HomeMy Public PortalAboutORD16313BILL NO. 2022-099
SPONSORED BY Councilmember Fitzwater
ORDINANCE NO. A/3(3
AN ORDINANCE APPROVING A PLAN FOR AN INDUSTRIAL DEVELOPMENT PROJECT FOR
SCHOLASTIC INC.; AUTHORIZING THE CITY OF JEFFERSON, MISSOURI, TO ISSUE ITS
TAXABLE INDUSTRIAL DEVELOPMENT REVENUE BONDS (SCHOLASTIC INC. PROJECT),
SERIES 2023, IN A PRINCIPAL AMOUNT NOT TO EXCEED $44,700,000 TO FINANCE THE
COSTS OF SUCH PROJECT; AUTHORIZING AND APPROVING CERTAIN DOCUMENTS;
AND AUTHORIZING CERTAIN OTHER ACTIONS IN CONNECTION WITH THE ISSUANCE OF
THE BONDS.
WHEREAS, The City of Jefferson, Missouri (the "City"), is authorized under the provisions of
Article VI, Section 27 of the Missouri Constitution, as amended, and Sections
100.010 to 100.200, inclusive, of the Revised Statutes of Missouri, as amended
(collectively, the "Act"), to purchase, construct, extend and improve certain
projects (as defined in the Act) for the purposes set forth in the Act and to issue
industrial development revenue bonds for the purpose of providing funds to pay
the costs of such projects and to lease or otherwise dispose of such projects to
private persons or corporations for manufacturing, commercial, warehousing and
industrial development purposes upon such terms and conditions as the City shall
deem advisable; and
WHEREAS Scholastic Inc., a New York corporation authorized to do business in the State of
Missouri (the "Company"), has proposed an industrial development project (the
"Project") consisting of the acquisition and installation of a new conveyor system,
automation equipment and other machinery and personal property (the "Project
Equipment") to be installed at the Company's existing facility located at 6336
Algoa Road in the City (the "Project Site"), and has requested that the City issue
its Taxable Industrial Development Revenue Bonds (Scholastic Inc. Project),
Series 2023, in the maximum principal amount not to exceed $44,700,000 (the
"Bonds") for the purpose of acquiring and installing the Project Equipment,
contingent upon preparation and approval of a plan for industrial development with
respect to the Project (the "Plan") as required by Section 100.050 of the Act; and
WHEREAS, The City has prepared a Plan for the Project, notice of the Project was given to the
taxing jurisdictions in accordance with Section 100.059.1 of the Act, and the City
now desires to approve the Plan; and
WHEREAS, The City has and does hereby find and determine that it is desirable for the economic
development of the City and within the public purposes of the Act that the City
proceed with the issuance of the Bonds for the purpose described above; and
WHEREAS, The City further finds and determines that it is necessary and desirable in connection
with approval of the Plan and the issuance of the Bonds that the City enter into
certain documents, and that the City take certain other actions and approve the
execution of certain other documents as herein provided;
NOW, THEREFORE, BE IT ENACTED BY THE CITY COUNCIL OF THE CITY OF
JEFFERSON, MISSOURI, AS FOLLOWS:
Section 1. Promotion of Economic Development. The City Council hereby finds and
determines that the Project will promote the economic welfare and the development of the City,
and the issuance of the Bonds by the City to pay the costs of the Project will be in furtherance of
the public purposes set forth in the Act.
Section 2. Approval of Plan. The City Council hereby approves the Plan for Industrial
Development Project attached hereto as Exhibit A in accordance with Section 100.050 of the
Act.
Section 3. Authorization and Sale of the Bonds. The City is hereby authorized to issue
and sell 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 herein authorized
Trust Indenture (defined below) and shall have such terms, provisions, covenants and
agreements as are set forth in the Trust Indenture. The sale of the Bonds to the Company at
private sale pursuant to the provisions of Section 108.170 of Revised Statutes of Missouri, as
amended, at the interest rate and upon the terms set forth in the Trust Indenture is hereby
approved.
Section 4. Limited Obligations. The Bonds and the interest thereon shall be limited
obligations of the City payable solely out of the payments, revenues and receipts derived by the
City from the herein authorized Lease Agreement (defined below), and such payments, revenues
and receipts shall be pledged and assigned to the Trustee (defined below) as security for the
payment of the Bonds as provided in the Trust Indenture. The Bonds and the interest thereon
shall not be deemed to constitute a debt or liability of the City within the meaning of any
constitutional provision, statutory limitation or City Charter provision and shall not constitute a
pledge of the full faith and credit of the City. The issuance of the Bonds shall not, directly, indirectly
or contingently, obligate the City to levy any form of taxation therefore or to make any
appropriation for their payment.
Section 5. Approval and Authorization of Documents. The following documents (the
"City Documents") are hereby approved in substantially the forms presented to the City Council
at this meeting (copies of which documents shall be filed in the records of the City), and the City is
hereby authorized to execute and deliver the City Documents with such changes therein as shall
be approved by the officials of the City executing such documents, such officials' signatures thereon
being conclusive evidence of their approval thereof:
(a) Trust Indenture dated as of the date set forth therein (the "Trust Indenture"),
between the City and BOKF, N.A., as trustee (the "Trustee"), pursuant to which
the Bonds will be issued and the City will pledge and assign the payments,
revenues and receipts received pursuant to the Lease Agreement (defined herein)
to the Trustee for the benefit and security of the owners of the Bonds upon the
terms and conditions as set forth in the Trust Indenture.
(b) Lease Agreement dated as of the date set forth therein (the "Lease Agreement"),
between the City, as lessor, and the Company, as lessee, under which the City will
lease the Project Equipment to the Company pursuant to the terms and conditions
in the Lease Agreement, in consideration of rental payments by the Company which
will be sufficient to pay the principal of and interest on the Bonds.
(c) Bond Purchase Agreement dated as of the date set forth therein (the "Bond
Purchase Agreement"), between the City and the Company, pursuant to which the
Company agrees to purchase the Bonds.
(d) Performance Agreement dated as of the date set forth therein (the "Performance
Agreement"), between the City and the Company, pursuant to which the City will
grant the Company certain rights with respect to the abatement of ad valorem
personal property taxes on the Project Equipment.
Section 6. Execution of Documents. The Mayor or Mayor Pro Tern is hereby authorized
and directed to execute the Bonds and to deliver the Bonds to the Trustee for authentication for and
on behalf of and as the act and deed of the City in the manner provided in the Trust Indenture. The
Mayor or Mayor Pro Tern is hereby authorized and directed to execute the City Documents and
such other documents, certificates and instruments as may be necessary or desirable to carry out
and comply with the intent of this Ordinance, for and on behalf of and as the act and deed of the
City. The City Clerk of the City is hereby authorized and directed to attest to and affix the seal of
the City to the Bonds and the City Documents and such other documents, certificates and
instruments as may be necessary or desirable to carry out and comply with the intent of this
Ordinance.
Section 7. Further Authority. The City shall, and the officials, agents and employees of
the City are hereby authorized and directed to, take such further action, and execute such other
documents, certificates and instruments as may be necessary or desirable to carry out and comply
with the intent of this Ordinance and to carry out, comply with and perform the duties of the City with
respect to the Bonds and the City Documents. The Mayor or Mayor Pro Tern is hereby authorized,
through the term of the Lease Agreement, to execute all documents on behalf of the City (including
documents pertaining to the transfer of the Project Equipment or the financing or refinancing of
the Project Equipment by the Company as may be requested by the Company) as may be
required to carry out and comply with the intent of this Ordinance, the Trust Indenture and the
Lease Agreement. The Mayor or Mayor Pro Tern is also authorized, unless otherwise expressly
provided herein to the contrary, to grant on behalf of the City such consents, estoppels and
waivers relating to the Bonds, the Trust Indenture, the Lease Agreement or the Performance
Agreement as may be requested during the terms thereof; provided, such consents, estoppels
and/or waivers shall not increase the principal amount of the Bonds, increase the term of either
Lease Agreement or adversely affect the personal property tax exemption as provided for therein,
waive an Event of Default (as defined in the Trust Indenture and the Lease Agreement), or
materially change the nature of the transaction unless approved by an ordinance of the City
Council.
Section 8. Severability. If any term, condition or provision of this Ordinance is, to any
extent, held to be invalid or unenforceable, the remainder hereof shall be valid in all other respects
and continue to be effective and each and every remaining provision hereof shall be valid and
shall be enforced to the fullest extent permitted by law, it being the intent of the City Council that
it would have enacted this Ordinance without the invalid or unenforceable provision. If, as a result
of a subsequent change in applicable law, the provision that had been held invalid is no longer
invalid, said provision shall thereupon return to full force and effect without further action by the
City and shall thereafter be binding.
Section 9. Effective Date. This Ordinance shall take effect and be in full force and effect
from and after its passage by the City Council of the City.
Passed: paw
Presiding Officer
ATTEST:
Approved: 4,�,— -7S
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Mayor Carrie Tergin
APPROVED AS TO FORM:
City At r y
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To: Taxing Jurisdictions (Distribution List attached)
Re: Notice of Public Hearing — Scholastic Inc. Project
On behalf of the City of Jefferson, Missouri ("City"), please find enclosed a copy of the proposed
Plan for an Industrial Development Project ("Plan") for Scholastic Inc. ("Company"), which also
contains a Cost Benefit Analysis for the affected taxing jurisdictions.
The City anticipates considering an Ordinance to approve the Plan at its regular meeting on
Monday, February 6, 2023, at 6:00 PM at City Council Chambers at City Hall in the John G. Christy
Municipal Building, 320 E. McCarty Street, in Jefferson City, Missouri. The Plan, if approved,
consists of the acquisition and installation of a new conveyor system, automation equipment and
other personal property at the Company's facility located at 6336 Algoa Road in Jefferson City,
Missouri, for purposes as further described in the attached Plan.
The City invites all affected taxing jurisdictions to attend the meeting on February 6, 2023, and to
make oral comments on the proposed Plan to the City or to provide written comments to the City
on the Plan prior to the meeting. All comments of the taxing districts will be fairly and duly
considered by the City.
A copy of the Plan and Cost Benefit Analysis for the proposed project is enclosed and also will be
on file in the office of the City Clerk and will be available for public inspection during normal
business hours.
Dated: January 13, 2023
CITY OF JEFFERSON, MISSOURI
320 E. McCarty St.
Jefferson City, Missouri 65101
Jefferson City Public Schools
Bryan McGraw, Superintendent
315 East Dunklin Street
Jefferson City, MO 65101
City of Jefferson
Fire Pension Fund
Steven S. Crowell, Jr., City Administrator
320 E. McCarty St.
Jefferson City MO 65101
Cole County
Cole County Road and Bridge
Sam Bushman, Presiding Commissioner
311 E High Street
Jefferson City, MO 65101
State Tax Commission of Missouri
301 W. High Street, Room 840
P.O. Box 146
Jefferson City, MO 65102
N
Missouri River Regional Library
Claudia Cook, Director
214 Adams Street
P.O. Box 89
Jefferson City, MO 65102
Missouri Department of Revenue
County Tax Section
State Blind Pension Fund
301 West High Street, Room 330
Jefferson City, MO 65105
Cole County Residential Services
Executive Director
1908 Boggs Creek Road
Jefferson City, MO 65101
CITY OF JEFFERSON, MISSOURI
PLAN FOR AN INDUSTRIAL DEVELOPMENT PROJECT
AND
COST -BENEFIT ANALYSIS
FOR
SCHOLASTIC INC.
TABLE OF CONTENTS
Page
I. PURPOSE OF THIS PLAN..........................................................................................................1
II. GENERAL DESCRIPTION OF CHAPTER 100 FINANCINGS.............................................1
General............................................................................................................................................ I
Issuanceand Sale of Bonds........................................................................................................... I
PropertyTax Abatement............................................................................................................... 2
III. DESCRIPTION OF THE PARTIES............................................................................................ 2
ScholasticInc.................................................................................................................................. 2
Cityof Jefferson, Missouri............................................................................................................ 2
IV. REQUIREMENTS OF THE ACT................................................................................................ 3
Descriptionof the Project.............................................................................................................. 3
Estimate of the Costs of the Project............................................................................................. 3
Source of Funds to be Expended for the Project.........................................................................3
Statement of the Terms Upon Which the Project is to be Leased or Otherwise
Disposedof by the City.............................................................................................................. 4
Affected Taxing Jurisdictions....................................................................................................... 4
Current Assessed Valuation.......................................................................................................... 4
Paymentsin Lieu of Taxes............................................................................................................ 5
Application for Sales and Use Tax Exemption on Personal Property ....................................... 6
Cost -Benefit Analysis and Discussion of Attachments............................................................... 7
V. ASSUMPTIONS AND BASIS OF PLAN.................................................................................... 8
ATTACHMENT A — SUMMARY OF KEY ASSUMPTIONS
ATTACHMENT B — COST -BENEFIT ANALYSIS
CITY OF JEFFERSON, MISSOURI
PLAN FOR AN INDUSTRIAL DEVELOPMENT PROJECT
AND
COST -BENEFIT ANALYSIS
FOR
SCHOLASTIC INC.
I. PURPOSE OF THIS PLAN
On February 6, 2023, the City Council of the City of Jefferson, Missouri (the "City") will consider
an ordinance approving this Plan (defined below) and authorizing the issuance by the City of its taxable
industrial development revenue bonds in the aggregate principal amount of not to exceed $44,700,000, to
finance the costs of equipping an industrial development project (the "Project") for Scholastic Inc., a New
York corporation (the "Company"), consisting of acquiring and installing a machinery, equipment and
other personal property (the "Project Equipment") to be installed in the Company's existing facility
located at 6336 Algoa Road in the City, as more fully described herein. The Bonds will be issued pursuant
to the provisions of Sections 100.010 to 100.200 of the Revised Statutes of Missouri, as amended
("Chapter 100"), and Article VI, Section 27(b) of the Missouri Constitution, as amended (collectively,
with Chapter 100, the "Act").
Gilmore & Bell, P.C., as bond counsel to the City, has prepared this Plan for an Industrial
Development Project and Cost -Benefit Analysis (the "Plan") to satisfy requirements of the Act and to
analyze the potential costs and benefits, including the related tax impact on all affected taxing jurisdictions,
of using industrial development revenue bonds to finance the acquisition and installation of the Project
Equipment and to facilitate abatement of ad valorem personal property taxes on the bond -financed
equipment, machinery or other personal property comprising the Project Equipment.
II. GENERAL DESCRIPTION OF CHAPTER 100 FINANCINGS
General. The Act authorizes cities, counties, towns and villages to issue industrial development
bonds to finance the purchase, construction, extension and improvement of warehouses, distribution
facilities, research and development facilities, office industries, agricultural processing industries, service
facilities that provide interstate commerce, industrial plants , 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.
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 pursuant to a trust indenture entered into between the municipality and a bank
or trust company acting as trustee. In exchange, the benefited company promises under a lease agreement
to make rental payments that are sufficient to pay the principal of and interest on the bonds as they become
due. Thus, the municipality merely acts as a conduit for the financing.
If proceeds of the revenue bonds are to be used to pay the costs, or reimburse the costs, of
purchasing and installing personal property only, concurrently with the closing of the bonds, the company
will convey to the municipality title to the personal property included in the project. The municipality must
be the legal owner of the personal property while the bonds are outstanding for the personal property to be
eligible for personal property tax abatement, as further described below. At the same time, the municipality
will lease the personal property included in the project back to the benefited company pursuant to a lease
agreement. The lease agreement will require the company, acting on behalf of the municipality, to use the
bond proceeds to pay, or reimburse, the costs of purchasing and installing the personal property included
in the project, as applicable.
Under the lease agreement, the company typically: (1) will unconditionally agree to make payments
sufficient to pay the principal of and interest on the bonds as they become due; (2) will agree, at its own
expense, to maintain the project, to pay all taxes and assessments with respect to the project, and to maintain
adequate insurance; (3) has the right, at its own expense, to make certain additions, modifications or
improvements to the project; (4) may assign its interests under the lease agreement or sublease the project
while remaining responsible for payments under the lease agreement; (5) will covenant to maintain its
corporate existence during the term of the bond issue; and (6) will agree to indemnify the municipality for
any liability the municipality might incur as a result of its participation in the transaction.
Property Tax Abatement. Under Article X, Section 6 of the Missouri Constitution and Section
137.100 of the Revised Statutes of Missouri, as amended, all property of any political subdivision is exempt
from taxation. In a typical transaction, the municipality holds fee title to the project and leases the project
to the benefited company. Although the Missouri Supreme Court has held that the leasehold interest is
taxable, it is taxable only to the extent that the economic value of the lease is less than the actual market
value of the lease. See Iron County v. State Tax Commission, 437 S.W.2d 665 (Mo. 1968) (en Banc) and
St. Louis County v. State Tax Commission, 406 S.W.2d 644 (Mo. 1966) (en banc). If the rental payments
under the lease agreement equal the actual debt service payments on the bonds, the leasehold interest should
have no "bonus value" and the bond -financed property should be exempt from ad valorem property taxation
so long as the bonds are outstanding.
If the municipality and the company determine that partial tax abatement is desirable, the company
may agree to make "payments in lieu of taxes" (sometimes referred to as "PILOTS" or "PILOT
Payments"). The amount of payments in lieu of taxes is negotiable. The payments in lieu of taxes are
payable by December 31 of each year, and are distributed to the municipality and to each political
subdivision in the same manner and in the same proportion as personal property taxes would otherwise be
distributed under Missouri law.
III. DESCRIPTION OF THE PARTIES
Scholastic Inc. The Company is a New York corporation headquartered in New York, New York.
The Company has a multi -national presence and is the world's largest publisher and distributor of children's
books, a leading provider of literacy curriculum, profession services and classroom magazines and a
producer of educational and popular children's media. More information about the Company can be found
on the Company's website (https://www.scholastic.com/aboutscholastic/history.
City of Jefferson, Missouri. The City is a home rule charter city and municipal corporation
organized and existing under the laws of the State of Missouri. The City is authorized and empowered
pursuant to the provisions of the Act to purchase, construct, extend, equip and improve certain projects (as
defined in the Act) and to issue industrial development revenue bonds for the purpose of providing funds
to pay the costs of such projects and to lease or otherwise dispose of such projects to private persons or
corporations for manufacturing, commercial, warehousing and industrial development purposes upon such
terms and conditions as the City deems advisable.
IPA
IV. REQUIREMENTS OF THE ACT
Description of the Project. The Project consists of the acquisition and installation of a new
conveyor system, automation equipment and other machinery, equipment and personal property (i.e., the
Project Equipment) at the Company's existing facility located at 6336 Algoa Road in the City (the "Project
Site") in order to expand the Company's production capacity and operating efficiencies at the facility. The
City will acquire (or cause the Company to acquire) the Project Equipment with proceeds of the Bonds and
the City will lease the Project Equipment to the Company, with an option to purchase, pursuant to the Lease
(defined herein). Any personal property not purchased or reimbursed with proceeds of the Bonds in
connection with the Project will not be considered Project Equipment and will not be subject to personal
property tax abatement. There is no real property included in the Project because the Project is solely
related to the acquisition and installation of the machinery, equipment and other personal property (i.e. the
Project Equipment) acquired and installed with proceeds of the Bonds.
Estimate of the Costs of the Project. The Company expects the acquisition, delivery and
installation of the new conveyor system, automation equipment and other personal property comprising the
Project Equipment to cost approximately $44,530,000. The Company currently expects to acquire and
deliver portions of the Project Equipment to the Project Site during calendar years ending December 31,
2023, 2024 and 2025. The anticipated cost of the acquiring, delivering and installing said Project
Equipment at the Project Site in each of the calendar years 2023, 2024, and 2025 as well as the anticipated
Modified Accelerated Cost Recovery System ("MACRS") class -life of such Project Equipment for
depreciation purposes is reflected in the table below:
Year Acquired and
Delivered to Project Site
Estimated Cost of
Acquiring and Installing
Project E ui ment0)
MACRS Class -Life
2023
$1,050,000
5-year
2023
1,950,000
7-year
2023
5,500,000
10- ear
2024
1,000,000
5-year
2024
2,000,000
7-year
2024
14,230,000
10- ear
2025
1,000,000
5-year
2025
500,000
7-year
2025
17,300,000
10- ear
Total estimated costs may include estimated soft costs relating to the freight, delivery, installation, assembly, etc., of the Project
Equipment, which soft costs are excludable from the calculation of personal property assessed valuation under Missouri law.
The Cost -Benefit Analysis attached hereto as Attachment B is based on anticipated costs of the
Project Equipment listed above expected to be acquired and installed at the Project Site in calendar years
2023, 2024 and 2025. The Bonds will be issued in a principal amount not to exceed $44,700,000 to allow
for a reasonable contingency and provide for certain soft costs relating to the Project Equipment, such as
freight, delivery, installation and assembly, which may be excluded from the calculation of the assessed
value of the Project Equipment under Missouri law.
Source of Funds to be Expended for the Project. The sources of funds to pay for (or reimburse
costs of) the Project will be the proceeds of the Bonds in the maximum principal amount of $44,700,000,
to be issued by the City and purchased by the Company, as bondholder, and, if needed, other available
funds of the Company. The Bonds will be payable solely from the revenues derived by the City from the
lease or other disposition of the Project Equipment (as further described below). The Bonds will not be an
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indebtedness or general obligation, debt or liability of the City, Cole County, Missouri, or the State of
Missouri. The Bonds will be issued upon such terms, in such amounts and at such time as shall be
satisfactory to the City and the Company.
Statement of the Terms Upon Which the Project Equipment is to be Leased or Otherwise
Disposed of by the City. The Company will convey title to the Project Equipment (consisting solely of the
equipment, machinery and other personal property, the costs of which were paid for or reimbursed with
proceeds of the Bonds) to the City pursuant to a bill of sale, subject to any permitted encumbrances. The
City, as lessor, will then lease the Project Equipment to the Company, as lessee, under a lease agreement
(the "Lease"). The rental payments to be paid by the Company under the Lease for use of the Project
Equipment will be equal to, and will be used to pay, the principal and interest payments due on the Bonds.
The Company will also make certain PILOT Payments to the City for distribution to the affected taxing
jurisdictions, as further described herein. Under the terms of the Lease with the City, the Company will
have the option to purchase the Project Equipment at any time. The Lease will terminate on December 31,
2035, unless terminated sooner pursuant to the terms thereof.
Affected Taxing Jurisdictions. The Jefferson City School District is the school district financially
impacted by the Project. The City of Jefferson, Missouri, is the city financially impacted by the Project.
Cole County, Missouri, is the county financially impacted by the Project. There is no community college
district, fire protection district, ambulance district or other emergency services district financially impacted
by the Project. Below is a list of all taxing jurisdictions financially impacted by the Project, which are also
reflected in the Cost -Benefit Analysis attached as Attachment B hereto:
• City of Jefferson (includes Fire Pension Fund)
• Cole County (General Revenue and Road & Bridge)
• Cole County Special Services (Developmental Disabilities Board)
• Jefferson City/Cole County Public Library District
• Jefferson City School District
• State of Missouri Blind Pension Fund
Current Assessed Valuation. The most recent equalized assessed valuation of the personal property
comprising the Project Equipment included in the Project on the Project Site, as of January 1, 2022, is $0
(as of January 1, 2022, the Company had not yet acquired any portion of the Project Equipment to the
Project Site and the initial assessment of the Project Equipment will not occur until 2024). The total
equalized assessed valuation of the machinery, equipment and other personal property comprising the
Project Equipment upon completion of acquisition and installation of all of the Project Equipment on the
Project Site, which is expected to occur during calendar year ending December 31, 2025, is estimated to be
$11,889,740 (based upon the estimated 2026 equalized assessed value of such Project Equipment), after
deducting for depreciation. This valuation was calculated based upon estimated total cost of acquiring and
installing the equipment, machinery and other personal property comprising the Project Equipment in the
amount of approximately $44,530,000 (however, if any of the estimated total costs is associated with
freight, delivery, installation or assemble of such Project Equipment those costs may be excluded from the
calculation of personal property assessed value under Missouri law), less depreciation, multiplied by the
statutorily required assessment rate of 33.33% for the Project Equipment. If the actual investment in the
Project Equipment is larger than anticipated, the assessed valuation of such Project Equipment will likely
be greater. As noted previously, there is no real property included in the Project because the Project is
solely related to the acquisition and installation of the machinery, equipment and other personal property
(i.e. the Project Equipment) acquired with proceeds of the Bonds.
IN
Payments in Lieu of Taxes. If this Plan is approved by the City Council, the City intends to issue
the Bonds and to extend 50% personal property tax abatement for each portion of the Project Equipment to
the Company for a period of 10 years. The 10-year period of personal property tax abatement will begin on
January 1 in the year in which the applicable portion of the Project Equipment would first be subject to
personal property taxation under Missouri law absent the City's ownership thereof; however, in no event
will the personal property tax abatement period for any portion of the Project Equipment extend beyond the
calendar year ending December 31, 2035.
Therefore, the 10-year personal property tax abatement period for each portion of the Project
Equipment will be as follows:
(1) for the portion of the Project Equipment expected to be acquired and delivered to the
Project Site during calendar year ending December 31, 2023, the 10-year period of personal
property tax abatement will be from calendar year 2024 through calendar year 2033;
(2) for the portion of the Project Equipment acquired and delivered to the Project Site during
calendar year ending December 31, 2024, the 10-year period of personal property tax
abatement will be from calendar year 2025 through calendar year 2034; and
(3) for the portion of the Project Equipment expected to be acquired and delivered to the
Project Site during calendar year ending December 31, 2025, the 10-year period of personal
property tax abatement will be from calendar year 2026 through calendar year 2035.
[Remainder of this page intentionally left blank.]
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The equipment, machinery and other personal property that comprises the Project Equipment would
otherwise be exempt from ad valorem personal property taxes during the entire term of the applicable 10-
year period of personal property tax abatement. Therefore, the Company will make a PILOT Payment to
the City on or before December 31 of each year, commencing December 31, 2024 (for the portion of the
Project Equipment acquired and delivered to the Project Site during the current calendar year ending
December 31, 2023), in an amount equal to the applicable "Percentage of PILOT Payment" shown in the
table below multiplied by the amount of ad valorem personal property taxes which would otherwise be due
with respect to the Project Equipment, but for the City's ownership thereof:
Project Equipment
Acquired and Delivered
During Calendar Year Ending
December 31
Tax Abatement
Period in Years
Calendar Years of
Personal Property
Tax Abatement
Percentage
of PLOT Payment
2023
l through 10
2024-2033
50%
2023
--
2034 and after
100%0)
2024
1 through 10
2025-2034
50%
2024
--
2035 and after
100%(2)
2025
1 through 10
2026-2035
50%
2025
--
2036 and after
100%
0) For equipment, machinery and other personal property comprising the Project Equipment acquired and delivered to the Project
Site during calendar year ending December 31, 2023, the last year of the 10-year personal property tax abatement applicable
to that portion of the Project Equipment will be 2033. Under the Lease, it is expected the City will own all portions of the
Project Equipment and lease all portions of the Project Equipment to the Company until calendar year ending December 31,
2035; therefore, in calendar years 2034 and 2035, the Company will be required to pay a PILOT Payment equal to 100% of
the ad valorem personal property taxes that would otherwise be due with respect to that portion of the Project Equipment
originally acquired and delivered to the Project Site in 2023.
