost-Benefit Analysis. In compliance with Section 100.050.2(3) of the Revised Statutes
of Missouri, this Plan has been prepared to show the costs and benefits to the City and to other taxing
jurisdictions affected by the sales and use tax exemption for the Project. This Plan does not attempt to
quantify the overall economic impact of the Project.
The City will grant a sales and use tax exemption on the qualified building materials necessary to
construct the Project Improvements. For purposes of determining the impact of the exemption granted by
the City on the affected taxing jurisdictions, it was assumed that:
• $5,921,100 of the total costs of the Project Improvements will be allocated to construction
material costs;
• the applicable sales tax rate is 7.975%, of which 4.225% is allocated to the State of Missouri,
1.500% is allocated to Cole County and 2.250% is allocated to the City;
• the applicable use tax rate is 5.725%, of which 4.225% is allocated to the State of Missouri
and 1.500% is allocated to Cole County;
• 80% of the qualified construction materials will be subject to the State’s sales tax and 20%
will be subject to the State’s use tax;
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• 20% of the qualified construction materials will be subject to the County’s sales and use
taxes; and
• 20% of the qualified construction materials will be subject to the City’s sales tax.
Please note that any variance in these assumptions will alter the net fiscal impact of the sales and
use tax exemption on the affected taxing jurisdictions.
Based on the assumptions set forth above, the net fiscal impact of the sales and use tax exemption
on the qualified building materials granted by the City is approximately $312,338, allocated as follows:
Sales Tax Use Tax Total
State of Missouri $ 200,133 $ 50,033 $ 250,166
Cole County 17,763 17,763 35,527
Jefferson City 26,645 n/a 26,645
Total $ 244,541 $ 67,797 $ 312,338
The City believes that the Developer’s investment in the Project will create construction jobs
during the construction period, spur additional investment in the City and add to the City’s population.
The Project will also generate significant real property taxes after conclusion of the 25-year Chapter 353
abatement period and significant personal property taxes from residents of the Project. These ancillary
impacts were not measured for purposes of this Plan. This Plan does not attempt to quantify the overall
economic impact of the Project.
V. ASSUMPTIONS AND BASIS OF PLAN
As described herein, this Plan includes assumptions that impact the amount of the sales and use
tax exemption proposed for the Project.
In addition to the foregoing, in order to complete this Plan, Gilmore & Bell, P.C. has generally
reviewed and relied upon information furnished by, and has participated in conferences with,
representatives of the City and its counsel, representatives of the Developer and its counsel and other
persons as the firm has deemed appropriate. Gilmore & Bell, P.C. does not assume any responsibility for
the accuracy, completeness or fairness of any of the information provided by others and has not
independently verified the accuracy, completeness or fairness of such information.
* * *
EXHIBIT B
BASE LEASE
(On file in the office of the City Clerk)
Gilmore & Bell, P.C.
Draft – July 11, 2022
-------------------------------------------------------------------------------------------------------------------------------
(The above space is reserved for Recorder's Certification.)
TITLE OF DOCUMENT: BASE LEASE
DOCUMENT DATED AS OF: [*Date*], 2022
GRANTOR: TD – SIMONSEN, LLC
GRANTOR’S MAILING ADDRESS: P.O. Box 6331
Fishers, Indiana 46038
GRANTEE: CITY OF JEFFERSON, MISSOURI
GRANTEE’S MAILING ADDRESS: 320 E. McCarty
Jefferson City, Missouri 65101
RETURN DOCUMENTS TO: Mark A. Spykerman, Esq.
Gilmore & Bell, P.C.
211 North Broadway, Suite 2000
St. Louis, Missouri 63102
LEGAL DESCRIPTION: See Exhibit A
BASE LEASE
THIS BASE LEASE (this “Base Lease ”) is made and entered into as of [*Date*], 2022 (the
“Effective Date”), by and between TD – SIMONSEN, LLC , a limited liability company organized and
existing under the laws of the State of Missouri (the “Developer”), and the CITY OF JEFFERSON,
MISSOURI, a home-rule city organized and existing under its charter and the laws of the State of Missouri
(the “City”).
RECITALS:
A. The City is authorized and empowered pursuant to the provisions of Article VI, Section
27(b) of the Missouri Constitution and Sections 100.010 through 100.200 of the Revised Statutes of
Missouri (collectively, the “Act”) and the City Charter to purchase, construct, extend and improve certain
projects (as defined in the Act), 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, office industry, warehousing and industrial development
purposes upon such terms and conditions as the City deems advisable. Under Attorney General Opinion
180-81, the Missouri Attorney General determined that the construction and rental of multi -family
apartments for profit is a commercial enterprise.
B. Pursuant to the Act, the City Council passed Ordinance No. _____ on ___________,
2022 (the “Ordinance”), authorizing the City to issue its T axable Industrial Revenue Bonds (Simonsen
Redevelopment Project), Series 2022, in the maximum principal amount of $25,000,000 (the “Bonds”),
for the purpose of (a) acquiring a leasehold interest in approximately 4.59 acres of real property located
at 501 E. Miller Street in the City (as legally described on Exhibit A, the “Project Site”) and (b)
renovating the existing historic school building located thereon for use as approximately 60-75
residential apartments and amenity space (the “Project Improvements”).
C. Pursuant to the Act and the Ordinance, the City is authorized to (a) enter into a Trust
Indenture of even date herewith with [*Trustee*], as trustee, for the purpose of issuing and securing
the Bonds, as therein provided, (b) enter into this Base Lease with the Developer under which the City
will acquire a leasehold interest in the Project Site and (c) enter into a Lease Agreement of even date
herewith (the “Lease”) with the Developer under which the City will, or will cause the Develope r to,
construct the Project Improvements and will lease the Project Improvements, as they may at any time
exist, together with the City’s leasehold interest in the Project Site (collectively, the “Project”) to the
Developer in consideration of rental payme nts by the Developer that will be sufficient to pay the
principal of and interest on the Bonds .
D. In connection with the issuance of the Bonds and the execution of the Lease, the City has
agreed to cooperate with the Developer and the contractors for the Project Improvements in acquiring the
benefits of sales tax exemption for purchases of materials used to construct the Project Improvements.
E. The Developer desires to lease the Project to the City, and the City desires to lease the
Project from the Developer and to acquire and hold a leasehold interest for the term of this Base Lease
as more fully described in this Base Lease.
NOW, THEREFORE , in consideration of the premises and the mutual representations, covenants
and agreements herein contained, the City and the Developer do hereby represent, covenant and agree as
follows:
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Section 1. Definitions . In addition to any words and terms defined elsewhere in this Base
Lease, capit alized words and terms used in this Base Lease shall have the meanings given to such terms
in the Lease.
Section 2. 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 an incorporated political subdivision of the State of Missouri.
(b) Under the provisions of the Act and the City Charter, the City has lawful power
and authority to enter into the transactions contemplated by this Base Lease and to carry out its
obligations hereunder.
(c) By proper action of its governing body, the City has been duly authorized to
execute and deliver this Base Lease, acting by and through its duly authorized officers.
Section 3. Representations by the Developer. The Developer makes the following
representations as the basis for the undertakings on its part herein contained:
(a) The Developer is a limited liability company validly existing and in good standing
under the laws of the State of Missouri.
(b) The Developer has lawful power and authority to enter into this Base Lease and to
carry out its obligations hereunder, and the Developer has been duly authorized to execute and
deliver this Base Lease, acting by and through its duly authorized officers and representatives.
(c) The Developer is the owner of the Project Site and is permitted to lease the Project
to the City pursuant to this Base Lease.
Section 4. Lease Term. This Base Lease shall become effective upon execution and delivery
and, subject to earlier termination pursuant to the provisions of this Base Lease, shall have a term
commencing as of the date of this Base Lease and terminating simultaneously with the termination of the
Lease.
Section 5. Granting of Leasehold Estate. The Developer hereby rents, leases and lets the
Project to the City, and the City hereby rents, leases and hires the Project from the Developer, subject to
Permitted Encumbrances existing as of the date of the execution and delivery hereof, for the rentals and
upon and subject to the terms and conditions herein contained.
Section 6. Rent. In addition to the City’s obligations under the Lease and the
Development Agreement , the City hereby agrees to pay to the Developer annual rent under this Base
Lease (the “Rent”) equal to One Dollar and no/100 ($1.00 ), which shall be due on the date of this Base
Lease and on each January 1 thereafter during the term of this Base Lease . The Developer hereby
acknowledges that it has received the Rent due on the date of this Base Lease .
Section 7. Use and Possession of the Project. The City will have the rights of use and
possession of the Project only to the extent permitted by the Lease.
Section 8. Assignability. The City will not assign, sublease, mortgage or otherwise
transfer or encumber its interest in this Base Lease except to the Developer pursuant to the Lease .
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Section 9. Repairs and Maintenance. The Developer shall, at its sole cost and expense,
maintain and repair the Project , and all portions thereof and improvements there to, to the extent
required by the Lease. In no event shall the City be required to make any repairs, improvements,
additions, replacements, reconstructions or other changes to the Project or perform any maintenance
thereon.
Section 10. Taxes. Pursuant to Section 6.2 of the Lease , the Developer shall promptly pay
all taxes or other governmental charges, that if unpaid, would encumber the City’s leasehold interest
in the Project.
Section 11. Insurance . The Developer shall maintain the insurance policies required by
Article VII of the Lease .
Section 12. Condemnation. If, at any time during the term of this Base Lease, there shall
be a total or partial taking of the Project in condemnation proceedings or by any right of eminent
domain or by sale in lieu thereof, the parties shall have the rights and obligations provided in the Lease,
and this Base Lease shall terminate only to the extent and in the manner provided in the Lease.
Section 13. Surrender of the Project. Except as otherwise expressly provided in this Base
Lease, the City shall surrender and deliver up the Project and all associated improvements to the
Developer at the expiration or other termination of this Base Lease, to the limited extent that the City
may have any rights to possession thereof as expressly provided herein, without fraud or delay.
Section 14. Notices. Any and all notices, demands, requests, submissions, approvals,
consents, disapprovals, objections, offers or other communications or documents required to be given,
delivered or served or which may be given, delivered or served under or by the terms and provisions
of this Base Lease or pursuant to law or otherwise, shall be made in the form and manner provided in
the Lease.
Section 15. Developer’s Right to Terminate. The Developer may terminate this Base
Lease at any time by exercising its option to purchase the Ci ty’s interest in the Project pursuant to
Article XI of the Lease.
Section 16. Conflict with the Lease . In the event of any conflict between the terms hereof
and the terms of the Lease, the terms of the Lease shall control.
Section 17. Limitation on Liability of City. No provision, covenant or agreement contained
in this Base Lease or any obligation herein 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. Such limitation shall not apply to any liability or charge directly
resulting from the City’s breach of any material provision, covenant or agreement contained herein.
Section 18. Governing Law. This Base Lease shall be construed in accordance with and
governed by the laws of the State of Missouri.
Section 19. Binding Effect. This Base Lease shall be binding upon and shall inure to the
benefit of the City and the Developer and their respective successors and assigns.
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Section 20. Severability. If for any reason any provision of this Base Lease is determined to
be invalid or unenforceable, the validity and enforceability of the other provisions hereof shall not be
affected thereby.
Section 21. Execution in Counterparts. This Base Lease may be executed 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 22. Electronic Storage. The parties agree that the transaction described herein may
be conducted and related documents may be sent, received or 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 23. Subordination of Base Lease. By its execution hereof, each of the Developer and
the City hereby agree that this Base Lease shall be, is and shall continue to be, subordinate and inferior to
that certain Deed of Trust dated __________, 2022, executed by the Developer for the benefit of [*Lender*]
(the “Fee Deed of Trust”) until all [*Obligations*] (as such term is defined in the Fee Deed of Trust) have
been indefeasibly paid and performed in full, including but not limited to, all future advances and future
obligations secured by the Fee Deed of Trust. Such subordination shall be self-operative and shall be
irrespective of the time, manner, order of recording or perfection or any other priority that ordinarily would
result under the Uniform Commercial Code as enacted in each and every applicable jurisdiction, and as
amended from time to time, and other applicable law for the order of granting or perfecting any security
interests referred to herein.
Section 24. Anti-Discrimination Against Israel Act. Pursuant to Section 34.600 of the
Revised Statutes of Missouri, the Developer certifies it is not currently engaged in and shall not, for the
duration of this Base Lease, engage in a boycott of goods or services from (a) the State of Israel,
(b) companies doing business in or with the State of Israel or authorized by, licensed by or organized under
the laws of the State of Israel or (c) persons or entities doing business in the State of Israel.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF , the parties hereto have executed this Base Lease as of the
Effective Date.
TD – SIMONSEN, LLC,
a Missouri limited liability company
By:
Jeffrey J. Tegethoff, Manager
ACKNOWLEDGMENT
STATE OF __________ )
) SS.
COUNTY OF __________ )
On this _____ day of __________, 2022, before me, the undersigned, a Notary Public in and for
said State, appeared JEFFREY J. TEGETHOFF, to me personally known, who, being by me duly sworn,
did say that he is the Manager of TD – SIMONSEN, LLC, a Missouri limited liability company, and that
said instrument was signed on behalf of said company by authority of its governing body, and said officer
acknowledged said instrument to be executed for the purposes therein stated and as the free act and deed of
said company.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal in the
County and State aforesaid, the day and year first above written.
Name:
Notary Public in and for said State
My Commission Expires:
PLEASE AFFIX SEAL FIRMLY AND CLEARLY IN THIS BOX
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CITY OF JEFFERSON, MISSOURI
(SEAL)
By:
Carrie Tergin, Mayor
Attest:
Emily Donaldson, City Clerk
ACKNOWLEDGMENT
STATE OF MISSOURI )
) SS.
COUNTY OF COLE )
On this _____ day of __________, 2022, before me, the undersigned, a Notary Public in and for
said State, appeared CARRIE TERGIN, to me personally known, who, being by me duly sworn, did say
that she is the Mayor of the CITY OF JEFFERSON, MISSOURI, a home-rule city and political
subdivision of the State of 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 by authority of its City Council, and said
officer acknowledged said instrument to be executed for the purposes therein stated and as the free act and
deed of said City.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal in the
County and State aforesaid, the day and year first above
Name:
Notary Public in and for said State
My Commission Expires:
PLEASE AFFIX SEAL FIRMLY AND CLEARLY IN THIS BOX
[Base Lease]
EXHIBIT A
LEGAL DESCRIPTION OF PROJECT SITE
The land situated in the County of Cole, State of Missouri, and described as follows:
EXHIBIT C
LEASE AGREEMENT
(On file in the office of the City Clerk)
Gilmore & Bell, P.C.
Draft – July 11, 2022
CITY OF JEFFERSON, MISSOURI,
As Lessor,
AND
TD – SIMONSEN, LLC,
As Lessee
____________
LEASE AGREEMENT
Dated as of [*Date*], 2022
____________
Relating to:
$25,000,000
(Aggregate Maximum Principal Amount)
City of Jefferson, Missouri
Taxable Industrial Revenue Bonds
(Simonsen Redevelopment Project)
Series 2022
Certain rights of the City of Jefferson, Missouri (the “City”), in this Lease Agreement have been
pledged and assigned to [*Trustee*], as trustee under the Trust Indenture dated as of [*Date*], 2022,
between the City and the Trustee.
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1. Definitions of Words and Terms ......................................................................................... 2
Section 1.2. Rules of Interpretation ........................................................................................................ 2
Section 1.3. Incorporation ....................................................................................................................... 3
ARTICLE II
REPRESENTATIONS
Section 2.1. Representations by the City ................................................................................................ 3
Section 2.2. Representations by the Developer ...................................................................................... 4
ARTICLE III
GRANTING PROVISIONS
Section 3.1. Granting of Leasehold Estate .............................................................................................. 4
Section 3.2. Lease Term ......................................................................................................................... 4
Section 3.3. Possession and Use of the Project ....................................................................................... 4
ARTICLE IV
PURCHASE AND CONSTRUCTION OF THE PROJECT
Section 4.1. Issuance of the Bonds ......................................................................................................... 5
Section 4.2. Purchase and Construction of the Project ........................................................................... 5
Section 4.3. Project Costs ....................................................................................................................... 6
Section 4.4. Payment for Project Costs ................................................................................................... 6
Section 4.5. Establishment of Completion Date ..................................................................................... 6
Section 4.6. Surplus in Project Fund ....................................................................................................... 6
Section 4.7. Project Property of the City ................................................................................................ 7
Section 4.8. Non-Project Improvements, Machinery and Equipment Property of the Developer .......... 7
ARTICLE V
RENT PROVISIONS
Section 5.1. Basic Rent ........................................................................................................................... 7
Section 5.2. Additional Rent ................................................................................................................... 8
Section 5.3. Obligations of the Developer Absolute and Unconditional ................................................ 8
Section 5.4. Prepayment of Basic Rent ................................................................................................... 9
(ii)
ARTICLE VI
MAINTENANCE, TAXES AND UTILITIES
Section 6.1. Maintenance and Repairs .................................................................................................... 9
Section 6.2. Taxes, Assessments and Other Governmental Charges ...................................................... 9
Section 6.3. Utilities.............................................................................................................................. 10
ARTICLE VII
INSURANCE
Section 7.1. Title Commitment ............................................................................................................. 10
Section 7.2. Casualty Insurance ............................................................................................................ 10
Section 7.3. Public Liability Insurance ................................................................................................. 11
Section 7.4. Blanket Insurance Policies ................................................................................................ 11
Section 7.5. Worker’s Compensation ................................................................................................... 11
Section 7.6. Sovereign Immunity ......................................................................................................... 11
ARTICLE VIII
ALTERATION OF THE PROJECT
Section 8.1. Additions, Modifications and Improvements to the Project ............................................. 11
Section 8.2. Additional Improvements on the Project Site ................................................................... 12
Section 8.3. Permits and Authorizations ............................................................................................... 12
Section 8.4. Mechanics’ Liens .............................................................................................................. 12
ARTICLE IX
DAMAGE, DESTRUCTION AND CONDEMNATION
Section 9.1. Damage or Destruction ..................................................................................................... 13
Section 9.2. Condemnation ................................................................................................................... 14
Section 9.3. Bondowner Approval ........................................................................................................ 15
ARTICLE X
SPECIAL COVENANTS
Section 10.1. No Warranty of Condition or Suitability by the City; Exculpation and Indemnification . 16
Section 10.2. Surrender of Possession .................................................................................................... 16
Section 10.3. Right of Access to the Project ........................................................................................... 16
Section 10.4. Granting of Easements; Leasehold Mortgages and Financing Arrangements .................. 17
Section 10.5. Indemnification of City and Trustee ................................................................................. 19
Section 10.6. Depreciation, Investment Tax Credit and Other Tax Benefits .......................................... 20
Section 10.7. Developer to Maintain its Existence ................................................................................. 20
Section 10.8. Security Interests ............................................................................................................... 20
Section 10.9. Environmental Matters, Warranties, Covenants and Indemnities Regarding
Environmental Matters ..................................................................................................... 20
(iii)
ARTICLE XI
OPTION AND OBLIGATION TO PURCHASE THE PROJECT
Section 11.1. Option to Purchase the Project .......................................................................................... 22
Section 11.2. Conveyance of the Project ................................................................................................ 23
Section 11.3. Relative Position of Option and Indenture ........................................................................ 23
Section 11.4. Obligation to Purchase the Project .................................................................................... 23
Section 11.5. Right to Set-Off ................................................................................................................ 23
ARTICLE XII
DEFAULTS AND REMEDIES
Section 12.1. Events of Default .............................................................................................................. 24
Section 12.2. Remedies on Default ......................................................................................................... 25
Section 12.3. Survival of Obligations ..................................................................................................... 25
Section 12.4. Performance of the Developer’s Obligations by the City ................................................. 25
Section 12.5. Rights and Remedies Cumulative ..................................................................................... 26
Section 12.6. Waiver of Breach .............................................................................................................. 26
Section 12.7. Trustee’s Exercise of the City’s Remedies ....................................................................... 26
ARTICLE XIII
ASSIGNMENT AND SUBLEASE
Section 13.1. Assignment; Sublease ....................................................................................................... 26
Section 13.2. Assignment of Revenues by City ...................................................................................... 27
Section 13.3. Prohibition Against Leasehold Mortgage of Project ......................................................... 27
Section 13.4. Restrictions on Sale or Encumbrance of Project by City .................................................. 27
ARTICLE XIV
AMENDMENTS, CHANGES AND MODIFICATIONS
Section 14.1. Amendments, Changes and Modifications ....................................................................... 28
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.1. Notices .............................................................................................................................. 28
Section 15.2. City Shall Not Unreasonably Withhold Consents and Approvals .................................... 29
Section 15.3. Net Lease .......................................................................................................................... 29
Section 15.4. Limitation on Liability of City .......................................................................................... 30
Section 15.5. Governing Law ................................................................................................................. 30
Section 15.6. Binding Effect ................................................................................................................... 30
Section 15.7. Severability ....................................................................................................................... 30
Section 15.8. Execution in Counterparts................................................................................................. 30
Section 15.9. Electronic Transaction ...................................................................................................... 30
Section 15.10. City Consent ..................................................................................................................... 30
(iv)
Section 15.11. Subordination of Lease ..................................................................................................... 30
Section 15.12. Anti-Discrimination Against Israel Act ............................................................................ 30
Signatures and Seal ........................................................................................................... 32
Exhibit A - Project Site
Exhibit B - Form of Requisition Certificate
LEASE AGREEMENT
THIS LEASE AGREEMENT, dated as of [*Date*], 2022 (this “Lease”), between the CITY OF
JEFFERSON, MISSOURI, a home-rule city organized and existing under its charter and the laws of the
State of Missouri (the “City”), as lessor, and TD – SIMONSEN, LLC, a limited liability company
organized and existing under the laws of the State of Missouri (the “Developer”), as lessee;
RECITALS:
1. The City is authorized and empowered pursuant to the provisions of Article VI, Section
27(b) of the Missouri Constitution and Sections 100.010 through 100.200 of the Revised Statutes of
Missouri (collectively, the “Act”) and the City Charter to purchase, construct, extend and improve certain
projects (as defined in the Act), 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, office industry, warehousing and industrial development
purposes upon such terms and conditions as the City deems advisable. Under Attorney General Opinion
180-81, the Missouri Attorney General determined that the construction and rental of multi-family
apartments for profit is a commercial enterprise.