(2) For equipment, machinery and other personal property comprising the Project Equipment acquired and delivered to the Project
Site during calendar year ending December 31, 2024, the last year of the 10-year personal property tax abatement applicable
to that portion of the Project Equipment will be 2034. Under the Lease, it is expected the City will own all portions of the
Project Equipment and lease all portions of the Project Equipment to the Company until calendar year ending December 31,
2035; therefore, in calendar year 2035, the Company will be required to pay a PILOT Payment equal to 100% of the ad
valorem personal property taxes that would otherwise be due with respect to that portion of the Project Equipment originally
acquired and delivered to the Project Site in 2024.
Such PILOT Payments would, after reduction for actual costs of the City for distributing such
payments, be distributed among the taxing jurisdictions in proportion to the amount of personal property
taxes which would have been paid in each year had the Project Equipment not been exempt from personal
property taxation, pursuant to Section 100.050.3 of the Act.
Application for Sales and Use Tax Exemption on Personal Property.. The Company has applied
to the Missouri Department of Economic Development ("DED") for certification of the extent to which
eligible tangible personal property comprising a portion of the Project Equipment integral to the activities
at the Project Site qualifies for exemption from sales and use tax. DED, through its internal review
procedures, will determine the dollar amount of purchases that may qualify for the exemption, which
exemption will be contingent upon compliance with DED procedures and ultimate approval by DED of the
application for exemption. For purposes of determining the impact of the sales and use tax exemptions for
this personal property on the affected taxing jurisdictions, it is assumed that DED will approve the personal
property described in the application in the amount of approximately $40,183,500 and that the taxes applied
to purchases of DED-approved personal property in the amount of approximately $40,183,500 will be those
of the local taxing jurisdictions.
IN
Please note that any variance in these assumptions will alter the fiscal impact of the sales and use
tax exemptions on the affected taxing jurisdictions. Based on the assumptions set forth above, the fiscal
impact on the affected taxing jurisdictions of the sales and use tax exemptions for DED-approved personal
property is as follows:
Estimated Sales and/or Use
Sales
Use
Tax Revenues
Jurisdiction
Tax Rate
Tax Rate
Subject to Exemption
State of Missouri
4.225%
4.225%
$1,697,753
City of Jefferson
General Revenue
1.000%
$401,835(i)
Capital Improvement
0.500%
--(i)
$200,9180)
Parks
0.500%
$200,918(1)
Public Safety
0.250%
$100,459(i)
Cole County
Capital Improvements
0.500%
0.500%
$200,918
Emergency Services
0.500%
0.500%
$200 918
Law Enforcement
0.375%
0.375%
$150,688
Total
7.850%
5.600%
$3,154,405
Unlike the State of Missouri and Cole County, the City does not currently impose a "local use tax" corresponding to
its local sales tax, which "local use tax" would be imposed on the Company for the storage, use or consumption of
any of the total $40,183,500 tangible personal property purchased from vendors located outside of the City that would
not be subject to the City's local sales tax. The amounts above assume that all vendors selling the $40,183,500 of
tangible personal property would be required to collect and remit the local sales taxes imposed by the City and the
City will be forgoing the collection of these amounts due to the assumed DED sales/use tax exemption. However, if
any or all of the total $40,183,500 in tangible personal property that is assumed to be exempted by DED from local
sales/use tax is purchased by the Company from vendors located outside of the City, the City may not be entitled to
collect any of these local sales tax revenues regardless of the DED sales/use tax exemption because the City does not
impose a "local use tax" that would permit the City to collect these revenues from such vendors.
Cost -Benefit Analysis and Discussion of Attachments. In compliance with Section 100.050.2(3)
of the Revised Statutes of Missouri, as amended, this Plan has been prepared to show the costs and benefits
to the City and to other taxing jurisdictions affected by the personal property tax abatements for the Project
Equipment. The following is a summary of the "COST -BENEFIT ANALYSIS" attached to this Plan as
Attachment B that shows the direct impact the personal property tax abatements for the Project Equipment
is expected to have on each taxing jurisdiction. This Plan does not attempt to quantify the overall economic
impact of the Project.
Project Assumptions. Attachment A and page B-1 of the Cost -Benefit Analysis included
as Attachment B presents a list of the assumptions related to the determination of the personal
property assessed valuations and the personal property tax formulas for the Project Equipment.
Summary of Cost -Benefit Analysis. Page B-2 of the Cost -Benefit Analysis included as
Attachment B presents a summary for each affected taxing jurisdiction of (1) the total estimated
personal property tax revenues that would be generated if the Project Equipment did not receive
personal property tax abatement, (2) the total estimated value of the PILOT Payments to be made
by the Company for the proposed personal property tax abatement period and (3) the total estimated
value of the personal property tax abatement to the Company. Please note that the actual value of
the Project Equipment may differ from the estimated value assumed in this Plan and may impact
the value of the PILOT Payments to be made by Company.
-7-
Personal Property Tax Revenues. Page B-3 of the Cost -Benefit Analysis included as
Attachment B provides the projected personal property tax revenues that would be generated from
the Project Equipment without personal property tax abatement. Page B-4 of the Cost -Benefit
Analysis included as Attachment B provides the projected value of the PILOT Payments to be
made by the Company based on an estimated personal property assessed value of the Project
Equipment after it is acquired and installed. Page B-5 of the Cost -Benefit Analysis included as
Attachment B provides the projected value of the personal property tax abatement to the Company
based on an estimated personal property assessed value of the Project Equipment after it is acquired
and installed.
Refer to Attachment A for the assumptions related to the determination of the personal
property assessed values and the personal property tax formulas.
V. ASSUMPTIONS AND BASIS OF PLAN
In preparing this Plan, we have made some key assumptions to estimate the fiscal impact of the
personal property tax abatement and exemptions proposed for the Project Equipment. See Attachment A
and page 1 of the Cost -Benefit Analysis included as Attachment B for a summary of these assumptions.
In addition to the foregoing, in order to complete this Plan, we have generally reviewed and relied
upon information furnished to us by, and have participated in conferences with, representatives of the City,
representatives of the Company, and other persons as we have deemed appropriate. We do not assume any
responsibility for the accuracy, completeness or fairness of any of the information provided to us and make
no representation that we have independently verified the accuracy, completeness or fairness of such
information.
ATTACHMENT A
SUMMARY OF KEY ASSUMPTIONS
1. The total cost of acquiring, delivering, assembling and installing the equipment, machinery
and other personal property comprising the Project Equipment on the Project Site is estimated to cost
$44,530,000.
2. It is anticipated that the equipment, machinery and other personal property comprising the
Project Equipment will be purchased and delivered to the Project Site during the calendar years ending
December 31, 2023, 2024 and 2025 and the anticipated cost of acquiring, delivering, assembling and
installing each portion of the Project Equipment in each calendar year as well as the anticipated Modified
Accelerated Cost Recovery System ("MACRS") class -life of such Project Equipment for depreciation
purposes is reflected in the table below (any of the estimated costs listed below that are attributable to the
installation, assembly and delivery of such Project Equipment may be excludable from the calculation of
personal property assessed value under Missouri law because assessed value of personal property is only
based upon the acquisition cost of personal property):
Year Acquired and
Delivered to Project Site
Estimated Cost of
Acquiring and Installing
Project Equipment
MACRS Class -Life
2023
$1,050,000
5-year
2023
1,950,000
7-year
2023
5,500,000
10- ear
2024
1,000,000
5-year
2024
2,000,000
7-year
2024
14,230,000
10- ear
2025
1,000,000
5-year
2025
500,000
7-year
2025
17,300,000
10- ear
3. The Project Equipment will be conveyed to the City by December 31 of the year in which
the applicable portion of the Project Equipment is acquired and will be leased to the Company with an
option to purchase. As long as the Project Equipment is owned by the City, it will be exempt from ad
valorem personal property taxes.
4. 50% personal property tax abatement with respect to each separate investment in Project
Equipment will be provided to the Company for a period of 10 years. The period of personal property tax
abatement will begin in the year in which the applicable portion of the Project Equipment would first be
subject to personal property taxation under Missouri law; however, in no event will the personal property
tax abatement period for any portion of the Project Equipment extend beyond the calendar year ending
December 31, 2035, as described in Section IV of the Plan under the caption entitled "Payments in Lieu
of Taxes. "
5. During the 10-year personal property tax abatement period applicable to each portion of
the Project Equipment expected to be acquired and delivered to the Project Site in calendar years ending
December 31, 2023, 2024 and 2025, the Company will make PILOT Payments as follows:
(a) Project Equipment Acquired/Delivered in 2023:
(i) in years 2024 through 2033, inclusive, the Company will make PILOT
Payments equal to 50% of the personal property taxes that would otherwise be due
on that portion of the Project Equipment, but for the City's ownership thereof; and
A-1
(ii) in years 2034 and 2035, inclusive, the Company will make PILOT
Payments equal to 100% of the personal property taxes that would otherwise be
due on that portion of the Project Equipment, but for the City's ownership thereof.
(b) Project Equipment Acquired/Delivered in 2024:
(i) in years 2025 through 2034, inclusive, the Company will make PILOT
Payments equal to 50% of the personal property taxes that would otherwise be due
on that portion of the Project Equipment, but for the City's ownership thereof; and
(ii) in year 2035, inclusive, the Company will make PILOT Payments equal
to 100% of the personal property taxes that would otherwise be due on that portion
of the Project Equipment, but for the City's ownership thereof.
(c) Project Equipment Acquired/Delivered in 2025:
(i) in years 2026 through 2035, inclusive, the Company will make PILOT
Payments equal to 50% of the personal property taxes that would otherwise be due
on that portion of the Project Equipment, but for the City's ownership thereof.
Personal property taxes are calculated using the following formula:
(Assessed Value * Tax Rate)/100
7. The assessed value of the personal property comprising the Project Equipment is calculated
using the following formula:
(Cost * Depreciation Factor) * Assessment Ratio of 33.33%
[Remainder of this page intentionally left blank.]
A-2
8. In determining the assessed valuation of the personal property comprising the Project
Equipment, a depreciation factor is applied at the end of each year which depends on the recovery period
of such personal property. The Company represented that the personal property comprising the Project
Equipment is expected to have either a 5-year recovery period, 7-year recovery period or 10-year recovery
period. The depreciation factor used for personal property with a 5-year recovery period, 7-year recovery
period and 10-year recovery period is reflected in the table below (note: year 0 represents the calendar year
in which the personal property was acquired and year 1 represents the calendar year immediately following
the year the personal property was acquired - the depreciation factor reflected in each year is multiplied by
the original cost of the personal property):
Recovery Period Depreciation Factors
Year
5-Year Recovery
Period
7-Year
Recovery Period
10-Year
Recovery Period
0
100.00%
100.00%
100.00%
1
85.00%
89.29%
92.50%
2
59.50%
70.16%
78.62%
3
41.65%
55.13%
66.83%
4
24.99%
42.88%
56.81%
5
10.00%
30.63%
48.07%
6
10.00%
18.38%
39.33%
7
10.00%
10.00%
30.59%
8
10.00%
10.00%
21.85%
9
10.00%
10.00%
15.00%
10 and on
10.00%
10.00%
15.00%
9. The tax rates used in this Plan reflect the rates in effect for the tax year ended December
31, 2022. The tax rates were held constant through the December 31, 2035, tax year.
The Cost -Benefit Analysis has been prepared on the basis of factual information and assumptions
provided to Gilmore & Bell, P.C. by, or on behalf of, the City or the Company. This information is
provided in conjunction with our legal representation of the City, as its bond counsel, for this
transaction. It is not intended as financial advice or a financial recommendation to the Company,
the City or any other taxing jurisdiction that may be affected by the Project. Gilmore & Bell, P.C. is
not a financial advisor or a "municipal advisor" as defined in the Securities Exchange Act of 1934,
as amended.
A-3
ATTACHMENT B
COST -BENEFIT ANALYSIS
[See attached]
City of Jefferson, Missouri
(Scholastic Inc.)
COST -BENEFIT ANALYSIS
PLAN FOR INDUSTRIAL DEVELOPMENT PROJECT
ILMORE SELL
Table of Contents
Summary of Key Assumptions 1
Summary of Personal Property Tax Impact Analysis 2
Projected Personal Property Tax Revenues Without Abatement on Project Equipml 3
Projected Revenues Generated From PILOT Payments on Project Equipment 4
Projected Value of Personal Property Tax Abatement on Project Equipment 5
This information is provided based on the factual information and assumptions provided to Gilmore & Bell, P.C. by a party to or
a representative of a party to the proposed transaction. This information is intended to provide factual information only and is
provided in conjunction with our legal representation. It is not intended as financial advice or a financial recommendation to any
party. Gilmore & Bell, P.C. is not a financial advisor or a "municipal advisor" as defined in the Securities Exchange Act of 1934,
as amended.
City of Jefferson, Missouri
(Scholastic Inc.)
Cost -Benefit Analysis
111112023
Summary of Key Assumptions
• Initial year taxes assessed
• Annual investments in Project Equipment:
2024
Year Acquired Recovery Period Est. Cost
2023 5-Year $ 1,050,000
2023 7-Year 1,950,000
2023 10-Year 5,500,000
Total Cost of Project Equipment Acquired in 2023: $ 8,500,000
Year Acquired Recovery Period Est. Cost
2024 5-Year $ 1,000,000
2024 7-Year 2,000,000
2024 10-Year 14,230,000
Total Cost of Project Equipment Acquired in 2024: $ 17,230,000
Year Acquired Recovery Period Est. Cost
2025 5-Year $ 1,000,000
2025 7-Year 500,000
2025 10-Year 17,300,000
Total Cost of Project Equipment Acquired in 2025: $ 18,800,000
Total Cost of Project Equipment: $ 44,530,000
• Assessed value as a percentage of appraised value for Project Equipment (personal property): 33.33%
• Terms of Personal Property Tax Abatement for Project Equipment:
Years 1-10 50.0%
• The Project Equipment will be depreciated using the following 5-year, 7-year and 10-year recovery period schedules:
Recovery Period in Years
Year
5-Year
7-Year
10-Year
0
100.00%
100.00%
100.00%
1
85.00%
89.29%
92.50%
2
59.50%
70.16%
78.62%
3
41.65%
55.13%
66.83%
4
24.99%
42.88%
56.81%
5
10.00%
30.63%
48.07%
6
10.00%
18.38%
39.33%
7
10.00%
10.00%
30.59%
8
10.00%
10.00%
21.85%
9
10.00%
10.00%
15.00%
10 and on
10.00%
10.00%
15.00%
City of Jefferson, Missouri
(Scholastic Inc.)
Cost -Benefit Analysis
-1-
111112023
Summary of Personal Property Tax Impact Analysis
Projected
Projected Revenues
Projected Value of
Personal Property Tax Revenues
Generated from
Personal Property
2022
Generated from Project Equipment
PILOT Payments on
Tax Abatement on
Tax Rate per
Without Abatement
Project Equipement
Project Equipment
Taxing Jurisdiction
$100 of AV
(Years 2024-2035)
(Years 2024-2035)
(Years 2024-2035)
Cole County - General Revenue
0.0665
$ 44,421
$ 22,729
$ 21,691
Cole County - Road & Bridge
0.2779
185,631
94,985
90,646
Cole County Special Services (Developmental Disabilities Board)
0.0927
61,922
31,684
30,237
Jefferson City/Cole County Library District
0.2000
133,596
68,359
65,237
Jefferson City
0.4600
307,270
157,226
150,044
Jefferson City Fire Pension Fund
0.0961
64,193
32,847
31,346
Jefferson City School District
4.7593
3,179,110
1,626,709
1,552,400
State of Missouri - Blind Pension Fund
1 0.0300
1 20,039
1 10,254
1 9,785
City of Jefferson, Missouri
(Scholastic Inc.)
Cost -Benefit Analysis
5.9825 $ 3,996,181 $ 2,044,794 $ 1,951,387
6Z
f&UP--00-91
Projected Personal Property Tax Revenues Without Abatement on Project Equipment
Estimated Assessed Value of Project Equipment $2,573,461 $ 7,371,103 $11,889,740 $9,932,065 $8,262,986 $6,823,301 $5,538,102 $4,383,127 $3,325,109 $ 2,496,267 $2,101,290 $2,101,290
2022 Tax Rate per
Taxing Jurisdiction
$100 of AV
2024
2025
2026
2027
2028
2029
2030
2031
2032
2033
2034
2035
Total
Cole County - General Revenue
0.0665
$ 1,711 $
4,902
$ 7,907
$ 6,605
$ 5,495
$ 4,538
$ 3,683
$ 2,915
$ 2,211
$ 1,660
$ 1,397
$ 1,397
$ 44,421
Cole County - Road & Bridge
0.2779
7,152
20,484
33,042
27,601
22,963
18,962
15,390
12,181
9,240
6,937
5,839
5,839
185,631
Cole County Special Services (Developmental Disabilities Board)
0.0927
2,386
6,833
11,022
9,207
7,660
6,325
5,134
4,063
3,082
2,314
1,948
1,948
61,922
Jefferson City/Cole County Library District
0.2000
5,147
14,742
23,779
19,864
16,526
13,647
11,076
8,766
6,650
4,993
4,203
4,203
133,596
Jefferson City
0.4600
11,838
33,907
54,693
45,688
38,010
31,387
25,475
20,162
15,296
11,483
9,666
9,666
307,270
Jefferson City Fire Pension Fund
0.0961
2,473
7,084
11,426
9,545
7,941
6,557
5,322
4,212
3,195
2,399
2,019
2,019
64,193
Jefferson City School District
4.7593
122,479
350,813
565,868
472,697
393,260
324,741
263,575
208,606
158,252
118,805
100,007
100,007
3,179,110
State of Missouri - Blind Pension Fund
0.0300
772
2,211
3,567
2,980
2,479
2,047
1,661
1,315
998
749
630
630
20,039
Totals
5.9825
$ 153,957 $
440,976
$ 711,304
$ 594,186
$ 494,333
$ 408,204
$ 331,317
$ 262,221
$ 198,925
$ 149,339
$ 125,710
$ 125,710
$3,996,181
Estimated Cost of
5-Year
Year Project Equipment (5-Year Depreciation) Acquired Project Equipment
2023 1,050,000
2024 1,000,000
2025 1,000,000
3,050,000
Estimated Cost of
7-Year
Year Project Equipment (7-Year Depreciation) Acquired Project Equipment
2023 1,950,000
2024 2,000,000
2025 500,000
4,450,000
Estimated Cost of
10-Year
Year Project Equipment (10-Year Decpreciation) Acquired Project Equipment
2023 5,500,000
2024 14,230,000
2025 17,300,000
37,030,000
Year
Project Equipment
Acquired
2023
2024
2025
Project
Equipment
Assessed Value (5-Year
Depreciation)
2024 2025
2026
2027
2028
2029
2030
2031
2032
2033
2034
2035
297,470 208,229
- 283,305
- -
145,760
198,314
283,305
87,456
138,819
198,314
34,997
83,292
138,819
34,997
33,330
83,292
34,997
33,330
33,330
34,997
33,330
33,330
34,997
33,330
33,330
34,997
33,330
33,330
34,997
33,330
33,330
34,997
33,330
33,330
297,470 491,534
627,379
424,589
257,108
151,618
101,657
101,657
101,657
101,657
101,657
101,657
Project Equipment Assessed Value (7-Year Depreciation)
2024 2025
2026
2027
2028
2029
2030
2031
2032
2033
2034
2035
580,327 455,994
- 595,207
- -
358,309
467,687
148,802
278,692
367,497
116,922
199,075
285,838
91,874
119,458
204,180
71,460
64,994
122,521
51,045
64,994
66,660
30,630
64,994
66,660
16,665
64,994
66,660
16,665
64,994
66,660
16,665
64,994
66,660
16,665
580,327 1,051,202
974,798
763,110
576,787
395,097
238,559
162,284
148,319
148,319
148,319
148,319
Project Equipment Assessed Value (10-Year Depreciation)
2024 2025
2026
2027
2028
2029
2030
2031
2032
2033
2034
2035
1,695,664 1,441,223
- 4,387,145
- -
1,225,094
3,728,836
5,333,633
1,041,413
3,169,653
4,533,300
881,195
2,694,418
3,853,478
720,978
2,279,892
3,275,716
560,761
1,865,366
2,771,759
400,543
1,450,841
2,267,803
274,973
1,036,315
1,763,847
274,973
711,429
1,259,891
274,973
711,429
864,914
274,973
711,429
864,914
1,695,664 5,828,367
10,287,563
8,744,365
7,429,091
6,276,586
5,197,886
4,119,187
3,075,134
2,246,292
1,851,315
1,851,315
Project Equipment Assessed Value (TOTAL)
2024 2025
2026
2027
2028
2029
2030
2031
2032
2033
2034
2035
2,573,461 2,105,446
- 5,265,657
- -
1,729,164
4,394,836
5,765,740
1,407,561
3,675,969
4,848,535
1,115,267
3,063,548
4,084,172
875,432
2,517,402
3,430,467
660,751
2,021,218
2,856,134
500,533
1,550,831
2,331,763
374,963
1,136,305
1,813,842
374,963
811,419
1,309,886
374,963
811,419
914,909
374,963
811,419
914,909
2,573,461 7,371,103
11,889,740
9,932,065
8,262,986
6,823,301
5,538,102
4,383,127
3,325,109
2,496,267
2,101,290
2,101,290
City of St. Joseph, Missouri
(Schutz Container Systems, Inc.)
Cost Benefit Analysis
-3 -
111112023
Projected Revenues Generated From PILOT Payments on Project Equipment
(Personal Property)
Estimated Assessed Value of Project Equipment
Acquired in2023
$2,573,461 $2,105,446
$1,729,164
$1,407,561
$1,115,267
$ 875,432
$ 660,751
$ 500,533
$ 374,963
$ 374,963
$374,963
$ 374,963
PILOT Payment
50.00% 50.00%
50.00%
50.00%
50.00%
50.00%
50.00%
50.00%
50.00%
50.00%
100.00%
100.00%
Estimated Assessed Value of Project Equipment
Acquired in 2024
- $5,265,657
$4,394,836
$3,675,969
$3,063,548
$2,517,402
$2,021,218
$1,550,831
$1,136,305
$ 811,419
$811,419
$ 811,419
PILOT Payment
- 50.00%
50.00%
50.00%
50.00%
50.00%
50.00%
50.00%
50.00%
50.00%
50.00%
100.00%
Estimated Assessed Value of Project Equipment
Acquired in2025
- -
$5,765,740
$4,848,535
$4,084,172
$3,430,467
$2,856,134
$2,331,763
$1,813,842
$1,309,886
$914,909
$ 914,909
PILOT Payment
- -
50.00%
50.00%
50.00%
50.00%
50.00%
50.00%
50.00%
50.00%
50.00%
50.00%
2022 Tax Rate
Taxing Jurisdiction
per $100 of AV
2024
2025
2026
2027
2028
2029
2030
2031
2032
2033
2034
2035
Total
Cole County - General Revenue
0.0665
$ 856
$ 2,451
$ 3,953
$ 3,302
$ 2,747
$ 2,269
$ 1,841
$ 1,457
$ 1,106
$ 830
$ 823
$ 1,093
$ 22,729
Cole County - Road & Bridge
0.2779
3,576
10,242
16,521
13,801
11,481
9,481
7,695
6,090
4,620
3,469
3,441
4,568
94,985
Cole County Special Services (Developmental Disa
0.0927
1,193
3,417
5,511
4,604
3,830
3,163
2,567
2,032
1,541
1,157
1,148
1,524
31,684
Jefferson City/Cole County Library District
0.2000
2,573
7,371
11,890
9,932
8,263
6,823
5,538
4,383
3,325
2,496
2,476
3,288
68,359
Jefferson City
0.4600
5,919
16,954
27,346
22,844
19,005
15,694
12,738
10,081
7,648
5,741
5,695
7,562
157,226
Jefferson City Fire Pension Fund
0.0961
1,237
3,542
5,713
4,772
3,970
3,279
2,661
2,106
1,598
1,199
1,190
1,580
32,847
Jefferson City School District
4.7593
61,239
175,406
282,934
236,348
196,630
162,371
131,787
104,303
79,126
59,402
58,926
78,235
1,626,709
State of Missouri - Blind Pension Fund
0.0300
386
1,106
1,783
1,490
1,239
1,023
831
657
499
374
371
493
10,254
5.9825
$ 76,979
$ 220,488
$ 355,652
$ 297,093
$ 247,167
$ 204,102
$ 165,659
$ 131,110
$ 99,462
$ 74,670
$ 74,071
$ 98,342
$2,044,794
City of Jefferson, Missouri
(Scholastic Inc.)