2. Pursuant to the Act, the City Council passed Ordinance No. _____ on ________, 2022 (the
“Ordinance”), authorizing the City to issue its Taxable Industrial Revenue Bonds (Simonsen
Redevelopment Project), Series 2022, in the maximum principal amount of $25,000,000 (the “Bonds”), for
the purpose of (a) acquiring a leasehold interest in approximately 4.59 acres of real property located at 501
E. Miller Street in the City (as legally described on Exhibit A, the “Project Site”) and (b) renovating the
historic school building located thereon for use as approximately 60-75 residential apartments and amenity
space (the “Project Improvements”).
3. Pursuant to the Act and the Ordinance, the City is authorized to (a) enter into a Trust
Indenture of even date herewith (the “Indenture”) with [*Trustee*], as trustee (the “Trustee”), for the
purpose of issuing and securing the Bonds, as therein provided, (b) enter into a Base Lease of even date
herewith (the “Base Lease”) with the Developer under which the City will acquire a leasehold interest in
the Project Site and (c) enter into this Lease with the Developer under which the City will, or will cause the
Developer to, construct the Project Improvements and will lease the Project Improvements, as they may at
any time exist, together with the City’s leasehold interest in the Project Site (collectively, the “Project”) to
the Developer in consideration of rental payments by the Developer that will be sufficient to pay the
principal of and interest on the Bonds.
4. The City and the Developer acknowledge and agree that title to the Project is subject and
subordinate to the Deed of Trust (the “Fee Deed of Trust”) granted by the Developer to [*Lender*] and its
successors and assigns (the “Lender”), pursuant to various loan documents (the “Loan Documents”)
evidencing the loan made by the Lender and secured by the Fee Deed of Trust.
5. In consideration of the terms and conditions of this Lease, the Ordinance, issuance of the
Bonds and certain other agreements, the City, the Jefferson Redevelopment Corporation and the Developer
have concurrently herewith entered into a Development Agreement of even date herewith (the
“Development Agreement”).
6. Pursuant to the foregoing, the City desires to lease the Project to the Developer and the
Developer desires to lease the Project from the City, for the rentals and upon the terms and conditions
hereinafter set forth.
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NOW, THEREFORE, in consideration of the premises and the mutual representations, covenants
and agreements herein contained, the receipt and sufficiency of which are hereby acknowledged, the City
and the Developer 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, capitalized words and terms used in this Lease shall have the meanings given to
such words and terms in Section 101 of the Indenture (which definitions are hereby incorporated by
reference).
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 otherwise indicates, 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 other 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.
(g) Whenever the City is required to “cooperate,” “cooperate fully” or “act promptly” on a
matter set forth in this Lease, the City’s cooperation shall be deemed to be reasonable cooperation and the
City’s promptness shall be deemed to be reasonable promptness; provided, however, the City shall not be
required to incur any costs, expenses, obligations or liabilities in providing such reasonable cooperation
and promptness.
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Section 1.3. Incorporation.
(a) The Recitals hereof are all incorporated into this Lease as if fully and completely set out in
this Section.
(b) The Exhibits to this Lease are hereby incorporated into and made a part of this Lease.
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 an incorporated political subdivision duly organized and validly
existing under the laws of the State of Missouri and the City Charter. 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 City Council, 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 a leasehold interest in
the Project Site pursuant to the Base Lease and to construct or cause the construction of the Project
Improvements. The City agrees to lease the Project to the Developer and to sell the Project to the
Developer if the Developer exercises its option to purchase the Project or upon termination of this
Lease, all for the purpose of furthering the public purposes of the Act.
(c) To the City’s knowledge, no member of the City Council or any other officer of
the City has any significant or conflicting interest, financial, employment or otherwise, in the
Developer or in the transactions contemplated hereby.
(d) 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.
(e) The Bonds are to be issued under and secured by the Indenture, pursuant to which
the Project and the net earnings therefrom, consisting of 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 and amounts owing
pursuant to this Lease.
(f) The City will not knowingly take any affirmative action that would permit 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 Developer
Representative; provided, however, the City’s execution of this Lease, the Base Lease, the
Indenture and the Development Agreement shall not be deemed to violate this Section 2.1(f).
(g) The City will not operate the Project as a business or in any other manner except
as the lessor thereof.
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Section 2.2. Representations by the Developer. The Developer makes the following
representations as the basis for the undertakings on its part herein contained:
(a) The Developer is a limited liability company duly organized, validly existing and
in good standing under the laws of the State of Missouri.
(b) The Developer has lawful power and authority to enter into this Lease and to carry
out its obligations hereunder, and the Developer has been duly authorized to execute and deliver
this Lease, acting by and through its duly authorized officers and representatives.
(c) The execution and delivery of this Lease, the consummation of the transactions
contemplated hereby and the performance of or compliance with the terms and conditions of this
Lease by the Developer will not, to the Developer’s knowledge, conflict with or result in a breach
of any of the terms, conditions or provisions of, or constitute a default under, any mortgage, deed
of trust, lease or any other restrictions or any agreement or instrument to which the Developer is a
party or by which it or any of its property is bound, or the Developer’s organizational documents,
or any order, rule or regulation applicable to the Developer or any of its property of any court or
governmental body, or constitute a default under any of the foregoing, or result in the creation or
imposition of any prohibited lien, charge or encumbrance of any nature whatsoever upon any of
the property or assets of the Developer under the terms of any instrument or agreement to which
the Developer is a party.
(d) The Project will comply in all material respects with all applicable building and
zoning, health, environmental and safety orders and laws and all other applicable laws, rules and
regulations.
ARTICLE III
GRANTING PROVISIONS
Section 3.1. Granting of Leasehold Estate. The City hereby exclusively rents, leases and lets
the Project to the Developer, and the Developer hereby rents, leases and hires the Project from the City,
subject to the Base Lease and other Permitted Encumbrances existing as of the date of the execution and
delivery hereof, for the rentals and upon and subject to the terms and conditions herein contained. The City
and the Developer agree and acknowledge that title to the Project is subject to the lien granted to the Lender
by the Developer and no further notice of the Fee Deed of Trust is required for the Lender to have all Lender
rights and protections provided herein and in the Indenture.
Section 3.2. Lease Term. This Lease shall become effective upon its execution and delivery.
Subject to earlier termination pursuant to the provisions of this Lease, the lease of the Project shall terminate
on December 31, 2024.
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 following the occurrence and continuance of an Event of
Default, as defined in Section 12.1, the Developer 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) and shall and may peaceably and quietly have, hold and enjoy the Project during the Lease
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Term. The City covenants and agrees that it will not take any action, other than expressly pursuant to
Article XII, the Indenture, the Base Lease and the Development Agreement to prevent the Developer from
having quiet and peaceable possession and enjoyment of the Project during the Lease Term and will, at the
request and expense of the Developer, cooperate with the Developer to defend the Developer’s quiet and
peaceable possession and enjoyment of the Project.
(b) Subject to the provisions of this Section, the Developer shall have the exclusive right to
use the Project for any lawful purpose contemplated by the Act and consistent with the terms of the
Development Agreement. The Developer shall comply in all material respects with all statutes, laws,
ordinances, orders, judgments, decrees, regulations, directions and requirements of all federal, state, local
and other governments or governmental authorities, now or hereafter applicable to the Project, as to the
manner of use or the condition of the Project, or that otherwise may be applicable by virtue of the City’s
interest in the Project. The Developer shall also comply with the mandatory requirements, rules and
regulations of all insurers under the policies carried under the provisions of Article VII. The Developer
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 Developer to comply with the provisions of this Section.
Notwithstanding any provision contained in this Section, however, the Developer may, at its own cost and
expense, contest or review by legal or other appropriate procedures the validity or legality of any such
governmental statute, law, ordinance, order, judgment, decree, regulation, direction or requirement, or any
such requirement, rule or regulation of an insurer, and during such contest or review the Developer may
refrain from complying therewith.
ARTICLE IV
PURCHASE AND CONSTRUCTION OF THE PROJECT
Section 4.1. Issuance of the Bonds. To provide funds for the payment of Project Costs, the
City agrees that, upon request of the Developer, it will issue, sell and cause to be delivered the Bonds to the
purchaser thereof in accordance with the provisions of the Indenture and the Bond Purchase Agreement.
Section 4.2. Purchase and Construction of the Project. The City and the Developer agree
that the Developer, as the agent of the City, shall, but solely from the Project Fund, purchase and construct
the Project as follows:
(a) The City will acquire a leasehold interest in the Project Site at the execution hereof.
Concurrently with the execution of this Lease, (i) the Base Lease will be executed by the City and
the Developer and placed of record, and (ii) the commitment for title insurance or ownership and
encumbrance report required by Article VII will be delivered to the City and the Trustee.
(b) On behalf of the City, the Developer will purchase and construct the Project
Improvements on the Project Site and otherwise improve the Project Site in accordance with the
Plans and Specifications. The Developer may revise the Plans and Specifications from time to time
as it deems necessary to carry out the Project, but revisions that affect the status of the Project as a
“project” under the Act or that would materially alter the accuracy of the description of the Project
in the Plan for an Industrial Development Project and Cost/Benefit Analysis distributed under the
Act may be made only with the prior written approval of the City. The Developer 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 Developer for its purposes, and that all real and
-6-
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 any of the provisions of Article VIII.
(c) The Developer will comply with the provisions of Section 107.170 of the Revised
Statutes of Missouri to the extent applicable to the construction of the Project.
(d) The Developer will cause the purchase and construction of the Project to be
completed on or before the Completion Date, except as otherwise provided in Section 4.5.
(e) The Project Improvements shall be constructed in a good and workmanlike manner
and in strict compliance with all applicable laws, orders and ordinances.
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. The Developer may not submit any
requisition certificates for Project Costs incurred after the Completion Date. The Developer must submit
all requisition certificates for Project Costs incurred before the Completion Date within three months after
the Completion Date. The maximum amount of Project Costs for which requisitions may be submitted is
expressly limited to $25,000,000.
Section 4.4. Payment for Project Costs. The City hereby authorizes and directs the Trustee
to make disbursements from the Project Fund and to endorse the Bonds, upon receipt by the Trustee of
certificates in substantially the form of Exhibit B, signed by the Authorized Developer Representative and
approved by the Authorized City Representative. Upon request by the City, the Developer shall provide
the City with copies of invoices, bills, lien waivers and other reasonable documentation to support each
submitted requisition certificate. The Trustee may rely conclusively on any such certificate and shall not
be required to make any independent inspection or investigation in connection therewith. T he approval of
any requisition certificate by the Authorized Developer Representative and the Authorized City
Representative shall constitute, unto the Trustee, an irrevocable determination that all conditions precedent
to the payments requested have been completed.
Section 4.5. Establishment of Completion Date. The Completion Date shall be evidenced to
the City and the Trustee by a certificate signed by the Authorized Developer Representative stating (a) that
the purchase and construction of the Project have been substantially completed in accordance with the Plans
and Specifications, (b) the date of completion thereof, and (c) that all costs and expenses of the purchase
and construction of the substantial completion of the Project have been incurred. Notwithstanding the
foregoing, such certificate shall be deemed given on June 30, 2024 if not actually filed with the City by
June 30, 2024, subject to any delay permitted by Section 2.2 of the Development Agreement (a “Permitted
Excuse”). No Permitted Excuse shall be deemed to exist unless the Developer provides written notice to
the City, within 30 days after the Developer has actual notice of the claimed event, specifying the Permitted
Excuse. In no event shall a Permitted Excuse extend the Completion Date beyond December 31, 2024.
The Developer and the City agree to cooperate in causing such certificate to be furnished to the Trustee.
Section 4.6. Surplus in Project Fund. Upon receipt of the certificate described in Section 4.5
and payment from the Project Fund of the Project Costs described therein, the Trustee shall, as provided in
Section 504 of the Indenture, transfer any remaining moneys then in the Project Fund to the Bond Fund to
be applied as directed by the Developer solely to (a) the payment of principal and premium, if any, of the
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 (b) at the option of the Developer,
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to the purchase of Bonds at such earlier date or dates as the Developer may elect. Any amount so deposited
in the Bond Fund may be invested as permitted by Section 702 of the Indenture.
Section 4.7. Project Property of the City. The Project Site and the Project Improvements
located thereon at the execution hereof which the Developer desires to lease to the City, all work and
materials related to the Project 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 Developer
under the provisions of this Lease, except as otherwise specifically provided herein, shall immediately when
erected or installed become the absolute leasehold property of the City, subject only to Permitted
Encumbrances, the Fee Deed of Trust and the Leasehold Mortgage, if any. Upon reasonable request and at
the expense of the Developer, the City agrees to cooperate with the Developer regarding the enforcement
of any claims the Developer may have against third parties relating to the purchase and construction of the
Project.
Section 4.8. Non-Project Improvements, Machinery and Equipment Property of the
Developer. Any improvements or items of machinery or equipment which do not constitute a part of the
Project and the entire purchase price of which is paid for by the Developer with the Developer’s own funds,
and no part of the purchase price of which is paid for from funds deposited pursuant to th e terms of this
Lease in the Project Fund, shall be the property of the Developer and shall not constitute a part of the
Project.
ARTICLE V
RENT PROVISIONS
Section 5.1. Basic Rent. The Developer covenants and agrees to pay to the Trustee in same
day funds for the account of the City during the Lease Term, on or before 11:00 a.m., Trustee’s local time,
on each Payment Date, as Basic Rent for the Project, an amount which, when added to any collected funds
then on deposit in the Bond Fund and available for the payment of principal of the Bonds and the interest
thereon on such Payment Date, shall be equal to the amount payable on such Payment Date as principal of
the Bonds and the interest thereon as provided in the Indenture. Except as offset pursuant to the right of
the Developer set forth below, 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. In furtherance of the foregoing, and notwithstanding any other provision in this Lease, the
Base Lease, the Indenture, the Bond Purchase Agreement or the Development Agreement to the contrary,
and provided that the Developer is the sole holder of the Bonds, the Developer may set-off the then-current
Basic Rent payment against the City’s obligation to the Developer as bondholder to pay principal of and
interest on the Bonds under the Indenture in lieu of delivery of the Basic Rent on any Payment Date, without
providing notice of such set-off to the Trustee. The Trustee may conclusively rely on the absence of any
notice from the Developer to the contrary as evidence that such set-off has occurred and that pursuant to
the set-off, the City is deemed to have paid its obligation to the Developer as bondholder to pay principal
of and interest on the Bonds under the Indenture. On the final Payment Date, the Developer will (a) if the
Trustee holds the Bonds, notify the Trustee of the Bonds not previously paid that are to be canceled or (b) if
an entity other than the Trustee holds the Bonds, deliver or cause to be delivered to the Trustee for
cancellation Bonds not previously paid. The Developer shall receive a credit against the Basic Rent payable
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by the Developer 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 Developer shall pay as Additional Rent, within 30 days
after receiving an itemized invoice therefor, the following amounts:
(a) all fees, charges and expenses, including agent and counsel fees and expenses, of
the City, the Trustee and the Paying Agent incurred under or arising from the Indenture, this Lease ,
the Base Lease or the Development Agreement, including, but not limited to, claims by contractors
or subcontractors, as and when the same becomes due;
(b) all costs incident to the issuance of the Bonds (which are to be paid on the Closing
Date) and the payment of the principal of and interest on the Bonds as the same becomes due and
payable, including all costs and expenses in connection with the call, redemption and payment of
all Outstanding Bonds;
(c) all fees, charges and expenses incurred in connection with the enforcement of any
rights under this Lease, the Base Lease, the Indenture or the Development Agreement by the City,
the Trustee or the Owners, including counsel fees and expenses; and
(d) all other payments of whatever nature which the Developer has agreed in writing
to pay or assume under the provisions of this Lease, the Base Lease, the Development Agreement
or the Indenture.
Section 5.3. Obligations of the Developer Absolute and Unconditional.
(a) The obligations of the Developer under this Lease to make payments of Basic Rent and
Additional Rent on or before the date the same becomes 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 (except as described in Section 5.1), 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 has been started or completed, or
whether the City’s interest therein 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 Developer’s use thereof, the eviction or constructive
eviction of the Developer, 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; provided, however,
that nothing in this Section 5.3 is intended or shall be deemed to affect or impair in any way the rights of
the Developer to tender Bonds for redemption in satisfaction of Basic Rent as provided in Section 5.1 and
Section 5.4, nor the right of the Developer to repurchase the Project and terminate this Lease as provided
in Article XI.
(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 Developer of any rights or claims the Developer
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 Developer shall be unconditionally
and absolutely obligated to perform fully all of its obligations, agreements and covenants under this Lease
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(including the obligation to pay Basic Rent and Additional Rent) for the benefit of the Owners and the City.
The Developer 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
Developer deems reasonably necessary in order to secure or protect its right of possession, occupancy and
use hereunder, and in such event the City hereby agrees, at the Developer’s expense, to cooperate fully with
the Developer and to take all action necessary to effect the substitution of the Developer for the City in any
such action or proceeding if the Developer shall so request.
Section 5.4. Prepayment of Basic Rent.
(a) The Developer 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 Developer shall not be obligated to make payments of Basic Rent under the provisions of this
Lease.
(b) At its option, the Developer may deliver to the Trustee for cancellation Bonds owned by
the Developer and not previously paid, and the Developer shall receive a credit against amounts payable by
the Developer for the redemption of Bonds in an amount equal to the principal amount of the Bonds so
tendered for cancellation, plus accrued interest thereon.
ARTICLE VI
MAINTENANCE, TAXES AND UTILITIES
Section 6.1. Maintenance and Repairs. Throughout the Lease Term the Developer shall, at
its own expense, keep the Project in reasonably safe operating condition and keep the Project in good repair,
reasonable wear, tear, depreciation and obsolescence excepted, making from time to time all repairs thereto
and renewals and replacements thereof it determines to be necessary. Without limiting the generality of the
foregoing, the Developer shall at all times remain in compliance with all provisions of the City’s code
relating to maintenance and appearance that are applicable to the Project.
Section 6.2. Taxes, Assessments and Other Governmental Charges.
(a) Subject to subsection (b) of this Section, the Developer shall promptly pay and discharge,
as the same becomes 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 Developer therein) or any buildings, improvements, machinery and equipment at any time
installed on the Project Site by the Developer, 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 interest in 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 Developer shall be obligated to pay only such installments thereof as become due and
payable during the Lease Term.
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(b) The Developer may contest the validity or amount of any tax, assessment or other
governmental charge which the Redeveloper is required to bear, pay and discharge pursuant to the terms of
this Article by appropriate legal proceedings instituted at least ten days before the tax, assessment or other
governmental charge complained of becomes delinquent if and provided (1) the Developer, before
instituting any such contest, gives the Authority written notice of its intention to do so, (2) the Developer
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 Developer 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 Developer in connection with
any and all administrative or judicial proceedings related to any tax, assessment or other governmental
charge. The Developer shall save and hold harmless the Authority from any costs and expenses the
Authority may incur related to any of the above.
(c) Nothing in this Lease shall be construed to require the Developer to make duplicate tax
payments. The Developer shall receive a credit against the payments to be made by the Developer under
the Development Agreement to the extent that any ad valorem taxes imposed with respect to the Project are
paid pursuant to this Section.
Section 6.3. Utilities. All utilities and utility services used by the Developer in, on or about the
Project shall be paid by the Developer and shall be contracted by the Developer in the Developer’s own
name, and the Developer shall, at its sole cost and expense, procure any and all permits, licenses or
authorizations necessary in connection therewith.
ARTICLE VII
INSURANCE
Section 7.1. Title Commitment. Before leasing any real property to the City, the Developer
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.
Section 7.2. Casualty Insurance.
(a) Prior to commencement of construction of the Project Improvements, the Developer shall
at its sole cost and expense obtain (or cause to be obtained) 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 from
commencement of construction through the Lease Term 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 not less than “A-” or the equivalent thereof
as may be selected by the Developer. The Developer shall deliver (or cause to be delivered) certificates of
insurance for such policies to the City and the Trustee no later than 30 days after commencement of
construction of the Project Improvements and promptly after renewal of each insurance policy. All such
policies of insurance pursuant to this Section, and all renewals thereof, shall name the City and the
Developer as insureds, as their respective interests may appear, shall name the Trustee as loss payee and
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shall contain a provision that such insurance may not be canceled by the issuer thereof without at least 10
days’ advance written notice to the City, the Developer and the Trustee.
(b) In the event of loss or damage to the Project, the Net Proceeds of casualty insurance carried
pursuant to this Section shall be (i) paid over to the Trustee and applied as provided in Article IX, or
(ii) applied as directed by, or on behalf of, the Owners of 100% in principal amount of the Bonds
Outstanding, subject to the rights of the Lender under the Loan Documents and any Financing Party under
any Financing Document.
Section 7.3. Public Liability Insurance.
(a) The Developer shall at its sole cost and expense maintain or cause to be maintained at all
times during the Lease Term commercial general liability insurance (including but not limited to coverage
for operations, contingent liability, operations of subcontractors, completed operations and contractual
liability), under which the City, the Developer and the Trustee shall be named as additional insureds,
properly protecting and indemnifying the City and the Trustee, in an amount not less than the limits of
liability set by Section 537.610 of the Revised Statutes of Missouri (subject to reasonable loss deductible
clauses not to exceed the amounts normally or generally carried by the Developer). The policies of said
insurance shall contain a provision that such insurance may not be canceled by the issuer thereof without
at least 10 days’ advance written notice to the City, the Developer and the Trustee. Certificates of such
policies shall be furnished to the Trustee on the date of execution of this Lease and not less than 30 days
before the expiration date of each insurance policy.
(b) In the event of a general 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. Blanket Insurance Policies. The Developer 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.
Section 7.5. Worker’s Compensation. The Developer agrees throughout the Lease Term to
maintain or cause to be maintained the worker’s compensation coverage required by the laws of the State
of Missouri.
Section 7.6. Sovereign Immunity. Notwithstanding anything to the contrary contained herein,
nothing in this Lease shall be construed to broaden the liability of the City beyond the provisions of Sections
537.600 to 537.610 of the Revised Statutes of Missouri or abolish or waive any defense at law that might
otherwise be available to the City or its officers, agents and employees.
ARTICLE VIII
ALTERATION OF THE PROJECT
Section 8.1. Additions, Modifications and Improvements to the Project. The Developer
may make such additions, modifications and improvements in and to any part of the Project as the
Developer from time to time may deem necessary or desirable for its business purposes. All additions,
modifications and improvements made by the Developer pursuant to this Section shall (a) be made in a
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good and workmanlike manner and in compliance with all material laws, orders and ordinances applicable
thereto, and (b) when commenced, be prosecuted to completion with due diligence.
Section 8.2. Additional Improvements on the Project Site. The Developer 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 Developer 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 Developer, and not paid for with Bond proceeds, pursuant to the authority of this
Section shall not be included in the Project and, during the life of this Lease, shall remain the property of
the Developer and may be added to, altered or razed and removed by the Developer at any time. All
additional buildings and improvements shall be made in a good and workmanlike manner and in compliance
with all material laws, orders and ordinances applicable thereto and when commenced shall be prosecuted
to completion with due diligence. The Developer 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.
Section 8.3. Permits and Authorizations. The Developer shall not do or permit others under
its control to do any work on the Project or any repair, rebuilding, restoration, replacement, modification or
addition to the Project, or any part thereof, unless all requisite municipal and other governmental permits
and authorizations shall have been first procured. The City agrees to act promptly on all requests for such
municipal permits and authorizations. All such work shall be done in a good and workmanlike manner and
in compliance with all applicable material building and zoning laws and governmental regulations and
requirements, and in accordance with the requirements, rules and regulations of all insurers under the
policies required to be carried under the provisions of Article VII.
Section 8.4. Mechanics’ Liens.
(a) The Developer will not directly or indirectly create, incur, assume or suffer to exist any
mechanics’ or other similar lien on or with respect to the Project, except Permitted Encumbrances, and the
Developer shall promptly notify the City of the imposition of such lien of which the Developer 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 Developer shall discharge the same of record.
Notice is hereby given that the City shall not be liable for any labor or materials furnished to the Developer
or anyone claiming by, through or under the Developer 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 Section 8.4(a), the Developer may contest any such mechanics’ or other
similar lien if the Developer (i) within 60 days after the Developer becomes aware of any such lien notifies
the City and the Trustee 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 Developer may permit the lien so contested to remain unpaid during the period of
such contest and any appeal therefrom unless the Developer is notified by the City that, in the opinion of
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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 Developer shall promptly, at its own expense, take such action as may be
reasonably necessary to duly discharge or remove any such lien if the same shall arise at any time. The
Developer shall save and hold harmless the City from any loss, costs or expenses the City may incur related
to any such contest. The Developer shall reimburse the City for any expense incurred by it in connection
with the imposition of any such lien or in order to discharge or remove any such lien. The City shall
cooperate fully with the Developer in any such contest.
ARTICLE IX
DAMAGE, DESTRUCTION AND CONDEMNATION
Section 9.1. Damage or Destruction.
(a) If the Project is damaged or destroyed by fire or any other casualty, whether or not covered
by insurance, the Developer, as promptly as practicable, subject to any delay to the extent caused by such
fire or other casualty, shall either (i) make the determination described in Section 9.1(f), 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 Developer’s option, construct upon the Project Site new buildings and
improvements thereafter together with all new machinery, equipment and fixtures that are either to be
attached to or are to be used in connection with the operation or maintenance thereof, provided that (A) the
value thereof shall not be less than the value of such destroyed or damaged Project immediately before the
occurrence of such damage or destruction and (B) the nature of such new buildings, improvements,
machinery, equipment and fixtures will not impair the character of the Project as a “project” permitted by
the Act.
If the Developer 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.
Unless the Developer makes the determination described in Section 9.1(f), the Net Proceeds of
casualty insurance required by Article VII 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, subject
to the rights of the Lender under the Fee Deed of Trust and related Loan Documents. Subject to the
provisions of the Fee Deed of Trust and related Loan Documents, insurance monies in an amount less than
$100,000 may be paid to or retained by the Developer to be held in trust and used as provided herein.
Subject to the provisions of the Fee Deed of Trust and related Loan Documents, insurance monies in an
amount of $100,000 or more shall be (i) paid to the Trustee, deposited in the Project Fund and disbursed as
provided in Section 4.4 to pay the cost of repairing, restoring, replacing or rebuilding the Project or any
part thereof, or (ii) if determined by the Owners of 100% in principal amount of the Bonds Outstanding,
applied as directed by, or on behalf of, such Owners of 100% in principal amount of the Bonds Outstanding,
subject to the rights of the Lender. If the Developer makes the determination described in Section 9.1(f),
the Net Proceeds shall be deposited with the Trustee and used to redeem Bonds as provided in
Section 9.1(f), subject to the rights of the Lender under the Fee Deed of Trust and related Loan Documents.
(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 the Lender, any
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leasehold mortgagee or any other Financing Party. Completion of such repairs, restoration, replacement or
rebuilding shall be evidenced by a certificate of completion provided to the City and the Trustee. If the Net
Proceeds are insufficient to pay the entire cost of such repairs, restoration, replacement or rebuilding, the
Developer 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 Developer shall remain and continue
to be liable for the payment of all Basic Rent and Additional Rent and all other charges required hereunder
to be paid by the Developer, as though no damage by fire or any other casualty has occurred.
(d) The Developer will prosecute or defend 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.
(e) The Developer agrees to give prompt written notice to the City, the Trustee and the Lender
of all fires and any other casualties occurring in, on, at or about the Project Site.
(f) If the Developer determines that rebuilding, repairing, restoring or replacing the Project is
not practicable or desirable, or if the Developer does not have the right under the Fee Deed of Trust, any
Leasehold Mortgage or any other Financing Document to use any Net Proceeds for repair or restoration of
the Project, any Net Proceeds of casualty insurance required by Article VII 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 used to redeem Bonds on the earliest practicable redemption date or to pay the principal of any Bonds
as the same becomes due, all subject to the rights of the Lender under the Loan Documents, any mortgagee
under the Leasehold Mortgage (if any) and any Financing Party under the Financing Documents (if any).
The Developer agrees to be reasonable in exercising its judgment pursuant to this subsection. Alternatively,
if the Developer 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 Developer 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 repairing, rebuilding, restoring or replacing, be entitled
to any reimbursement from the City, the Trustee or the Owners or to any abatement or diminution of the
rentals payable by the Developer under this Lease or of any other obligations of the Developer under this
Lease except as expressly provided in this Section.
(h) The rights of the City and the Trustee in and to any Net Proceeds are and will at all times
be subject to the rights of the Lender with respect to such Net Proceeds.
(i) Nothing herein shall be deemed to authorize the Developer to allow an unsafe, dangerous,
unhealthy or injurious condition to exist on the Project or any portion thereof, in violation of any applicable
laws, codes and ordinances due to a fire or other casualty.
Section 9.2. Condemnation.
(a) If during the Lease Term, title to, or the temporary use of, all or any part of the Project is
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 $100,000,
the Developer shall, within 90 days after the date of entry of a final order in any eminent domain
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proceedings granting condemnation or the date of sale under threat of condemnation, notify the City, the
Trustee, the Lender, any mortgagee under the Leasehold Mortgage (if any) and any Financing Party under
the Financing Documents (if any) in writing as to the nature and extent of s uch condemnation or loss of
title and whether it is practicable and desirable to acquire or construct substitute improvements.
(b) If the Developer determines that such substitution is practicable and desirable, the
Developer 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 power of eminent domain, including the acquisition or construction of
other improvements suitable for the Developer’s operations at the Project (which improvements will be
deemed a part of the Project and available for use and occupancy by the Developer 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 (including, without limitation, any liens
held by the Lender in and to the substitute Project). 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
(with respect to the receipt of casualty insurance proceeds).
(c) If the Developer determines that it is not practicable or desirable to acquire or construct
substitute improvements, or if the Developer does not have the right under the Fee Deed of Trust to use any
Net Proceeds of condemnation awards received by the Developer, then any Net Proceeds of condemnation
awards received by the Developer 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 becomes due and payable, all subject to the rights of the Lender
under the Loan Documents, any mortgagee under the Leasehold Mortgage (if any) and any Financing Party
under the Financing Documents (if any).
(d) The Developer 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 Owners or to any
abatement or diminution of the rentals payable by the Developer under this Lease nor of any other
obligations hereunder except as expressly provided in this Section.
(e) The City shall cooperate fully with the Developer 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 Developer 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 Developer and the Lender.
Section 9.3. Bondowner Approval. Notwithstanding anything to the contrary contained in this
Article IX, subject to the rights of the Lender, the proceeds of any insurance received subsequent to a
casualty or of any condemnation proceedings (or threats thereof) may before the application thereof by the
City or the Trustee be applied as directed by the Owners or pledgees of 100% of the principal amount of
Bonds Outstanding, subject and subordinate to (a) 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
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Trustee) incurred in the collection of such gross proceeds and (b) the rights of the City to any amounts then
due and payable under the Development Agreement.
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 Developer’s purposes or needs. The Developer releases the City and the
Trustee from, agrees that the City and the Trustee 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 Developer’s use thereof, unless such
loss is the result of the City’s or the Trustee’s 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 Developer shall peacefully surrender possession of the Project to the City
in good condition and repair; provided, however, the Developer may within 90 days (or such later date as
the City may agree to) after the termination of this Lease remove from the Project Site any buildings,
improvements, furniture, trade fixtures, machinery and equipment owned by the Developer and not
constituting part of the Project. All repairs to and restorations of the Project requir ed to be made because
of such removal shall be made by and at the sole cost and expense of the Developer, and during said 90-
day (or extended) period the Developer shall bear the sole responsibility for and bear the sole risk of loss
of said buildings, improvements, furniture, trade fixtures, machinery and equipment owned by the
Developer and not constituting part of the Project. All buildings, improvements, furniture, trade fixtures,
machinery and equipment owned by the Developer which are not so removed from the Project Site before
the expiration of said period shall be the separate and absolute property of the City. Notwithstanding the
foregoing, if the Developer has paid all obligations due and owing under the Indenture (or such obligations
have been canceled), this Lease and the Development Agreement, the City shall convey the Project in
accordance with Section 11.2.
Section 10.3. Right of Access to the Project. The City may conduct such periodic inspections
of the Project as may be generally provided in the City’s municipal code. In addition, the Developer agrees
that the City and the Trustee and their duly authorized agents may, at reasonable times during normal
business hours and, except in the event of emergencies, upon not less than two Business Days’ prior notice,
subject to the Developer’s usual business, proprietary, safety, confidentiality and security requirements,
enter upon the Project Site (a) to examine and inspect the Project without interference or prejudice to the
Developer’s operations, (b) to monitor the acquisition, construction and installation of the Project pursuant
to Section 4.2 as may be reasonably necessary, (c) to examine all files, records, books and other materials
in the Developer’s possession pertaining to the acquisition, installation or maintenance of the Project, or
(d) upon either (i) the occurrence and continuance of an Event of Default or (ii) the Developer’s failure to
purchase the Project at the end of the Lease Term, to exhibit the Project to prospective purchasers, lessees
or trustees.
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Section 10.4. 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 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
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 the Authorized
Developer Representative requesting such instrument, and (iii) a certificate executed by the Authorized
Developer Representative stating that such grant or release is not detrimental to the proper conduct of the
business of the Developer, 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 or the Development Agreement, will be a Permitted Encumbrance, and that the Developer
will defend, indemnify and save and hold harmless the City from and against all claims, demands, costs,
liabilities, damages or expenses, including attorneys’ fees, arising from the execution and delivery of any
instrument, agreement or other arrangement pursuant to this Section. If no Event of Default has happened
and is continuing beyond any applicable grace period, any payments or other consideration received by the
Developer for any such grant or with respect to or under any such agreement or other arrangement shall be
and remain the property of the Developer; but, subject to Sections 10.4(c) and (d), upon (A) termination of
this Lease for any reason other than the redemption of the Bonds and/or the purchase of the Project by the
Developer or (B) the occurrence and continuance of an Event of Default by the Developer, all rights then
existing of the Developer with respect to or under such grant, agreement or other arrangement shall inure
to the benefit of and be exercisable by the City and the Trustee.
(b) Subject to the Fee Deed of Trust, the Developer may mortgage or grant a deed of trust
against 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 30 days after the
execution thereof. The sale of the Developer’s leasehold estate at a foreclosure sale or trustee’s sale under
the Leasehold Mortgage or any assignment in lieu thereof shall not require the consent of the City, if
(i) written notice of the proposed sale or assignment is provided to the City at least 15 days prior thereto,
and (ii) before such sale or assignment, all payments then owing to the City under the Development
Agreement are paid.
(c) The City acknowledges and agrees that the Developer may finance and refinance its rights
and interests in the Project, this Lease and the leasehold estate created hereby and, in connection therewith
and subject to the terms of the Loan Documents, the Developer may execute Financing Documents with
one or more Financing Parties. Notwithstanding anything contained to the contrary in this Lease, the
Developer 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) As long as the Fee Deed of Trust remains outstanding or upon notice by the Developer to
the City in writing that the Developer 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:
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(i) there shall be no merger of this Lease or of the leasehold estate created hereby with
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 each such
Financing Party;
(ii) 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 Developer under this Lease, at the same time as such notice is served
upon the Developer. No such notice to the Developer shall be effective unless a copy thereof is
thus served upon each such Financing Party;
(iii) each such Financing Party shall have the same period of time which the Developer
has, after the service of any required notice upon it, plus 30 days, within which to remedy or cause
to be remedied any payment default under this Lease which is the basis of the notice, and the City
shall accept performance by any Financing Party as timely performance by the Developer;
(iv) the City may exercise any of its rights or remedies with respect to any Event of
Default by the Developer, subject to the rights of any Financing Party under this Section 10.4(d)
as to such Event of Default. Without limiting the generality of the foregoing, the holder of the Fee
Deed of Trust may cause the sale of the fee simple interest or the leasehold interest of the Developer
to be sold at foreclosure sale conducted in accordance with applicable law and the terms of the Fee
Deed of Trust, accept assignment of this Lease in lieu of foreclosure and appoint a receiver for the
Project, all without obtaining the prior written consent of the City but subject to the provisions of
Section 10.4(b);
(v) upon the occurrence and continuance of an Event of Default by the Developer
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 each 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 this 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 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;
(vi) each such Financing Party (and its designees, nominees, assignees or transferees)
may enter, possess and use the Project at such reasonable times and manner as are necessary or
desirable to effectuate the remedies and enforce its rights under its respective Financing
Documents;
(vii) except for terminations of this Lease expressly authorized herein, this Lease may
not be modified, amended, canceled or surrendered by agreement between the City and the
Developer, without prior written consent of each such Financing Party; and
(viii) each such Financing Party may, upon an event of default under any of its respective
Financing Documents, on behalf of the Developer and without the consent of the Developer, but
only having first caused the redemption of the Bonds, exercise the right to purch ase the Project
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pursuant to Section 11.1, upon compliance with the provisions of that Section. The Developer
agrees that the City will have no liability for taking direction from any Financing Party in
connection with a conveyance of the Project back to the Developer pursuant to Article XI.