Cost -Benefit Analysis -4 -
111112023
Projected Value of Personal Property Tax Abatement on Project Equipment
Estimated Assessed Value of Project Equipment
Acquired in 2023
$2,573,461 $2,105,446
$1,729,164
$1,407,561
$1,115,267
$ 875,432
$ 660,751
$ 500,533
$ 374,963
$ 374,963
Abatement Percentage
50.00% 50.00%
50.00%
50.00%
50.00%
50.00%
50.00%
50.00%
50.00%
50.00%
Estimated Assessed Value of Project Equipment
Acquired in 2024
- $5,265,657
$4,394,836
$3,675,969
$3,063,548
$2,517,402
$2,021,218
$1,550,831
$1,136,305
$ 811,419
$811,419
Abatement Percentage
- 50.00%
50.00%
50.00%
50.00%
50.00%
50.00%
50.00%
50.00%
50.00%
50.00%
Estimated Assessed Value of Project Equipment
Acquired in 2025
- -
$5,765,740
$4,848,535
$4,084,172
$3,430,467
$2,856,134
$2,331,763
$1,813,842
$1,309,886
$914,909 $ 914,909
Abatement Percentage
- -
50.00%
50.00%
50.00%
50.00%
50.00%
50.00%
50.00%
50.00%
50.00% 50.00%
2022 Tax Rate
Taxing Jurisdiction
per $100 of AV
2024
2025
2026
2027
2028
2029
2030
2031
2032
2033
2034
2035
Cole County - General Revenue
0.0665
$ 856
$ 2,451
$ 3,953
$ 3,302
$ 2,747
$ 2,269
$ 1,841
$ 1,457
$ 1,106
$ 830
$ 574
$ 304
Cole County - Road & Bridge
0.2779
3,576
10,242
16,521
13,801
11,481
9,481
7,695
6,090
4,620
3,469
2,399
1,271
Cole County Special Services (Developmental Di;
0.0927
1,193
3,417
5,511
4,604
3,830
3,163
2,567
2,032
1,541
1,157
800
424
Jefferson City/Cole County Library District
0.2000
2,573
7,371
11,890
9,932
8,263
6,823
5,538
4,383
3,325
2,496
1,726
915
Jefferson City
0.4600
5,919
16,954
27,346
22,844
19,005
15,694
12,738
10,081
7,648
5,741
3,971
2,104
Jefferson City Fire Pension Fund
0.0961
1,237
3,542
5,713
4,772
3,970
3,279
2,661
2,106
1,598
1,199
830
440
Jefferson City School District
4.7593
61,239
175,406
282,934
236,348
196,630
162,371
131,787
104,303
79,126
59,402
41,081
21,772
State of Missouri - Blind Pension Fund
0.0300
386
1,106
1,783
1,490
1,239
1,023
831
657
499
374
259
137
5.9825
$ 76,979
$ 220,488
$ 355,652
$ 297,093
$ 247,167
$ 204,102
$ 165,659
$ 131,110
$ 99,462
$ 74,670
$ 51,639
$ 27,367
City of Jefferson, Missouri
(Scholastic Inc.)
Cost -Benefit Analysis -5 -
111112023
Gilmore & Bell, P.C.
Draft v1— January 5, 2023
CITY OF JEFFERSON, MISSOURI,
the City,
AND
BOKF, N.A.,
as Trustee
TRUSTINDENTURE
Dated as of February 1, 2023
Relating to:
$44,700,000
(Aggregate Maximum Principal Amount)
City of Jefferson, Missouri
Taxable Industrial Development Revenue Bonds
(Scholastic Inc. Project)
Series 2023
TRUST INDENTURE
TABLE OF CONTENTS
Page
Parties..............................................................................................................................I
Recitals............................................................................................................................I
GrantingClauses.............................................................................................................2
ARTICLE I
DEFINITIONS
Section 101. Definitions of Words and Terms....................................................................................... 3
Section 102. Rules of Interpretation......................................................................................................8
Section 103. Date of Indenture..............................................................................................................8
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..........................................................................9
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 Series 2023 Bonds.........................................................................12
Section 209.
Authorization of Additional Bonds.................................................................................14
Section 210.
Mutilated, Lost, Stolen or Destroyed Bonds..................................................................16
Section 211.
Cancellation and Destruction of Bonds Upon Payment.................................................16
ARTICLE III
REDEMPTION OF BONDS
Section301. Redemption of Bonds.....................................................................................................16
Section 302. Effect of Call for Redemption........................................................................................17
Section 303. Notice of Redemption.....................................................................................................17
ARTICLE IV
FORM OF BONDS
Section401. Form Generally...............................................................................................................17
ARTICLE V
CUSTODY AND APPLICATION OF BOND PROCEEDS
Section 501. Creation of Funds...........................................................................................................17
Section 502. Deposits into the Project Fund........................................................................................18
Section 503. Disbursements from the Project Fund............................................................................18
Section 504. Completion of the Project...............................................................................................18
Section 505. Deposits into and Disbursements from the Costs of Issuance Fund...............................18
Section 506. Disposition Upon Acceleration.......................................................................................19
ARTICLE VI
REVENUES AND FUNDS
Section 601. Deposits Into the Bond Fund..........................................................................................19
Section 602. Application of Moneys in the Bond Fund......................................................................19
Section 603. Payments Due on Days Other Than Business Days.......................................................20
Section 604. Nonpresentment of Bonds..............................................................................................20
ARTICLE VII
SECURITY FOR DEPOSITS AND INVESTMENT OF FUNDS
Section 701. Moneys to be Held in Trust............................................................................................21
Section 702. Investment of Moneys in Project Fund and Bond Fund.................................................21
Section703. Record Keeping.............................................................................................................. 21
ARTICLE VIII
GENERAL COVENANTS AND PROVISIONS
Section 801.
Payment of Principal and Interest...................................................................................21
Section 802.
Authority to Execute Indenture and Issue Bonds...........................................................22
Section 803.
Performance of Covenants..............................................................................................22
Section 804.
Instruments of Further Assurance...................................................................................22
Section 805.
Recordings and Filings...................................................................................................
22
Section 806.
Inspection of Project Books............................................................................................22
Section 807.
Enforcement of Rights Under the Lease.........................................................................23
ARTICLE IX
DEFAULT AND REMEDIES
Section 901
Events of Default; Notice; Opportunity to Cure.............................................................23
Section 902.
Acceleration of Maturity in Event of Default.................................................................23
Section 903.
Surrender of Possession of Trust Estate; Rights and Duties of Trustee
inPossession...............................................................................................................24
Section 904.
Appointment of Receivers in Event of Default..............................................................24
Section 905.
Exercise of Remedies by the Trustee..............................................................................24
Section 906.
Limitation on Exercise of Remedies by Owners............................................................25
Section 907.
Right of Owners to Direct Proceedings..........................................................................
25
Section 908.
Application of Moneys in Event of Default...................................................................26
Section 909.
Remedies Cumulative.....................................................................................................27
Section 910.
Waivers of Events of Default..........................................................................................27
ARTICLE X
THE TRUSTEE
Section 1001.
Acceptance of the Trusts.................................................................................................27
Section 1002.
Fees, Charges and Expenses of the Trustee....................................................................
29
Section 1003.
Notice to Owners if Default Occurs...............................................................................30
Section 1004.
Intervention by the Trustee.............................................................................................30
Section 1005.
Successor Trustee Upon Merger, Consolidation or Sale................................................30
Section 1006.
Resignation of Trustee....................................................................................................30
Section 1007.
Removal of Trustee.........................................................................................................30
Section 1008.
Appointment of Successor Trustee.................................................................................31
Section 1009.
Vesting of Trusts in Successor Trustee...........................................................................31
Section 1010.
Right of Trustee to Pay Taxes and Other Charges..........................................................
31
Section 1011.
Trust Estate May be Vested in Co-Trustee......................................................................31
Section1012.
Accounting.....................................................................................................................32
Section 1013.
Performance of Duties Under the Lease.........................................................................32
ARTICLE XI
SUPPLEMENTAL INDENTURES
Section 1101. Supplemental Indentures Not Requiring Consent of Owners.........................................32
Section 1102. Supplemental Indentures Requiring Consent of Owners................................................33
Section 1103. Company's Consent to Supplemental Indentures...........................................................33
Section 1104. Opinion of Counsel.........................................................................................................34
ARTICLE XII
SUPPLEMENTAL LEASES
Section 1201. Supplemental Leases Not Requiring Consent of Owners ............................................... 34
Section 1202. Supplemental Leases Requiring Consent of Owners ...................................................... 34
Section 1203. Opinion of Counsel.........................................................................................................34
ARTICLE XIII
SATISFACTION AND DISCHARGE OF INDENTURE
Section 1301. Satisfaction and Discharge of this Indenture..................................................................35
Section 1302. Bonds Deemed to be Paid...............................................................................................35
ARTICLE XIV
MISCELLANEOUS PROVISIONS
Section 1401.
Consents and Other Instruments by Owners..................................................................36
Section 1402.
Limitation of Rights Under this Indenture.....................................................................36
Section1403.
Notices............................................................................................................................36
Section1404.
Severability.....................................................................................................................37
Section 1405.
Execution in Counterparts..............................................................................................37
Section1406.
Governing Law...............................................................................................................37
Section 1407.
Electronic Storage..........................................................................................................38
Section 1408.
Anti -Discrimination Against Israel Act..........................................................................38
Signaturesand Seal....................................................................................................... S-1
Exhibit A: Description of Project Site
Exhibit B: Project Equipment
Exhibit C: Form of Bonds
Exhibit D: Form of Representation Letter
(iv)
TRUST INDENTURE
THIS TRUST INDENTURE dated as of February 1, 2023, (the "Indenture") between the CITY
OF JEFFERSON, MISSOURI, a home rule charter city and municipal corporation organized and existing
under the laws of the State of Missouri (the "City"), and UMB BANK, N.A., a national banking association
duly organized and existing and authorized to accept and execute trusts of the character herein set forth
under the laws of the United States of America, with a corporate trust office located in the City of Kansas
City, 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, inclusive, of the Revised
Statutes of Missouri, as amended (collectively, the "Act"), to purchase, construct, extend and improve
certain projects (as defined in the Act) and to issue industrial development revenue bonds for the purpose
of providing funds to pay the costs of such projects and to lease or otherwise dispose of such projects to
private persons or businesses for manufacturing, commercial, research and development, warehousing and
industrial development purposes upon such terms and conditions as the City shall deem advisable.
2. The City Council of the City adopted Resolution No. RS2022-32 on October 17, 2022,
expressing the official intent of the City to issue industrial development revenue bonds under the Act to
finance an economic development project (the "Project") for Scholastic Inc., a New York corporation (the
"Company"), consisting of acquiring and installing new machinery, equipment and other personal property
(the "Project Equipment" as more fully described on Exhibit B hereto) to be installed at the Company's
existing facility located at 6336 Algoa Road in the City (the "Project Site" as more fully described on
Exhibit A hereto).
3. Following notice to the affected taxing jurisdictions in accordance with Section 100.059.1
of the Act, the City Council of the City adopted Ordinance No. [] on February 6, 2023 (the
"Ordinance"), (a) approving a plan for the Company's Project (the "Plan") and (b) authorizing the
issuance of Taxable Industrial Development Revenue Bonds (Scholastic Inc. Project), Series 2023, in the
maximum aggregate principal amount of $44,700,000 (the "Series 2023 Bonds"), to pay costs of the
Project.
4. Pursuant to the Ordinance, the City is authorized to execute and deliver (a) this Indenture
for the purpose of issuing and securing the Bonds, (b) the Lease Agreement dated as of February 1, 2023
(the "Lease") with the Company, as lessee, under which the City, as lessor, will cause the Company to
acquire and install the Project Equipment and will lease the Project Equipment to the Company, in
consideration of rental payments to be paid by the Company which will be sufficient to pay the principal
of and interest on the Bonds, and (c) the Performance Agreement dated as of February 1, 2023 (the
"Performance Agreement"), between the City and the Company, for the purpose of setting forth the terms
and conditions of the Project Equipment's exemption from ad valorem personal property taxes and certain
payments in lieu of taxes to be made by the Company with respect to the Project Equipment.
5. All things necessary to make the Bonds, when authenticated by the Trustee and issued as
in this Indenture provided, the valid and legally binding obligations of the City, and to constitute this
Indenture a valid and legally binding pledge and assignment of the Trust Estate herein made for the security
of the payment of the principal of and interest on the Bonds, have been done and performed, and the
execution and delivery of this Indenture and the execution and issuance of the Bonds, subject to the terms
hereof, have in all respects been duly authorized.
NOW, THEREFORE, THIS TRUST INDENTURE WITNESSETH:
GRANTING CLAUSES
That the City, in consideration of the premises, the acceptance by the Trustee of the trusts hereby
created, the purchase and acceptance of the Bonds by the Owners (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 (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 Equipment 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
Unassigned Rights, as defined herein), and all rents, revenues and receipts derived by the City from
the Project Equipment including, without limitation, all rentals and other amounts to be received
by the City and paid by the Company under and pursuant to and subject to the provisions of the
Lease; and
(c) All moneys and securities from time to time held by or now or hereafter required
to be paid to the Trustee under the terms of this Indenture, and any and all other real or personal
property of every kind and nature from time to time hereafter, by delivery or by writing of any kind,
pledged, assigned or transferred as and for additional security hereunder by the City or by anyone
in its behalf, or with its written consent, to the Trustee, which is hereby authorized to receive any
and all such property at any and all times and to hold and apply the same subject to the terms hereof.
TO HAVE AND TO HOLD, all and singular, the Trust Estate with all rights and privileges hereby
pledged and assigned or agreed or intended so to be, to the Trustee and its successors and assigns forever;
IN TRUST NEVERTHELESS, upon the terms and subject to the conditions herein set forth, for
the equal and proportionate benefit, protection and security of all Owners from time to time of the Bonds
Outstanding under this Indenture, without preference, priority or distinction as to lien or otherwise of any
of the Bonds over any other of the Bonds except as expressly provided in or permitted by this Indenture;
PROVIDED, HOWEVER, that if the City pays, or causes to be paid, the principal of and interest
on the Bonds, at the time and in the manner mentioned in the Bonds, according to the true intent and
meaning thereof, or provides for the payment thereof (as provided in Article XIII hereof), 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
and subject to the terms, conditions, stipulations, covenants, agreements, trusts, uses and purposes as
-2-
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 capitalized words and terms
defined in the Lease and the Performance Agreement, which definitions shall be deemed to be incorporated
herein, and capitalized terms defined elsewhere in this Indenture, the following capitalized words and terms
as used in this Indenture shall have the following meanings, unless some other meaning is plainly intended:
"Act" means, collectively, Article VI, Section 27(b) of the Missouri Constitution, as amended, and
Sections 100.010 through 100.200 of the Revised Statutes of Missouri, as amended.
"Additional Bonds" means any additional parity bonds issued pursuant to Section 209 of this
Indenture.
"Additional Rent" means the additional rental amounts described in Section 5.2 of the Lease.
"Assessor" means the County Assessor of Cole County, Missouri.
"Authorized City Representative" means the Mayor, City Administrator, Finance Director, City
Clerk or such other Person at the time designated to act on behalf of the City as evidenced by written
certificate furnished to the Company and the Trustee containing the specimen signature of such Person and
signed on behalf of the City by its Mayor. Such certificate may designate an alternate or alternates each of
whom shall be entitled to perform all duties of the Authorized City Representative.
"Authorized Company Representative" means the Person at the time designated to act on behalf
of the Company as evidenced by written certificate furnished to the City and the Trustee containing the
specimen signature of such Person and signed on behalf of the Company by authorized officers. Such
certificate may designate an alternate or alternates each of whom shall be entitled to perform all duties of
the Authorized Company Representative.
"Basic Rent" means the rental described in Section 5.1 of the Lease.
"Bond" or "Bonds" means the Taxable Industrial Development Revenue Bonds (Scholastic Inc.
Project), issued, authenticated and delivered under and pursuant to this Indenture, including a series of
Taxable Industrial Development Revenue Bonds (Scholastic Inc. Project), Series 2023, in the maximum
aggregate principal amount of $44,700,000 and, upon the issuance of any Additional Bonds pursuant to
Section 209 of this Indenture, the term "Bonds" shall include such Additional Bonds.
"Bond Counsel" means Gilmore & Bell, P.C., Kansas City, Missouri.
"Bond Fund" means the "City of Jefferson, Missouri, Bond Fund -- Scholastic Inc." created in
Section 501 of this Indenture.
"Bond Purchase Agreement" means the agreement by that name with respect to the Bonds by
and between the City and the Purchaser.
-3-
"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 charter city and a municipal corporation
organized and existing under the laws of the State of Missouri, and its successors and assigns.
"Closing Date" means the date identified in the Bond Purchase 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 any Project Costs spent by the Company from its own funds before the Closing Date, including
costs of issuance.
"Company" means Scholastic Inc., a New York corporation, and its successors or assigns.
"Completion Date" means the date of execution of the certificate required by Section 4.5 of the
Lease and Section 504 hereof or December 31, 2025, whichever is earlier, except as otherwise provided in
Section 4.5 of the Lease.
"Costs of Issuance Fund" means the "City of Jefferson, Missouri, Costs of Issuance
Fund -- Scholastic Inc." created in Section 501 of this Indenture.
"Cumulative Outstanding Principal Amount" means the aggregate principal amount of all
Bonds Outstanding under the provisions of this Indenture, not to exceed $44,700,000, and any Additional
Bonds issued hereunder, as reflected in the records maintained by the Trustee as provided in the Bonds and
this Indenture.
"Equipment Financing" means any financings which the Company may undertake with an
Equipment Lender with respect to the Project Equipment or any portion thereof.
"Equipment Financing Documents" means all loan agreements, notes, security documents, UCC
financing statements, acknowledgements, assignments and other documents securing, evidencing or
otherwise pertaining to any Equipment Financing.
"Equipment Lender" means all third parties entering into any Equipment Financing Documents
or receiving delivery of or the benefit from any Equipment Financing Documents, including the Equipment
Lender's designee, nominee, assignee, transferee, purchaser in foreclosure or receiver.
"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.
"Full Insurable Value" means the reasonable replacement cost of the Project Equipment less
physical depreciation and exclusive of land, excavations, footings, foundation and parking lots as
determined in accordance with Section 7.2(a) of the Lease.
"Government Securities" means direct obligations of, or obligations the payment of principal of
and interest on which are unconditionally guaranteed by, the United States of America.
M
"Indenture" means this Trust Indenture, as from time to time amended and supplemented by
Supplemental Indentures in accordance with the provisions of Article XI hereof.
"Investment Securities" means any of the following securities:
(a) Government Securities;
(b) obligations of Fannie Mae, the Government National Mortgage Association, the
Federal Financing Bank, the Federal Intermediate Credit Corporation, Federal Banks for
Cooperatives, Federal Land Banks, Federal Home Loan Banks, Farmers Home Administration and
Federal Home Loan Mortgage Corporation;
(c) direct and general obligations of any state of the United States of America, to the
payment of the principal of and interest on which the full faith and credit of such state is pledged,
provided that at the time of their purchase under this Indenture such obligations are rated in either
of the two highest rating categories by a nationally -recognized bond rating agency;
(d) certificates of deposit, whether negotiable or nonnegotiable, issued by any bank or
trust company organized under the laws of any state of the United States of America or any national
banking association (including the Trustee or any of its affiliates), provided that such certificates
of deposit shall be either (1) continuously and fully insured by the Federal Deposit Insurance
Corporation, or (2) continuously and fully secured by such securities as are described above in
clauses (a) through (c), inclusive, which shall have a market value at all times at least equal to the
principal amount of such certificates of deposit and shall be deposited with the Trustee or a
custodian bank, trust company or national banking association. The bank, trust company or
national banking association holding each such certificate of deposit required to be so secured shall
furnish the Trustee written evidence satisfactory to it that the aggregate market value of all such
obligations securing each such certificate of deposit will at all times be an amount at least equal to
the principal amount of each such certificate of deposit and the Trustee shall be entitled to rely on
each such undertaking;
(e) shares of a fund registered under the Investment Company Act of 1940, as
amended, whose shares are registered under the Securities Act of 1933, as amended, having assets
of at least $100,000,000, and which shares, at the time of purchase, are rated by S&P Global Ratings
and Moody's in one of the two highest rating categories (without regard to any refinements or
gradation of rating category by numerical modifier or otherwise) assigned by such rating agencies
for obligations of that nature; or
(f) any other investment approved in writing by the Authorized City Representative
and Owners of all of the Outstanding Bonds.
"Lease" means the Lease Agreement dated as of February 1, 2023, between the City, as lessor, and
the Company, as lessee, as from time to time amended and supplemented by Supplemental Leases in
accordance with the provisions thereof and of Article XII of this Indenture.
"Lease Term" means the period from the effective date of the Lease until the expiration thereof
pursuant to Section 3.2 of the Lease.
"Leasehold Security Agreement" means any leasehold security agreement, leasehold deed of
trust, assignment of rents and leases, security agreement or other agreement relating to the Project
Equipment permitted pursuant to the provisions of Section 10.4 of the Lease.
-5-
"Net Proceeds" means, when used with respect to any insurance or condemnation award with
respect to the Project Equipment, the gross proceeds from the insurance or condemnation award remaining
after payment of all expenses (including attorneys' fees, Trustee's fees and any extraordinary expenses of
the City and the Trustee) incurred in the collection of such gross proceeds.
"Outstanding" when used with reference to Bonds, means, as of a particular date, all Bonds
theretofore authenticated and delivered, except:
(a) Bonds previously cancelled by the Trustee or delivered to the Trustee for
cancellation;
(b) Bonds deemed to be paid in accordance with the provisions of Section 1302
hereof; and
(c) Bonds in exchange for, or in lieu of other Bonds, which other Bonds have been
authenticated and delivered pursuant to this Indenture.
"Owner" or `Bondowner" means the registered owner of any Bond as recorded on the bond
registration records maintained by the Trustee.
"Paying Agent" means the Trustee and any other bank or trust company designated by this
Indenture as paying agent for the Bonds at which the principal of or interest on the Bonds shall be payable.
"Payment Date" means the date on which principal of or interest on any Bond, 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.
"Performance Agreement" means the Performance Agreement dated as of February 1, 2023,
between the City and the Company, and acknowledged by the Assessor, as amended and supplemented
from time to time.
"Permitted Encumbrances" means, as of any particular time, as the same may encumber the
Project Equipment (a) liens for ad valorem taxes, special assessments and other governmental charges not
then delinquent, (b) this Indenture, the Lease and the Performance Agreement, (c) liens or security interests
affecting an interest in the Project Equipment existing prior to the date of conveyance of the Project
Equipment to the City, (d) liens and security interests granted pursuant to any Leasehold Security
Agreement or any Equipment Financing Documents, and (e) any other lien, encumbrance, lease, easements,
restrictions or covenants consented to in writing by the Company and the Owners of 100% of the principal
amount of the Bonds. Nothing in this definition shall authorize or permit any party other than the Company
to create or consent to the creation of any Permitted Encumbrance.
"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.
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"Principal Amount Advanced" means the amount set forth in each requisition certificate in
accordance with Section 4.4 of the Lease, as reflected in the records maintained by the Trustee as provided
in the Bonds and this Indenture.
"Project" means the acquisition and installation of the Project Equipment on the Project Site as
further described in Exhibit B attached hereto.
"Project Costs" means all costs of acquiring and installing the Project Equipment including the
following:
(a) all costs and expenses necessary or incident to the acquisition of any portion of the
Project Equipment, which the Company conveys to the City;
(b) fees and expenses of consultants for any preliminary investigations and items
necessary to the determination of the necessary equipment replacements and upgrades, preparation
of specifications for the Project Equipment and supervision of the installation of the Project
Equipment, as well as for the performance of all other duties of professionals and consultants in
relation to the purchase and installation of the Project Equipment or the issuance of the Bonds;
(c) all costs and expenses of every nature incurred in purchasing and installing the
Project Equipment, including the actual cost of labor and materials, machinery, furnishings and
equipment as payable to contractors and materialmen in connection with the acquisition and
installation of the Project Equipment, but excluding any real property improvements;
(d) interest accruing on the Bonds until the Completion Date;
(e) reasonable expenses of administration, supervision and inspection properly
chargeable to the Project Equipment, legal fees and expenses, fees and expenses of Bond Counsel,
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 acquisition and installation of the Project
Equipment;
(f) 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 acquisition and installation of the Project Equipment; and (3) the
financing thereof; and
(g) reimbursement to the Company or those acting for it for any of the above
enumerated costs and expenses incurred and paid by them before or after the execution of the Lease.
"Project Equipment" means all items of machinery, equipment and other personal property
acquired and installed on the Project Site pursuant to Article IV of the Lease and paid for, or reimbursed,
in whole or in part from the proceeds of Bonds, as described in Exhibit B attached hereto and by this
reference made a part hereof, and all replacements thereof and substitutions therefor which, pursuant to
Section 8.2 of the Lease, constitute part of the Project Equipment.
"Project Fund" means the "City of Jefferson, Missouri, Project Fund — Scholastic Inc." created in
Section 501 of this Indenture.
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"Project Site" means the real estate upon which the Company's existing facility is located in the
City (at 6336 Algoa Road), which is where the Project Equipment will be situated, as further described in
Exhibit A attached hereto.
"Purchaser" means the entity identified in the Bond Purchase Agreement as the purchaser of the
Bonds, and its successors or assigns.
"State" means the State of Missouri.
"Supplemental Indenture" means any indenture supplemental or amendatory to this Indenture
entered into by the City and the Trustee pursuant to Article XI hereof.
"Supplemental Lease" means any supplement or amendment to the Lease entered into pursuant
to Article XII hereof.
"Trust Estate" means the Trust Estate described in the Granting Clauses of this Indenture.
"Trustee" means BOKF, N.A., St. Louis, Missouri, a national banking association organized and
existing 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) Unless the context shall otherwise indicate, the words importing the singular number shall
include the plural and vice versa, and words importing Persons shall include firms, associations and
corporations, including public bodies, as well as natural Persons.
(b) Wherever in this Indenture it is provided that either party shall or will make any payment
or perform or refrain from performing any act or obligation, each such provision shall, even though not so
expressed, be construed as an express covenant to make such payment or to perform, or not to perform, as
the case may be, such act or obligation.
(c) All references in this instrument to designated "Articles," "Sections" and other
subdivisions are, unless otherwise specified, to the designated Articles, Sections and subdivisions of this
instrument as originally executed. The words "herein," "hereof," "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular Article, Section or subdivision.
(d) Whenever an item or items are listed after the word "including", such listing is not intended
to be a listing that excludes items not listed.
(e) The Table of Contents and the Article and Section headings of this Indenture shall not be
treated as a part of this Indenture or as affecting the true meaning of the provisions hereof.
Section 103. Date of Indenture. The dating of this Indenture as of February 1, 2023, is intended
as and for the convenient identification of this Indenture only and is not intended to indicate that this Indenture
In
was executed and delivered on said date, this Indenture being executed and delivered and becoming effective
simultaneously with the initial issuance of the Bonds.
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 "City of Jefferson, Missouri, Taxable Industrial Development Revenue Bonds
(Scholastic Inc. Project), Series 2023," with such other appropriate particular designation added to or
incorporated in such title for the Bonds of any particular series of Additional Bonds as the City may
determine. The maximum total principal amount of Bonds that may be issued hereunder is hereby expressly
limited to $44,700,000 in one or more series of Bonds (except that such maximum total principal amount
may be increased in connection with the issuance of Additional Bonds hereunder).
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 Equipment and the Lease, and not from any other fund or source of the City. The Bonds are secured
by a pledge and assignment of the Trust Estate to the Trustee in favor of the Owners, as provided in this
Indenture. The Bonds and the interest thereon shall not constitute general obligations of the City, the State
or any political subdivision thereof, and neither the City, the State nor any political subdivision thereof shall
be liable thereon, and the Bonds shall not constitute an indebtedness within the meaning of any
constitutional, charter or statutory debt limitation or restriction, and are not payable in any manner by
taxation.
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 C hereto, in the denomination of $0.01 or any multiple thereof.
(b) The Bonds shall be dated by the Trustee as of the date of initial delivery thereof as provided
herein. If the Bonds are at any time thereafter transferred, any replacement Bonds shall be dated as of the
date of authentication thereof. The Bonds of each series will be numbered from 1 upward.
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.
In
(b) Payment of the principal of the Bonds shall be made upon the presentation and surrender
of such Bonds at the principal payment office of any Paying Agent named in the Bonds. The payment of
principal on the Bonds shall be noted on the Bonds on Schedule I thereto and the registration books
maintained by the Trustee pursuant to Section 206 hereof. 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) In accordance with Section 5.1 of the Lease, provided that the Company, or any other
affiliate of the Company, is the sole Owner of the Bonds, and the Company is lessee under the Lease, the
Company, as lessee under the Lease, shall set-off the then -current Basic Rent payment against the City's
obligation to the Company as Bondowner under this 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 Company to the contrary as evidence that such set-off has occurred.
At its option, on the final Payment Date, the Company may deliver to the Trustee for cancellation Bonds
not previously paid and the Company, as lessee under the Lease, shall receive a credit against the Basic
Rent payable by the Company under Section 5.1 of the Lease in an amount equal to the principal amount
of the Bonds so tendered for cancellation plus accrued interest thereon. Notwithstanding anything
contained in this Indenture, the Lease, the Bond Purchase Agreement or the Performance Agreement to the
contrary, if the Company, or any other affiliate of the Company, is the Owner of all of the Bonds
Outstanding, payments of principal and interest on the Bonds may be made via a transaction entry on the
trust records held by the Trustee and the Paying Agent without requiring the Company to wire or otherwise
transfer any moneys to the Trustee for payment to such Owner.
(d) The Bonds and the original Schedule I thereto shall be held by the Trustee in trust, unless
otherwise directed in writing by the Owner. If the Bonds are held by the Trustee, the Trustee shall, on each
Payment Date, send a revised copy of Schedule I via facsimile or other electronic means to the Owner, the
Company (if not the Owner) and the City. Absent manifest error, the amounts shown on Schedule I as
noted by the Trustee shall be conclusive evidence of the principal amount paid on the Bonds.
(e) If there is one Owner of the Bonds, the Trustee is authorized to make the final or any
interim payments of principal on such Bonds by internal bank transfer or by electronic transfer to an account
at a commercial bank or savings institution designated in writing by such Owner and located in the
continental United States. The Trustee is also authorized to make interest payments on such Bonds by
internal bank transfer or by electronic transfer to an account at a commercial bank or savings institution
designated by such Owner and located in the continental United States.
Section 205. Execution and Authentication of Bonds.
(a) The Bonds shall be executed on behalf of the City by the manual or facsimile signature of
its Mayor and attested by the manual or facsimile signature of the City Clerk, and shall have the corporate
seal of the City affixed thereto or imprinted thereon. If any officer whose signature or facsimile thereof
appears on the Bonds ceases to be such officer before the delivery of such Bond, such signature or facsimile
thereof shall nevertheless be valid and sufficient for all purposes, the same as if such Person had remained
in office until delivery. Any Bond may be signed by such Persons as at the actual time of the execution of
such Bond are the proper officers to sign such Bond although at the date of such Bond such Persons may
not have been such officers.
(b) The Bonds shall have endorsed thereon a Certificate of Authentication substantially in the
form set forth in Exhibit C hereof, which shall be manually executed by the Trustee. No Bond shall be
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entitled to any security or benefit under this Indenture or shall be valid or obligatory for any purposes until
such Certificate of Authentication has been duly executed by the Trustee. The executed Certificate of
Authentication upon any Bond shall be conclusive evidence that such Bond has been duly authenticated
and delivered under this Indenture. The Certificate of Authentication on any Bond shall be deemed to have
been duly executed if signed by any authorized signatory of the Trustee.
Section 206. Registration, Transfer and Exchange of Bonds.
(a) The Trustee shall keep books for the registration and for the transfer of Bonds as provided
in this Indenture.
(b) The Bonds may be transferred only upon the books kept for the registration and transfer of
Bonds upon surrender thereof to the Trustee duly endorsed for transfer or accompanied by an assignment
duly executed by the Owner or such Owner's attorney or legal representative in such 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 D hereto. Upon any such transfer, the City shall execute and the Trustee shall authenticate and
deliver in exchange for such Bond a new fully registered Bond or Bonds, registered in the name of the
transferee, of any denomination or denominations authorized by this Indenture, in an aggregate principal
amount equal to the Outstanding principal amount of such Bond, of the same maturity and bearing interest
at the same rate.
(c) In all cases in which Bonds are exchanged or transferred hereunder the provisions of any
legend restrictions on the Bonds shall be complied with and the City shall execute and the Trustee shall
authenticate and deliver at the earliest practicable time Bonds in accordance with the provisions of this
Indenture. All Bonds surrendered in any such exchange or transfer shall forthwith be cancelled by the
Trustee. The City or the Trustee may make a reasonable charge for every such exchange or transfer of
Bonds sufficient to reimburse it for any tax, fee or other governmental charge required to be paid with
respect to such exchange or transfer, and such charge shall be paid before any such new Bond shall be
delivered. Neither the City nor the Trustee shall be required to make any such exchange or transfer of
Bonds during the 15 days immediately preceding a Payment Date on the Bonds or, in the case of any
proposed redemption of Bonds, during the 15 days immediately preceding the selection of Bonds for such
redemption or after such Bonds or any portion thereof has been selected for redemption.
(d) If any Owner fails to provide a certified taxpayer identification number to the Trustee, the
Trustee may make a charge against such Owner sufficient to pay any governmental charge required to be
paid as a result of such failure, which amount may be deducted by the Trustee from amounts otherwise
payable to such Owner under such Owner's Bond.
(e) Notwithstanding any provision to the contrary contained herein or in the Lease, the Bonds
shall at no time be owned or held by a Person other than the Company, or an affiliate entity of the Company,
during the Lease Term; provided, however, if the Lease is assigned in whole pursuant to Section 13.1
thereof and the assignee entity expressly assumes all rights, duties and obligations of the Company under
the Lease and the Performance Agreement, then a new Bond may be issued by the Trustee in the name of
such assignee, and in substitution for the Bond issued in the name of the Company on the issue date of the
Bonds, and this subsection (e) shall be of no further force and effect.
Section 207. Persons Deemed Owners of Bonds. As to any Bond, the Person in whose name
the same is registered as shown on the bond registration books required by Section 206 hereof shall be
deemed and regarded as the absolute owner thereof for all purposes. Payment of or on account of the
principal of and interest on any such Bond shall be made only to or upon the order of the Owner thereof or
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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 Series 2023 Bonds.
(a) The Series 2023 Bonds are authorized for the purpose of providing funds to pay all or a
portion of the Project Costs, which includes costs of issuing the Bonds. The Series 2023 Bonds shall be
dated as provided in Section 203(b) hereof, shall become due on December 1, 2035 (subject to prior
redemption as provided in Article III hereof) and shall bear interest as specified in Section 208(f) hereof,
payable on the dates specified in Section 208(f) hereof.
(b) The Trustee is hereby designated as the Paying Agent. The Owners of a majority of Bonds
then Outstanding may designate a different Paying Agent upon written notice to the City and the Trustee.
(c) The Bonds shall be executed without material variance from the form and in the manner
set forth in Exhibit C hereto and delivered to the Trustee for authentication. Prior to or simultaneously
with the authentication and delivery of the Series 2023 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 Series 2023 Bonds and the execution of this Indenture and the Lease;
(2) Executed counterparts of this Indenture, the Lease, the Performance Agreement
and the Bond Purchase Agreement;
(3) A representation letter from the Purchaser in substantially the form attached as
Exhibit D hereto;
(4) A request and authorization to the Trustee on behalf of the City, executed by the
Authorized City Representative, to authenticate the Series 2023 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 names of the purchaser and
the amount of such purchase price;
(5) An opinion of counsel nationally recognized on the subject of municipal bonds to
the effect that the Series 2023 Bonds constitute valid and legally binding limited and special
revenue obligations of the City; and
(6) Such other certificates, statements, receipts, opinions and documents as the Trustee
shall reasonably require for the delivery of the Series 2023 Bonds.
(d) When the documents specified in subsection (c) of this Section have been filed with the
Trustee, and when the Series 2023 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 Series 2023 Bonds in an amount equal to the Closing Price and then pursuant to Section
204(d) hereof either hold the Series 2023 Bonds in trust or if so directed in writing deliver the
Series 2023 Bonds to or upon the order of the Purchaser; or
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(2) The Company shall submit a requisition certificate in accordance with Section 4.4
of the Lease, in an amount equal to the Closing Price, and the Trustee shall authenticate and endorse
the Series 2023 Bonds in an amount equal to the Closing Price and then pursuant to Section 204(d)
hereof either hold the Series 2023 Bonds in trust for the Owners or if so directed in writing deliver
the Series 2023 Bonds to the Owners (or another purchaser or assignee designated by the Owners).
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 or up to the Closing Price.
(e) Following the initial issuance and delivery of the Series 2023 Bonds, the Company may
submit additional requisition certificates in accordance with Section 4.4 of the Lease, and 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 Series 2023 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 for the Project Equipment and shall notify the City if the requisitions submitted
exceed the maximum principal amount of the Bonds. Notwithstanding the foregoing, the Company shall be
permitted to advance funds for eligible Project Costs. In such event, 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 such eligible Project Costs; provided that the Company shall submit to the Trustee a requisition
certificate detailing the advance of funds for eligible Project Costs in accordance with Section 4.4 of the
Lease.
(f) The Series 2023 Bonds shall bear interest at the rate of 5.00% 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, 2023, and continuing thereafter until the Cumulative Outstanding Principal
Amount is paid in full; provided that the aggregate maximum principal amount shall not exceed
$44,700,000 (except as such amount may be increased in connection with the issuance of Additional Bonds)
and further provided that the Bonds shall be paid in full no later than December 1, 2035. Interest shall be
calculated on the basis of a year of 360 days consisting of twelve 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 in Schedule I to the Bonds. To the extent that advances are deemed to have
been made pursuant to a requisition submitted by the Company to the Trustee, the Trustee's records and
Schedule I to the Bonds, if the Trustee is holding the Bonds, 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 C hereto. To the extent the Company sets -off its obligation to the City as
lessee under the Lease against the City's obligations to the Company as permitted by Section 204(c) the
Trustee shall not be required to confirm that such set-off has occurred. If any moneys are deposited by the
Trustee into the Project Fund, then the Trustee shall provide a statement of receipts and disbursements with
respect thereto to the City and the Company on a monthly basis. After the Completion Date has been
established as evidenced by a certificate signed by an Authorized Company Representative submitted to
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the City and the Trustee as provided in Section 4.5 of the Lease and Section 504 hereof, the Trustee, to the
extent it has not already done so pursuant to this Section or Section 1012 hereof, shall file a final statement
of receipts and disbursements with respect thereto with the City and the Company.
Section 209. Authorization of Additional Bonds.
(a) Additional Bonds may be issued under and equally and ratably secured by this Indenture
on a parity (except as otherwise provided in this Section) with the Bonds and any other Additional Bonds
at any time and from time to time, upon compliance with the conditions set forth in this Section for any of
the following purposes: (1) to provide funds to pay the costs of completing the Project, the total of such
costs to be evidenced by a certificate signed by an Authorized Company Representative, (2) to provide
funds to pay all or any part of the costs of repairing, replacing or restoring the Project Equipment in the
event of damage, destruction or condemnation thereto or thereof, (3) to provide funds to pay all or any part
of the costs of the acquisition or installation of such additions to the Project Equipment as the Company
may deem necessary or desirable and as will not impair the nature of the Project as a "project" within the
meaning and purposes of the Act, and (4) to provide funds for refunding all or any part of the Bonds of any
series then Outstanding, including the payment of any premium thereon and interest to accrue to the
designated redemption date and any expenses in connection with such refunding.
(b) Before any Additional Bonds are issued under the provisions of this Section, the City shall
pass an ordinance (1) authorizing the issuance of such Additional Bonds, fixing the principal amount thereof
and describing the purpose or purposes for which such Additional Bonds are being issued, (2) authorizing
the City to enter into a Supplemental Indenture for the purpose of issuing such Additional Bonds and
establishing the terms and provisions of such series of Bonds and the form of the bonds of such series, (3)
authorizing the City to enter into a Supplemental Lease Agreement with the Company to provide for lease
payments at least sufficient to pay the principal of, redemption premium, if any, and interest on the Bonds
and Additional Bonds then to be Outstanding (including the Additional Bonds to be issued) as the same
become due, and to extend the term of the Lease if the maturity of any of the Additional Bonds would
otherwise occur after the expiration of the term of the Lease, (4) authorizing the City to enter into a
supplemental performance agreement with the Company to provide for payments in lieu of taxes with
respect to the property being financed by the Additional Bonds, and (5) providing for such other matters as
are appropriate because of the issuance of the Additional Bonds, which matters, in the judgment of the City,
are not prejudicial to the City or the owners of the Bonds previously issued.
(c) Such Additional Bonds shall have the same general title as the Bonds, except for an
identifying series letter or date, shall be dated, shall mature on such dates, shall be in such denominations,
shall be numbered, shall bear interest at such rates not exceeding the maximum rate then permitted by law
payable at such times, and shall be redeemable at such times and prices (subject to the provisions of Article
III of this Indenture), all as provided by the Supplemental Indenture authorizing the issuance of such
Additional Bonds. Except as to any difference in the date, the maturities, denominations, the rates of
interest or the provisions for redemption, such Additional Bonds shall be on a parity with and shall be
entitled to the same benefit and security of this Indenture as the Bonds and any other Additional Bonds.
(d) Such Additional Bonds shall be executed in the manner set forth in Section 205 hereof and
shall be deposited with the Trustee for authentication, but prior to or simultaneously with the authentication
and delivery of such Additional Bonds by the Trustee, and as a condition precedent thereto, 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 such Additional Bonds and the execution of the Supplemental Indenture,
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Supplemental Lease, a supplement to the Performance Agreement and supplements to any other
documents as may be necessary;
(2) Original executed counterparts of the Supplemental Indenture, the Supplemental
Lease Agreement and a supplement to the Performance Agreement;
(3) A representation letter from the Purchaser in substantially the form attached as
Exhibit D hereto;
(4) A request and authorization to the Trustee on behalf of the City, executed by the
Authorized City Representative, to authenticate the Additional Bonds and deliver the same to the
Purchaser upon payment, for the account of the City, of the purchase price thereof specified in the
bond purchase agreement executed in connection with the purchase of the Additional Bonds. The
Trustee shall be entitled to conclusively rely upon such request and authorization as to names of
the purchaser and the amount of such purchase price;
(5) An opinion of counsel nationally recognized on the subject of municipal bonds to
the effect that the Additional Bonds constitute valid and legally binding limited and special revenue
obligations of the City; and
(6) Such other certificates, statements, receipts, opinions and documents as the Trustee
shall reasonably require for the delivery of the Additional Bonds.
When the documents specified in this subsection (d) have been filed with the Trustee, and when
the Additional Bonds have been executed and authenticated as required by this Indenture, either:
(1) The Purchaser shall pay the purchase price to the Trustee, and the Trustee shall
endorse the Additional Bonds in an amount equal to the purchase price and then either hold the
Additional Bonds in trust or if so directed in writing deliver the Additional Bonds to or upon the
order of the Purchaser; or
(2) The Company shall submit a requisition certificate in accordance with Section 4.4
of the Lease, in an amount equal to the purchase price of the Additional Bonds, and the Trustee
shall authenticate and endorse the Additional Bonds in an amount equal to the purchase price and
pursuant to Section 204(d) hereof either hold the Additional Bonds in trust for the Purchaser or if
so directed in writing deliver the Bonds to the Purchaser (or another purchaser or assignee
designated by the Purchaser).
In either case, the Purchaser shall be deemed to have paid over to the Trustee, and the Trustee shall
be deemed to have deposited an amount equal or up to the purchase price of any Additional Bonds.
(e) When the documents specified above have been filed with the Trustee, and when such
Additional Bonds have been executed and authenticated as required by this Indenture, the Trustee shall
deliver such Additional Bonds to or upon the order of the Purchaser thereof, but only upon payment to the
Trustee of the purchase price of such Additional Bonds. The proceeds of the sale of such Additional Bonds
(except Additional Bonds issued to refund Outstanding Bonds), including accrued interest and premium
thereon, if any, shall be immediately paid over to the Trustee and shall be deposited and applied by the
Trustee as provided in Article V hereof and in the Supplemental Indenture authorizing the issuance of such
Additional Bonds. The proceeds of all Additional Bonds issued to refund Outstanding Bonds (excluding
accrued interest and premium, if any, which shall be deposited in a separate account in the Debt Service Fund)
shall be deposited by the Trustee, after payment or making provision for payment of all expenses incident to
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such financing, to the credit of a special trust fund, appropriately designated, to be held in trust for the sole
and exclusive purpose of paying the principal of, premium, if any, and interest on the Bonds to be refunded,
as provided herein and in the Supplemental Indenture authorizing the issuance of such refunding Bonds.
Section 210. Mutilated, Lost, Stolen or Destroyed Bonds. If any Bond becomes mutilated, or
is lost, stolen or destroyed, the City shall execute and the Trustee shall authenticate and deliver a new Bond
of like series, date and tenor as the Bond mutilated lost, stolen or destroyed; provided that, in the case of
any mutilated Bond, such mutilated Bond shall first be surrendered to the Trustee, and in the case of any
lost, stolen or destroyed Bond, there shall be first furnished to the City and the Trustee evidence of such
loss, theft or destruction satisfactory to the Trustee, together with indemnity satisfactory to the Trustee to
save, 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 211. Cancellation and Destruction of Bonds Upon Payment.
(a) All Bonds which have been paid or redeemed or which the Trustee has purchased or which
have otherwise been surrendered to the Trustee under this Indenture, either at or before maturity shall be
cancelled by the Trustee immediately upon the payment, redemption or purchase of such Bonds and the
surrender thereof to the Trustee.
(b) All Bonds cancelled under any of the provisions of this Indenture shall be destroyed by the
Trustee 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 Company.
ARTICLE III
REDEMPTION OF BONDS
Section 301. Redemption of Bonds.
(a) The Bonds are subject to redemption and payment at any time before the stated maturity
thereof, at the option of the Company, on behalf of the City, and upon written instructions from the
Company, (1) in whole, if the Company, in accordance with the terms of the Lease, exercises its option to
purchase the Project Equipment and deposits an amount sufficient to effect such purchase pursuant to the
Lease on the applicable redemption date, or (2) in part, if the Company prepays additional Basic Rent
pursuant to the Lease. If only a portion of the Bonds are to be redeemed, 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. Any redemption and payment of the
Bonds shall account for any permitted set-off as set forth in Section 5.1 of the Lease.
(b) The Bonds are subject to mandatory redemption, in whole or in part, to the extent of
amounts deposited in the Bond Fund pursuant to Sections 9.1(a) or 9.2(c) of the Lease, in the event of
substantial damage to or destruction or condemnation of substantially all of the Project Equipment. 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
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redemption of Bonds pursuant to this paragraph shall be at a redemption price equal to the par value thereof
being redeemed, plus accrued interest thereon, without premium or penalty, to the redemption date. Before
giving notice of redemption to the Owners pursuant to this paragraph (b), money in an amount equal to the
redemption price shall have been deposited in the Bond Fund.
(c) At its option, the Company may deliver to the Trustee for cancellation any Bonds owned
by the Company and not previously paid, and the Company shall receive a credit against the amounts
payable by the Company for the redemption of such Bonds in an amount equal to the principal amount of
the Bonds so tendered for cancellation, plus accrued interest.
Section 302. Effect of Call for Redemption. Before or on the date fixed for redemption, funds,
Government Securities, or a combination thereof, shall be placed with the Trustee which are sufficient to
pay the Bonds called for redemption and accrued interest thereon, if any, to the redemption date. Upon the
happening of the above conditions and appropriate written notice having been given, the Bonds or the
portions of the principal amount of Bonds thus called for redemption shall cease to bear interest on the
specified redemption date, and shall no longer be entitled to the protection, benefit or security of this
Indenture and shall not be deemed to be Outstanding under the provisions of this Indenture. If the Bonds
are fully redeemed before maturity and an amount of money equal to the Trustee's and the Paying Agent's
agreed to fees and expenses hereunder accrued and to accrue in connection with such redemption is paid or
provided for, the City shall, at the Company's direction, deliver to the Company the items described in
Section 11.2 of the Lease.
Section 303. Notice of Redemption. If the Bonds are to be called for redemption as provided
in Section 301(a) hereof, the Company shall deliver written notice to the City and the Trustee that it has
elected to redeem all or a portion of the Bonds at least 40 days (10 days if the Purchaser is the Owner) prior
to the scheduled redemption date. The Trustee shall then deliver written notice to the Owners at least 30
days (five days if the Purchaser is the Owner) prior to the scheduled redemption date by facsimile or 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 C. 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 separate special trust funds in the name of the City:
(a) "City of Jefferson, Missouri, Bond Fund - Scholastic Inc., Series 2023" (herein
called the "Bond Fund");
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(b) "City of Jefferson, Missouri, Project Fund - Scholastic Inc." (herein called the
"Project Fund"); and
(c) "City of Jefferson, Missouri, Costs of Issuance Fund - Scholastic Inc." (herein
called the "Costs of Issuance Fund").
Upon the issuance of a series of Additional Bonds, if any, the Trustee shall create separate special
trust funds similar to those set forth above for said series of Additional Bonds.
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) and (e) or Section 209(d) hereof), 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 hereof, 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 and
installing the Project Equipment 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 or shall be deemed to be disbursed by
the Trustee for the payment of, or reimbursement to the Company (or any other party that has made payment
on behalf of the Company) for payment of, Project Costs upon receipt of requisition certificates signed by
the Company in accordance with the provisions of Article IV of the Lease. The Trustee hereby covenants
and agrees to disburse such moneys in accordance with such provisions.
(b) If, pursuant to Section 208(d) or (e) or Section 209(d) hereof, the Trustee is deemed to
have deposited into the Project Fund the amount specified in the requisition certificates submitted by the
Company to the Trustee 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 Company (or such other purchaser designated by the Company) in satisfaction of the
requisition certificate. If the Trustee is holding the Bonds, such deemed disbursement will be deemed to
have been made on the date the Trustee endorses the Bond with respect to such additional amount.
(c) In paying any requisition under this Section, the Trustee may rely as to the completeness
and accuracy of all statements in such requisition certificate if such requisition certificate is signed by the
Authorized Company Representative. If the City so requests in writing, a copy of each requisition
certificate submitted to the Trustee for payment under this Section shall be promptly provided by the Trustee
to the City. The City hereby authorizes and directs the Trustee to make disbursements in the manner and
as provided for by the aforesaid provisions of the Lease.
Section 504. Completion of the Project . The completion of the Project and payment of all
costs and expenses incident to the acquisition and installation of the Project Equipment 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 and deposited in the Bond Fund and applied as
provided in Section 4.6 of the Lease.
Section 505. Deposits into and Disbursements from the Costs of Issuance Fund. . Money
deposited by the Company in the Costs of Issuance Fund shall be used solely to pay costs of issuing the
Bonds or refunded to the Company as hereinafter provided. The Trustee shall without further authorization
on
disburse from the Costs of Issuance Fund, to the extent available, money sufficient to pay either (a) the
amounts designated as costs of issuance in a requisition certificate submitted by the Company to the Trustee
in accordance with Article IV of the Lease on or prior to the Closing Date, which will include the
appropriate invoices corresponding to each such cost of issuance as attachments or (b) the amounts
designated as costs of issuance in a closing memorandum provided to the Trustee on or before the Closing
Date, which will include appropriate invoices corresponding to each such cost of issuance as
attachments. The Trustee may rely conclusively on the amounts due as shown in either the requisition
certificate or the closing memorandum and will not be required to make any independent inspection or
investigation in connection therewith. Any of such money not used to pay costs of issuance by March 31,
2023 shall be refunded to the Company.
Section 506. Disposition Upon Acceleration. If the principal of the Bonds has become due
and payable pursuant to Section 902 hereof, upon the date of payment by the Trustee of any moneys due
as hereinafter provided in Article IX hereof, 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 Company of
such action.
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 Company to the City specified
in Section 5.1 of the Lease; (3) any Additional Rent payable by the Company 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
hereof upon completion of the Project or pursuant to Section 506 hereof upon acceleration of the Bonds;
(5) the balance of any Net Proceeds (as defined in the Lease) of condemnation awards or insurance received
by the Trustee pursuant to Article IX of the Lease; (6) the amounts to be deposited in the Bond Fund
pursuant to Sections 9.1(a) and (d) and 9.2(c) of the Lease; (7) all interest and other income derived from
investments of Bond Fund moneys as provided in Section 702 hereof, 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) Unless the Company is exercising its right of offset pursuant to Section 5.1 of the Lease,
the Trustee shall notify the Company in writing, at least 15 days prior to each date on which a payment is
due under Section 5.1 of the Lease, of the amount that is payable by the Company pursuant to such Section.
Section 602. Application of Moneys in the Bond Fund.
(a) Except as provided in Section 604 and Section 908 hereof or in Section 4.6(a) of the Lease,
moneys in the Bond Fund shall be expended solely for the payment of the principal of and the interest on
the Bonds as the same mature and become due or upon the redemption thereof prior to maturity; provided,
however, that any amounts received by the Trustee as Additional Rent under Section 5.2 of the Lease and
deposited to the Bond Fund as provided in Section 601 above, shall be expended by the Trustee (1) without
further authorization from the City for payment of the Trustee's and Paying Agent's fees and (2) disbursed
for such other items of Additional Rent as they are received or due in accordance with the written direction
of the City.
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(b) The City hereby authorizes and directs the Trustee to withdraw sufficient funds from the
Bond Fund to pay the principal of and the interest on the Bonds as the same become due and payable and
to make said funds so withdrawn available to the Paying Agent for the purpose of paying said principal and
interest.