The City acknowledges that the Lender is a Financing Party and is entitled to the benefits of
Sections 10.4(d)(i)-(viii).
(e) In connection with the execution of one or more Financing Documents, upon the r equest
of the Developer, the City agrees to execute such documents as shall be reasonably requested by the Lender
or any other Financing Party and which are usual and customary in connection with the closing of the
financing or refinancing pursuant to the Financing Documents, including, without limitation, subordination
of the City’s leasehold interest in the Project to any new fee deed of trust or any modification of the existing
Fee Deed of Trust. Moreover, to facilitate the recordation of a new fee deed of trust or a modification of
the existing Fee Deed of Trust, the City agrees to subordinate its leasehold interest in the Project to the
Financing Documents. The Developer 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.
(f) The Developer’s obligations under any mortgage or Financing Document relating to the
Project entered into after the date of execution of this Lease (except for any construction loans or other
Financing Documents related to the Project that the Developer and the Lender hereafter execute), the
execution of which shall be expressly subject to the prior written consent of the Lender in accordance with
the Fee Deed of Trust, shall be subordinate to the Developer’s obligations under this Lease.
(g) Notwithstanding the foregoing, the City may agree to other provisions and documents
requested by the Developer, the Lender or any Financing Party not contemplated by this Section 10.4,
subject to approval by the City Council.
Section 10.5. Indemnification of City and Trustee. The Developer shall indemnify and save
and hold harmless the City and the Trustee and their governing body members, officers, agents and
employees 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 the Development Agreement, this Lease (or any instrument requested by the Developer
pursuant to Section 10.4) or the Indenture 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 Developer in the performance of any
of its obligations under the Development Agreement, this Lease, the Base Lease or any related document,
(c) any contract entered into in connection with the acquisition, purchase, construction, extension,
installation or improvement of the Project, (d) any act of negligence of the Developer or of any of its agents,
contractors, servants, employees or licensees, (e) unless the Developer has been released from liability
pursuant to Section 13.1(c), any act of negligence of any assignee or sublessee of the Developer, or of any
agents, contractors, servants, employees or licensees of any assignee or sublessee of the Developer,
(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 violation of Section 107.170 of the Revised Statutes of Missouri; provided,
however, the indemnification contained in Sections 10.5(a)-(e) shall not extend (i) to the City to the extent
that such claims, demands, costs, liabilities, damages or expenses, including attorneys’ fees, are (A) the
result of work being performed at the Project by employees of the City, or (B) the result of negligence or
willful misconduct by the City or its employees, agents or contractors, or (ii) to the Trustee to the extent
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that such claims, demands, costs, liabilities, damages or expenses, including attorneys’ fees, are the result
of negligence or willful misconduct by the Trustee. Upon written notice from the City or the Trustee of any
such claim or demand, the Developer shall defend them or either of them in any such action or proceeding;
provided, that the City shall cooperate with the Developer and provide reasonable assistance in such
defense. All costs related to the defense of the City or the Trustee pursuant to this Section 10.5 shall be
paid by the Developer. This Section 10.5 shall survive any termination of the Development Agreement and
this Lease or the satisfaction and discharge of the Indenture.
Section 10.6. Depreciation, Investment Tax Credit and Other Tax Benefits. This Lease is
intended to convey to the Developer all of the benefits and burdens of ownership and to cause the Developer
to be treated as the owner of the Project for federal income tax purposes. The Trustee, the Developer and
the City agree to treat this Lease in a manner consistent with such treatment. The Developer alone shall be
entitled to all of the federal income tax attributes of ownership of the Project, including without limitation
the right to claim depreciation, amortization deductions, investment tax credits or any other tax benefits.
The City agrees that any depreciation, amortization deductions, investment tax credits or any other tax
benefits with respect to the Project or any part thereof shall be made available to the Developer, and the
City will fully cooperate with the Developer in any effort by the Developer to avail itself of any such
depreciation, amortization deductions, investment tax credits or other tax benefits.
Section 10.7. Developer to Maintain its Existence. The Developer 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 in good standing, and will not dissolve or otherwise dispose of all or substantially all
of its assets; provided, however, that the Developer may, without violating the agreement contained in this
Section, consolidate with or merge into another Person or permit one or more other Persons to consolidate
with or merge into it, or may sell or otherwise transfer to another Person all or substantially all of its assets
as an entirety and thereafter dissolve or convert into a different type of legal entity, if the surviving, resulting
or transferee Person expressly assumes in writing all the obligations of the Developer contained in this
Lease. This Section does not limit the Developer’s transfer rights under Section 13.1.
Section 10.8. Security Interests. The City and the Developer hereby authorize the Trustee to
file all appropriate financing and continuation statements as may be required under the Uniform
Commercial Code in order to fully preserve and protect the security of the Owners and the rights of the
Trustee under the Indenture. Upon the written instructions of the Owners or pledgees of 100% of the Bonds
then-Outstanding, the Trustee shall file all instruments the Owners deem necessary to be filed and shall
continue or cause to be continued such instruments for so long as the Bonds are Outstanding.
Notwithstanding the foregoing, the Trustee shall not be obligated to file any original instrument unless such
instrument has been prepared by an attorney acceptable to the Trustee (any attorneys’ fees incurred in
connection therewith shall be paid by the Developer), and the Trustee shall not be responsible for the
accuracy or sufficiency of any such original instrument. The City and the Developer shall cooperate with
the Trustee in this regard by providing such information as the Trustee may require to file or to renew such
statements.
Section 10.9. Environmental Matters, Warranties, Covenants and Indemnities Regarding
Environmental Matters.
(a) As used in this Section, the following terms have the following meanings:
“Environmental Laws” means any now-existing or hereafter enacted or promulgated federal, state,
local, or other law, statute, ordinance, order, rule, regulation or court order pertaining to (i) environmental
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protection, regulation, contamination or clean-up, (ii) toxic waste, (iii) underground storage tanks,
(iv) asbestos or asbestos-containing materials, or (v) the handling, treatment, storage, use or disposal of
Hazardous Substances, including without limitation the Comprehensive Environmental Response,
Compensation and Liability Act and the Resource Conservation and Recovery Act, all as amended from
time to time.
“Hazardous Substances” means all (i) “hazardous substances” (as defined in 42 U.S.C. §9601(14)),
(ii) “chemicals” subject to regulation under Title III of the Superfund Amendments and Reauthorization
Act of 1986, as amended from time to time, (iii) natural gas liquids, liquefied natural gas or synthetic gas,
(iv) any petroleum, petroleum-based products or crude oil, or (v) any other hazardous or toxic substances,
wastes or materials, pollutants, contaminants or any other substances or materials which are included under
or regulated by any Environmental Law.
(b) The Developer warrants and represents to the City and the Trustee that to the knowledge
of the Developer there are no conditions on the Project Site which materially violate any applicable
Environmental Laws and no claims or demands have been asserted or made in writing by any third parties
arising out of, relating to or in connection with any Hazardous Substances on, or allegedly on, the Project
Site for any injuries suffered or incurred, or allegedly suffered or incurred, by reason of the foregoing.
(c) The Developer will provide the City and the Trustee with copies of any notifications of
releases of Hazardous Substances or of any environmental hazards or potential hazards in material violation
of Environmental Laws which are given by or on behalf of the Developer to any federal, state or local or
other agencies or authorities or which are received by the Developer from any federal, state or local or other
agencies or authorities with respect to the Project Site. Such copies shall be sent to the City and the Trustee
concurrently with their being mailed or delivered to the governmental agencies or authorities or within
10 days after they are received by the Developer. The Developer will provide to the City for review only,
any environmental assessments (“Assessments”) and reports regarding the correction or remediation of
material environmental issues required by Environmental Laws to be addressed in the Assessments
(“Reports”) concerning the Project; upon the completion of the City’s review of the Assessments and the
Reports, the City shall immediately return to the Developer all originals and copies of the Assessments and
Reports.
(d) The Developer warrants and represents that the Developer has provided the City and the
Trustee with copies of all emergency and hazardous chemical inventory forms (hereinafter “Environmental
Notices”) showing Hazardous Substances on the Project Site given within two years preceding the date
hereof, as of the date hereof, by the Developer to any federal, state or local governmental authority or
agency as required pursuant to the Emergency Planning and Community Right -to-Know Act of 1986, 42
U.S.C.A. §11001 et seq., or any other applicable Environmental Laws. The Developer will provide the
City and the Trustee with copies of all Environmental Notices concerning Hazardous Substances on the
Project Site subsequently sent to any such governmental authority or agency as required pursuant to the
Emergency Planning and Community Right-to-Know Act of 1986 or any other applicable Environmental
Laws. Such copies of subsequent Environmental Notices shall be sent to the City and the Trustee
concurrently with their being mailed to any such governmental authority or agency.
(e) The Developer will comply with and operate and at all times use, keep and maintain the
Project and every part thereof (whether or not such property constitutes a facility, as defined in 42 U.S.C.
§ 9601 et. seq.) in material conformance with all applicable Environmental Laws. Without limiting the
generality of the foregoing, the Developer will not use, generate, treat, store, dispose of or otherwise
introduce any Hazardous Substance into or on the Project or any part thereof nor cause, suffer, allow or
permit anyone else to do so except in material compliance with all applicable Environmental Laws.
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(f) The Developer agrees to indemnify, protect and hold harmless the City and the Trustee and
their directors, officers, shareholders, officials or employees from and against any and all claims, demands,
costs, liabilities, damages or expenses, including reasonable attorneys’ fees, arising from (i) any release (as
defined in 42 U.S.C. § 9601 (22)), actual or alleged, of any Hazardous Substances, upon the Project Site or
respecting any products or materials previously, now or hereafter located upon the Project Site, regardless
of whether such release or alleged release has occurred before the date hereof or hereafter o ccurs and
regardless of whether such release or alleged release occurs as a result of any act, omission, negligence or
misconduct of the Developer or any third party or otherwise (except, with respect to the City, to the extent
such release occurs as a result of any negligence or willful misconduct of the City), (ii) (A) any violation
now existing or hereafter arising (actual or alleged) of, or any other liability under or in connection with,
any applicable Environmental Laws relating to or affecting the Pr oject Site, or (B) any violation now
existing or hereafter arising, or any other liability, under or in connection with, any applicable
Environmental Laws relating to any products or materials previously, now or hereafter located upon the
Project Site, regardless of whether such violation or alleged violation or other liability is asserted or has
occurred or arisen before the date hereof or hereafter is asserted or occurs or arises and regardless of whether
such violation or alleged violation or other liability occurs or arises, as the result of any act, omission,
negligence or misconduct of the Developer or any third party or otherwise (except, with respect to the City,
to the extent such violation occurs as a result of any negligence or willful misconduct of the City), (iii) any
assertion by any third party of any claims or demands for any loss or injury arising out of, relating to or in
connection with any Hazardous Substances on or allegedly on the Project Site, or (iv) any material breach,
falsity or failure of any of the representations, warranties, covenants and agreements contained in this
Section; provided, however, that the Developer’s obligations under this Section 10.9(f) shall not apply to
the extent such claims, demands, costs, liabilities, damages or expenses, including attorneys’ fees, are the
result of (1) work being performed at the Project by employees, agents or contractors of the City or (2)
negligence or willful misconduct by the City or its employees, agents or contracts, or the Trustee. The City
shall cooperate with the Developer in the defense of any matters included within the foregoing indemnity
without any obligation to expend money. This Section 10.9(f) shall survive any termination of this Lease.
ARTICLE XI
OPTION AND OBLIGATION TO PURCHASE THE PROJECT
Section 11.1. Option to Purchase the Project. The Developer shall have, and is hereby granted,
the option to purchase all or any portion of the City’s interest in the Project, including, but not limited to,
all work in progress and Qualified Rehabilitation Expenditures (“QREs”) (as such term is used in Section
47 of the Internal Revenue Code of 1986, as amended (the “Code”)) with respect to the Project, at any time,
upon payment in full or redemption of the Outstanding Bonds to be redeemed or provision for their payment
or redemption having been made pursuant to Article XIII of the Indenture. To exercise such option, the
Developer shall give written notice to the City and to the Trustee, and shall specify therein the date of
closing of such purchase, which date shall be not 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 Developer shall make arrangements satisfactory to the Trustee for the giving of the required
notice of redemption. Notwithstanding the foregoing, if the City or the Trustee provides notice of its intent
to exercise its remedies hereunder upon an Event of Default (a “Remedies Notice”), the Developer shall be
deemed to have exercised its repurchase option under this Section on the 29th day following the issuance
of the Remedies Notice without any further action by the Developer; provided said Remedies Notice has
not been rescinded by such date. The Developer may rescind such exercise by providing written notice to
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the City and the Trustee on or before the 29th day 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 Developer if it
exercises the option granted in this Section shall be the sum of the following:
(a) an amount of money equal to the amount of Project Costs submitted pursuant to
approved requisition certificates and designated on such certificates by the Developer as QREs,
which amount shall be sufficient to redeem all or a portion of the then-Outstanding Bonds
attributable to QREs and which shall be deemed by the parties as a purchase by the Developer of
such QREs; plus
(b) an amount of money which, when added to the amount then on deposit in the Bond
Fund, will be sufficient to redeem all or a portion of 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
(c) an amount of money equal to the Trustee’s and the Paying Agent’s agreed to and
reasonable fees, charges and expenses under the Indenture accrued and to accrue until such
redemption of the Bonds; plus
(d) an amount of money equal to the City’s reasonable charges and expenses incurred
in connection with the Developer exercising its option to purchase all or a portion of the Project;
plus
(e) an amount of money equal to all payments due and payable pursuant to the
Development Agreement through the end of the calendar year in which the date of purchase occurs;
plus
(f) the sum of $10.00.
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 Developer the following:
(a) 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) such other documents as may be reasonably necessary to effectuate the conveyance
of the Project, including without limitation a termination of the Base Lease and this Lease.
Section 11.3. Relative Position of Option and Indenture. The option to purchase the Project
granted to the Developer in this Article shall be and remain prior and superior to the Indenture and may be
exercised whether or not the Developer is in default under this Lease; provided that such option will not
result in nonfulfillment of any condition to the exercise of any such option (including the payment of all
amounts specified in Section 11.1) and further provided that the option herein granted shall terminate upon
the termination of this Lease.
Section 11.4. Obligation to Purchase the Project. The Developer 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
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the provisions of the Indenture, and (b) the final payment due under the Development Agreement. The
amount of the purchase price under this Section shall be the sum of the items set forth in Sections 11.1(a)-
(f). The purchase price shall be paid by the Developer within 90 days of the expiration of the Lease Term.
Section 11.5. Right to Set-Off. At its option, to be exercised at least five days before the date
of closing such purchase, the Developer may deliver to the Trustee for cancellation Bonds not previously
paid, and the Developer shall receive a credit against the purchase price payable by the Developer in an
amount equal to 100% of the principal amount of the Bonds so delivered for cancellation, plus the accrued
interest thereon. The Developer may set-off any payment obligation under Section 11.1(b) by tendering a
corresponding amount of the Bonds to the Trustee for cancellation.
ARTICLE XII
DEFAULTS AND REMEDIES
Section 12.1. 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” under this
Lease:
(a) default in the due and punctual payment of Basic Rent or Additional Rent within
10 days after written notice thereof from the City to the Developer and the Lender; or
(b) default in the due observance or performance of any other covenant, agreement,
obligation or provision of this Lease on the Developer’s part to be observed or performed, and such
default continues for 60 days after the City or the Trustee has given the Developer and the Lender
written notice specifying such default (or such longer period as is reasonably required to cure such
default, provided that (i) the Developer or the Lender, as applicable, has commenced such cure
within said 60-day period, and (ii) the Developer or the Lender, as applicable, diligently prosecutes
such cure to completion); or
(c) the Developer: (i) admits in writing its inability to pay its debts as they become
due; or (ii) 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 (iii) makes an assignment for the benefit of creditors; or
(iv) consents to the appointment of a trustee, receiver or liquidator for all or a substantial portion
of its property or fails to have the appointment of any trustee, receiver or liquidator made without
the Developer’s consent or acquiescence, vacated or set aside; or (v) is finally adjudicated as
bankrupt or insolvent under any federal or state law; or (vi) is subject to any proceeding, or suffers
the entry of a final and non-appealable court order, under any federal or state law appointing a
trustee, receiver or liquidator for all or a substantial portion of its property or ordering the
winding-up or liquidation of its affairs, or approving a petition filed against it under the Bankruptcy
Code, as now or in the future amended, which order or proceeding, if not consented to by it, is not
dismissed, vacated, denied, set aside or stayed within 90 days after the day of entry or
commencement; or (vii) 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 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
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(d) an event of default under the Development Agreement, as described in Section 2.5
thereof.
The Trustee shall give the Lender notice of the occurrence of any Event of Default of which the
Trustee has notice pursuant to the terms of the Indenture. The Lender may, at its election, but shall have
no obligation to, cure such Event of Default.
Section 12.2. Remedies on Default. If any Event of Default referred to in Section 12.1 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, in addition to the remedies provided in Section 12.5:
(a) cause all amounts payable with respect to the Bonds for the remainder of the term
of this Lease to become due and payable, as provided in the Indenture; or
(b) give the Developer written notice of intention to terminate this Lease on a date
specified therein, which date shall not be earlier than 60 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 Sections 11.1 and 11.5, the Developer’s
or the Lender’s rights to possession of the Project shall cease and this Lease shall thereupon be
terminated, and the City may re-enter and take possession of the Project or the City may convey
the Project to the Developer and bring an action against the Developer for the purchase price of the
Project under Section 11.1; provided, however, if the Developer has paid all obligations due and
owing under the Indenture, this Lease, the Base Lease and the Development Agreement, the City
shall convey the Project in accordance with Section 11.2. The Developer’s rights to cause the
conveyance of the Project in accordance with Section 11.2 shall survive the expiration or
termination of this Lease.
If the City defaults on any of its obligations under this Lease, the Developer’s sole remedy for such
default shall be to sue for specific performance of this Lease.
Section 12.3. Survival of Obligations. The Developer covenants and agrees with the City and
the Owners that its obligations under this Lease shall survive the cancellation and termination of this Lease,
for any cause, and that the Developer shall continue to pay the Basic Rent and Additional Rent (to the extent
the Bonds remain Outstanding) and perform all other obligations provided for in this Lease, all at the time
or times provided in this Lease; provided, however, that upon the payment of all Basic Rent and Additional
Rent required under Article V, and upon the satisfaction and discharge of the Indenture under Section 1301
thereof, and upon the Developer’s exercise of the purchase option contained in Article XI, the Developer’s
obligations under this Lease shall thereupon cease and terminate in full, except that the obligations
contained in Section 10.5 with respect to indemnification of the City and the Trustee shall not so terminate.
Section 12.4. Performance of the Developer’s Obligations by the City. Upon an Event of
Default, 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 Developer’s part for 60 days after written notice of such failure is given
to the Developer by the City or the Trustee, and without waiving or releasing the Developer from any
obligation hereunder, as an additional but not exclusive remedy, make any such payment or perform any
such obligation, and all reasonable sums so paid by the City or the Trustee and all necessary incidental
reasonable costs and expenses incurred by the City or the Trustee (including, without limitation, attorneys’
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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 Developer, the City or the Trustee shall have the
same rights and remedies provided for in Section 12.2 in the case of default by the Developer in the payment
of Basic Rent.