(c) Whenever the amount in the Bond Fund from any source whatsoever is sufficient to redeem
all of the Bonds Outstanding and to pay interest to accrue thereon prior to such redemption, the City
covenants and agrees, upon request of the Company, to take and cause to be taken the necessary steps to
redeem all such Bonds on the next succeeding redemption date for which the required redemption notice
may be given or on such later redemption date as may be specified by the Company. The Trustee may use
any moneys in the Bond Fund to redeem a part of the Bonds Outstanding in accordance with and to the
extent permitted by Article III hereof so long as the Company is not in default with respect to any payments
under the Lease and to the extent said moneys are in excess of the amount required for payment of Bonds
theretofore matured or called for redemption and past due interest, if any, in all cases when such Bonds
have not been presented for payment.
(d) After payment in full of the principal of and interest, if any, on the Bonds (or provision has
been made for the payment thereof as provided in this Indenture), and the fees, charges and expenses of the
Trustee, the City and any Paying Agent and any other amounts required to be paid under this Indenture, the
Lease and the Performance Agreement, all amounts remaining in the Bond Fund shall be paid to the
Company upon the expiration or sooner termination of the Lease.
(e) Notwithstanding anything contained herein or in the Lease to the contrary, if the Purchaser,
or any other affiliate of the Company, is the Owner of all of the Bonds Outstanding, payments of principal
and interest on the Bonds may be made via a transaction entry on the trust records held by the Trustee and
the Paying Agent without requiring the Company to wire or otherwise transfer any moneys to such Owner.
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 fund or funds, without liability
for interest thereon, for the benefit of the Owner of such Bond who shall thereafter be restricted exclusively
to such fund or funds for any claim of whatever nature on his part under this Indenture or on, or with respect
to, said Bond. If any Bond is not presented for payment within one year following the date when such
Bond becomes due, whether by maturity or otherwise, the Trustee shall without liability for interest thereon
repay to the Company the funds theretofore held by it for payment of such Bond, and such Bond shall,
subject to the defense of any applicable statute of limitation, thereafter be an unsecured obligation of the
Company, and the Owner thereof shall be entitled to look only to the Company for payment, and then only
to the extent of the amount so repaid, and the Company shall not be liable for any interest thereon and shall
not be regarded as a trustee of such money.
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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 Company, signed by the
Authorized Company Representative, be separately invested and reinvested by the Trustee in Investment
Securities which mature or are subject to redemption by the Owner prior to the date such funds will be
needed. If the Company fails to provide written directions concerning 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 prior to 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
investments; provided that any such fees shall not exceed the interest income on the investment. Any such
Investment Securities shall be held by or under the control of the Trustee and shall be deemed at all times
a part of the fund in which such moneys are originally held, and the interest accruing thereon and any profit
realized from such Investment Securities shall be credited to such fund, and any loss resulting from such
Investment Securities shall be charged to such fund. After the Trustee has notice pursuant to Section
1001(h) hereof of the existence of an Event of Default, the Trustee shall direct the investment of moneys
in the Bond Fund and the Project Fund. The Trustee shall sell and reduce to cash a sufficient amount of
such Investment Securities whenever the cash balance in any Fund is insufficient for the purposes of such
Fund. In determining the balance in any Fund, investments in such Fund shall be valued at the lower of
their original cost or their fair market value as of the most recent Payment Date. The Trustee may make
any and all investments permitted by the provisions of this Section through its own bond department or any
affiliate or short-term investment department.
Section 703. Record Keeping. The Trustee shall maintain records designed to show
compliance with the provisions of this Article and with the provisions of Article VI hereof for at least six
years after the payment of all of the Outstanding Bonds.
ARTICLE VIII
GENERAL COVENANTS AND PROVISIONS
Section 801. Payment of Principal and Interest. The City covenants and agrees that it will,
but solely from the rents, revenues and receipts derived from the Project Equipment and the Lease as
described herein, deposit or cause to be deposited in the Bond Fund sufficient sums payable under the Lease
promptly to meet and pay the principal of and the interest on the Bonds as they become due and payable at
the place, on the dates and in the manner provided herein and in the Bonds according to the true intent and
meaning thereof. Nothing herein shall be construed as requiring the City to operate the Project Equipment
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in any business -like manner other than as lessor or to use any funds or revenues from any source other than
rents, funds and revenues derived from the Project Equipment.
Section 802. Authority to Execute Indenture and Issue Bonds. The City covenants that it is
duly authorized under the Constitution and laws of the State to execute this Indenture, to issue the Bonds
and to pledge and assign the Trust Estate in the manner and to the extent herein set forth; that all action on
its part for the execution and delivery of this Indenture and the issuance of the Bonds has been duly and
effectively taken; that the Bonds in the hands of the Owners thereof are and will be valid and enforceable
obligations of the City according to the import thereof.
Section 803. Performance of Covenants. The City covenants that it will faithfully perform 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
described to the payment of the principal of and interest, if any, on the Bonds, upon being first indemnified
by the Company 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
Equipment 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 cause to be kept and filed all financing
statements, and hereby directs and authorizes the Trustee to file or cause to be kept and filed continuation
statements with respect to such originally filed financing statements related to this Indenture and all
supplements hereto and such other 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, as may be applicable, in
such manner and in such places as may be required by law in order to fully preserve and protect the security
of 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 with the appropriate filing office of the State, in such manner as
may be required by the Uniform Commercial Code of the State; provided that a copy of the filed initial
financing statement is timely delivered to the Trustee. In addition, unless the Trustee shall have been
notified in writing by the City that any such initial financing statement or description of collateral included
therein was or has become defective, the Trustee shall be fully protected in (a) relying on such initial
financing statement filing and descriptions therein 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 of the State as the initial financing statement filings were made. The Company shall be responsible
for the reasonable fees and costs, including fees and costs of counsel or other experts, incurred by the
Trustee in the preparation and filing of all continuation statements hereunder.
Section 806. Inspection of Project Books. The City covenants and agrees that all books and
documents in its possession relating to the Project Equipment and the rents, revenues and receipts derived
from the Project Equipment shall at all times be open to inspection by such accountants or other agencies
as the Trustee may from time to time designate.
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Section 807. Enforcement of Rights Under the Lease. The City covenants and agrees that it
will enforce all of its rights and all of the obligations of the Company (at the expense of the Company)
under the Lease to the extent necessary to preserve the Project Equipment in good repair and reasonably
safe operating condition, and to protect the rights of the Trustee and the Owners hereunder with respect to
the pledge and assignment of the rents, revenues and receipts coming due under the Lease; provided that,
the City and the Trustee, as its assignee, shall refrain from enforcing any such right or obligation (except
for the rights of the City or the Trustee to receive payments owing to either of them for their own account
under the Indenture, the Lease, the Performance Agreement or any other agreement related to the Bonds or
for their rights of indemnification or to be protected from liabilities by insurance policies required by the
Lease) if so directed in writing by the Owners of 100% of the Outstanding Bonds. The City agrees that the
Trustee, as assignee of the rentals and other amounts to be received by the City and paid by the Company
under the Lease, or in its name or in the name of the City, may enforce all rights of the City to receive such
rentals and other amounts and all obligations of the Company to pay such rentals and other amounts under
and pursuant to the Lease for and on behalf of the Owners, whether or not the City is in default hereunder.
So long as not otherwise provided in this Indenture, the Company shall be permitted to possess, use and
enjoy the Project Equipment and appurtenances so as to carry out its obligations under the Lease.
ARTICLE IX
DEFAULT AND REMEDIES
Section 901. Events of Default; Notice; Opportunity to Cure.
(a) If any of the following events occur, it is hereby defined as and declared to be and to
constitute an "Event of Default":
(1) Default in the due and punctual payment of the principal on any Bond, whether at
the stated maturity or accelerated maturity thereof, or at any date fixed for redemption thereof;
(2) Default in the due and punctual payment of the interest on any Bond, whether at
the stated maturity or accelerated maturity thereof, or at any date fixed for redemption thereof; or
(3) Default as specified in Section 12.1 of the Lease shall have occurred.
(b) No default specified in subsection (a) above shall constitute an Event of Default until actual
notice of such default by registered or certified mail has been given by the City, the Company, the Trustee
or by the Owners of 25% in aggregate principal amount of all Bonds Outstanding to the Company or the
City (as the case may be), and the Company or the City (as the case may be) has had 30 days after receipt
of such notice to correct said default or cause said default to be corrected and has not corrected said default
or caused said default to be corrected within such period; provided, however, if any such default (other than
a default in the payment of any money) is such that it cannot be corrected within such period, it shall not
constitute an Event of Default if corrective action is instituted by the Company or the City (as the case may
be) within such period and diligently pursued until the default is corrected.
Section 902. Acceleration of Maturity in Event of Default.
(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
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delivered to the City and the Company, declare the principal of all Bonds then Outstanding and the interest
accrued thereon immediately due and payable, and such principal and interest 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 Basic Rent as provided in Section 12.2 of the Lease.
(c) In case of any rescission, then and in every such case the City, the Trustee, the Company
and the Owners shall be restored to their former position 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 hereof 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 Equipment or any part thereof, in the name and for account of the City, and collect, receive
and sequester the rents, revenues and receipts therefrom, and out of the same and any moneys received from
any receiver of any part thereof pay, and set up proper reserves for the payment of all proper costs and
expenses of so taking, holding and managing the same, including without limitation (a) reasonable
compensation to the Trustee, its agents and counsel, (b) any reasonable charges of the Trustee hereunder,
(c) any taxes and assessments and other charges prior to the lien of this Indenture, (d) all expenses of such
repairs and improvements, and (e) any amounts payable under the Performance Agreement. The Trustee
shall apply the remainder of the moneys so received in accordance with the provisions of Section 908
hereof. Whenever all that is due upon the Bonds has been paid and all defaults cured, the Trustee shall
surrender possession of the Trust Estate to the City, its successors or assigns, the same right of entry,
however, to exist upon any subsequent Event of Default. While in possession of such property, the Trustee
shall render annually to the City and the Company a summarized statement of receipts and expenditures in
connection therewith.
Section 904. Appointment of Receivers in Event of Default. If an Event of Default has
occurred and is continuing after the notice and cure period described in Section 901 hereof 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
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compel the performance of the duties and obligations of the City or the Company as herein set forth or as
set forth in the Lease, respectively.
(b) If an Event of Default has occurred and is continuing after the notice and cure period
described in Section 901 elapses, and if requested in writing to do so by (1) the City (in the case of an Event
of Default pursuant to Section 12.1(b), (c), (d), (e) or (f) of the Lease), or (2) the Owners of 25% in
aggregate principal amount of Bonds then Outstanding and indemnified as provided in subsection (1) of
Section 1001 hereof, the Trustee shall be obligated to exercise such one or more of the rights and powers
conferred by this Article as the Trustee, being advised by counsel, shall deem most expedient and in the
interests of the City or the Owners, as the case may be.
(c) All rights of action under this Indenture or under any of the Bonds may be enforced by the
Trustee without the possession of any of the Bonds or the production thereof in any trial or other
proceedings relating thereto, and any such suit or proceeding instituted by the Trustee shall be brought in
its name as Trustee without necessity of joining as plaintiffs or defendants any Owners, and any recovery
of judgment shall, subject to the provisions of Section 908 hereof, be for the equal benefit of all the Owners
of the Outstanding Bonds.
Section 906. Limitation on Exercise of Remedies by Owners. No Owner shall have any right
to institute any suit, action or proceeding in equity or at law for the enforcement of this Indenture or for the
execution of any trust hereunder or for the appointment of a receiver or any other remedy hereunder, unless
(a) a default has occurred of which the Trustee has been notified as provided in Section 1001(h) hereof 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(1) hereof, and (d) the Trustee thereafter fails or refuses to exercise the powers herein granted
or to institute such action, suit or proceeding in its own name; such notification, request and offer of
indemnity are hereby declared in every case, at the option of the Trustee, to be conditions precedent to the
execution of the powers and trusts of this Indenture, and to any action or cause of action for the enforcement
of this Indenture, or for the appointment of a receiver or for any other remedy hereunder it being understood
and intended that no one or more Owners shall have any right in any manner whatsoever to affect, disturb
or prejudice this Indenture by their action or to enforce any right hereunder except in the manner herein
provided, and that all proceedings at law or equity shall be instituted, had and maintained in the manner
herein provided and for the equal benefit of the Owners of all Bonds then Outstanding. Nothing in this
Indenture contained shall, however, affect or impair the right of any Owner to payment of the principal of
and interest on any Bond at and after the maturity thereof or the obligation of the City to pay the principal
of and interest on each of the Bonds issued hereunder to the respective Owners thereof at the time, place,
from the source and in the manner herein and in the Bonds expressed.
Section 907. Right of Owners to Direct Proceedings.
(a) The Owners of a majority in aggregate principal amount of Bonds then Outstanding shall
have the right, at any time, by an instrument or instruments in writing executed and delivered to the Trustee,
to direct the time, method and place of conducting all proceedings to be taken in connection with the
enforcement of the terms and conditions of this Indenture, or for the appointment of a receiver or any other
proceedings hereunder; provided that such direction shall not be otherwise than in accordance with the
provisions of law and of this Indenture, including Section 1001(1) hereof.
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(b) Notwithstanding any provision in this Indenture to the contrary, including subsection (a)
of this Section, the Owners shall not have the right to control or direct any remedies hereunder upon an
Event of Default under Section 12.1(b), (c), (d) or (e) 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 first be applied 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 hereof, and
second be applied to the obligations outstanding under the Lease and the Performance Agreement. Any
remaining money shall be deposited in the Bond Fund and all moneys so deposited in the Bond Fund shall
be applied as follows:
(1) Unless the principal of all the Bonds shall have become or shall have been declared
due and payable, all such moneys shall be applied:
FIRST -- To the payment to the Persons entitled thereto of all installments of
interest, if any, then due and payable on the Bonds, in the 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 thereof of the unpaid principal
of any of the Bonds which shall have become due and payable (other than Bonds called for
redemption for the payment of which moneys are held pursuant to the provisions of this
Indenture), in the order of their due dates, and, if the amount available shall not be sufficient
to pay in full Bonds due on any particular date, together with such interest, then to the
payment, ratably, according to the amount of principal due on such date, to the Persons
entitled thereto without any discrimination or privilege.
(2) If the principal of all the Bonds shall have become due or shall have been declared
due and payable, all such moneys shall be applied to the payment of the principal and interest, if
any, then due and unpaid on all of the Bonds, without preference or priority of principal over
interest or of interest over principal or of any installment of interest over any other installment of
interest or of any Bond over any other Bond, ratably, according to the amounts due respectively for
principal and interest, to the Person entitled thereto, without any discrimination or privilege.
(3) If the principal of all the Bonds shall have been declared due and payable, and if
such declaration shall thereafter have been rescinded and annulled under the provisions of
Section 910, then, subject to the provisions of subsection (a)(2) of this Section in the event that the
principal of all the Bonds shall later become due or be declared due and payable, the moneys shall
be applied in accordance with the provisions of subsection (a)(1) of this Section.
(b) Whenever moneys are to be applied pursuant to the provisions of this Section, such moneys
shall be applied at such times and from time to time as the Trustee shall determine, having due regard to
the amount of such moneys available and which may become available for such application in the future.
Whenever the Trustee shall apply such moneys, it shall fix the date (which shall be a Payment Date unless
it shall deem another date more suitable) upon which such application is to be made and upon such date
interest on the amounts of principal to be paid on such dates shall cease to accrue.
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(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 Performance Agreement), any balance remaining in the Bond Fund shall be paid to the Company as
provided in Section 602 hereof.
Section 909. Remedies Cumulative. No remedy by the terms of this Indenture conferred upon
or reserved to the Trustee or to the Owners is intended to be exclusive of any other remedy, but each and
every such remedy shall be cumulative and shall be in addition to any other remedy given to the Trustee or
to the Owners hereunder or now or hereafter existing at law or in equity or by statute. No delay or omission
to exercise any right, power or remedy accruing upon any Event of Default shall impair any such right,
power or remedy or shall be construed to be a waiver of any such Event of Default or acquiescence therein;
every such right, power or remedy may be exercised from time to time and as often as may be deemed
expedient. If the Trustee has proceeded to enforce any right under this Indenture by the appointment of a
receiver, by entry, or otherwise, and such proceedings have been discontinued or abandoned for any reason,
or have been determined adversely, then and in every such case the City, the Company, the Trustee and the
Owners shall be restored to their former positions and rights hereunder, and all rights, remedies and powers
of the Trustee shall continue as if no such proceedings had been taken.
Section 910. Waivers of Events of Default. The Trustee shall waive any Event of Default
hereunder and its consequences and rescind any declaration of maturity of principal of and interest, if any,
on the Bonds, and 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(b), (c), (d),
(e) or (f) of the Lease, 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 prior to such waiver or rescission, all arrears of interest,
or all arrears of payments of principal when due, as the case may be, and all reasonable expenses of the
Trustee and the City (including attorneys' fees and expenses), in connection with such default, shall have
been paid or provided for. In case of any such waiver or rescission, or in case any proceeding taken by the
Trustee on account of any such default shall have been discontinued or abandoned or determined adversely,
then and in every such case the City, the Company, the Trustee and the Owners shall be restored to their
former positions, rights and obligations hereunder, respectively, but no such waiver or rescission shall
extend to any subsequent or other default, or impair any right consequent thereon and all rights, remedies
and powers of the Trustee shall continue as if no such proceedings had been taken.
ARTICLE X
THE TRUSTEE
Section 1001. Acceptance of the Trusts. The Trustee hereby accepts the trusts imposed upon it
by this Indenture, but only upon and subject to the following express terms and conditions, and no implied
covenants or obligations shall be read into this Indenture against the Trustee:
(a) The Trustee, prior to the occurrence of an Event of Default and after the curing or
waiver of all Events of Default that may have occurred, undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture. If any Event of Default has occurred and
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is continuing, subject to Section 1001(1) below, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and shall use the same degree of care and skill in their exercise,
as a prudent Person would exercise or use under the circumstances in the conduct of its own affairs.
(b) The Trustee may execute any of the trusts or powers hereunder or perform any
duties hereunder either directly or through agents, affiliates, attorneys or receivers and shall not be
responsible for any misconduct or negligence on the part of any agent, attorney or receiver
appointed or chosen by it with due care. The Trustee may conclusively rely upon and act or refrain
from acting upon any opinion or advice of counsel, who may be counsel to the City or to the
Company, concerning all matters of trust hereof and the duties hereunder, and may in all cases pay
such reasonable compensation to all such agents, attorneys and receivers as may reasonably be
employed in connection with the trusts hereof and shall be reimbursed for such payments by the
Company. The Trustee shall not be responsible for any loss or damage resulting from any action
or inaction by it taken or omitted to be taken in good faith in reliance upon such opinion or advice
of counsel addressed to the City and the Trustee.
(c) The Trustee shall not be responsible for any recital herein or in the Bonds (except
with respect to the Certificate of Authentication of the Trustee endorsed on the Bonds), or except
as provided in Section 805 hereof and in the Lease and particularly Section 10.8 thereof, for the
recording or rerecording, filing or refiling of this Indenture or any security agreement in connection
therewith (excluding the continuation of Uniform Commercial Code financing statements required
to be filed by the Trustee pursuant to Section 805 hereof), or for insuring the Project Equipment 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 hereof.
(d) The Trustee shall not be accountable for the use of any Bonds authenticated and
delivered hereunder. The Trustee, in its individual or any other capacity, may become the Owner
or pledgee of Bonds with the same rights that it would have if it were not Trustee. The Trustee
shall not be accountable for the use or application by the City or the Company of the proceeds of
any of the Bonds or of any money paid to or upon the order of the City or Company under any
provision of this Indenture.
(e) The Trustee may rely and shall be protected in acting or refraining from acting
upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, 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 making such request or giving
such authority or consent is an Owner, shall be conclusive and binding upon all future Owners of
the same Bond and upon Bonds issued in exchange therefor or upon transfer or in place thereof.
(f) As to the existence or nonexistence of any fact or as to the sufficiency or validity
of any instrument, paper or proceeding, or whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or
omitting any action hereunder, the Trustee shall be entitled to rely upon a certificate signed by the
Authorized City Representative or an Authorized Company Representative as sufficient evidence
of the facts therein contained, and prior to the occurrence of a default of which the Trustee has been
notified as provided in subsection (h) of this Section or of which by said subsection it is deemed to
have notice, the Trustee shall also be at liberty to accept a similar certificate to the effect that any
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particular dealing, transaction or action is necessary or expedient, but may at its discretion secure
such further evidence deemed necessary or advisable, but shall in no case be bound to secure the
same.
(g) The permissive right of the Trustee to do things enumerated in this Indenture shall
not be construed as a duty, and the Trustee shall not be answerable for other than its negligence or
willful misconduct.
(h) The Trustee shall not be required to take notice or be deemed to have notice of any
default hereunder except failure by the City to cause to be made any of the payments to the Trustee
required to be made in Article VI hereof, unless the Trustee is specifically notified in writing of
such default by the City or by the Owners of at least 25% in aggregate principal amount of all
Bonds then Outstanding.
(i) At any and all reasonable times and subject to the Company's reasonable and
standard security procedures, the Trustee and its duly authorized agents, attorneys, experts,
engineers, accountants and representatives shall have the right, but shall not be required, to inspect
any and all of the Project Equipment, and all books, papers and records of the Company pertaining
to the Project Equipment and the Bonds, and to take such memoranda from and in regard thereto
as may be desired. The Trustee shall treat all proprietary information of the Company as
confidential.
0) 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 Equipment.
(k) The Trustee shall have the right, but shall not be required, to demand, in respect of
the authentication of any Bonds, the withdrawal of any cash, the release of any property, or any
action whatsoever within the purview of this Indenture, any showings, certificates, opinions,
appraisals or other information, or corporate action or evidence thereof, in addition to that by the
terms hereof required, as a condition of such action by the Trustee deemed desirable for the purpose
of establishing the right of the City to the authentication of any Bonds, the withdrawal of any cash,
or the taking of any other action by the Trustee.
(1) Notwithstanding anything in the Indenture or the Lease to the contrary, before
taking any action under this Indenture other than the payments from moneys on deposit in the
Project Fund or the Bond Fund, as provided herein, the Trustee may require that satisfactory
indemnity be furnished to it for the reimbursement of all costs and expenses to which it may be put
and to protect it against all liability which it may incur in or by reason of such action, except liability
which is adjudicated to have resulted from its negligence or willful misconduct by reason of any
action so taken.
(m) Notwithstanding any other 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.
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
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services, it shall be entitled to reasonable extra compensation therefor and to reimbursement for reasonable
extraordinary expenses in connection therewith; provided that if such extraordinary services or
extraordinary expenses are occasioned by the neglect or willful misconduct of the Trustee, it shall not be
entitled to compensation or reimbursement therefor. The Trustee shall be entitled to payment and
reimbursement for the 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 Company has agreed to pay to the Trustee all reasonable
fees, charges and expenses of the Trustee under this Indenture. The Trustee agrees that the City shall have
no liability for any reasonable fees, charges and expenses of the Trustee, and the Trustee agrees to look
only to the Company for the payment of all reasonable fees, charges and expenses of the Trustee and any
Paying Agent as provided in the Lease. Upon the occurrence of an Event of Default and during its
continuance, the Trustee shall have a lien with right of payment prior to payment on account of principal
of or interest on any Bond, upon all moneys in its possession under any provisions hereof for the foregoing
reasonable advances, fees, costs and expenses incurred.
Section 1003. Notice to Owners if Default Occurs. If a default occurs of which the Trustee is
by Section 1001(h) hereof required to take notice or if notice of default is given as in said subsection (h)
provided, then the Trustee shall give written notice thereof to the last known Owners of all Bonds then
Outstanding as shown by the bond registration books required by Section 206 hereof to be kept at the
designated corporate trust office of the Trustee.
Section 1004. Intervention by the Trustee. In any judicial proceeding to which the City is a
party and which, in the opinion of the Trustee and its counsel, has a substantial bearing on the interests of
Owners, the Trustee may intervene on behalf of Owners and, subject to the provisions of Section 1001(1)
hereof, shall do so if requested in writing by the Owners of at least 25% of the aggregate principal amount
of Bonds then Outstanding.
Section 1005. Successor Trustee Upon Merger, Consolidation or Sale. With the prior written
consent of the Company, 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 Company and the
Owners, and such resignation shall take effect at the end of such 30 days, or upon the earlier appointment
of a successor Trustee by the Owners or by the City; 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
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 may, at the
Company's expense, 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
Company and signed by the Owners of a majority in aggregate principal amount of Bonds then Outstanding,
or (b) so long as no Event of Default under this Indenture or the Lease shall have occurred and be continuing,
delivered to the Trustee, the City and the Owners and signed by the Company.
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Section 1008. Appointment of Successor Trustee. If the Trustee hereunder resigns or is
removed, or otherwise becomes incapable of acting hereunder, or if it is taken under the control of any
public officer or officers or of a receiver appointed by a court, a successor Trustee (a) reasonably acceptable
to the City may be appointed by the Company (so long as no Event of Default has occurred and is
continuing), or (b) reasonably acceptable to the City and the Company may be appointed by the Owners of
a majority in aggregate principal amount of Bonds then Outstanding, by an instrument or concurrent
instruments in writing; provided, nevertheless, that in case of such vacancy, the City, by an instrument
executed and signed by its Mayor and attested by its City Clerk under its seal, may appoint a temporary
Trustee to fill such vacancy until a successor Trustee shall be appointed in the manner above provided.
Any such temporary Trustee so appointed by the City shall immediately and without further acts be
superseded by the successor Trustee so appointed as provided above. Every such Trustee appointed
pursuant to the provisions of this Section shall be a trust company or bank in good standing and qualified
to accept such trust having, or whose obligations are guaranteed by a financial institution having, a reported
capital, surplus and undivided profits of not less than $50,000,000. If no successor Trustee has been so
appointed and accepted appointment in the manner herein provided, the Trustee, at the Company's expense,
or any Owner may petition any court of competent jurisdiction for the appointment of a successor Trustee,
until a successor shall have been appointed as above provided.
Section 1009. Vesting of Trusts in Successor Trustee. Every successor Trustee appointed
hereunder shall execute, acknowledge and deliver to its predecessor and also to the City and the Company
an instrument in writing accepting such appointment hereunder, and thereupon such successor shall, 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 Equipment
is not paid as required herein or in the Lease, the Trustee may pay such tax, assessment or governmental
charge or insurance premium, without prejudice, however, to any rights of the Trustee or the Owners
hereunder arising in consequence of such failure; any amount at any time so paid under this Section, with
interest thereon from the date of payment at the rate of 10 % per annum, shall become an additional
obligation secured by this Indenture, and the same shall be given a preference in payment over any payment
of principal of or interest on the Bonds, and shall be paid out of the proceeds of rents, revenues and receipts
collected from the Project Equipment, if not otherwise caused to be paid; but the Trustee shall be under no
obligation to make any such payment unless it shall have been requested to do so by the Owners of at least
25% of the aggregate principal amount of Bonds then Outstanding and shall have been provided adequate
funds for the purpose of such payment.
Section 1011. Trust Estate May be Vested in Co -Trustee.
(a) It is the purpose of this Indenture that there shall be no violation of any law of any
jurisdiction (including particularly the State) 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
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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 may not exercise any of the powers, rights or remedies herein granted to
the Trustee, or take any other action which may be desirable or necessary in connection therewith, it may
be necessary or desirable that the Trustee appoint an additional individual or institution as a co -trustee or
separate trustee, and the Trustee is hereby authorized to appoint such co -trustee or separate trustee.
(b) If the Trustee appoints an additional individual or institution as a co -trustee or separate
trustee (which appointment shall be subject to the approval of the Company), each and every remedy,
power, right, claim, demand, cause of action, immunity, title, interest and lien expressed or intended by this
Indenture to be exercised by the Trustee with respect thereto shall be exercisable by such co -trustee or
separate trustee but only to the extent necessary to enable such co -trustee or separate trustee to exercise
such powers, rights and remedies, and every covenant and obligation necessary to the exercise thereof by
such co -trustee or separate trustee shall run to and be enforceable by either of them.
(c) Should any deed, conveyance or instrument in writing from the City be required by the co -
trustee or separate trustee so appointed by the Trustee for more fully and certainly vesting in and confirming
to such co -trustee such properties, rights, powers, trusts, duties and obligations, any and all such deeds,
conveyances and instruments in writing shall, on request, be executed, acknowledged and delivered by the
City.
(d) If any co -trustee or separate trustee shall die, become incapable of acting, resign or be
removed, all the properties, rights, powers, trusts, duties and obligations of such co -trustee or separate
trustee, so far as permitted by law, shall vest in and be exercised by the Trustee until the appointment of a
successor to such co -trustee or separate trustee.
Section 1012. Accounting. The Trustee shall render an annual accounting for the period ending
December 31 of each year to the City, the Company and to any Owner requesting the same in writing and,
upon the written request of the City, the Company or the Owner, 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 assigned to it under the Lease.
ARTICLE XI
SUPPLEMENTAL INDENTURES
Section 1101. Supplemental Indentures Not Requiring Consent of Owners. The City and the
Trustee may from time to time, without the consent of or notice to any of the Owners, enter into such
Supplemental Indenture or Supplemental Indentures as shall not be inconsistent with the terms and
provisions hereof, for any one or more of the following purposes:
(a) To cure any ambiguity or formal defect or omission in this Indenture, or to make
any other change which, in the judgment of the Trustee, is not to the material prejudice of the
Trustee or the Owners (provided the Trustee may rely upon an opinion of counsel in exercising
such judgement);
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(b) To grant to or confer upon the Trustee for the benefit of the Owners any additional
rights, remedies, powers or authority that may lawfully be granted to or conferred upon the Owners
or the Trustee or either of them;
(c) To more precisely identify any portion of the Project Equipment or to add
additional property thereto;
(d) To conform the Indenture to amendments to the Lease made by the City and the
Company;
(e) To subject to this Indenture additional revenues, properties or collateral; or
(f) To issue Additional Bonds as provided in Section 209 hereof.
Section 1102. Supplemental Indentures Requiring Consent of Owners.
(a) Exclusive of Supplemental Indentures covered by Section 1101 hereof and subject to the
terms and provisions contained in this Indenture, and not otherwise, the Owners of not less than a majority
in aggregate principal amount of the Bonds then Outstanding shall have the right, from time to time,
anything contained in this Indenture to the contrary notwithstanding, to consent to and approve the
execution by the City and the Trustee of such other Supplemental Indenture or Supplemental Indentures as
shall be deemed necessary and desirable by the City for the purpose of modifying, amending, adding to or
rescinding, in any particular, any of the terms or provisions contained in this Indenture or in any
Supplemental Indenture; provided, however, that without the consent of the Owners of 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 hereof. Such notice shall briefly set forth the nature of the proposed Supplemental Indenture
and shall state that copies thereof are on file at the corporate trust office of the Trustee for inspection by all
Owners. If within 60 days or such longer period as may be prescribed by the City following the mailing of
such notice, the Owners of not less than a majority in aggregate principal amount of the Bonds Outstanding
at the time of the execution of any such Supplemental Indenture shall have consented to and approved the
execution thereof as herein provided, no Owner shall have any right to object to any of the terms and
provisions contained therein, or the operation thereof, or in any manner to question the propriety of the
execution thereof, or to enjoin or restrain the Trustee or the City from executing the same or from taking
any action pursuant to the provisions thereof.
Section 1103. Company's Consent to Supplemental Indentures. Anything herein to the
contrary notwithstanding, a Supplemental Indenture that affects any rights of the Company under this
Article shall not become effective unless and until the Company shall have consented in writing to the
execution and delivery of such Supplemental Indenture. The Trustee shall cause notice of the proposed
execution and delivery of any Supplemental Indenture (regardless of whether it affects the Company's
rights) together with a copy of the proposed Supplemental Indenture to be mailed to the Company at least
15 days prior to the proposed date of execution and delivery of the Supplemental Indenture.
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Section 1104. Opinion of Counsel. In executing, or accepting the additional trusts created by,
any Supplemental Indenture permitted by this Article or the modification thereby of the trusts created by
this Indenture, the Trustee and the City shall receive, and, shall be fully protected in relying upon, an opinion
of counsel addressed and delivered to the Trustee and the City stating that the execution of such
Supplemental Indenture is permitted by and in compliance with this Indenture and will, upon the execution
and delivery thereof, be a valid and binding obligation of the City. The Trustee may, but shall not be
obligated to, enter into any such Supplemental Indenture which affects the Trustee's rights, duties or
immunities under this Indenture or otherwise.
ARTICLE XII
SUPPLEMENTAL LEASES
Section 1201. Supplemental Leases Not Requiring Consent of Owners. The City and the
Trustee shall, without the consent of or notice to the Owners, consent to the execution of any Supplemental
Lease or Supplemental Leases by the City and the Company as may be required (a) by the provisions of the
Lease and this Indenture, (b) for the purpose of curing any ambiguity or formal defect or omission in the
Lease, (c) so as to more precisely identify the Project Equipment or add additional property thereto, (d) in
connection with the issuance of Additional Bonds under Section 209 hereof, or (e) 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 may rely upon an opinion of counsel in exercising
such judgement).
Section 1202. Supplemental Leases Requiring Consent of Owners. Except for Supplemental
Leases as provided for in Section 1201 hereof, neither the City nor the Trustee shall consent to the execution
of any Supplemental Lease or Supplemental Leases by the City or the Company without the mailing of
notice and the obtaining of the written approval or consent of the Owners of not less than a majority in
aggregate principal amount of the Bonds at the time Outstanding given and obtained as provided in Section
1102 hereof. If at any time the City and the Company shall request the consent of the Trustee to any such
proposed Supplemental Lease, the Trustee shall cause notice of such proposed Supplemental Lease to be
mailed in the same manner as provided in Section 1102 hereof with respect to Supplemental Indentures.
Such notice shall briefly set forth the nature of such proposed Supplemental Lease and shall state that copies
of the same are on file in the corporate trust office of the Trustee for inspection by all Owners. If within 60
days or such longer period as may be prescribed by the City following the mailing of such notice, the
Owners of not less than 50% in aggregate principal amount of the Bonds Outstanding at the time of the
execution of any such Supplemental Lease shall have consented to and approved the execution thereof as
herein provided, no Owner shall have any right to object to any of the terms and provisions contained
therein, or the operation thereof, or in any manner to question the propriety of the execution thereof, or to
enjoin or restrain the Trustee or the City from executing the same or from taking any action pursuant to the
provisions thereof.
Section 1203. Opinion of Counsel. In executing or consenting to any Supplemental Lease
permitted by this Article, the City and the Trustee shall receive, and shall be fully protected in relying upon,
an opinion of counsel addressed to the Trustee and the City stating that the executing of such Supplemental
Lease is authorized or permitted by the Lease and this Indenture and the applicable law and will upon the
execution and delivery thereof be valid and binding obligations of the parties thereof.
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ARTICLE XIII
SATISFACTION AND DISCHARGE OF INDENTURE
Section 1301. Satisfaction and Discharge of this Indenture.
(a) When the principal of and interest on all the Bonds have been paid in accordance with their
terms or provision has been made for such payment, as provided in Section 1302 hereof, and provision also
made for paying all other sums payable hereunder and under the Lease and the Performance Agreement,
including the reasonable fees and expenses of the Trustee, the City and Paying Agent to the date of
retirement of the Bonds, then the right, title and interest of the Trustee in respect hereof shall thereupon
cease, determine and be void. Thereupon, the Trustee shall cancel, discharge and release this Indenture and
shall upon the written request of the City or the Company execute, acknowledge and deliver to the City
such instruments of satisfaction and discharge or release as shall be required to evidence such release and
the satisfaction and discharge of this Indenture, and shall assign and deliver to the City (subject to the City's
obligations under Section 11.2 of the Lease) any property at the time subject to this Indenture which may
then be in its possession, except amounts in the Bond Fund required to be paid to the Company under
Section 602 hereof and except funds or securities in which such funds are invested held by the Trustee for
the payment of the principal of and interest on the Bonds.
(b) The City is hereby authorized to accept a certificate by the Trustee that the whole amount
of the principal and interest, if any, so due and payable upon all of the Bonds then Outstanding has been
paid or such payment provided for in accordance with Section 1302 hereof as evidence of satisfaction of
this Indenture, and upon receipt thereof shall cancel and erase the inscription of this Indenture from its
records.
Section 1302. Bonds Deemed to be Paid.
(a) Bonds shall be deemed to be paid within the meaning of this Article when payment of the
principal of and interest thereon to the due date thereof (whether such due date be by reason of maturity or
upon redemption as provided in this Indenture, or otherwise), either (1) have been made or caused to be
made in accordance with the terms thereof, or (2) have been provided for by depositing with the Trustee or
other commercial bank or trust company having full trust powers and authorized to accept trusts in the State
in trust and irrevocably set aside exclusively for such payment (i) moneys sufficient to make such payment
or (ii) Government Securities maturing as to principal and interest in such amount and at such times as will
insure the availability of sufficient moneys to make such payment, or (3) have been provided for by
surrendering the Bonds to the Trustee for cancellation. At such time as Bonds are deemed to be paid
hereunder, as aforesaid, they shall no longer be secured by or entitled to the benefits of this Indenture,
except for the purposes of such payment from such moneys or Government Securities.
(b) Notwithstanding the foregoing, in the case of Bonds which by their terms may be redeemed
before the stated maturities thereof, no deposit under clause (2) of the immediately preceding paragraph
shall be deemed a payment of such Bonds as aforesaid until, as to all such Bonds which are to be redeemed
before their respective stated maturities, proper notice of such redemption shall have been given in
accordance with Article III of this Indenture or irrevocable instructions shall have been given to the Trustee
to give such notice.
(c) Notwithstanding any provision of any other section of this Indenture which may be
contrary to the provisions of this Section, all moneys or Government Securities set aside and held in trust
pursuant to the provisions of this Section for the payment of Bonds shall be applied to and used solely for
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the payment of the particular Bonds, with respect to which such moneys and Government Securities have
been so set aside in trust.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
Section 1401. Consents and Other Instruments by Owners. Any consent, request, direction,
approval, objection or other instrument required by this Indenture to be signed and executed by the Owners
may be in any number of concurrent writings of similar tenor and may be signed or executed by such
Owners in Person or by agent appointed in writing. Proof of the execution of any such instrument or of the
writing appointing any such agent and of the ownership of Bonds (other than the assignment of ownership
of a Bond) if made in the following manner, shall be sufficient for any of the purposes of this Indenture,
and shall be conclusive in favor of the Trustee with regard to any action taken, suffered or omitted under
any such instrument, namely:
(a) The fact and date of the execution by any Person of any such instrument may be
proved by the certificate of any officer in any jurisdiction who by law has power to take
acknowledgments within such jurisdiction that the Person signing such instrument acknowledged
before him the execution thereof, or by affidavit of any witness to such execution.
(b) The fact of ownership of Bonds and the amount or amounts, numbers and other
identification of such Bonds, and the date of holding the same shall be proved by the registration
books of the City maintained by the Trustee pursuant to Section 206 hereof.
Section 1402. Limitation of Rights Under this Indenture. With the exception of rights herein
expressly conferred, nothing expressed or mentioned in or to be implied from this Indenture or the Bonds
is intended or shall be construed to give any Person other than the parties hereto, and the Owners, if any,
any right, remedy or claim under or in respect to this Indenture, this Indenture and all of the covenants,
conditions and provisions hereof being intended to be and being for the sole and exclusive benefit of the
parties hereto and the Owners, as herein provided.
Section 1403. Notices. It shall be sufficient service of any notice, request, complaint, demand or
other paper required by this Indenture to be given or filed with the City, the Trustee, the Company or
Owners if the same is duly mailed, postage prepaid, sent by overnight delivery or other delivery service or
sent by facsimile:
(a) To the City:
City of Jefferson, Missouri
320 East McCarty Street
Jefferson City, Missouri 65101
Attention: City Administrator
Fax: (573) 634-6457
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with a copy to:
City Counselor
City of Jefferson, Missouri
320 East McCarty Street
Jefferson City, Missouri 65101
Fax: (573) 634-6457
(b) To the Trustee:
BOKF, N.A.
2405 Grand Boulevard, Suite 840
Kansas City, Missouri 64108
Attention: Corporate Trust Department
Fax: (816) 932-7315
(c) To the Company:
Scholastic Inc.
557 Broadway
New York, New York 10012
Attention: Jonathan Feldberg
(d) To the Owners if the same is duly mailed by first class, registered or certified mail
addressed to each of the Owners of Bonds at the time Outstanding as shown by the bond registration books
required by Section 206 hereof to be kept at the corporate trust office of the Trustee.
All notices given by certified or registered mail as aforesaid shall be deemed fully given as of the
date they are so mailed. All notices given by overnight delivery or other delivery service shall be deemed
fully given as of the date when received. All notices given by facsimile 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 Company. The City, the
Company and the Trustee may from time to time designate, by notice given hereunder to the others of such
parties, such other address to which subsequent notices, certificates or other communications shall be sent.
Section 1404. Severability. If any provision of this Indenture shall be held or deemed to be
invalid, inoperative or unenforceable as applied in any particular case in any jurisdiction or jurisdictions or
in all jurisdictions, or in all cases because it conflicts with any other provision or provisions hereof or any
constitution or statute or rule of public policy, or for any other reason, such circumstances shall not have
the effect of rendering the provision in question inoperative or unenforceable in any other case or
circumstance, or of rendering any other provision or provisions herein contained invalid, inoperative or
unenforceable to any extent whatever.
Section 1405. Execution in Counterparts. This Indenture may be executed in several
counterparts, each of which shall be an original and all of which shall constitute but one and the same
instrument.
Section 1406. Governing Law. This Indenture shall be governed exclusively by and construed
in accordance with the applicable laws of the State.
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Section 1407. 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 1408. 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.]
No
IN WITNESS WHEREOF, the City has caused this Indenture to be signed in its name and behalf
by its Mayor and the seal of the City to be hereunto affixed and attested by the City Clerk, and to evidence
its acceptance of the trusts hereby created, the Trustee has caused this Indenture to be signed in its name
and behalf by its duly authorized officer, all as of the date first above written.
[SEAL]
ATTEST:
By: _
Name:
Title:
Emily Donaldson
City Clerk
Trust Indenture
City of Jefferson, Missouri
Taxable Industrial Development Revenue Bonds
(Scholastic Inc. Project)
Series2023
CITY OF JEFFERSON, MISSOURI
By:
Name:
Title:
Carrie Tergin
Mayor
S-1
[SEAL]
ATTEST:
By:
Name:
Title:
Trust Indenture
City of Jefferson, Missouri
Taxable Industrial Development Revenue Bonds
(Scholastic Inc. Project)
Series2023
BOKF, N.A.,
as Trustee
By:
Name:
Title:
S-2
EXHIBIT A
DESCRIPTION OF PROJECT SITE
The Project Site consists of the real property site upon which the Company's existing facility is
located (with a street address of 6336 Algoa Road, Jefferson City, Missouri 65101) where the Project
Equipment will be situated and installed.
A-1
EXHIBIT B
PROJECT EQUIPMENT
All items of machinery, equipment and other personal property acquired pursuant to Article IV of
the Lease to be installed and used on the Project Site by the Company and paid for, or reimbursed, with
Bond proceeds and all additions, replacements, alterations, substitutions thereto now or hereafter effected
and specifically designated by the Company. A replacement item may be included by the Company as a
part of the Project Equipment under the conditions set forth in the Lease.
EXHIBIT C
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
$44,700,000
UNITED STATES OF AMERICA
STATE OF MISSOURI
CITY OF JEFFERSON, MISSOURI
TAXABLE INDUSTRIAL DEVELOPMENT REVENUE BOND
(SCHOLASTIC INC. PROJECT)
SERIES 2023
Interest Rate Maturity Date Dated Date
5.00% December 1, 2035 February 13, 2023
OWNER: SCHOLASTIC INC.
MAXIMUM PRINCIPAL AMOUNT: FORTY FOUR MILLION SEVEN HUNDRED
THOUSAND DOLLARS
THE CITY OF JEFFERSON, MISSOURI, a home rule charter city and municipal corporation
organized and existing under the laws of the State of Missouri (the "City"), for value received, promises
to pay, but solely from the source hereinafter referred to, to the Owner named above, or registered assigns
thereof, on the Maturity Date shown above, the principal amount shown above, or such lesser amount as
may be outstanding hereunder as reflected on Schedule I hereto held by the Trustee as provided in the
hereinafter referred to Indenture. The City agrees to pay such principal amount to the Owner in any coin
or currency of the United States of America which on the date of payment thereof is legal tender for the
payment of public and private debts, and in like manner to pay to the Owner hereof, either by check or draft
mailed to the Owner at a stated address as it appears on the bond registration books of the City kept by the
Trustee under the within mentioned Indenture or, in certain situations authorized in the Indenture, by
internal bank transfer or by wire transfer to an account in a commercial bank or savings institution located
in the continental United States. Interest on the Cumulative Outstanding Principal Amount (as hereinafter
defined) at the per annum Interest Rate stated above, is payable in arrears on each December 1, commencing
on December 1, 2023, 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.
C-1
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.
THIS BOND is one of a duly authorized series of Bonds of the City designated "City of Jefferson,
Missouri, Taxable Industrial Development Revenue Bonds (Scholastic Inc. Project), Series 2023," in the
maximum aggregate principal amount of $44,700,000 (the "Bonds"), to be issued for the purpose of
acquiring and installing new machinery, equipment and other personal property (the "Project
Equipment") at the existing facility of Scholastic Inc., a corporation organized and existing under the laws
of the State of New York and authorized to do business in the State of Missouri (the "Company"), located
on certain real property in the City (the "Project Site"). The City will lease the Project Equipment to the
Company under the terms of a Lease Agreement dated as of February 1, 2023 (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, as lessor, and the Company, as lessee, all pursuant to the authority of and
in full compliance with the provisions, restrictions and limitations of the Constitution and statutes of the
State of Missouri, including particularly the Act, the charter of the City and pursuant to proceedings duly
had by the Council of the City.
THE BONDS are issued under and are equally and ratably secured and entitled to the protection
given by a Trust Indenture dated as of February 1, 2023 (said Trust Indenture, as amended and
supplemented from time to time in accordance with the provisions thereof, being herein called the
"Indenture"), between the City and BOKF, N.A., Kansas City, Missouri, as trustee (the "Trustee").
Capitalized terms not defined herein shall have the meanings set forth in the Indenture.
Subject to the terms and conditions set forth therein, the Indenture permits the City to issue
Additional Bonds (as defined in the Indenture) secured by the Indenture on a parity with the Bonds.
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 Company, on behalf of the City, and upon written instructions from the Company, (1)
in whole, if the Company exercises its option to purchase the Project Equipment and deposits an amount
sufficient to effect such purchase pursuant to the Lease on the applicable redemption date, or (2) in part, if
the Company prepays additional Basic Rent pursuant to the Lease. Any redemption of Bonds pursuant to
this paragraph shall be at a redemption price equal to the par value thereof being redeemed, plus accrued
interest thereon, without premium or penalty, to the redemption date.
THE BONDS are subject to mandatory redemption, in whole or in part, to the extent of amounts
deposited in the Bond Fund pursuant to Sections 9.1(a) or 9.2(c) of the Lease, in the event of substantial
damage to or destruction or condemnation of substantially all of the Project Equipment. 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, money in an amount equal to the redemption price
shall have been deposited in the Bond Fund.
C-2
If the Bonds are to be called for optional redemption, the Company shall deliver written notice to
the City and the Trustee that it has elected to redeem all or a portion of the Bonds at least 40 days (10 days
if there is one Owner) prior to the scheduled redemption date. The Trustee shall then deliver written notice
to the Owner of this Bond at least 30 days (five days if there is one Owner) before the scheduled redemption
date by facsimile and by first-class mail stating the date upon which the Bonds will be redeemed and paid.
THE BONDS, including interest thereon, are special obligations of the City and are payable solely
out of the rents, revenues and receipts derived by the City from the Project Equipment and the Lease and
not from any other fund or source of the City, and is secured by a pledge and assignment of the Project
Equipment and of such rents, revenues and receipts, including all rentals and other amounts to be received
by the City under and pursuant to the Lease, all as provided in the Indenture. The Bonds do not constitute
a general obligation of the City or the State of Missouri, and neither the City nor said State shall be liable
thereon, and the Bonds shall not constitute an indebtedness within the meaning of any constitutional, charter
or statutory debt limitation or restriction, and are not payable in any manner by taxation. Pursuant to the
provisions of the Lease, rental payments sufficient for the prompt payment when due of the principal of
and interest on the Bonds are to be paid by the Company directly to the Trustee for the account of the City
and deposited in a special fund created by the City and designated the "City of Jefferson, Missouri, Bond
Fund — Scholastic Inc."
THE OWNER of this Bond shall have no right to enforce the provisions of the Indenture or to
institute action to enforce the covenants therein, or to take any action with respect to any Event of Default
under the Indenture, or to institute, appear in or defend any suit or other proceedings with respect thereto,
except as provided in the Indenture. In certain events, on the conditions, in the manner and with the effect
set forth in the Indenture, the principal of all the Bonds issued under the Indenture and then Outstanding
may become or may be declared due and payable before the stated maturity thereof, together with interest
accrued thereon. Modifications or alterations of this Bond or the Indenture may be made only to the extent
and in the circumstances permitted by the Indenture.
THIS BOND is transferable, as provided in the Indenture, only upon the books of the City kept for
that purpose at the above -mentioned office of the Trustee by the Owner hereof in Person or by such Person's
duly authorized attorney, upon surrender of this Bond together with a written instrument of transfer
satisfactory to the Trustee duly executed by the Owner or such Person's duly authorized attorney, and
thereupon a new fully registered Bond or Bonds, in the same aggregate principal amounts, shall be issued
to the transferee in exchange therefor as provided in the Indenture, and upon payment of the charges therein
prescribed. The City, the Trustee and any Paying Agent may deem and treat the Person in whose name this
Bond is registered as the absolute owner hereof for the purpose of receiving payment of, or on account of,
the principal or redemption price hereof and interest due hereon and for all other purposes.
THE BONDS are issuable in the form of one fully -registered Bond in the maximum principal
amount of $44,700,000.
THIS BOND shall not be valid or become obligatory for any purposes or be entitled to any security
or benefit under the Indenture until the Certificate of Authentication hereon shall have been executed by
the Trustee.
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.
C-3
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
ATTEST:
Mayor
City Clerk
(Seal)
C-4
CERTIFICATE OF AUTHENTICATION
This Bond is the Taxable Industrial Development Revenue Bond (Scholastic Inc. Project), Series
2023, described in the Indenture. The effective date of registration of this Bond is set forth below.
Date
BOKF, N.A., as Trustee
LN
Authorized Signatory
C-5
SCHEDULEI
TABLE OF CUMULATIVE OUTSTANDING PRINCIPAL AMOUNT
CITY OF JEFFERSON, MISSOURI
TAXABLE INDUSTRIAL DEVELOPMENT REVENUE BOND
(SCHOLASTIC INC. PROJECT)
SERIES 2023
Bond No. 1
Date
Principal Amount
Advanced
Principal Amount
Redeemed
Cumulative
Outstanding
Principal
Amount
Notation
Made
By
C-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 of the Registered
Owner as it appears upon the face of the within
Bond in every particular.
Medallion Signature Guarantee:
C-7
EXHIBIT D
FORM OF REPRESENTATION LETTER
City of Jefferson, Missouri
320 East McCarty Street
Jefferson City, Missouri 65101
Attention: City Administrator
BOKF, N.A.
2405 Grand Boulevard, Suite 840
Kansas City, Missouri 64108
Attention: Corporate Trust Department
Re: $44,700,000 Maximum Principal Amount of Taxable Industrial Development Revenue
Bonds (Scholastic Inc. Project), Series 2023, of the City of Jefferson, Missouri
Ladies and Gentlemen:
In connection with the purchase of the above -referenced bonds (the "Bonds"), Scholastic Inc., a
New York corporation, as purchaser of the Bonds (the "Purchaser"), hereby represents, warrants and
agrees as follows:
1. The Purchaser, on the date hereof, received from the City of Jefferson, Missouri (the
"City") one registered bond designated Taxable Industrial Development Revenue Bond (Scholastic Inc.
Project), Series 2023, in the maximum aggregate principal amount of $44,700,000, numbered No. 1,
becoming due on December 1, 2035, or when called, and bearing interest at the rate set forth therein from
its date of authentication until its principal amount is paid in full.
2. The Purchaser fully understands that (a) the Bonds have been issued under and pursuant to
a Trust Indenture dated as of February 1, 2023 (the "Indenture"), between the City and BOKF, N.A., as
trustee (the "Trustee"), and (b) the Bonds are payable solely out of certain rents, revenues and receipts to
be derived from the leasing or sale of the Project Equipment (as defined in the Indenture) to Scholastic Inc.,
a New York corporation (the "Company"), under a Lease Agreement dated as of February 1, 2023 (the
"Lease"), between the City, as lessor, and the Company, as lessee, 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.