Section 12.5. Rights and Remedies Cumulative. The rights and remedies reserved by the City
and the Developer hereunder are in addition to those otherwise provided by law and shall be construed as
cumulative and continuing rights. No one of them shall be exhausted by the exercise thereof on one or
more occasions. The City and the Developer 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 the availability of an adequate remedy at law, and each party hereby waives the right to
raise such defense in any proceeding in equity. Notwithstanding anything in this Section 12.5 or elsewhere
in this Lease to the contrary, however, the Developer’s option to purchase the property as provided in
Article XI above shall not be terminated upon an Event of Default unless and until this Lease is terminated
to the extent permitted pursuant to Section 12.2(b). The parties agree that no provision of this Lease shall
be construed to allow the City to require the Developer to acquire, construct or install the Project.
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 coven ant or agreement or as a
waiver of any breach of any other covenant or agreement, and in case of a breach by the Developer of any
covenant, agreement or undertaking by the Developer, the City may nevertheless accept from the Developer
any payment or payments hereunder without in any way waiving the City’s right to exercise any of its rights
and remedies provided for herein with respect to any such default or defaults of the Developer which were
in existence at the time such payment or payments were accepted by the City.
Section 12.7. Trustee’s Exercise of the City’s Remedies. Whenever any Event of Default has
occurred and is 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 Developer may assign, transfer, encumber or dispose of this Lease or any interest
herein or part hereof for any lawful purpose under the Act. Except as otherwise provided in this Section,
the Developer must obtain the City’s prior written consent before any such disposition, unless such
disposition is to (i) any party related to the Developer by one of the relationships described in Section 267(b)
of the Code, (ii) any party controlled by or under common control with the Developer, (iii) any affiliated
entity (including any joint venture) in which the Developer has an ownership interest, directly or indirectly,
or (iv) the Lender. Notwithstanding the foregoing, the Lender may sell at foreclosure sale or by deed in
lieu of foreclosure, the interest of the Developer in this Lease.
(b) With respect to any assignment, the Developer or the Lender, as applicable, shall comply
with the following conditions:
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(i) the Developer shall notify the City of the assignment in writing;
(ii) such assignment shall be duly executed and acknowledged by the assignor and in
proper form for recording;
(iii) such assignment shall include the entire then unexpired term of this Lease; and
(iv) a duplicate original of such assignment shall be delivered to the City and the
Trustee within 10 days after the execution thereof, together with an assumption agreement, duly
executed and acknowledged by the assignee and in proper form for recording, by which the assignee
shall assume all of the terms, covenants and conditions of this Lease on the part of the Developer
to be performed and observed.
(c) Any assignee of all the rights of the Developer shall agree to be bound by the terms of this
Lease, the Base Lease, the Development Agreement and any other documents related to the issuance of the
Bonds. Upon such assignment of all the rights of the Developer and agreement by the assignee to be bound
by the terms of this Lease, the Base Lease, the Development Agreement and any other documents related
to the Bonds, the Developer shall be released from and have no further obligations under this Lease, the
Base Lease, the Development Agreement or any other document related to the issuance of the Bonds.
(d) Notwithstanding the foregoing, the Developer may, in its ordinary course of business,
sublease all or portions of the Project to tenants without the prior consent of the City so long as the
Developer remains obligated to perform all of its obligations under this Lease, the Base Lease and the
Development Agreement.
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 and interest and premium, if any, on the Bonds, and the Developer hereby
consents to such pledge and assignment.
Section 13.3. Prohibition Against Leasehold Mortgage of Project. The City shall not
mortgage its leasehold 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 the Lease
Term, the City agrees that, except to secure the Bonds to be issued pursuant to the Indenture and except to
enforce its rights under Section 12.2(b), it will not sell, assign, encumber, mortgage, transfer or convey the
Project or any interest therein.
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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 the Bonds and before the payment in full of the
Bonds (or provision for the payment thereof having been made in accordance with the provisions of the
Indenture), this Lease may not be effectively amended, changed, modified, altered or terminated without
the prior written consent of the Trustee, given in accordance with the provisions of the Indenture, which
consent, however, shall not be unreasonably withheld, and the written consent of all of the Owners, the
Lender and any other Financing Party.
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.1. Notices. All notices, certificates or other communications required or desired to
be given hereunder shall be in writing and shall be deemed duly given when (a) mailed by registered or
certified mail, postage prepaid, or (b) sent by overnight delivery or other delivery service which requires
written acknowledgment of receipt by the addressee, addressed as follows:
(i) To the City:
City of Jefferson
320 E. McCarty
Jefferson City, Missouri 65101
Attn: City Administrator
with copies to:
City of Jefferson
320 E. McCarty
Jefferson City, Missouri 65101
Attn: City Counselor
and
Gilmore & Bell, P.C.
One Metropolitan Square
211 N. Broadway, Suite 2000
St. Louis, Missouri 63102
Attn: Mark D. Grimm, Esq.
(ii) To the Trustee:
[*Trustee*]
____________________
____________________
Attn: Corporate Trust Department
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(iii) To the Developer:
TD – Simonsen, LLC
P.O. Box 6331
Fishers, Indiana 46038
Attn: Jeffrey J. Tegethoff
with a copy to:
Husch Blackwell LLP
190 Carondelet Plaza, Suite 600
Clayton, Missouri 63105
Attn: David Richardson, Esq.
(iv) To the Lender:
[*Lender*]
____________________
____________________
Attn: __________
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.
A duplicate copy of each notice, certificate or other communication given hereunder by either the City or
the Developer to the other shall also be given to the Trustee and the Lender. The City, the Developer, the
Trustee and the Lender may from time to time designate, by notice given hereunder to the others of such
parties, such other address to which subsequent notices, certificates or other communications shall be sent.
Section 15.2. City Shall Not Unreasonably Withhold Consents and Approvals. Wherever in
this Lease it is provided that the City shall, may or must give its approval or consent, or execute
supplemental agreements or schedules, the City shall not unreasonably, arbitrarily or unnecessarily
withhold 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
becomes 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 Developer 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 Developer 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
Developer.
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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; Third-Party Beneficiary. This Lease shall be binding upon and
shall inure to the benefit of the City and the Developer and their respective successors and assigns. The
Lender shall be a third-party beneficiary of any provisions contained herein granting rights to the Lender.
Section 15.7. Severability. If for any reason any provision of this Lease shall be determined to
be invalid or unenforceable, the validity and enforceability of the other provisions hereof shall not be
affected thereby.
Section 15.8. Execution in Counterparts. This Lease may be executed 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 15.9. Electronic Transaction. The parties agree that the transaction described herein
may be conducted and related documents may be sent, received or 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 15.10. City Consent. Pursuant to the Ordinance, the Mayor and the City Administrator
are authorized to execute all documents on behalf of the City (including documents pertaining to the transfer
of property or the financing or refinancing of the Project by the Developer) as may be required to carry out
and comply with the intent of the Ordinance, the Indenture and this Lease. The Mayor and the City
Administrator are also authorized, unless expressly prohibited herein, to grant on behalf of the City such
consents, estoppels and waivers relating to the Bonds, the Indenture, the Base Lease, this Lease or the
Development Agreement as may be requested during the term hereof; provided, such consents, estoppels
and/or waivers shall not increase the principal amount of the Bonds, increase the term of this Lease or the
economic incentives provided herein, waive an Event of Default or materially change the nature of the
transaction unless otherwise approved by the City Council.
Section 15.11. Subordination of Lease. By its execution hereof, each of the Developer and the
City hereby agree that this Lease shall be, is and shall continue to be, subordinate and inferior to the Fee
Deed of Trust and the other Loan Documents until all [*Obligations*] (as such term is defined in the Fee
Deed of Trust) have been indefeasibly paid and performed in full, including but not limited to, all future
advances and future obligations secured by the Fee Deed of Trust and the other Loan Documents. Such
subordination shall be self-operative and shall be irrespective of the time, manner, order of recording or
perfection or any other priority that ordinarily would result under the Uniform Commercial Code as enacted
in each and every applicable jurisdiction, and as amended from time to time, and other applicable law for
the order of granting or perfecting any security interests referred to herein.
Section 15.12. Anti-Discrimination Against Israel Act. Pursuant to Section 34.600 of the
Revised Statutes of Missouri, the Developer certifies it is not currently engaged in and shall not, for the
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duration of this Lease, engage in a boycott of goods or services from (a) the State of Israel, (b) companies
doing business in or with the State of Israel or authorized by, licensed by or organized under the laws of
the State of Israel or (c) persons or entities doing business in the State of Israel.
[Remainder of 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.
CITY OF JEFFERSON, MISSOURI
(SEAL)
By:
Carrie Tergin, Mayor
Attest:
Emily Donaldson, City Clerk
[Lease Agreement]
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TD – SIMONSEN, LLC,
a Missouri limited liability company
By:
Jeffrey J. Tegethoff, Manager
[Lease Agreement]
A-1
EXHIBIT A
PROJECT SITE
The land situated in the County of Cole, State of Missouri, and described as follows:
B-1
EXHIBIT B
FORM OF REQUISITION CERTIFICATE
Requisition No. _____
Date: _______________
REQUISITION CERTIFICATE
TO: [*TRUSTEE*], AS TRUSTEE UNDER A TRUST INDENTURE DATED AS OF
[*DATE*], 2022, BETWEEN THE CITY OF JEFFERSON, MISSOURI, AND THE
TRUSTEE, AND THE LEASE AGREEMENT DATED AS OF [*DATE*], 2022, BETWEEN
THE CITY OF JEFFERSON, MISSOURI, AND TD – SIMONSEN, LLC
The undersigned Authorized Developer Representative hereby states and certifies that:
1. A total of $__________ is requested to pay for Project Costs associated with the acquisition
of the Project Site and the construction of the Project Improvements. The total amount of this requisition
and all prior requisitions are as follows:
Date of Project Costs
Amount Submitted in
this Requisition
Requisitions Submitted to Date
(Including this Requisition)
2. Said Project Costs shall be paid in whole from Bond proceeds in such amounts, to such
payees and for such purposes as set forth on Schedule 1.
3. Each of the items for which payment is requested are or were desirable and appropriate in
connection with the purchase and construction of the Project, have been properly incurred and are a proper
charge against the Project Fund, and have been paid by the Developer or are justly due to the Persons whose
names and addresses are stated on Schedule 1, and have not been the basis of any previous requisition from
the Project Fund.
4. As of this date, except for the amounts referred to above, to the best of my knowledge there
are no outstanding disputed statements for which payment is requested for labor, wages, materials, supplies
or services in connection with the purchase and construction 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.
5. Capitalized words and terms used in this Requisition Certificate have the meanings given
to such words and terms in Section 101 of the Trust Indenture.
B-2
TD – SIMONSEN, LLC
By:
Authorized Developer Representative
Approved this _____ day of ____________________, 20___.
CITY OF JEFFERSON, MISSOURI
By:
Authorized City Representative
B-3
SCHEDULE 1 TO REQUISITION CERTIFICATE
PROJECT COSTS
Payee and Address Description Amount QRE
EXHIBIT D
TRUST INDENTURE
(On file in the office of the City Clerk)
Gilmore & Bell, P.C.
Draft – July 11, 2022
CITY OF JEFFERSON, MISSOURI,
AND
[*TRUSTEE*],
as Trustee
________________
TRUST INDENTURE
Dated as of [*Date*], 2022
________________
Relating to:
$25,000,000
(Aggregate Maximum Principal Amount)
City of Jefferson, Missouri
Taxable Industrial Revenue Bonds
(Simonsen Redevelopment Project)
Series 2022
(i)
TRUST INDENTURE
TABLE OF CONTENTS
Page
Parties ........................................................................................................................................... 1
Recitals ........................................................................................................................................... 1
Granting Clauses .......................................................................................................................................... 2
ARTICLE I
DEFINITIONS
Section 101. Definitions of Words and Terms ........................................................................................ 3
Section 102. Rules of Interpretation ....................................................................................................... 8
Section 103. Incorporation ...................................................................................................................... 9
ARTICLE II
THE BONDS
Section 201. Title and Amount of Bonds ................................................................................................ 9
Section 202. Nature of Obligation .......................................................................................................... 9
Section 203. Denomination, Number and Dating of the Bonds.............................................................. 9
Section 204. Method and Place of Payment of Bonds .......................................................................... 10
Section 205. Execution and Authentication of Bonds .......................................................................... 10
Section 206. Registration, Transfer and Exchange of Bonds ................................................................ 11
Section 207. Persons Deemed Owners of Bonds .................................................................................. 11
Section 208. Authorization of the Bonds .............................................................................................. 12
Section 209. Mutilated, Lost, Stolen or Destroyed Bonds .................................................................... 13
Section 210. Cancellation and Destruction of Bonds Upon Payment ................................................... 14
ARTICLE III
REDEMPTION OF BONDS
Section 301. Redemption of Bonds ...................................................................................................... 14
Section 302. Effect of Call for Redemption .......................................................................................... 15
Section 303. Notice of Redemption ...................................................................................................... 15
ARTICLE IV
FORM OF BONDS
Section 401. Form Generally ................................................................................................................ 15
(ii)
ARTICLE V
CUSTODY AND APPLICATION OF BOND PROCEEDS
Section 501. Creation of Funds ............................................................................................................. 15
Section 502. Deposits into the Project Fund ......................................................................................... 16
Section 503. Disbursements from the Project Fund .............................................................................. 16
Section 504. Completion of the Project ................................................................................................ 16
Section 505. Disposition Upon Acceleration ........................................................................................ 16
ARTICLE VI
REVENUES AND FUNDS
Section 601. Deposits into the Bond Fund............................................................................................ 17
Section 602. Application of Moneys in the Bond Fund ........................................................................ 17
Section 603. Payments Due on Days Other than Business Days .......................................................... 18
Section 604. Nonpresentment of Bonds................................................................................................ 18
ARTICLE VII
SECURITY FOR DEPOSITS AND INVESTMENT OF FUNDS
Section 701. Moneys to be Held in Trust .............................................................................................. 18
Section 702. Investment of Moneys in Project Fund and Bond Fund .................................................. 18
Section 703. Record Keeping ............................................................................................................... 19
ARTICLE VIII
GENERAL COVENANTS AND PROVISIONS
Section 801. Payment of Principal and Interest .................................................................................... 19
Section 802. Authority to Execute Indenture and Issue Bonds ............................................................. 19
Section 803. Performance of Covenants ............................................................................................... 19
Section 804. Instruments of Further Assurance .................................................................................... 19
Section 805. Recordings and Filings .................................................................................................... 20
Section 806. Inspection of Project Books ............................................................................................. 20
Section 807. Enforcement of Rights Under the Lease .......................................................................... 20
ARTICLE IX
DEFAULT AND REMEDIES
Section 901. Events of Default; Notice; Opportunity to Cure .............................................................. 20
Section 902. Acceleration of Maturity in Event of Default .................................................................. 21
Section 903. Surrender of Possession of Trust Estate; Rights and Duties of Trustee in Possession ..... 21
Section 904. Appointment of Receivers in Event of Default ................................................................ 22
Section 905. Exercise of Remedies by the Trustee ............................................................................... 22
Section 906. Limitation on Exercise of Remedies by Owners ............................................................. 22
Section 907. Right of Owners to Direct Proceedings ........................................................................... 23
Section 908. Application of Moneys in Event of Default ..................................................................... 23
(iii)
Section 909. Remedies Cumulative ...................................................................................................... 24
Section 910. Waivers of Events of Default ........................................................................................... 24
ARTICLE X
THE TRUSTEE
Section 1001. Acceptance of the Trusts .................................................................................................. 25
Section 1002. Fees, Charges and Expenses of the Trustee ..................................................................... 28
Section 1003. Notice to Owners if Default Occurs ................................................................................. 28
Section 1004. Intervention by the Trustee .............................................................................................. 28
Section 1005. Successor Trustee Upon Merger, Consolidation or Sale .................................................. 28
Section 1006. Resignation of Trustee ..................................................................................................... 28
Section 1007. Removal of Trustee .......................................................................................................... 29
Section 1008. Appointment of Successor Trustee .................................................................................. 29
Section 1009. Vesting of Trusts in Successor Trustee ............................................................................. 29
Section 1010. Right of Trustee to Pay Taxes and Other Charges ........................................................... 29
Section 1011. Trust Estate May be Vested in Co-Trustee ....................................................................... 30
Section 1012. Accounting ....................................................................................................................... 30
Section 1013. Performance of Duties Under the Lease .......................................................................... 30
ARTICLE XI
SUPPLEMENTAL INDENTURES
Section 1101. Supplemental Indentures Not Requiring Consent of Owners .......................................... 31
Section 1102. Supplemental Indentures Requiring Consent of Owners ................................................. 31
Section 1103. Developer’s Consent to Supplemental Indentures ........................................................... 32
Section 1104. Opinion of Counsel .......................................................................................................... 32
ARTICLE XII
SUPPLEMENTAL LEASES
Section 1201. Supplemental Leases Not Requiring Consent of Owners ................................................ 32
Section 1202. Supplemental Leases Requiring Consent of Owners ....................................................... 32
Section 1203. Opinion of Counsel .......................................................................................................... 33
ARTICLE XIII
SATISFACTION AND DISCHARGE OF INDENTURE
Section 1301. Satisfaction and Discharge of this Indenture ................................................................... 33
Section 1302. Bonds Deemed to be Paid ................................................................................................ 33
ARTICLE XIV
MISCELLANEOUS PROVISIONS
Section 1401. Consents and Other Instruments by Owners .................................................................... 34
Section 1402. Limitation of Rights Under this Indenture ....................................................................... 35
(iv)
Section 1403. Rights of Lender .............................................................................................................. 35
Section 1404. Notices ............................................................................................................................. 35
Section 1405. Severability ...................................................................................................................... 36
Section 1406. Execution in Counterparts................................................................................................ 36
Section 1407. Governing Law ................................................................................................................ 36
Section 1408. Electronic Transaction ..................................................................................................... 37
Section 1409. City Consent .................................................................................................................... 37
Section 1410. Anti-Discrimination Against Israel Act ........................................................................... 37
Signature and Seals .................................................................................................................................... 38
Exhibit A - Project Site
Exhibit B - Form of Bonds
Exhibit C - Form of Representation Letter
TRUST INDENTURE
THIS TRUST INDENTURE, dated as of [*Date*], 2022 (this “Indenture”), between the CITY
OF JEFFERSON, MISSOURI, a home-rule city organized and existing under its charter and the laws of
the State of Missouri (the “City”), and [*TRUSTEE*], 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 St. Louis, Missouri, as Trustee (the
“Trustee”);
RECITALS:
1. The City is authorized and empowered pursuant to the provisions of Article VI, Section
27(b) of the Missouri Constitution and Sections 100.010 through 100.200 of the Revised Statutes of
Missouri (collectively, the “Act”) and the City Charter to purchase, construct, extend and improve certain
projects (as defined in the Act), 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, office industry, warehousing and industrial development
purposes upon such terms and conditions as the City deems advisable. Under Attorney General Opinion
180-81, the Missouri Attorney General determined that the construction and rental of multi-family
apartments for profit is a commercial enterprise.
2. Pursuant to the Act, the City Council passed Ordinance No. _____ on __________, 2022
(the “Ordinance”), authorizing the City to issue its Taxable Industrial Revenue Bonds (Simonsen
Redevelopment Project), Series 2022, in the maximum principal amount of $25,000,000 (the “Bonds”), for
the purpose of (a) acquiring a leasehold interest in approximately 4.59 acres of real property located at 501
E. Miller in the City (as legally described on Exhibit A, the “Project Site”) and (b) renovating the historic
school building located thereon for use as approximately 60-75 residential apartments and amenity space
(the “Project Improvements”).