3. The Purchaser understands that (a) the Bonds and the interest thereon are special limited
obligations of the City payable solely out of the rents, revenues and receipts derived by the City from the
Project Equipment and the Lease, and not from any other fund or source of the City, (b) the Bonds are
secured by a pledge and assignment of the Trust Estate to the Trustee in favor of the Owners, as provided
in the Indenture, (c) the Bonds and the interest thereon shall not constitute general obligations of the City,
the State or any political subdivision thereof, and neither the City, the State nor any related political
subdivision thereof shall be liable thereon, and (d) the Bonds do 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.
4. The Purchaser understands that the Bonds have not been registered under the Securities Act
of 1933, as amended, or the securities laws of any state and will be sold to the Purchaser in reliance upon certain
D-1
exemptions from registration and in reliance upon the representations and warranties of Purchaser set forth
herein.
5. The Purchaser understands that the Bonds are transferable only in the manner provided for
in the Indenture and discussed below and warrants that it is acquiring the Bonds for its own account with
the intent of holding the Bonds as an investment, and the acquisition of the Bonds is not made with a view
toward its distribution or for the purpose of offering, selling or otherwise participating in a distribution of
the Bonds.
6. The Purchaser agrees not to attempt to offer, sell, hypothecate or otherwise distribute the
Bonds to others unless authorized by the terms of the Indenture and upon receipt of any required opinion
of counsel acceptable to the City, the Company, the Trustee and the Purchaser that all registration and
disclosure requirements of the Securities and Exchange Commission and all other appropriate federal and
Missouri securities laws and the securities law of any other applicable state are complied with.
7. The Company has (a) furnished to the Purchaser such information about itself as the
Purchaser 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 Purchaser, during the course of this transaction, ample
opportunity to ask questions of, and to receive answers from, appropriate officers of the City and the terms
and conditions of the offering of the Bonds, and (c) provided to the undersigned all additional information
which it has requested.
8. The Purchaser acknowledges that no offering document has been prepared in connection with
the sale of the Bonds. The Purchaser further acknowledges that it has timely received in satisfactory form
and manner all proceedings, certificates, opinions, letters and other documents required to be submitted to
the Purchaser pursuant to the Bond Purchase Agreement prior to or on the date of the delivery of and
payment for the Bonds, and that the City and the Company have in all respects complied with and satisfied
all of their respective obligations to the Purchaser which are required under the Bond Purchase Agreement
to be complied with and satisfied on or before such date.
9. The Purchaser is now, and was when it agreed to purchase the Bonds, familiar with the
operations of the Company and fully aware of the terms and risks of the Bonds and that the Purchaser is
relying on its own knowledge and investigation of facts and circumstances relating to the purchase of the
Bonds. The Purchaser believes that the Bonds being acquired are a security of the type that the Purchaser
wishes to purchase and hold for investment and that the nature and amount thereof are consistent with its
investment program.
10. The Purchaser is fully aware of and satisfied with (a) the current status of the title to the
Project Equipment 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.
11. The Purchaser understands and agrees that the interest on the Bonds is subject to federal
and state income taxation.
12. The Purchaser hereby directs the Trustee to hold the Bonds in trust pursuant to
Section 204(c) of the Indenture.
Dated: , 20_
D-2
[PURCHASER OF BONDS]
By:
Name:
Title:
D-3
Gilmore & Bell, P.C.
Draft v1— January 5, 2023
CITY OF JEFFERSON, MISSOURI,
As Lessor,
AND
SCHOLASTIC INC.,
As Lessee
LEASE AGREEMENT
Dated as of February 1, 2023
Relating to:
$44,700,000
(Aggregate Maximum Principal Amount)
City of Jefferson, Missouri
Taxable Industrial Development Revenue Bonds
(Scholastic Inc. Project)
Series 2023
Certain rights of the City of Jefferson, Missouri (the "City"), in this Lease Agreement has been
pledged and assigned to BOKF, N.A., Kansas City, Missouri, as Trustee under the Trust Indenture
dated as of February 1, 2023, between the City and the Trustee.
LEASE AGREEMENT
TABLE OF CONTENTS
Page
Parties................................................................................................................................I
Recitals..............................................................................................................................I
ARTICLE I
DEFINITIONS
Section I.I. Definitions of Words and Terms........................................................................................2
Section 1.2. Rules of Interpretation.......................................................................................................2
Section 1.3. Acceptance of Indenture....................................................................................................2
Section1.4. Date of this Lease..............................................................................................................3
ARTICLE II
REPRESENTATIONS
Section 2.1. Representations by the City...............................................................................................3
Section 2.2. Representations by the Company.......................................................................................4
ARTICLE III
GRANTING PROVISIONS
Section 3.1. Granting of Leasehold Estate.............................................................................................4
Section3.2. Lease Term.........................................................................................................................4
Section 3.3. Possession and Use of the Project Equipment...................................................................5
Section 3.4. Title to the Project Equipment...........................................................................................5
ARTICLE IV
PURCHASING AND INSTALLING OF THE PROJECT EQUIPMENT
Section 4.1.
Issuance of the Bonds........................................................................................................5
Section 4.2.
Purchase and Installation of the Project Equipment..........................................................6
Section4.3.
Project Costs......................................................................................................................7
Section 4.4.
Payment for Project Costs..................................................................................................7
Section 4.5.
Establishment of Completion Date....................................................................................8
Section 4.6.
Surplus or Deficiency in Project Fund...............................................................................8
Section 4.7.
Project Equipment Property of City...................................................................................8
Section 4.8.
Personal Property Purchased by the Company..................................................................9
Section4.9.
Environmental Matters......................................................................................................9
ARTICLE V
RENT PROVISIONS
Section5.1. Basic Rent..........................................................................................................................9
Section5.2. Additional Rent................................................................................................................10
Section 5.3. Obligations of Company Absolute and Unconditional....................................................11
Section 5.4. Prepayment of Basic Rent................................................................................................11
ARTICLE VI
MAINTENANCE, TAXES AND UTILITIES
Section 6.1. Maintenance and Repairs.................................................................................................12
Section 6.2. Taxes, Assessments and Other Governmental Charges...................................................12
Section6.3. Utilities.............................................................................................................................12
Section 6.4. Property Tax Exemption..................................................................................................13
ARTICLE VII
INSURANCE
Section7.1.
Insurance Generally.........................................................................................................13
Section 7.2.
Property Insurance...........................................................................................................13
Section 7.3.
Commercial General Liability Insurance.........................................................................13
Section7.4.
Workers' Compensation...................................................................................................14
Section 7.5.
Blanket Insurance Policies; Self-Insurance......................................................................14
Section 7.6.
Sovereign Immunity.........................................................................................................14
ARTICLE VIII
ALTERATION OF THE PROJECT EQUIPMENT
Section 8.1. Additions, Modifications and Improvements to the Project Equipment.
....................................................................................................................................14
Section 8.2. Removal and Replacement of Portions of the Project Equipment...................................14
Section8.3. [Reserved]........................................................................................................................15
Section 8.4. Permits and Authorizations..............................................................................................15
Section8.5. Mechanics' Liens.............................................................................................................15
ARTICLE IX
DAMAGE, DESTRUCTION AND CONDEMNATION
Section 9.1. Damage or Destruction....................................................................................................16
Section9.2. Condemnation..................................................................................................................17
Section 9.3. Bondowner Approval.......................................................................................................18
ARTICLE X
SPECIAL COVENANTS
Section 10.1. No Warranty of Condition or Suitability by the City; Exculpation and
Indemnification...........................................................................................................18
Section 10.2.
Surrender of Possession...................................................................................................19
Section 10.3.
City's Right of Access to the Project Equipment.............................................................19
Section 10.4.
Permitted Encumbrances; Equipment Financing Documents..........................................19
Section 10.5.
Indemnification of City and Trustee................................................................................21
Section 10.6.
Depreciation, Investment Tax Credit and Other Tax Benefits.........................................22
Section 10.7.
Company to Maintain its Corporate Existence................................................................22
Section10.8.
Security Interests..............................................................................................................23
ARTICLE XI
OPTION AND OBLIGATION TO PURCHASE THE PROJECT
EQUIPMENT
Section 11.1. Option to Purchase the Project Equipment......................................................................23
Section 11.2. Conveyance of the Project Equipment.............................................................................24
Section 11.3. Relative Position of Option and Indenture.......................................................................24
Section 11.4. Obligation to Purchase the Project Equipment................................................................24
Section11.5. Right of Set-Off...............................................................................................................24
ARTICLE XII
DEFAULTS AND REMEDIES
Section 12.1. Events of Default.............................................................................................................25
Section 12.2. Remedies on Default........................................................................................................26
Section 12.3. Survival of Obligations....................................................................................................26
Section 12.4. Performance of the Company's Obligations by the City.................................................26
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......................................................................27
ARTICLE XIII
ASSIGNMENT AND SUBLEASE
Section 13.1. Assignment; Sublease...........................................................................
Section 13.2. Assignment of Revenues by City..........................................................
Section 13.3. Restrictions on Sale or Encumbrance of Project Equipment by City....
ARTICLE XIV
AMENDMENTS, CHANGES AND MODIFICATIONS
Section 14.1. Amendments, Changes and Modifications....
.......................
27
.......................
28
.......................
28
.......................
28
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section15.1.
Notices.............................................................................................................................28
Section 15.2.
City Shall Not Unreasonably Withhold Consents and Approvals....................................28
Section15.3.
Net Lease.........................................................................................................................29
Section 15.4.
Limitation on Liability of City.........................................................................................29
Section15.5.
Governing Law................................................................................................................29
Section15.6.
Binding Effect..................................................................................................................29
Section15.7.
Severability. .....................................................................................................................
29
Section 15.8.
Electronic Storage............................................................................................................29
Section15.9.
Performance by Company................................................................................................29
Section 15.10.
Execution in Counterparts................................................................................................29
Section 15.11.
Anti -Discrimination Against Israel Act...........................................................................29
Section 15.12.
Complete Agreement.......................................................................................................30
Signaturesand Seals..................................................................................................... S-1
Exhibit A: Description of the Project Site
Exhibit B: Project Equipment
Exhibit C: Form of Requisition Certificate
Appendix I: Performance Agreement
(iv)
LEASE AGREEMENT
THIS LEASE AGREEMENT, dated as of February 1, 2023 (the "Lease"), between the CITY
OF JEFFERSON, MISSOURI, a home rule charter city and municipal corporation organized and existing
under the laws of the State of Missouri, as lessor (the "City"), and SCHOLASTIC INC., a corporation
organized and existing under the laws of the State of New York and authorized to do business in Missouri
(the "Company"), as lessee;
RECITALS:
1. The City is authorized under Article VI, Section 27(b) of the Missouri Constitution and
Sections 100.010 through 100.200 of the Revised Statutes of Missouri, as amended (the "Act"), to
purchase, construct, extend and improve certain "projects" (as defined in the Act) and to issue industrial
development revenue bonds for the purpose of providing funds to pay the costs of such projects and to lease
or otherwise dispose of such projects to private persons or corporations for manufacturing, commercial,
warehousing and industrial development purposes upon such terms and conditions as the City shall deem
advisable.
2. The City Council of the City adopted Resolution No. RS2022-32 on October 17, 2022,
expressing the official intent of the City to issue industrial development revenue bonds under the Act to
finance an economic development project for the Company (the "Project"), consisting of acquiring and
installing new machinery, equipment and other personal property (the "Project Equipment" as more fully
described on Exhibit B hereto) to be installed at the Company's existing facility located at 6336 Algoa
Road in the City (the "Project Site" as more fully described on Exhibit A hereto).
3. Following notice to affected taxing jurisdictions in accordance with Section 100.059.1 of
the Act, the City Council of the City adopted Ordinance No. [ ] on February 6, 2023 (the
"Ordinance"), (a) approving a plan for the Company's Project and (b) authorizing the issuance of Taxable
Industrial Development Revenue Bonds (Scholastic Inc. Project), Series 2023, in the maximum aggregate
principal amount of $44,700,000 (the "Bonds"), to pay the costs of the Project.
4. Pursuant to the Ordinance, the City is authorized to execute and deliver (a) the Trust
Indenture dated as of February 1, 2023 (the "Indenture"), between the City and BOKF, N.A., as bond
trustee (the "Trustee"), for the purpose of issuing and securing the Bonds, (b) this Lease with the Company,
as lessee, under which the City, as lessor, will cause the Company to acquire and install the Project
Equipment and will lease the Project Equipment to the Company, in consideration of rental payments to be
paid by the Company which will be sufficient to pay the principal of and interest on the Bonds, and (c) the
Performance Agreement dated as of February 1, 2023 (the "Performance Agreement"), between the City
and the Company, for the purpose of setting forth the terms and conditions of the Project Equipment's
exemption from ad valorem personal property taxes and certain payments in lieu of taxes to be made by the
Company with respect to the Project Equipment.
5. Pursuant to the foregoing, the City desires to lease the Project Equipment to the Company
and the Company desires to lease the Project Equipment from the City, for the rental payments and upon
the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual representations, covenants
and agreements herein contained, the City and the Company do hereby represent, covenant and agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions of Words and Terms. In addition to any capitalized words and terms
defined elsewhere in this Lease and the words and terms defined in Section 101 of the Indenture which
definitions are hereby incorporated herein by reference, the following capitalized words and terms as used
in this Lease shall have the following meanings:
"Environmental Law" means and includes the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, the Resource Conservation and Recovery Act, the Superfund
Amendments and Reauthorization Act of 1986, any other "Superfund" or "Superlien" law, or any other
federal, state or local statute, law, ordinance, code, rule, regulation, order or decree regulating, relating to,
or imposing liability or standards of conduct concerning any Hazardous Materials, as now or at any time
hereafter in effect.
"Plans and Specifications" means the plans and specifications prepared for and showing the
Project, as amended by the Company from time to time before the Completion Date, the same being on file
at the office of the Company 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.
Section 1.2. Rules of Interpretation.
(a) Words of the masculine gender shall be deemed and construed to include correlative words
of the feminine and neuter genders.
(b) Unless the context shall otherwise indicate, words importing the singular number shall
include the plural and vice versa, and words importing Persons shall include firms, associations and
corporations, including governmental entities, as well as natural Persons.
(c) Wherever in this Lease it is provided that either party shall or will make any payment or
perform or refrain from performing any act or obligation, each such provision shall, even though not so
expressed, be construed as an express covenant to make such payment or to perform, or not to perform, as
the case may be, such act or obligation.
(d) All references in this instrument to designated "Articles," "Sections" and other
subdivisions are, unless otherwise specified, to the designated Articles, Sections and subdivisions of this
instrument as originally executed. The words "herein," "hereof," "hereunder" and other words of similar
import refer to this Lease as a whole and not to any particular Article, Section or other subdivision.
(e) The Table of Contents and the Article and Section headings of this Lease shall not be
treated as a part of this Lease or as affecting the true meaning of the provisions hereof.
(f) Whenever an item or items are listed after the word "including," such listing is not intended
to be a listing that excludes items not listed.
Section 1.3. Acceptance of Indenture. The Company acknowledges that it has received an
executed copy of the Indenture and that it is familiar with the terms and conditions of the Indenture. The
Company further covenants that it will comply with all the conditions and covenants contained in the
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Indenture relating to the Company and the Project Equipment, and that it will not take any action which
would cause a default thereunder or jeopardize the rights of the Trustee, the City or the Bondowners.
Section 1.4. Date of this Lease. The dating of this Lease as of February 1, 2023, is intended
as and for the convenient identification of this Lease only and is not intended to indicate that this Lease was
executed and delivered on said date, this Lease being executed and delivered and becoming effective
simultaneously with the initial issuance of the Bonds.
ARTICLE II
REPRESENTATIONS
Section 2.1. Representations by the City. The City makes the following representations as
the basis for the undertakings on its part herein contained:
(a) The City is a home rule charter city and municipal corporation duly organized and validly
existing under the laws of the State of Missouri. Under the provisions of the Act and its Charter, 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 purchase and install the Project
Equipment or cause the Project Equipment to be purchased and installed at the Project Site. The City agrees
to lease the Project Equipment to the Company and sell the Project Equipment or any portion thereof to the
Company if the Company exercises its option to purchase the Project Equipment or any portion thereof as
provided herein, all for the purpose of furthering the public purposes of the Act, and the City Council of
the City has found and determined that the purchase and installation of the Project Equipment will further
the public purposes of the Act;
(c) To finance the Project Costs, the City proposes to issue the Bonds which will be scheduled
to mature as set forth in Article II of the Indenture and will be subject to redemption prior to maturity in
accordance with the provisions of Article III of the Indenture;
(d) The Bonds are to be issued under and secured by the Indenture, pursuant to which the
Project Equipment and the net earnings therefrom, including all rents, revenues and receipts to be derived
by the City from the leasing or sale of the Project Equipment, will be pledged and assigned to the Trustee
as security for payment of the principal of and interest on the Bonds and amounts owed pursuant to this
Lease;
(e) The City will not knowingly take any affirmative action that would permit a lien to be
placed on the Project Equipment or pledge the revenues derived therefrom for any bonds or other
obligations other than the Bonds except with the written consent of the Authorized Company
Representative;
(f) The City will not operate the Project Equipment in a business -like manner or in any other
manner except as the lessor thereof;
(g) The purchase and installation of the Project Equipment and the leasing of the Project
Equipment by the City to the Company will further the public purposes of the Act; and
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(h) No member of the City Council of the City or any other officer of the City has any
significant or conflicting interest, financial, employment or otherwise, in the Company or in the transactions
contemplated hereby.
Section 2.2. Representations by the Company. The Company makes the following
representations as the basis for the undertakings on its part herein contained:
(a) The Company is a corporation duly incorporated, validly existing and in good standing
under the laws of the State of New York and authorized to do business in the State of Missouri and is in
good standing under the laws of the State of Missouri;
(b) The Company has lawful power and authority to enter into this Lease and to carry out its
obligations hereunder and by proper corporate action of its governing body, the Company 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 Company will not conflict with or result in a material breach of any of the terms, conditions or provisions
of, or constitute a material default under, any mortgage, deed of trust, lease or any other restrictions or any
agreement or instrument to which the Company is a party or by which it or any of its property is bound, or
the Company's organizational documents or any order, rule or regulation applicable to the Company or any
of its property of any court or governmental body, or constitute a material default under any of the
foregoing, or result in the creation or imposition of any prohibited lien, charge or encumbrance of any
nature whatsoever upon any of the property or assets of the Company under the terms of any instrument or
agreement to which the Company is a party;
(d) The estimated costs of purchasing and installing the Project Equipment supplied by the
Company are in accordance with sound accounting principles; and
(e) The Project Equipment has been or will be installed and used in the Company's facility
situated on the Project Site which is located wholly within the corporate limits of the City, and will comply
in all material respects with all presently applicable laws, rules and regulations.
ARTICLE III
GRANTING PROVISIONS
Section 3.1. Granting of Leasehold Estate. The City hereby rents, leases and lets the Project
Equipment to the Company, and the Company hereby rents, leases and hires the Project Equipment from
the City, subject to Permitted Encumbrances, for the rentals and upon and subject to the terms and
conditions herein contained.
Section 3.2. Lease Term. This Lease shall become effective upon its execution and delivery,
and subject to sooner termination pursuant to the provisions of this Lease, this Lease shall terminate on
December 31, 2035.
M
Section 3.3. Possession and Use of the Project Equipment.
(a) The City covenants and agrees that as long as neither the City nor the Trustee has exercised
any of the remedies set forth in Section 12.2(b) hereof following the occurrence and continuance of an
Event of Default, as defined in Section 12.1 hereof, the Company shall have sole and exclusive possession
of the Project Equipment (subject to Permitted Encumbrances and the City's and the Trustee's right of
access pursuant to Section 10.3 hereof) and shall and may peaceably and quietly have, hold and enjoy the
Project Equipment during the Lease Term. The City covenants and agrees that it will not take any action,
other than expressly pursuant to Article XII of this Lease, to prevent the Company from having quiet and
peaceable possession and enjoyment of the Project Equipment during the Lease Term and will, at the
request and expense of the Company, cooperate with the Company in order that the Company may have
quiet and peaceable possession and enjoyment of the Project Equipment and will defend the Company's
enjoyment and possession thereof against all parties.
(b) Subject to the provisions of this Section, the Company shall have the exclusive right to use
the Project Equipment for any lawful purpose allowed by law and contemplated by the Act, this Lease and
the Performance Agreement. The Company shall comply in all material respects with all statutes, laws,
ordinances, 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 Equipment,
as to the manner of use or the condition of the Project Equipment. In the event of demonstrated
noncompliance with such statutes, laws, ordinances, orders, judgments, decrees, regulations, directions and
requirements the Company will take all reasonable steps to comply with such statutes, laws, ordinances,
orders, judgments, decrees, regulations, directions and requirements. The Company shall also comply with
the mandatory requirements, rules and regulations of all insurers under the policies carried under the
provisions of Article VII hereof. The Company shall pay or cause to be paid all costs, expenses, claims,
fines, penalties and damages that may in any manner arise out of, or be imposed as a result of, the failure
of the Company to comply with the provisions of this Section. Notwithstanding any provision contained
in this Section, however, the Company shall have the right, at its own cost and expense, to contest or review
by legal or other appropriate procedures the validity or legality of any such governmental statute, law,
ordinance, order, judgment, decree, regulation, direction or requirement, or any such requirement, rule or
regulation of an insurer, and during such contest or review the Company may refrain from complying
therewith.
Section 3.4. Title to the Project Equipment. The City shall be the sole owner of the Project
Equipment during the Lease Term; provided, however, that the Company alone shall be entitled to deduct
all depreciation on the Project Equipment on the Company's income tax returns and the City agrees to
provide reasonable cooperation with the Company, at the expense of the Company, in obtaining favorable
treatment of the lease, sale or repurchase of the Project Equipment for federal or state income and/or sales
taxes.
ARTICLE IV
PURCHASING AND INSTALLING OF
THE PROJECT EQUIPMENT
Section 4.1. Issuance of the Bonds. To provide funds for the payment of Project Costs, the
City agrees, upon request of the Company, that it will issue, sell and cause the Bonds to be delivered to the
Company, as purchaser thereof, in accordance with the provisions of the Indenture and the Bond Purchase
Agreement. The proceeds of the sale of the Bonds, when received, shall be paid over to the Trustee for the
account of the City. The Trustee shall promptly deposit such proceeds, when received, as provided in the
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Indenture, to be used and applied as hereinafter provided in this Lease and in the Indenture. Alternatively,
the Trustee may (pursuant to Section 208(d) or (e) or Section 209(d) of the Indenture) endorse the Bonds
in an amount equal to the requisition certificates submitted pursuant to Section 4.4 hereof. In that event,
the purchaser of the Bonds shall be deemed to have deposited funds with the Trustee in an amount equal to
the amount stated in the requisition certificate.
Section 4.2. Purchase and Installation of the Project Equipment. The City and the
Company agree that the Company, as the agent of the City shall, but solely from the Project Fund, or an
endorsement of the Bond balance pursuant to Section 4.1 above and Section 208(d) or (e) or Section 209(d)
of the Indenture, purchase and install the Project Equipment as follows:
(a) Concurrently with the execution of this Lease, the City will acquire that portion of
the Project Equipment previously acquired by the Company and currently situated on the Project
Site, if any, and a bill of sale with respect thereto will be delivered to the City;
(b) The Company will, on behalf of the City, purchase and install the Project
Equipment on the Project Site in accordance with the Plans and Specifications. Except as provided
in the next sentence, title to the Project Equipment shall be evidenced by bills of sale in substantially
the form attached to the form of the requisition certificate attached hereto as Exhibit C or other
instruments of transfer, including purchase orders or other instruments pursuant to which the City
acquires title to personal property directly from the vendor thereof. Subject to Section 8.2 hereof,
all portions of the Project Equipment substituted by the Company shall automatically become part
of the Project Equipment subject to this Lease, and full title and ownership of such Project
Equipment shall be automatically vested in the City, without the requirement of a bill of sale or
other instrument of conveyance unless otherwise requested by the City. Such requisition certificate
submitted by the Company pursuant to Section 4.4 hereof or other bills of sale or other instruments
of transfer, must (1) be dated by no later than December 31 of each year to be treated as Project
Equipment (and therefore to be exempt from ad valorem personal property taxes) in the next
succeeding year and (2) be submitted to the City by no later than January 31.
(c) Each requisition certificate submitted by the Company pursuant to Section 4.4
hereof in the form attached hereto as Exhibit C or other bill of sale or instrument of transfer and
each personal property declaration form shall be of sufficient specificity so as to enable the City's
officials and the Assessor's Office of Cole County, Missouri, to determine which personal property
as reported on the annual personal property declaration constitutes Project Equipment (and
therefore is owned by the City and subject to this Lease) and which personal property does not
constitute Project Equipment (and therefore is owned by the Company and is not subject to this
Lease).
(d) On or before March 1 of each year or such other date required by law for reporting
personal property declarations, the Company shall furnish to the City (addressed to the City Clerk)
and the Trustee a list of personal property (based on the Company's internal record keeping)
comprising the Project Equipment as of January 1 of such year (as required by the personal property
declarations provided by the Assessor's Office of Cole County, Missouri). The improper inclusion
or exclusion of any item in the Project Equipment pursuant to such list may be rectified by the
Company within 30 days of the discovery by the Company of such improper inclusion or exclusion.
The improper inclusion or exclusion of an item from such list shall not affect the items comprising
the Project Equipment for the purpose of this Lease or title thereto as intended by the parties hereto.
The Company shall provide such information to the City and the Trustee as may be requested in
order to ensure that such list corresponds to the list of items comprising the Project Equipment
maintained by the Trustee pursuant to Section 10.8 hereof. The Trustee may conclusively rely
In
upon such information in compiling a list of Project Equipment in accordance with Section 10.8
hereof.
(e) The City and the Company agree that, pursuant to Section 4.7 and Section 4.8
hereof, any interest in any property purchased in whole or in part by the Company with its own
funds, and not reimbursed from Bond proceeds, shall not constitute part of the Project Equipment
and shall remain the property of the Company and therefore subject to property taxation.
(f) The Company agrees that it will use reasonable efforts to cause the purchase and
installation of the Project Equipment to be completed as soon as practicable with all reasonable
dispatch. In the event such purchase and installation commences prior to the receipt of proceeds
from the sale of the Bonds, the Company agrees to advance all funds necessary for such purpose;
provided, however, that the Company may be reimbursed from Bond proceeds for any such
advance.
(g) The Company represents to the City that no portion of the Project Equipment
constitutes the erection, construction, alteration, repair or improvement of any public building,
road, street, public utility or other public facility. On this basis the provisions of Section 107.170
of the Revised Statutes of Missouri, as amended, are not applicable to the acquisition and
installation of the Project Equipment.