3. Pursuant to the Act and the Ordinance, the City is authorized to (a) enter into this Indenture
with the Trustee for the purpose of issuing and securing the Bonds, as herein provided, (b) enter into a Base
Lease of even date herewith (the “Base Lease”) with TD – Simonsen, LLC (the “Developer”) under which
the City will acquire a leasehold interest in the Project Site and (c) enter into a Lease Agreement of even
date herewith (the “Lease”) with the Developer under which the City will, or will cause the Developer to,
construct the Project Improvements and will lease the Project Improvements, as they may at any time exist,
together with the City’s leasehold interest in the Project Site (collectively, the “Project”) to the Developer
in consideration of rental payments by the Developer that will be sufficient to pay the principal of and
interest on the Bonds.
4. All things necessary to make the Bonds, when authenticated by the Trustee and issued as
provided in this Indenture, 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 defined herein) 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.
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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 (as defined herein) thereof, and of other
good and valuable consideration, the receipt of which is hereby acknowledged, and in order to secure the
payment of the principal of and interest on all of the Bonds issued and Outstanding (as defined herein)
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 forever, 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 of the City 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
Unassigned Rights, as defined 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 Developer 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 XIII), and pays 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 hereby 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
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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 any words and terms defined in
the Lease (which definitions are hereby incorporated by reference) and any words 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 and Sections
100.010 through 100.200 of the Revised Statutes of Missouri.
“Additional Rent” means the additional rental described in Section 5.2 of the Lease.
“Approved Investor” means (a) the Developer, (b) an affiliate of the Developer, (c) the Lender,
(d) a “qualified institutional buyer” under Rule 144A promulgated under the Securities Act of 1933, or
(e) any general business corporation or enterprise with total assets in excess of $100,000,000.
“Authorized City Representative” means the Mayor, the City Administrator or such other Person
at the time designated to act on behalf of the City as evidenced by written certificate furnished to the
Developer and the Trustee containing the specimen signature of such Person and signed on behalf of the
City by its Mayor or City Administrator. Such certificate may designate an alternate or alternates, each of
whom may perform all duties of the Authorized City Representative.
“Authorized Developer Representative” means the Person at the time designated to act on behalf
of the Developer 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 Developer by an authorized officer of the
Developer. Such certificate may designate an alternate or alternates, each of whom may perform all duties
of the Authorized Developer Representative.
“Base Lease” means the Base Lease dated as of [*Date*], 2022 between the City and the
Developer, as may be amended from time to time.
“Basic Rent” means the rental described in Section 5.1 of the Lease.
“Bond” or “Bonds” means the Taxable Industrial Revenue Bonds (Simonsen Redevelopment
Project), Series 2022, in the maximum aggregate principal amount of $25,000,000, issued, authenticated
and delivered under and pursuant to this Indenture.
“Bond Fund” means the “City of Jefferson, Missouri, Series 2022 Bond Fund – Simonsen
Redevelopment Project” created in Section 501.
“Bond Purchase Agreement” means the agreement by that name with respect to the Bonds by
and between the City and the Purchaser.
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“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 the City of Jefferson, Missouri, a home-rule city organized and existing under its
charter and the laws of the State.
“Closing Date” means the date identified in the Bond Purchase Agreement for the initial issuance
and delivery of the Bonds.
“Closing Price” means the amount specified in writing by the Purchaser 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 (a) any Project Costs spent by the Developer from its own funds before the Closing Date, and,
at the Developer’s option, the costs of issuance of the Bonds if such costs are not paid for from Bond
proceeds, or (b) the aggregate principal amount of the Bonds, if all of the proceeds of the Bonds are being
transferred to the Trustee on the Closing Date.
“Completion Date” means the date of execution of the certificate required by Section 4.5 of the
Lease and Section 504 hereof, which shall be deemed executed and filed on June 30, 2024 if not actually
executed and filed by June 30, 2024, except as otherwise provided in Section 4.5 of the Lease, including
an extension to December 31, 2024 in the event of a Permitted Excuse.
“Cumulative Outstanding Principal Amount” means the aggregate principal amount of all
Bonds Outstanding under the provisions of this Indenture, not to exceed $25,000,000, as reflected in the
records maintained by the Trustee as provided in the Bonds and this Indenture.
“Developer” means TD – Simonsen, LLC and its successors or assigns.
“Development Agreement” means the Development Agreement dated as of [*Date*], 2022
among the City, the Jefferson Redevelopment Corporation and the Developer.
“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.
“Fee Deed of Trust” means the Deed of Trust executed by the Developer for the benefit of the
Lender recorded against the Project Site prior to the City’s acquisition of the Project Site.
“Financing Document” means any loan agreement, credit agreement, mortgage, participation
agreement, lease agreement, sublease, ground lease, hedging agreement or other document related to the
Project and executed by or on behalf of a Financing Party, including, without limitation, any loan
agreement, credit agreement, mortgage or other document executed in connection with the loans made to
the Developer by the Lender.
“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,
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or any part thereof, including any trustee or agent acting on any such Person’s behalf. The Lender is a
Financing Party.
“Full Insurable Value” means the reasonable replacement cost of the Project less physical
depreciation and exclusive of land, excavations, footings, foundation and parking lots as determined at the
expense of the Developer from time to time.
“Government Securities” means (a) noncallable, nonredeemable direct obligations of the United
States of America, and (b) obligations the timely payment of the principal of, and interest on, which is fully
and unconditionally guaranteed by the United States of America, and (c) securities or receipts evidencing
ownership interests in obligations or specified portions (such as principal or interest) of obligations
described in (a) or (b).
“Indenture” means this Trust Indenture, as from time to time amended and supplemented by
Supplemental Indentures in accordance with the provisions of Article XI.
“Investment Securities” means any of the following securities:
(a) Government Securities;
(b) bonds, notes or other obligations of the State or any political subdivision of the
State, which at the time of their purchase are rated in either of the two highest rating categories by
a nationally recognized rating service;
(c) obligations of Fannie Mae, the Government National Mortgage Association, the
Federal Financing Bank, the Federal Intermediate Credit Corporation, Federal Banks for
Cooperatives, Federal Land Banks, Federal Home Loan Banks, Farmers Home Administration and
Federal Home Loan Mortgage Corporation;
(d) repurchase agreements with any bank, bank holding company, savings and loan
association, trust company, or other financial institution organized under the laws of the United
States or any state, that are continuously and fully secured by any one or more of the securities
described in clause (a), (b) or (c) above and that have a market value at all times at least equal to
the principal amount of such repurchase agreement and are held in a custodial or trust account;
(e) certificates of deposit, time deposits or demand deposits, whether negotiable or
nonnegotiable, issued by any bank or trust company organized under the laws of the United States
or any state, provided that such certificates of deposit, time deposits or demand deposit s shall be
either (1) continuously and fully insured by the Federal Deposit Insurance Corporation, or
(2) continuously and fully collateralized by such securities as are described above in clauses
(a) through (d), inclusive, which shall have a market value at all times at least equal to the principal
amount of such certificates of deposit, time deposits or demand deposits;
(f) money market funds registered under the Investment Company Act of 1940, whose
shares are registered under the Securities Act of 1933, and which are rated in any of the three
highest rating categories by a nationally recognized rating service; or
(g) any other investment approved in writing by the Authorized City Representative
and the Owners of all of the Outstanding Bonds.
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“Lease” means the Lease Agreement dated as of [*Date*], 2022 between the City, as lessor, and
the Developer, as lessee, as from time to time amended and supplemented by Supplemental Leases in
accordance with the provisions thereof and of Article XII.
“Lease Term” means the period from the effective date of the Lease until the expiration thereof
pursuant to Section 3.2 of the Lease.
“Leasehold Mortgage” means any leasehold mortgage, leasehold deed of trust, assignment of
rents and leases or other agreement relating to the Project permitted pursuant to the provisions of
Section 10.4 of the Lease and subject to the express, prior written consent of the Lender.
“Lender” means [*Lender*] and its successors or assigns.
“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, the Trustee’s fees and any extraordinary expenses of
the City and the Trustee) incurred in the collection of such gross proceeds.
“Outstanding” means, when used with reference to Bonds, as of a particular date, all Bonds
theretofore authenticated and delivered, except:
(a) Bonds previously canceled by the Trustee or delivered to the Trustee for
cancellation;
(b) Bonds deemed to be paid in accordance with the provisions of Section 1302; and
(c) Bonds in exchange for or in lieu of which other Bonds have been authenticated
and delivered pursuant to this Indenture.
“Owner” means the registered owner of any Bond as recorded on the bond registration records
maintained by the Trustee, and for any actions requiring the consent of an Owner hereunder, the Lender.
“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 the principal of or interest on any Bond, whether at the
stated maturity thereof or the redemption date thereof, is payable, which shall be December 1 of each year
that the Bonds are Outstanding.
“Permitted Encumbrances” means, as of any particular time, as the same may encumber the
Project Site, (a) liens for ad valorem taxes and special assessments not then delinquent, (b) this Indenture,
the Base Lease, the Lease and the Development Agreement, (c) utility, access and other easements and
rights-of-way, mineral rights, restrictions, exceptions and encumbrances that will not ma terially 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, 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, security interests or encumbrances granted pursuant to the Lease, any Leasehold Mortgage, the
Fee Deed of Trust or any other Financing Documents, and (f) such exceptions to title set forth in the [*Pro
Forma Owner’s Policy of Title Insurance, File No. __________,*] prepared by [*Title Company*].
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“Person” means an individual, partnership, corporation, business trust, joint stock company,
limited liability company, bank, insurance company, unincorporated association, joint venture or other
entity of whatever nature.
“Plans and Specifications” means the plans and specifications prepared for and showing the
Project, as amended by the Developer from time to time before the Completion Date, the same being on
file at the principal office of the Developer, and which shall be available for reasonable inspection during
normal business hours and upon not less than one Business Day’s prior notice by the City, the Trustee and
their duly appointed representatives.
“Project” means, collectively, the Project Site and the Project Improvements as they may at any
time exist.
“Project Costs” means all costs of purchasing and constructing the Project, including the
following:
(a) all costs and expenses necessary or incident to the acquisition, construction and
improvement of the Project;
(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
of construction, as well as for the performance of all other duties of professionals and consultants
in relation to the purchase and construction of the Project or the issuance of the Bonds;
(c) all costs and expenses of every nature incurred in purchasing and constructing the
Project Improvements and otherwise improving the Project Site, including the actual cost of labor
and materials as payable to contractors, builders and materialmen in connection with the purchase
and construction 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 period of construction of the Project in accordance with Article VII of the Lease;
(f) 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 and construction of the Project;
(g) all other items of expense not elsewhere specified in this definition as may be
necessary or incident to: (1) the authorization, issuance and sale of the Bonds, including costs of
issuance of the Bonds; (2) the purchase and construction of the Project; and (3) the financing
thereof; and
(h) reimbursement to the Developer 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.
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“Project Fund” means the “City of Jefferson, Missouri, Series 2022 Project Fund – Simonsen
Redevelopment Project” created in Section 501.
“Project Improvements” means a development consisting of approximately 71 residential
apartments, approximately 9,000 square feet of amenity space, related parking and infrastructure and any
other improvements located on the Project Site, to the extent paid for in whole with Bond proceeds, and all
additions, alterations, modifications and improvements thereof made pursuant to the Lease.
“Project Site” means all of the real estate described in Exhibit A.
“Purchaser” means the entity identified in the Bond Purchase Agreement as the purchaser of the
Bonds.
“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.
“Supplemental Lease” means any supplement or amendment to the Lease entered into pursuant
to Article XII.
“Trust Estate” means the Trust Estate described in the Granting Clauses of this Indenture.
“Trustee” means [*Trustee*], 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, and its successor or successors and any other corporation which at the time may be substituted
in its place pursuant to and at the time serving as Trustee under this Indenture.
“Unassigned Rights” means the City’s rights under the Lease 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 in the Lease.
Section 102. 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 otherwise indicates, 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 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.
(d) All references in this instrument to designated “Articles,” “Sections” and other
subdivisions are, unless otherwise specified, to the designated Articles, Sections and other subdivisions of
this instrument as originally executed. The words “herein,” “hereof,” “hereunder” and other words of
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similar import refer to this Indenture 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 Indent ure shall not be
treated as a part of this Indenture 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.
(g) Whenever the City is required to “cooperate,” “cooperate fully” or “act promptly” on a
matter set forth in this Indenture, the City’s cooperation shall be deemed to be reasonable cooperation and
the City’s promptness shall be deemed to be reasonable promptness; provided, however, the City shall not
be required to incur any costs, expenses, obligations or liabilities in providing such reasonable cooperation
and promptness.
Section 103. Incorporation.
(a) The Recitals hereof are all incorporated into this Indenture as if fully and completely set
out in this Section.
(b) The Exhibits to this Indenture are hereby incorporated into and made a part of this
Indenture.
ARTICLE II
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. The Bonds authorized to be issued under this Indenture
shall be designated as the “City of Jefferson, Missouri, Taxable Industrial Revenue Bonds (Simonsen
Redevelopment Project), Series 2022.” The maximum total principal amount of Bonds that may be issued
hereunder is hereby expressly limited to $25,000,000.
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 other
political subdivision thereof, and none of the City, the State or other political subdivision thereof shall be
liable thereon, and the Bonds shall not constitute an indebtedness within the meaning of any constitutional,
statutory or charter 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 Bond, in substantially the
form set forth in Exhibit B, in the denomination of $0.01 or any multiple thereof.
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(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 of 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
Developer (if not the Owner) and the City. Absent manifest error, the amounts shown on 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 payment 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 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 United States.
(e) If the Developer is the sole Owner of the Bonds, then the Developer may set-off its
obligation to the City as lessee to pay Basic Rent under the Lease against the City’s obligations to the
Developer as the bondholder to pay principal of and interest on the Bonds under this Indenture. The Trustee
may conclusively rely on the absence of any notice from the Developer to the contrary as evidence that
such set-off has occurred and that pursuant to the set-off, the Developer is deemed to have paid its obligation
to the City as lessee to pay Basic Rent under the Lease and the City is deemed to have paid its obligation
to the Developer as bondholder to pay principal of and interest on the Bonds under this Indenture. On the
final Payment Date, the Developer may deliver to the Trustee for cancellation the Bonds and the Developer
shall receive a credit against the Basic Rent payable by the Developer under Section 5.1 of the Lease in an
amount equal to the remaining principal of the Bonds so tendered for cancellation plus accrued interest
thereon.
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 or City Administrator and attested by the manual or facsimile signature of its City Clerk, and
shall have the corporate seal of the City affixed thereto or imprinted thereon. If any officer whose signature
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or facsimile thereof appears on the Bonds ceases to be such officer before the delivery of such Bonds, 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
form set forth in Exhibit B, 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 transfer of Bonds as provided in this
Indenture.
(b) The Bonds may be transferred to an Approved Investor 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 form 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 form of Exhibit C. Upon any such transfer, the City shall execute and the
Trustee shall authenticate and deliver in exchange for such Bonds 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 Bonds, 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 canceled by the
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 new Bonds 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 shall be deemed
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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 order 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 Bonds are authorized in the aggregate maximum principal amount of $25,000,000 for
the purpose of providing funds to pay Project Costs, which Bonds shall be designated the “City of Jefferson,
Missouri, Taxable Industrial Revenue Bonds (Simonsen Redevelopment Project), Series 2022.” The Bonds
shall be dated as provided in Section 203(b), shall become due on December 1, 2024 (subject to prior
redemption as provided in Article III) and shall bear interest as specified in Section 208(f), payable on the
dates specified in Section 208(f).
(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 B 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:
(1) 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 , the Development
Agreement, the Bond Purchase Agreement, the Base Lease, and the Lease;
(2) Executed counterparts or copies of this Indenture, the Development Agreement,
the Bond Purchase Agreement, the Base Lease and the Lease;
(3) A representation letter from the Purchaser in substantially the form attached as
Exhibit C;
(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 or at the written
direction of the Purchaser upon payment to the Trustee, for the account of the City, of the purchase
price thereof specified in the Bond Purchase Agreement. The Trustee shall be entitled to
conclusively rely upon such request and authorization as to the name of the Purchaser and the
amount of such purchase price; and
(5) Such other certificates, statements, receipts and documents as the Trustee shall
reasonably require for the delivery of the Bonds.
(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 Purchaser shall pay the Closing Price to the Trustee, and the Trustee shall
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 or upon the order of the Purchaser; or
(2) The Developer 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
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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 Developer (or another purchaser designated by the
Developer).
In either case, the Purchaser 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 to the Closing Price. In authenticating
Bonds, the Trustee makes no certification or representation that the Bonds have been validly issued or
constitute legally binding obligations of the City.
(e) Following the initial issuance and delivery of the Bonds, the Developer may submit
additional requisition certificates in accordance with Section 4.4 of the Lease. If the Purchaser does not
pay to the Trustee the amount set forth in the requisition certificates, the Purchaser will be deemed to have
advanced an amount equal to the amount set forth in the requisition certificates and, if the Trustee is holding
the Bonds, the Trustee shall endorse the Bonds in an amount equal to the amount set forth in each requisition
certificate. The date of endorsement of each Principal Amount Advanced 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 to the Trustee for the Project, and shall notify the City if the
requisitions submitted exceed the maximum principal amount of the Bonds.
(f) The Bonds shall bear interest at the rate of 5.0% per annum on the Cumulative Outstanding
Principal Amount of the Bonds. Such interest shall be payable in arrears on each December 1, commencing
on December 1, 2022, and continuing thereafter until the Cumulative Outstanding Principal Amount is paid
in full, but not later than December 1, 2024. Interest shall be calculated on the basis of a year of 360 days
consisting of 12 months of 30 days each.
(g) The Trustee shall keep and maintain a record of the amount deposited or deemed to be
deposited into the Project Fund pursuant to the terms of this Indenture as “Principal Amount Advanced”
and shall enter the aggregate principal amount of the Bonds then-Outstanding on its records as the
“Cumulative Outstanding Principal Amount.” If the Trustee is holding the Bonds, such advanced amounts
shall be reflected on Schedule I to the Bonds. To the extent that advances are deemed to have been made
pursuant to a requisition, the Trustee’s records of such advances shall be based solely on the requisitions
provided to it. 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
and Schedule I to the Bonds (if the Trustee is holding the Bonds) the principal amount paid on the Bonds
as “Principal Amount Redeemed,” and shall enter the then-Outstanding principal amount of the Bonds as
“Cumulative Outstanding Principal Amount.” The records maintained by the Trustee as to amounts
deposited into the Project Fund or principal amounts paid on the Bonds shall be the official records of the
Cumulative Outstanding Principal Amount for all purposes, absent manifest error, and shall be in
substantially the form of the Table of Cumulative Outstanding Principal Amount as set out in the Form of
Bonds in Exhibit B. 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 Developer
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, the Trustee, to the extent it has not already done so pursuant to this Section or
Section 1012, shall file a final statement of receipts and disbursements with respect thereto with the City
and the Developer.
Section 209. 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
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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, defend and hold 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 210. Cancellation and Destruction of Bonds Upon Payment.
(a) All Bonds that have been paid or redeemed or that have otherwise been surrendered to the
Trustee under this Indenture, either at or before maturity, shall be canceled by the Trustee immediately
upon the payment or redemption of such Bonds and the surrender thereof to the Trustee.
(b) All Bonds canceled under any of the provisions of this Indenture shall be destroyed by the
Trustee in accordance with applicable laws and regulations and the Trustee’s policies and practices . The
Trustee shall execute a certificate describing the Bonds so destroyed, and shall file executed counterparts
of such certificate with the City and the Developer.
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 Developer, (1) in whole, if the
Developer 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 Developer prepays
additional Basic Rent pursuant to the Lease. If only a portion of the Bonds are to be redeemed, (A) Bonds
aggregating at least 10% of the maximum aggregate principal amount of Bonds authorized hereunder shall
not be subject to redemption and payment before the stated maturity thereof, and (B) 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 Section 9.1(f) 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 Developer may deliver to the Trustee for cancellation any Bonds owned
by the Developer and not previously paid, and the Developer shall receive a credit against the amounts
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payable by the Developer 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 Developer’s direction, deliver to the Developer 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 301(a), the Developer 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 (10 days if there is one Owner) before the scheduled
redemption date. The Trustee shall then deliver written notice to the Owners at least 30 days (five days if
there is one Owner) before the scheduled redemption date by facsimile or other electronic communication
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 B. The Bonds may have
endorsed thereon such legends or text as may be necessary or appropriate to conform to any applicable rules
and regulations of any governmental authority or any custom, usage or requirements of law with respect
thereto.
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 special trust funds in the name of the City:
(a) “City of Jefferson, Missouri, Series 2022 Project Fund – Simonsen Redevelopment
Project” (herein called the “Project Fund”).
(b) “City of Jefferson, Missouri, Series 2022 Bond Fund – Simonsen Redevelopment
Project” (herein called the “Bond Fund”).
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Section 502. Deposits into the Project Fund. The proceeds of the sale of the Bonds (whether
actually paid or deemed paid under Section 208(d)), including Additional Payments provided for in the
Bond Purchase Agreement, when received, excluding such amounts required to be paid into the Bond Fund
pursuant to Section 601, shall be deposited by the Trustee into 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 written directions from the Person depositing such moneys also be deposited into the
Project Fund.
Section 503. Disbursements from the Project Fund.
(a) The moneys in the Project Fund shall be disbursed by the Trustee for the payment of, or
reimbursement to the Developer (or any other party that has made payment on behalf of the Developer) for
payment of, Project Costs upon receipt of requisition certificates signed by the Developer 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 Project
Fund the amount specified in the requisition certificates submitted by the Developer in accordance with the
provisions of Article IV of the Lease, the Trustee shall upon endorsement of the Bonds in an equal amount
be deemed to have disbursed such funds from the Project Fund to the Developer (or such other purchaser
designated by the Developer) in satisfaction of the requisition certificates. If the Trustee is holding the
Bonds, such deemed disbursement will be deemed to have been made on each date the Trustee endorses
the Bonds with respect to such additional amounts.
(c) In paying any requisition under this Section, the Trustee may rely as to t he completeness
and accuracy of all statements in such requisition certificate if such requisition certificate is signed by the
Authorized Developer 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 purchase, construction and
installation 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 after the Completion Date any balance remaining in the Project Fund shall without further
authorization be transferred by the Trustee to the Bond Fund and applied as provided in Section 4.6 of the
Lease.
Section 505. Disposition Upon Acceleration. If the principal of the Bonds has become due
and payable pursuant to Section 902, upon the date of payment by the Trustee of any moneys due as
hereinafter provided in Article IX, any balance remaining in the Project Fund shall without further
authorization be deposited in the Bond Fund by the Trustee, with advice to the City and to the Developer
of such action.
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ARTICLE VI
REVENUES AND FUNDS
Section 601. Deposits into the Bond Fund.
(a) The Trustee shall deposit into the Bond Fund, as and when received, (1) all accrued interest
on the Bonds, if any, paid by the Purchaser; (2) all Basic Rent payable by the Developer to the City specified
in Section 5.1 of the Lease; (3) any Additional Rent payable by the Developer specified in Section 5.2 of
the Lease; (4) any amount in the Project Fund to be transferred to the Bond Fund pursuant to Section 504
or Section 505; (5) subject to the terms and conditions of the Fee Deed of Trust and the other Financing
Documents executed in favor of the Lender, the balance of any Net Proceeds of condemnation awards or
insurance received by the Trustee pursuant to Article IX of the Lease; (6) the amounts to be deposited in
the Bond Fund pursuant to Sections 9.1(f) and 9.2(c) of the Lease; (7) all interest and other income derived
from the investment of Bond Fund moneys as provided in Section 702; and (8) 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.
(b) The Trustee shall notify the Developer in writing, at least 15 days before each date on
which a payment is due under Section 5.1 of the Lease, of the amount that is payable by the Developer
pursuant to such Section.
Section 602. Application of Moneys in the Bond Fund.
(a) Except as provided in Section 604 and Section 908 hereof or in Section 4.6 of the Lease,
moneys in the Bond Fund shall be expended solely for the payment of the principal of and interest on the
Bonds as the same matures and becomes due or upon the redemption thereof before 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 601 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 interest on the Bonds as the same becomes 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 before and until such redemption, the
City covenants and agrees, upon request of the Developer, 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 Developer. 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 so long as the Developer 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 fees, charges and expenses of the
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Trustee, the City and any Paying Agent and any other amounts required to be paid under this Indenture, the
Lease and the Development Agreement, all amounts remaining in the Bond Fund shall be paid to the
Developer upon the expiration or sooner termination of the Lease.
Section 603. 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 604. 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, determine and be completely
discharged, and thereupon it shall be the duty of the Trustee to hold such funds, without liability for interest
thereon, for the benefit of the Owner of such Bond who shall thereafter be restricted exclusively to such
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
Developer 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 Developer, and
the Owner thereof may look only to the Developer for payment, and then only to the extent of the amount
so repaid, and the Developer shall not be liable for any interest thereon and shall not be regarded as a trustee
of such money.
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 and the Bond Fund shall, pursuant to written direction of the Developer, signed by the
Authorized Developer Representative, be separately invested and reinvested by the Trustee in Investment
Securities which mature or are subject to redemption by the Owner before the date such funds will be
needed. If the Developer fails to provide written directions concerning the investment of moneys held in
the Project Fund and the Bond Fund, the Trustee is authorized to invest in such Investment Securities
specified in paragraph (e) of the definition of Investment Securities, provided they mature or are subject to
redemption before the date such funds will be needed. The Trustee is specifically authorized to implement
its automated cash investment system to assure that cash on hand is invested and to charge its normal cash
management fees and cash sweep account fees, which may be deducted from income earned on
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investments; provided that any such fees shall not exceed the interest income on the investment. The
Trustee shall be provided ample time to clear any such fees that exceed 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) 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.
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 while any of the Bonds
are Outstanding.
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 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; and 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 or
cause to be performed at all times any and all covenants, undertakings, stipulations and provisions contained
in this Indenture, in the Bonds and in all proceedings of its City Council 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.
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
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described to the payment of the principal of and interest, if any, on the Bonds, upon being first indemnified
by the Developer for the cost thereof. 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 and directs the Trustee to file or cause to be kept and filed
continuation statements with respect to such originally filed financing statements related to this Inden ture
and all supplements hereto and such other documents as may be required under the Uniform Commercial
Code in order 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 order to fully preserve and protect the security o f the Owners
and the rights of the Trustee hereunder. The Trustee shall file continuation statements with respect to each
Uniform Commercial Code financing statement relating to the Trust Estate filed by the City 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 has been notified in writing by the City 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. The Developer shall be responsible for the customary fees charged
by the Trustee for the preparation and filing of continuation statements and for the reasonable costs incurred
by the Trustee in the preparation and filing of all continuation statements hereunder, including attorneys’
fees and expenses. These fees shall be considered “extraordinary services” fees.
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 Truste e may
from time to time designate.
Section 807. Enforcement of Rights Under the Lease. The Trustee, as assignee, transferee,
pledgee, and owner of a security interest under this Indenture, in its name or in the name of the City, may
enforce all assigned rights of the City and the Trustee and all obligations of the Developer under and
pursuant to the Lease for and on behalf of the Owners, whether or not the City is in default hereunder.
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 of 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;
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(c) Default as specified in Section 12.1 of the Lease has occurred; or
(d) Default in the performance, or breach, of any other covenant or agreement under
this Indenture.
No default specified above shall constitute an Event of Default until the City, the Trustee or the
Owners of 25% in aggregate principal amount of all Bonds Outstanding has given actual notice of such
default by registered or certified mail or recognized overnight delivery service to the Developer and the
Lender, and the Developer and the Lender have had 30 days after receipt of such notice to correct said
default or cause said default to be corrected and have 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 Developer, the Lender or the City, as the case may be, within
such period and diligently pursued until the default is corrected. Nothing herein shall constitute an
obligation of the Lender to cure any defaults hereunder.
Section 902. Acceleration of Maturity in Event of Default.
(a) 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 City or the Owners
of not less than 25% in aggregate principal amount of Bonds then-Outstanding, shall, by notice in writing
delivered to the City, the Lender and the Developer, declare the principal of all Bonds then-Outstanding
and the interest accrued thereon immediately due and payable, and such principal and interest and all other
amounts due hereunder shall thereupon become and be immediately due and payable.
(b) If, at any time after such declaration, but before the Bonds have matured by their terms, all
overdue installments of principal and interest upon the Bonds, together with the reasonable and proper
expenses of the Trustee, and all other sums then payable by the City under this Indenture are either paid or
provisions satisfactory to the Trustee are made for such payment, then and in every such case the Trustee
shall, but only with the approval of a majority of the Owners of the Bonds then -Outstanding, rescind such
declaration and annul such default in its entirety. In such event, the Trustee shall rescind any declaration
of acceleration of installments of rent payments on the Bonds as provided in Section 11.1 of the Lease.
(c) In case of any rescission, then and in every such case the City, the Trustee, the Developer
and the Owners shall be restored to their former positions and rights hereunder respectively, but no such
rescission shall extend to any subsequent or other default or Event of Default or impair any right consequent
thereon.
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 after the notice and cure period described
in Section 901 elapses, 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 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 an y 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
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and other charges before the lien of this Indenture, (d) all expenses of such repairs and improvements and
(e) any amounts payable under the Development Agreement. The Trustee shall apply the remainder of the
moneys so received in accordance with the provisions of Section 908. 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
Developer 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 after the notice and cure period described in Section 901 elapses, 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 Developer 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 in writing to do so by (1) the City (in the case of an Event
of Default pursuant to Section 12.1(a) (but only as it relates to Additional Rent), (b) (but only as it relates
to Unassigned Rights), (c) or (d) of the Lease), or (2) the Owners of 25% in aggregate principal amount of
Bonds then-Outstanding and indemnified as provided in Section 1001(l), 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, 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 1001(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 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(l), 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
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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 pro vided, and that
all proceedings at law or in 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 may,
at any time, by an instrument or instruments in writing executed and delivered to the Trustee, 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(l).
(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(a) (but only as it relates to Additional Rent), (b) (but only as it relates to
Unassigned Rights), (c) or (d) 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 be applied first to the costs and expenses of the proceedings resulting in the
collection of such moneys and of the fees, expenses, liabilities and advances incurred or made by the Trustee
(including any attorneys’ fees and expenses) or amounts to be paid pursuant to Section 903 and second to
any obligations outstanding under the Lease and the Development Agreement. Any remaining moneys
shall be deposited in the Bond Fund and applied as follows:
(1) Unless the principal of all the Bonds has become or has 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 order 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 thereto of the unpaid principal
of any of the Bonds which have become due and payable (other than Bonds called for
redemption for the payment of which moneys are held pursuant to the provisions of this
Indenture), in the order of their due dates, and, if the amount available shall not be sufficient
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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 has become due or has 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 Persons entitled thereto, without any discrimination or privilege.
(3) If the principal of all the Bonds has been declared due and payable, and if such
declaration thereafter has been rescinded and annulled under the provisions of Section 910, then,
subject to the provisions of subsection (2) of this Section, if the principal of all the Bonds later
becomes due or is 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 date 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 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 Development Agreement), any balance remaining in the Bond Fund shall be paid to the Developer as
provided in Section 602.
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 Developer, 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,
on the Bonds, but only upon the written request of the Owners of at least 50% in aggregate principal amount
of all the Bonds then-Outstanding, provided, however, that (a) 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(a) (but only
as it relates to Additional Rent), (b) (but only as it relates to Unassigned Rights), (c) or (d) of the Lease,
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and (b) there shall not be waived without the consent of the Owners of all the Bonds Outstanding (1) 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 (2) any Event of Default in the payment when due of the
interest on any such Bonds, unless before 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, 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 has been discontinued or abandoned or determined adversely, then and in
every such case the City, the Developer, 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, before 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(l) 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 undertakes to perform such duties as are specifically set forth in this
Indenture, and in the absence of bad faith, negligence or willful misconduct on its part, the Trustee
may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements
of this Indenture. No provision of this Indenture shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act, or its own willful misconduct.
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 Developer, 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 nonaction 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
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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 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.
(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 the Trustee. The Trustee
shall not be accountable for the use or application by the City or the Developer of the proceeds of
any of the Bonds or of any money paid to or upon the order of the City or the Developer 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, order, 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 maki ng 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 before taking, suffering or
omitting any action hereunder, the Trustee may rely upon a certificate signed by the Authorized
City Representative or the Authorized Developer Representative as sufficient evidence of the facts
therein contained, and before 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, 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 Developer’s reasonable and
standard security procedures, the Trustee and its duly authorized agents, attorneys, experts,
engineers, accountants and representatives may, 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 Developer as confidential.
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(j) 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 may, 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.
(l) Notwithstanding anything in this 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 (including, without
limitation, attorneys’ fees 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 provision 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) The Trustee agrees to accept and act on instructions or directions pursuant to this
Indenture sent by the City or the Developer, as the case may be, by unsecured e-mail, facsimile
transmission or other similar unsecured electronic methods, provided, however, that the City or the
Developer, respectively, shall provide to the Trustee an incumbency certificate listing design ated
Persons with the authority to provide such instructions, which incumbency certificate shall be
amended whenever a Person is to be added or deleted from the listing. If the City or the Developer,
as applicable, elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar
electronic method) and the Trustee acts upon such instructions, the Trustee’s understanding of such
instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or
expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such
instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written
instruction. The City or the Developer, as applicable, agrees to assume all risks arising out of the
use of such electronic methods to submit instructions and directions to the Trustee, including
without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of
interception and misuse by third parties.
(o) The Trustee shall have no responsibility with respect to any information, statement
or recital in any official statement, offering memorandum or any other disclosure material prepared
or distributed with respect to the Bonds and shall have no responsibility for compliance with any
state or federal securities laws in connection with the Bonds.
(p) None of the provisions of this Indenture shall require the Trustee to expend or risk
its own funds or otherwise to incur any liability, financial or otherwise, in the performance of any
of its duties hereunder, or in the exercise of any of its rights or powers if it has reasonable grounds
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for believing that repayment of such funds or indemnity satisfactory to it against such risk or
liability is not assured to it.
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 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 caused by the negligence 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 reasonable fees and charges of the Trustee as Paying Agent for the Bonds. Pursuant
to the provisions of Section 5.2 of the Lease, the Developer 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 Developer 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 before payment on account of principal of
or interest on any Bond, upon all moneys in its possession under any provisions her eof for the foregoing
reasonable advances, fees, costs and expenses incurred. The Trustee’s rights to compensation and
indemnification shall survive the satisfaction and discharge of this Indenture or its resignation or removal
hereunder and payment in full of the Bonds.
Section 1003. Notice to Owners if Default Occurs. If a default occurs of which the Trustee is
by Section 1001(h) 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-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(l),
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. With the prior written
consent of the Developer, 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 corporation 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 Developer 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; provided, however, that in no event shall the
resignation of the Trustee or any successor Trustee become effective until such time as a successor Trustee
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has been appointed and has accepted the appointment. If no successor has been appointed and accepted the
appointment within 30 days after the giving of such notice of resignation, the Trustee, at the Developer’s
expense, may petition any court of competent jurisdiction for the appointment of a successor Trustee.
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
Developer 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 has occurred and is
continuing, delivered to the Trustee, the City and the Owners and signed by the Developer.
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 Developer (so long as no Event of Default has occurred and is
continuing), or (b) reasonably acceptable to the City and the Developer 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 or City Administrator 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 s tanding and
qualified to accept such trust with a corporate trust office in the State, and 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, the Trustee, at the Developer’s expense, or any Owner may petition any court of competent
jurisdiction for the appointment of a successor Trustee, until a successor has 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 Developer
an instrument in writing accepting such appointment hereunder, and thereupon such successor shall, 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 terminate; but such predecessor shall, nevertheless, on the
written request of the City, 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
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secured by this Indenture, and the same shall be given a preference i n 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 has been requested to do so by the Owners of at least 25% of the
aggregate principal amount of Bonds then-Outstanding and has 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) denying or restricting the right of banking corporations 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 this Indenture or the
Lease upon the occurrence of an Event of Default or if the Trustee deems that by reason of any present or
future law of any jurisdiction it cannot 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.
(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 Developer), 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 confirming
to such co-trustee or separate 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 Developer and to any Owner requesting the same and, upon the
request of the City, the Developer or any Owner (at such Owner’s expense), a monthly accounting to any
such party, 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 specifically assigned to it under the Lease.
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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 both 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
Developer; 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 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 may, from time to time, anything contained in
this Indenture to the contrary notwithstanding, consent to and approve the execution b y 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 100% of the principal amount of the Bonds then-
Outstanding, nothing in this Section contained shall permit or be construed as permitting (1) 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. Such notice shall briefly set forth the nature of the proposed Supplemental Indenture and shall
state that copies thereof are on file at the 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
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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. Developer’s Consent to Supplemental Indentures. Anything herein to the
contrary notwithstanding, a Supplemental Indenture under this Article shall not become effective unless
and until the Developer has consented in writing to the execution and delivery of such Supplemental
Indenture. The Trustee shall cause notice of the proposed execution and delivery of an y Supplemental
Indenture (regardless of whether it affects the Developer’s rights) together with a copy of the proposed
Supplemental Indenture to be mailed to the Developer and any Financing Party of which the Trustee has
received written notice at least 15 days before 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 Developer 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 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, neither the City nor the Trustee shall consent to the execution of
any Supplemental Lease or Supplemental Leases by the City or the Developer 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. If
at any time the City and the Developer 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 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 corporate trust office of the Trustee for inspection by all Owners. If within 60 days or s uch
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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 this Indenture and the applicable law and will upon the
execution and delivery thereof be valid and binding obligations of the parties thereto.
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, and provision also made
for paying all other sums payable hereunder and under the Lease and the Development 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 Developer 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 Developer under
Section 602 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.
(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 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 (A) moneys sufficient to make such payment
or (B) Government Securities maturing as to principal and interest in such amount and at such times as will
ensure the availability of sufficient moneys to make such payment, or (3) have been provided for by
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surrendering the Bonds to the Trustee for cancellation. When the 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 immedia tely 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 has been given in accordance
with Article III or irrevocable instructions 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.
(a) 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:
(1) 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.
(2) 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.
(b) In determining whether the Owners of the requisite principal amount of Bonds Outstanding
have given any request, demand, authorization, direction, notice, consent or waiver under this Indenture,
Bonds owned by the Developer shall be disregarded and deemed not to be Outstanding under this Indenture,
except that, in determining whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Bonds which the Trustee knows to be so owned
shall be so disregarded; provided, the foregoing provisions shall not be applicable if the Developer is the
only Owner of the Bonds. Notwithstanding the foregoing, Bonds so owned which have been pledged in
good faith shall not be disregarded as aforesaid if the pledgee establishes to the satisfaction of the Trustee
the pledgee’s right so to act with respect to such Bonds and the pledgee is not the Developer or any affiliate
thereof. The parties hereto acknowledge that, as of the date of execution and delivery of this Indenture, the
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Lender is the pledgee of the Bonds and shall be deemed to be the sole holder of the Bonds for purposes of
any request, demand, authorization, direction, notice, consent or waiver under this Indenture.
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, the Lender and the Owners, as herein provided.
Section 1403. Rights of Lender. The City and the Trustee agree that in addition to any other
rights to assign the Bonds as set forth herein, the Developer may collaterally assign its interest in the Bonds
to the Lender for the purpose of securing the Developer’s obligations to the Lender in connection with the
financing or refinancing of the Project. If a collateral assignment is made by the Developer, the City and
the Trustee agree, at the expense of the Developer, to execute such consents, estoppels and other documents
related thereto as the Lender shall reasonably request and in such form and with such terms as the City and
the Trustee deem appropriate.
Section 1404. 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 Developer, the
Lender or Owners if the same is duly mailed, postage prepaid, sent by overnight delivery or other delivery
service, as follows:
(a) To the City:
City of Jefferson
320 E. McCarty
Jefferson City, Missouri 65101
Attn: City Administrator
with copies to:
City of Jefferson
320 E. McCarty
Jefferson City, Missouri 65101
Attn: City Counselor
and
Gilmore & Bell, P.C.
One Metropolitan Square
211 N. Broadway, Suite 2000
St. Louis, Missouri 63102
Attn: Mark D. Grimm, Esq.
(b) To the Trustee:
[*Trustee*]
____________________
____________________
Attn: Corporate Trust Department
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(c) To the Developer:
TD – Simonsen, LLC
P.O. Box 6331
Fishers, Indiana 46038
Attn: Jeffrey J. Tegethoff
with a copy to:
Husch Blackwell LLP
190 Carondelet Plaza, Suite 600
Clayton, Missouri 63105
Attn: David Richardson, Esq.
(d) To the Lender:
[*Lender*]
____________________
____________________
Attn: __________
(e) 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 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 that any of the foregoing given 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 received. 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 Developer and the Lender.
The City, the Developer, the Lender 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 1405. Severability. If any provision of this Indenture is 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 1406. 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 1407. Governing Law. This Indenture shall be governed exclusively by and construed
in accordance with the applicable laws of the State.
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Section 1408. Electronic Transaction. The parties agree that the transaction described herein
may be conducted and related documents may be sent, received or 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 1409. City Consent. Pursuant to the Ordinance, the Mayor and the City Administrator
are authorized to execute all documents on behalf of the City (including documents pertaining to the transfer
of property or the financing or refinancing of the Project by the Developer) as may be required to carry out
and comply with the intent of the Ordinance, this Indenture and the Lease. The Mayor and the City
Administrator are also authorized, unless expressly prohibited herein, to grant on behalf of the City such
consents, estoppels and waivers relating to the Bonds, this Indenture, the Base Lease, the Lease or the
Development Agreement as may be requested during the term thereof; provided, such consents, estoppels
and/or waivers shall not increase the principal amount of the Bonds, increase the term of the Lease or the
economic incentives provided therein, waive an Event of Default or materially change the nature of the
transaction unless otherwise approved by the City Council.
Section 1410. Anti-Discrimination Against Israel Act. Pursuant to Section 34.600 of the
Revised Statutes of Missouri, the Trustee certifies it is not currently engaged in and shall not, for the
duration of this Indenture, engage in a boycott of goods or services from (a) the State of Israel,
(b) companies doing business in or with the State of Israel or authorized by, licensed by or organized under
the laws of the State of Israel or (c) persons or entities doing business in the State of Israel.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the City of Jefferson, Missouri, 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 its City
Clerk, and to evidence its acceptance of the trusts hereby created, [*Trustee*] has caused this Indenture to
be signed in its name and behalf by a duly authorized officer, all as of the date first above written.
CITY OF JEFFERSON, MISSOURI
(SEAL)
By:
Carrie Tergin, Mayor
Attest:
Emily Donaldson, City Clerk
[Trust Indenture]
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[*TRUSTEE*], as Trustee
By:
Name:
Title:
[Trust Indenture]
A-1
EXHIBIT A
PROJECT SITE
The land situated in the County of Cole, State of Missouri, and described as follows:
B-1
EXHIBIT B
FORM OF BONDS
THIS BOND OR ANY PORTION HEREOF MAY BE TRANSFERRED, ASSIGNED OR
NEGOTIATED ONLY AS PROVIDED IN THE HEREIN-DESCRIBED INDENTURE.
No. 1 Not to Exceed
$25,000,000
UNITED STATES OF AMERICA
STATE OF MISSOURI
CITY OF JEFFERSON, MISSOURI
TAXABLE INDUSTRIAL REVENUE BOND
(SIMONSEN REDEVELOPMENT PROJECT)
SERIES 2022
Interest Rate Maturity Date Dated Date
5.0% December 1, 2024 __________, 2022
OWNER: ______________________________
MAXIMUM PRINCIPAL AMOUNT: TWENTY-FIVE MILLION DOLLARS
The CITY OF JEFFERSON, MISSOURI, a home-rule city organized and existing under the
laws of the State of Missouri and the City Charter (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 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, 2022, 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 all Bonds outstanding
under the terms of the hereinafter-defined Indenture, as reflected on Schedule I hereto maintained by the
Trustee.
B-2
THIS BOND is one of a duly authorized series of Bonds of the City designated the “City of
Jefferson, Missouri, Taxable Industrial Revenue Bonds (Simonsen Redevelopment Project), Series 2022,”
in the maximum aggregate principal amount of $25,000,000 (the “Bonds”), to be issued for the purpose of
acquiring a leasehold interest in approximately 4.59 acres of real property located at 501 E. Miller in the
City (the “Project Site”) and renovating the historic school building located thereon for use as
approximately 60-75 residential apartments and amenity space and related parking and infrastructure (the
“Project Improvements”). The City will lease the Project Site and the Project Improvements (collectively,
the “Project”) to TD – Simonsen, LLC, a Missouri limited liability company (the “Developer”), under the
terms of a Lease Agreement dated as of [*Date*], 2022 (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 Developer, all pursuant to the authority of and in full compliance with the
provisions, restrictions and limitations of the Constitution and the statutes of the State of Missouri, including
particularly the Act, and pursuant to proceedings duly had by the City Council.
THE BONDS are issued under and are equally and ratably secured and entitled to the protection
given by a Trust Indenture dated as of [*Date*], 2022 (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 [*Trustee*], 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 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 Developer, (1) in whole, if the Developer
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 Developer prepays additional
Basic Rent pursuant to the Lease; provided, however, if only a portion of the Bonds are to be redeemed,
Bonds aggregating at least 10% 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 Section 9.1(f) 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 in the Indenture. 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, money in an amount equal to the redemption price shall have
been deposited in the Bond Fund.
B-3
If the Bonds are to be called for optional redemption, the Developer 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 (10 days
if there is one Owner) before 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 or other electronic communication 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 are 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, statutory or charter 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 Developer 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, Series 2022 Bond Fund –
Simonsen Redevelopment Project.”
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
reasonably 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.
THE BONDS are issuable in the form of one fully-registered Bond in the maximum principal
amount of $25,000,000.
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 has been executed by the
Trustee.
B-4
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, the 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.
CITY OF JEFFERSON, MISSOURI
(SEAL)
By:
Carrie Tergin, Mayor
Attest:
Emily Donaldson, City Clerk
CERTIFICATE OF AUTHENTICATION
This Bond is the Taxable Industrial Revenue Bond (Simonsen Redevelopment Project), Series
2022, described in the Indenture. The effective date of registration of this Bond is set forth below.
[*TRUSTEE*], as Trustee
____________________ By:
Date Authorized Signatory
B-5
SCHEDULE I
TABLE OF CUMULATIVE OUTSTANDING PRINCIPAL AMOUNT
CITY OF JEFFERSON, MISSOURI
TAXABLE INDUSTRIAL REVENUE BOND
(SIMONSEN REDEVELOPMENT PROJECT)
SERIES 2022
Bond No. 1
Date
Principal Amount
Advanced
Principal Amount
Redeemed
Cumulative
Outstanding
Principal
Amount
Notation
Made
By
B-6
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: ______________________.
_______________________________________
NOTICE: The signature to this assignment must
correspond with the name as it appears upon the
face of the within Bond in every particular.
Medallion Signature Guarantee:
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EXHIBIT C
FORM OF REPRESENTATION LETTER
City of Jefferson
320 E. McCarty
Jefferson City, Missouri 65101
Attn: City Administrator
[*Trustee*], as Trustee
____________________
____________________
Attn: Corporate Trust Department
Re: $25,000,000 Maximum Principal Amount of Taxable Industrial Revenue Bonds (Simonsen
Redevelopment Project), Series 2022 of the 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 hereby represents, warrants and agrees as follows:
1. The undersigned fully understands that (a) the Bonds have been issued under and pursuant
to a Trust Indenture dated as of [*Date*], 2022 (the “Indenture”), between the City of Jefferson, Missouri
(the “City”), and [*Trustee*], 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 TD – Simonsen, LLC, a Missouri limited liability company (the “Developer”), under a Lease Agreement
dated as of [*Date*], 2022 (the “Lease”), between the City and the Developer, 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. Capitalized terms not defined herein shall have
the meanings set forth in the Indenture.
2. The undersigned 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.
3. The undersigned agrees not to attempt to offer, sell, hypothecate or otherwise distribute the
Bonds to others unless authorized by the terms of the Indenture and, if requested by the City, upon receipt
of an opinion of counsel reasonably acceptable to the City, the Developer 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.
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4. The Developer has (a) furnished to the undersigned such information about itself as the
undersigned deems necessary in order for it to make an informed investment decision with respect to the
purchase of the Bonds, (b) made available to the undersigned, 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. [*Delete this paragraph if the Developer is the Purchaser of the Bonds.*]
5. The undersigned is now, and was when it agreed to purchase the Bonds, familiar with the
operations of the Developer and fully aware of terms and risks of the Bonds. [*Delete previous sentence if
the Developer is the Purchaser of the Bonds.*] The undersigned believes that the Bonds which it is
acquiring is a security of the kind that it wishes to purchase and hold for investment and that the nature and
amount thereof are consistent with its investment program.
6. The undersigned is fully aware of and satisfied with (a) the current status of the title to the
Project and any issues related thereto and (b) 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.
7. The undersigned understands and agrees that the interest on the Bonds is subject to federal
and state income taxation.
8. The undersigned hereby directs the Trustee to hold the Bonds in trust pursuant to
Section 204(c) of the Indenture.
9. The undersigned is (a) the lessee under the Lease, (b) an affiliate of the lessee under the
Lease, (c) the Lender, (d) a “qualified institutional buyer” under Rule 144A promulgated under the
Securities Act of 1933, or (e) any general business corporation or enterprise with total assets in excess of
$100,000,000.
Dated: , 20___
[PURCHASER OF BONDS]
By:
Name:
Title:
EXHIBIT E
BOND PURCHASE AGREEMENT
(On file in the office of the City Clerk)
Gilmore & Bell, P.C.
Draft – July 11, 2022
$25,000,000
(AGGREGATE MAXIMUM PRINCIPAL AMOUNT)
CITY OF JEFFERSON, MISSOURI
TAXABLE INDUSTRIAL REVENUE BONDS
(SIMONSEN REDEVELOPMENT PROJECT)
SERIES 2022
Dated as of [*Date*], 2022
BOND PURCHASE AGREEMENT
Honorable Mayor and City Council
Jefferson City, Missouri
On the basis of the representations and covenants and upon the terms and conditions contained in
this Bond Purchase Agreement, TD – Simonsen, LLC, a Missouri limited liability company
(the “Purchaser”), offers to purchase from the City of Jefferson, Missouri (the “City”), the above-referenced
bonds (the “Bonds”), to be issued by the City under and pursuant to Ordinance No. _____ adopted by the
City Council of the City on _________, 2022 (the “Ordinance”), and a Trust Indenture dated as of
[*Date*], 2022 (the “Indenture”) by and between the City and [*Trustee*], as trustee (the “Trustee”).
Capitalized terms not otherwise defined herein shall have the meanings set forth in 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 an incorporated political subdivision of the State of Missouri duly
organized and validly existing under its charter and the laws of the State of Missouri. The City is
authorized pursuant to the Constitution, the laws of the State of Missouri and the charter,
ordinances, orders and resolutions of the City, and all necessary action has been taken to authorize,
issue and deliver the Bonds and to consummate all transactions contemplated by the Ordinance,
this Bond Purchase Agreement, the Indenture, the Base Lease dated as of [*Date*], 2022 (the “Base
Lease”) by and between the City and the Purchaser, the Lease Agreement dated as of
[*Date*], 2022 (the “Lease”) by and between the City and the Purchaser, the Development
Agreement dated as of [*Date*], 2022 (the “Development Agreement”) by and among the City, the
Jefferson Redevelopment Corporation and the Purchaser, and any and all other agreements relating
thereto. The proceeds of the Bonds shall be used for the purpose of acquiring a leasehold interest
in the Project Site, constructing the Project Improvements and paying 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 , to the
City’s actual knowledge, threatened wherein or whereby any question is raised or may be raised,
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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 Base Lease, the Lease,
the Indenture, the Development Agreement or this Bond Purchase Agreement.
(b) The Purchaser represents as follows:
(1) Organization. The Purchaser is a limited liability company duly organized, validly
existing and 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 organizat ional documents, any law,
court or administrative regulation, decree or order applicable to or binding upon the Purchaser, or,
to the best of its knowledge, any agreement, indenture, mortgage, lease or instrument to which the
Purchaser is a party or by which it is bound.
(3) Document 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. The party executing this
Bond Purchase Agreement on behalf of the Purchaser has been duly authorized to execute this
Bond Purchase Agreement.
(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 the City as to the statements made therein.
SECTION 2. PURCHASE, SALE AND DELIVERY OF THE 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 set forth herein and in the Indenture, the Purchaser
agrees to purchase from the City and the City agrees to sell to the Purchaser the Bonds on the terms and
conditions set forth herein.
The 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), which amount shall be applied as
provided in the Indenture and the Lease. From time to time after the Closing Date, the Purchaser shall
make additional payments with respect to the Bonds (“Additional Payments”) to the Trustee under the
Indenture, which Additional Payments shall be applied to the payment or reimbursement of Project Costs
or as provided in the Indenture and the Lease; provided that the sum of the Closing Price and all such
Additional Payments shall not, in the aggregate, exceed $25,000,000 plus the costs of issuance of the Bonds
(if such costs of issuance are not paid with Bond proceeds).
As used herein, the term “Closing Date” shall mean __________, 2022, or such other date as shall
be mutually agreed upon by the City and the Purchaser; the term “Closing Price” shall mean the amount
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specified in writing by the Purchaser 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 (a) any Project Costs spent by
the Purchaser from its own funds on or before the Closing Date, and, at the Purchaser’s option, the costs of
issuance of the Bonds if such costs are not paid for from Bond proceeds , or (b) the aggregate principal
amount of the Bonds, if all of the proceeds of the Bonds are being transferred to the Trustee on the Closing
Date.
The Bonds shall be issued under and secured as provided in the Ordinance, the Indenture and the
Lease authorized thereby and the Bonds shall have the maturity, interest rate and shall be subject to
redemption as set forth therein. The delivery of the Bonds shall be made in definitive form as a fully -
registered bond in the maximum aggregate principal denomination of $25,000,000; provided, that the
principal amount of the Bonds outstanding at any time shall be that amount recorded in the records of the
Trustee, absent manifest error, and further provided that interest on the Bonds shall be payable only on the
outstanding principal amount of the Bonds, as more fully provided in the Indenture.
SECTION 3. CONDITIONS TO THE OBLIGATIONS
The obligations hereunder shall be subject to the due performance by the parties of the obligations
and agreements to be performed hereunder on or prior to the Closing Date and to the accuracy of and
compliance with the 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
certified copy of the Ordinance, the Indenture, the Base Lease, the Lease, the Development
Agreement, this Bond Purchase Agreement 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, to its knowledge, threatened against
the City 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 obligations represented by
the Bonds or the validity of the Bonds or any proceedings in relation to the issuance or sale thereof.
(c) The Purchaser shall execute a certificate, dated the Closing Date, to the effect that
(1) no litigation, proceeding or investigation is pending against the Purchaser or its affiliates or, to
the knowledge of the Purchaser, 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
corporate existence or powers of the Purchaser, (2) no litigation, proceeding or investigation is
pending or, to the knowledge of the Purchaser, threatened against the Purchaser that could
reasonably be expected to adversely affect its ability to perform its obligations hereunder or under
the Base Lease, the Lease or the Development Agreement, (3) the representations and warranties
of the Purchaser 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 (4) such other matters as are reasonably requested
by the other parties in connection with the issuance of the Bonds.
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SECTION 4. THE PURCHASER’S RIGHT TO CANCEL
The Purchaser may cancel its obligation hereunder to purchase the Bonds by notifying the City in
writing at or before the Closing Date.
SECTION 5. 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 6. NOTICE
Any notice or other communication to be given under this Bond Purchase Agreement may be given
in writing by mailing or delivering the same as follows:
(a) To the City:
City of Jefferson
320 E. McCarty
Jefferson City, Missouri 65101
Attn: City Administrator
with copies to:
City of Jefferson
320 E. McCarty
Jefferson City, Missouri 65101
Attn: City Counselor
and
Gilmore & Bell, P.C.
One Metropolitan Square
211 N. Broadway, Suite 2000
St. Louis, Missouri 63102
Attn: Mark D. Grimm, Esq.
(b) To the Trustee:
[*Trustee*]
____________________
____________________
Attn: Corporate Trust Department
(c) To the Purchaser:
TD – Simonsen, LLC
P.O. Box 6331
Fishers, Indiana 46038
Attn: Jeffrey J. Tegethoff
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with a copy to:
Husch Blackwell LLP
190 Carondelet Plaza, Suite 600
Clayton, Missouri 63105
Attn: David Richardson, Esq.
SECTION 7. APPLICABLE LAW; ASSIGNABILITY
This Bond Purchase Agreement shall be governed by the laws of the State of Missouri. This Bond
Purchase Agreement may be assigned by the Purchaser to any Person that expressly assumes in writing all
of the obligations of the Developer contained in the Base Lease and the Lease; provided that the consent of
the City for the assignment of this Bond Purchase Agreement shall not be required if the consent of the City
is not required for such Person’s assumption of the Lease under the provisions of Article XIII thereof. Any
such assignee shall agree to be bound by the terms of this Bond Purchase Agreement. This Bond Purchase
Agreement may be assigned and the Bonds may be pledged, without approval of but with notice to the City,
by the Purchaser to any lender of the Purchaser or the Developer as collateral for a loan secured by a deed
of trust or mortgage of the Project.
SECTION 8. EXECUTION IN 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.
SECTION 9. ANTI-DISCRIMINATION AGAINST ISRAEL ACT
Pursuant to Section 34.600 of the Revised Statutes of Missouri, the Purchaser certifies it is not
currently engaged in and shall not, for the duration of this Bond Purchase Agreement, engage in a boycott
of goods or services from (a) the State of Israel, (b) companies doing business in or with the State of Israel
or authorized by, licensed by or organized under the laws of the State of Israel or (c) persons or entities
doing business in the State of Israel.
[Remainder of Page Intentionally Left Blank]
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Very truly yours,
TD – SIMONSEN, LLC,
a Missouri limited liability company
By:
Jeffrey J. Tegethoff, Manager
DATE OF EXECUTION: _______________, 2022.
[Bond Purchase Agreement]
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Accepted and Agreed to this _____ day of __________, 2022.
CITY OF JEFFERSON, MISSOURI
By:
Carrie Tergin, Mayor
[SEAL]
ATTEST:
Emily Donaldson, City Clerk
[Bond Purchase Agreement]