Section 4.3. Project Costs. The City hereby agrees to pay for, but solely from the Project Fund
(or from funds deemed to be deposited into the Project Fund upon the Company's delivery of a requisition
certificate as permitted by Section 208(d) or (e) or Section 209(d) of the Indenture), and hereby authorizes
and directs the Trustee to pay for, but solely from the Project Fund (or from funds deemed to be deposited
into the Project Fund upon Company's delivery of a requisition certificate as permitted by Section 208(d)
or (e) or Section 209(d) of the Indenture), all Project Costs upon receipt by the Trustee of requisition
certificates pursuant to Section 4.4 hereof. The Company may not submit any requisition certificates for
Project Costs incurred after the Completion Date. The Company 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 Equipment for which requisition certificates may be submitted is $44,700,000.
All other machinery and equipment installed at the Project Site shall be subject to ad valorem personal
property taxes.
Section 4.4. Payment for Project Costs.
(a) All Project Costs as specified in Section 4.3 hereof shall be paid by the Trustee from the
Project Fund as more fully provided in the Indenture, or an endorsement of the Bond balance pursuant to
Section 4.1 above and Section 208(d) or (e) or Section 209(d) of the Indenture. The City hereby authorizes
and directs the Trustee to make disbursements from the Project Fund, or endorse the Bond balance pursuant
to Section 4.1 above and Section 208(d) or (e) or Section 209(d) of the Indenture, upon receipt by the
Trustee of certificates in substantially the form attached hereto as Exhibit C, signed by an Authorized
Company Representative and approved by an Authorized City Representative. The Company agrees that
the information in each certificate will be accurate in all respects when given, and that the Company will
notify the City if the Company becomes aware of any material inaccuracies in a certificate after the date on
which it is given.
(b) The Trustee may rely conclusively on any such certificate and shall not be required to make
any independent investigation in connection therewith. The submission of any requisition certificate by an
Authorized Company Representative and an Authorized City Representative shall constitute unto the
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Trustee an irrevocable determination that all conditions precedent to the payments requested have been
satisfied.
Section 4.5. Establishment of Completion Date. The Completion Date for the Project shall
be evidenced to the City and the Trustee by a certificate signed by the Authorized Company Representative
stating (a) that the purchase and installation of the Project Equipment has been substantially completed in
accordance with the Plans and Specifications, (b) the date of completion thereof, (c) that all costs and
expenses of the purchase and installation of the Project Equipment have been paid except costs and expenses
the payment of which is not yet due or is being contested in good faith by the Company, and (d) that the
foregoing certificate is given without prejudice to any rights against third parties which exist at the date of
such certificate or which may subsequently come into being. Notwithstanding the foregoing, the certificate
shall be deemed given on December 31, 2025 if not actually filed with the City by December 31, 2025,
subject only to any delay caused by force majeure, being defined as damage or destruction of the Project
Equipment by fire or casualty, strike, lockout, civil disorder, war, lack of issuance of any permits and/or
legal authorization, through no fault of the Company, by the governmental entity necessary for the purchase
and installation of the Project Equipment, shortage or delay in shipment of material for the Project
Equipment, acts of God, unusually adverse weather or wet soil conditions, or other like causes beyond the
Company's reasonable control, including any litigation, court order or judgment resulting from any
litigation affecting the validity of this Lease, the Indenture, the Ordinance or the Project Equipment
(collectively, a "Permitted Excuse"). No Permitted Excuse shall be deemed to exist unless the Company
provides a written notice to the City, within 30 days after the Company 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, 2026. The Company and the City agree to cooperate in causing such certificate to
be furnished to the Trustee. A certificate meeting the requirements of this section will be deemed filed on
said date, even if not actually filed by said date.
Section 4.6. Surplus or Deficiency in Project Fund.
(a) Upon receipt of the certificate described in Section 4.5 hereof, the Trustee shall, as
provided in Section 504 of the Indenture, transfer any remaining moneys then in the Project Fund to the
Bond Fund to be applied as directed by the Company solely to (1) the payment of principal and premium,
if any, of and interest on 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 (2) at the
option of the Company, to the purchase of Bonds at such earlier date or dates as the Company may elect.
Any amount so deposited in the Bond Fund may be invested as permitted by Section 702 of the Indenture.
(b) If no Additional Bonds are issued as provided in Section 209 of the Indenture, and the
balance, if any, in the Project Fund shall be insufficient to pay fully all Project Costs and to complete the
acquisition and installation of the Project Equipment free of liens and encumbrances other than Permitted
Encumbrances, the Company shall pay, in cash, the full amount of any such deficiency by making payments
thereof directly to the contractors and to the suppliers of materials and services as the same shall become
due, and the Company shall save the City and the Trustee whole and harmless from any obligation to pay
such deficiency.
Section 4.7. Project Equipment Property of City. The Project Equipment, which the
Company desires to convey to the City, and all additions thereto, as acquired, assembled and installed ,
anything under this Lease which becomes, is deemed to be, or constitutes a part of the Project Equipment,
and the Project Equipment as repaired, rebuilt, rearranged, restored or replaced by the Company under the
provisions of this Lease, except as otherwise specifically provided herein, shall immediately when acquired
and/or installed become the absolute property of the City, subject only to this Lease, the Indenture and any
other Permitted Encumbrances. Nothing herein shall limit the Company's right to own personal property
In
which is not a part of the Project Equipment to be acquired by the City pursuant to Section 4.2 and Section
4.8 hereof.
Section 4.8. Personal Property Purchased by the Company. Any items of machinery,
equipment or other personal property which do not constitute part of the Project Equipment and the entire
purchase price of which is paid for by the Company with the Company's own funds, and no part of the
purchase price of which is paid for, or reimbursed, from funds deposited pursuant to the terms of this Lease
in the Project Fund, shall be the sole and absolute property of the Company and shall not constitute a part
of the Project Equipment for purposes of Section 6.4 hereof or be subject to any other terms of this Lease
or the Performance Agreement, and therefore, shall be subject to property taxation, to the extent otherwise
provided by law.
Section 4.9. Environmental Matters.
(a) The Company acknowledges that is it responsible for maintaining the Project Equipment
in compliance with all Environmental Laws. In the event that the Company fails to undertake to comply
with any final, non -appealable order issued by any local, state or federal authority under applicable
Environmental Law, the City or the Trustee, thirty (30) days after notice to the Company (except in the case
of an immediate risk of harm to persons or the Project Equipment), may elect (but shall not be required) to
undertake such compliance if the Company has not undertaken such compliance within such thirty (30) day
period. Any moneys expended by the City or the Trustee in efforts to comply with any applicable
Environmental Law (including the reasonable cost of hiring consultants, undertaking sampling and testing,
performing any cleanup necessary or useful in the compliance process and reasonable attorneys' fees) shall
be due and payable as Additional Rent hereunder with interest thereon at the average rate of interest per
annum on the Bonds, plus two (2) percentage points, from the date such cost is incurred. There shall be
unlimited recourse to the Company to the extent of any liability incurred by the City or the Trustee with
respect to any breaches of the provisions of this section.
(b) The Company shall and does hereby indemnify the City, the Trustee and the Bondowners
and agree to defend and hold them harmless from and against all loss, cost, damage and expense (including,
without limitation, reasonable attorneys' fees and costs associated incurred in the investigation, defense and
settlement of claims) that they may incur, directly or indirectly, as a result of or in connection with the
assertion against them or any of them of any claim relating to the presence on, escape or removal from the
Project Equipment during the term of this Lease of any hazardous substance or other material regulated by
any applicable Environmental Law, or compliance with any applicable Environmental Law, whether such
claim is raised before, during or after the term of this Lease, including claims relating to personal injury or
damage to property; provided, however, this indemnity shall only relate to claims resulting from the City's
ownership of the Project Equipment, the Trustee's enforcement of its rights hereunder, or performance of
its duties in accordance with the Indenture.
ARTICLE V
RENT PROVISIONS
Section 5.1. Basic Rent.
(a) The Company covenants and agrees to pay, as Basic Rent for the Project Equipment, to the
Trustee in same day funds for the account of the City during this Lease Term, for deposit in the Bond Fund
on or before 10:00 a.m., Trustee's local time, on or before each December 1 (each December 1 being a
Payment Date), commencing December 1, 2023 and continuing until the principal of and interest on the
In
Bonds shall have been fully paid, an amount which, when added to any collected funds then on deposit in
the Bond Fund and available on such Payment Date, shall be equal to the total amount payable on each
December 1 as interest on the Bonds. On December 1, 2035 (or such earlier date as the Company may elect
to redeem the Bonds), the Company shall also pay an amount equal to all principal then due on the Bonds
in connection with such maturity or redemption. Except as offset pursuant to the right of the Company 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 Indenture, the
Bond Purchase Agreement or the Performance Agreement to the contrary, and provided that the Purchaser,
or any other affiliate of the Company, is the sole holder of the Bonds, the Company shall set-off the then -
current Basic Rent payment against the City's obligation to the Purchaser, or any other affiliate of the
Company, as Owner of 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 written notice from the Company to the contrary as evidence that such set-off has occurred.
Any Basic Rent paid by the Company which exceeds the total amount payable on such Payment Dates shall
be immediately paid to the Company by wire transfer. If the Trustee is not holding the Bonds pursuant to
the provisions of the Indenture, the Purchaser shall, on or before the final Payment Date, deliver or cause
to be delivered to the Trustee for cancellation Bonds not previously paid and the Company shall receive a
credit against the Basic Rent payable by the Company in an amount equal to the principal amount of the
Bonds so tendered for cancellation plus accrued interest thereon.
(b) Notwithstanding anything contained in this Lease, the Indenture, the Bond Purchase
Agreement or the Performance Agreement to the contrary, if the Purchaser, or any other affiliate of the
Company, is the Owner of all of the Bonds Outstanding, payments of Basic Rent may be made via a
transaction entry on the trust records held by the Trustee and the Paying Agent without requiring the
Company to wire or otherwise transfer any moneys to such Owner or the Trustee.
Section 5.2. Additional Rent. The Company shall pay or cause to be paid as Additional Rent,
within 30 days after receiving an itemized invoice therefor, the following amounts as and when the same
become due:
(a) all reasonable fees, charges and expenses, including agent and legal counsel fees,
of the City and the Trustee incurred under or arising from the Indenture, this Lease, the Performance
Agreement or any other document entered into in connection with the Bonds, including but not
limited to claims by contractors and subcontractors of vendors, as and when the same become due;
(b) all costs incident to the payment of the principal of and interest on the Bonds as
the same becomes due and payable, including all costs and expenses in connection with the call,
redemption and payment of all Outstanding Bonds;
(c) all reasonable costs which are reasonably incurred in connection with the
enforcement of any rights against the Company or the Project Equipment or in connection with a
failure of the Company to perform its obligations under this Lease, the Indenture or the Performance
Agreement by the City, the Trustee or the Bondowners, including legal counsel fees and expenses;
(d) all amounts payable under the Performance Agreement; and
(e) all other payments of whatever nature which the Company has agreed to pay or
assume under the provisions of this Lease, the Performance Agreement or the Indenture.
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Section 5.3. Obligations of Company Absolute and Unconditional.
(a) The obligations of the Company under this Lease to make payments of Basic Rent and
Additional Rent on or before the date the same become due, and to perform all of its other obligations,
covenants and agreements hereunder shall be absolute and unconditional, without notice or demand (except
as expressly provided herein), and without abatement, deduction, set-off (subject to Section 11.5 hereof),
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
Equipment shall have been acquired or installed, or whether the City's title thereto or to any part thereof is
defective or nonexistent, and notwithstanding any damage to, loss, theft or destruction of, the Project
Equipment 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 Equipment,
legal curtailment of the Company's use thereof, the eviction or constructive eviction of the Company, any
change in the tax or other laws of the United States of America, the State of Missouri or any political
subdivision thereof, any change in the City's legal organization or status, or any default of the City
hereunder, and regardless of the invalidity of any action of the City; provided, however, that nothing in this
Section 5.3(a) or Section 5.3(b) is intended or shall be deemed to affect or impair in any way the rights of
the Company to tender Bonds for redemption in satisfaction of Basic Rent as provided in Section 5.1 and
Section 5.4 hereof, nor the right of the Company to terminate this Lease and repurchase the Project
Equipment as provided in Article XI hereof.
(b) Nothing in this Lease shall be construed to release the City from the performance of any
agreement on its part herein contained or as a waiver by the Company of any rights or claims the Company
may have against the City under this Lease or otherwise, but any recovery upon such rights and claims shall
be had from the City separately, it being the intent of this Lease that the Company shall be unconditionally
and absolutely obligated to perform fully all of its obligations, agreements and covenants under this Lease
(including the obligation to pay Basic Rent and Additional Rent) for the benefit of the Bondowners. The
Company may, however, at its own cost and expense and in its own name or in the name of the City,
prosecute or defend any action or proceeding or take any other action involving third Persons which the
Company deems reasonably necessary in order to secure or protect its right of possession, occupancy and
use hereunder, and in such event the City hereby agrees to cooperate fully with the Company and to take
all action necessary to effect the substitution of the Company for the City in any such action or proceeding
if the Company shall so request.
Section 5.4. Prepayment of Basic Rent. The Company may at any time and from time to time
prepay all or any part of the Basic Rent provided for hereunder (subject to the limitations of Section 301(a)
of the Indenture relating to the partial redemption of the Bonds). During such times as the amount held by
the Trustee in the Bond Fund shall be sufficient to pay, at the time required, the principal of and interest on
all the Bonds then remaining unpaid, the Company shall not be obligated to make payments of Basic Rent
under the provisions of this Lease. At its option, the Company may deliver to the Trustee for cancellation
Bonds owned by the Company and not previously paid, and the Company shall receive a credit against
amounts payable by the Company for the redemption of Bonds in an amount equal to the principal amount
of the Bonds so tendered for cancellation, plus accrued interest thereon (principal to be credited against
principal and interest to be credited against interest).
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ARTICLE VI
MAINTENANCE, TAXES AND UTILITIES
Section 6.1. Maintenance and Repairs. Throughout the Lease Term the Company shall, at its
own expense, keep the Project Equipment in as reasonably safe condition as the operation thereof will
permit, and keep the Project Equipment in good repair and in good operating condition, making from time
to time all necessary repairs thereto and renewals and replacements thereof it determines to be necessary.
Without limiting the generality of the foregoing, the Company shall at all times remain in compliance with
all provisions of the City's applicable codes relating to maintenance and appearance of the Project
Equipment.
Section 6.2. Taxes, Assessments and Other Governmental Charges.
(a) Subject to subsection (b) of this Section, the Company shall promptly pay and discharge,
or cause to be paid and discharged, as the same become due, all taxes and assessments, general and special,
and other governmental charges of any kind whatsoever that may be lawfully taxed, charged, levied,
assessed or imposed upon or against or be payable for or in respect of the Project Equipment, or any part
thereof or interest therein (including the leasehold estate of the Company therein or any buildings,
improvements, machinery and equipment at any time installed on the Project Site by the Company), or the
income therefrom, including any new taxes and assessments not of the kind enumerated above to the extent
that the same are lawfully made, levied or assessed in lieu of or in addition to taxes or assessments now
customarily levied against personal property, and further including all utility charges, assessments and other
general governmental charges and impositions whatsoever, foreseen or unforeseen, which if not paid when
due would impair the security of the Bonds or encumber the City's title to the Project Equipment; provided
that with respect to any special assessments or other governmental charges that are lawfully levied and
assessed which may be paid in installments, the Company shall be obligated to pay only such installments
thereof as become due and payable during the Lease Term.
(b) The Company shall have the right, in its own name or in the City's name, to contest the
validity or amount of any tax, assessment or other governmental charge which the Company is required to
bear, pay and discharge pursuant to the terms of this Section by appropriate legal proceedings instituted at
least 10 days before the tax, assessment or other governmental charge complained of becomes delinquent
if and provided (1) the Company, before instituting any such contest, gives the City and the Trustee written
notice of its intention to do so, (2) the Company diligently prosecutes any such contest, at all times
effectively stays or prevents any official or judicial sale therefor, under execution or otherwise, and (3) the
Company promptly pays any final judgment enforcing the tax, assessment or other governmental charge so
contested and thereafter promptly procures record release or satisfaction thereof. The City agrees to
cooperate fully with the Company in connection with any and all administrative or judicial proceedings
related to any tax, assessment or other governmental charge. The Company shall save and hold harmless
the City and the Trustee from any costs and expenses the City and the Trustee may incur related to any of
the above.
(c) Nothing in this Lease shall be construed to require the Company to make duplicate tax
payments. The Company shall receive a credit against any PILOT Payments (as defined in the Performance
Agreement) to be made by the Company due under the Performance Agreement to the extent of any ad
valorem personal property taxes imposed with respect to the Project Equipment and paid by the Company
pursuant to this Section, except as otherwise provided in the Performance Agreement.
Section 6.3. Utilities. All utilities and utility services used by the Company in, on or about the
Project Site shall be paid for by the Company and shall be contracted for by the Company in the Company's
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own name (or the name(s) of its affiliates), and the Company shall, at its sole cost and expense, procure any
and all permits, licenses or authorizations necessary in connection therewith.
Section 6.4. Property Tax Exemption. The City and the Company expect that while the
Project Equipment is owned by the City and is subject to this Lease, the Project Equipment and the leasehold
interest of the Company in the Project Equipment is expected to be exempt from all ad valorem personal
property taxes by reason of such ownership, and the City agrees that it will (at the expense of the Company)
cooperate with the Company to defend such exemption against all parties in accordance with the
Performance Agreement attached hereto as Appendix I. The City and the Company further acknowledge
and agree that the City's obligations hereunder are contingent upon (a) the Company making the payments
required by this Lease and (b) the compliance by the Company with the terms of the Performance
Agreement to the extent of its obligations thereunder, if any, during the term of this Lease. The terms and
conditions of the Performance Agreement are incorporated herein as if fully set forth herein.
ARTICLE VII
INSURANCE
Section 7.1. Insurance Generally. The Company agrees to maintain the insurance required by
this Article VII. The Trustee shall have no obligation to purchase insurance if the Company fails to
maintain the insurance required by this Article VII.
Section 7.2. Property Insurance.
(a) The Company shall at its sole cost and expense obtain and shall maintain throughout the
Lease Term, a policy or policies of insurance to keep the Project Equipment constantly insured against loss
or damage by fire, lightning and all other risks covered by the extended coverage insurance endorsement
then in use in the State of Missouri in an amount equal to the Full Insurable Value thereof (subject to
reasonable loss deductible provisions). The insurance required pursuant to this Section shall be maintained
with a generally recognized responsible insurance company or companies authorized to do business in the
State of Missouri or generally recognized international insurers or reinsurers with an A.M. Best rating of
B+ or the equivalent thereof or better as may be selected by the Company. Except when the Company self -
insures in accordance with Section 7.5 herein, certificates of the insurance policies required under this
Section shall be delivered by the Company to the Trustee and the City, annually, commencing on the date
of execution of this Lease. All such policies of insurance pursuant to this Section, and all renewals thereof,
shall name the City, the Trustee and the Company as insureds, as their respective interests may appear, and,
to the extent reasonably attainable, 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 Company and the Trustee.
(b) In the event of loss or damage to the Project Equipment, the Net Proceeds of property
insurance carried pursuant to this Section shall be applied as provided in Article IX of this Lease, or as
may be directed by, or on behalf of, the Owners of 100% in principal amount of the Bonds Outstanding.
Section 7.3. Commercial General Liability Insurance.
(a) The Company shall at its sole cost and expense maintain or cause to be maintained at all
times during the Lease Term general accident and commercial general liability insurance under which the
City, the Company and the Trustee shall be named as additional insureds, properly protecting and
indemnifying the City and the Trustee, in an amount not less than $5,000,000 per occurrence (subject to
reasonable loss deductible clauses not to exceed the amounts normally or generally carried by the Company
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or its affiliates). 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 Company
and the Trustee. Except when the Company self -insures in accordance with Section 7.5 herein, certificates
of such policies shall be furnished to the Trustee annually commencing on the date of execution of this
Lease at the address shown in Section 1403 of the Indenture.
(b) In the event of a public liability occurrence, the Net Proceeds of liability insurance carried
pursuant to this Section shall be applied toward the extinguishment or satisfaction of the liability with
respect to which such proceeds have been paid.
Section 7.4. Workers' Compensation. The Company agrees throughout the Lease Term to
maintain or cause to be maintained the Workers' Compensation coverage as may be required by the laws
of the State of Missouri.
Section 7.5. Blanket Insurance Policies; Self -Insurance. The Company may satisfy any of
the insurance requirements set forth in this Article by using blanket policies of insurance, provided each
and all of the requirements and specifications of this Article respecting insurance are complied with.
Nothing in this Lease shall be construed from prohibiting the Company from self -insuring provided the
Company, or in combination with its parent corporation, has a net worth in excess of $200,000,000, as
determined by generally accepted accounting principles. If the Company self -insures as permitted by this
Section, the Company shall so notify the City and the Trustee in writing and shall be deemed to have
complied with the requirements of this Article.
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, as amended, 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 EQUIPMENT
Section 8.1. Additions, Modifications and Improvements to the Project Equipment. The
Company shall have and is hereby given the right, at its sole cost and expense, to make such additions,
modifications and improvements in and to any part of the Project Equipment as the Company from time to
time may deem necessary or desirable for its business purposes. All additions, modifications and
improvements made by the Company pursuant to the authority of this Section shall (a) be made in
workmanlike manner and will comply in all material respects with all laws and ordinances applicable
thereto, (b) when commenced, be prosecuted to completion with due diligence, and (c) when completed, be
deemed a part of the Project Equipment; provided, however, that additions of machinery and equipment
installed on the Project Site by the Company not purchased or acquired from funds deposited with the
Trustee hereunder and not constituting repairs, renewals or replacements of the Project Equipment shall
remain the property of the Company, shall not become part of the Project Equipment, and may be removed
by the Company. Such machinery, equipment or personal property shall be subject to ad valorem property
taxation.
Section 8.2. Removal and Replacement of Portions of the Project Equipment.
(a) The Company may, if no uncured Event of Default (as defined in Section 12.1 hereof)
exists and is continuing, remove from the Project Site and sell, exchange, replace or otherwise dispose of,
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without responsibility or accountability to the City or the Trustee with respect thereto, any items of
machinery and equipment, or parts thereof, which constitute a part of the Project Equipment and which
have become inadequate, obsolete, worn out, unsuitable, undesirable unnecessary or damaged or destroyed
by casualty or otherwise notwithstanding the provisions of Article IX hereof or which, in the sound
discretion of the Company, are otherwise no longer useful to the Company in its operations. Prior to any
such removal, the Company shall deliver to the City and the Trustee a certificate signed by an Authorized
Company Representative containing a complete description, including the make, model and serial numbers,
if any, of any machinery or equipment constituting a part of the Project Equipment that the Company
proposes to remove. The Trustee shall amend the list of machinery or equipment comprising the Project
Equipment maintained by it pursuant to Section 4.2 and Section 10.8 hereof upon receipt of such certificate.
Upon request by the Company, the City will execute and deliver a bill of sale that transfers full and complete
title to the Company of such portion of the Project Equipment removed. Notwithstanding anything
contained herein to the contrary, title to any item of the Project Equipment removed from the Project Site
shall automatically vest in the Company without further instrument or action, and such vesting of title shall
be self -operative effective upon removal. Upon any removal of portions of the Project Equipment, the
portions of the Project Equipment so removed from the Project Site shall no longer be entitled to the
personal property tax exemption afforded by virtue of the City's ownership thereof as set forth in the
Performance Agreement.
(b) In all cases, the Company shall pay all of the costs and expenses of any such removal and
shall promptly repair at its expense all damage to the Project Site or any Project Equipment remaining on
the Project Site caused thereby. The Company's rights under this Section to remove machinery and
equipment constituting a part of the Project Equipment is intended only to permit the Company to maintain
an efficient operation by the removal of machinery and equipment which is no longer suitable for any of
the reasons set forth in this Section, and such right is not to be construed to permit a removal under any
other circumstances and specifically is not to be construed to permit the Company to make a wholesale
removal of the Project Equipment.
Section 8.3. [Reserved].
Section 8.4. Permits and Authorizations. The Company shall not do or permit others under
its control to do any work on the Project Site related to any repair, rebuilding, restoration, replacement,
modification or addition to the Project Equipment, or any part thereof, unless all requisite municipal and
other governmental permits and authorizations shall have been first procured. All such work shall be done
in a good and workmanlike manner and in material compliance with all applicable building, zoning and
other laws, ordinances, governmental regulations. In the event of demonstrated noncompliance with such
laws, ordinances, governmental regulations and requirements the Company will take all reasonable steps to
comply with laws, ordinances, governmental regulations and requirements.
Section 8.5. Mechanics' Liens.
(a) The Company will not directly or indirectly create, incur, assume or suffer to exist any lien
on or with respect to the Project Equipment, except Permitted Encumbrances, and the Company shall
promptly notify the City of the imposition of such lien of which the Company is aware and shall promptly,
at its own expense, take such action as may be necessary to fully discharge or release any such lien.
Whenever and as often as any mechanics', vendors' or other similar lien is filed against the Project
Equipment, 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 Site, the Company shall discharge the same
of record. Notice is hereby given that the City shall not be liable for any labor or materials furnished the
Company or anyone claiming by, through or under the Company upon credit, and that no mechanics',
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vendors' 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 Equipment or any part thereof.
(b) Notwithstanding subsection (a) above, the Company may contest any such mechanics',
vendors' or other similar lien if the Company (1) within 60 days notifies the City and the Trustee in writing
of its intention to do so, (2) diligently prosecutes such contest, (3) at all times effectively stays or prevents
any official or judicial sale of the Project Equipment, or any part thereof or interest therein, under execution
or otherwise, (4) promptly pays or otherwise satisfies any final judgment adjudging or enforcing such
contested lien claim and (5) thereafter promptly procures record release or satisfaction thereof. The
Company may permit the lien so contested to remain unpaid during the period of such contest and any
appeal therefrom unless the Company is notified by the City that, in the opinion of counsel, by nonpayment
of any such items, the interest of the City in the Project Equipment will be subject to loss or forfeiture. In
that event, the Company shall promptly, at its own expense, take such action as may be necessary to duly
discharge or remove any such mortgage, pledge, lien, charge, encumbrance or claim if the same shall arise
at any time. The Company shall defend, save and hold harmless the City from any loss, costs or expenses
the City may incur related to any such contest. The Company shall reimburse the City for any expense
incurred by it in connection with the imposition of any such lien or in order to discharge or remove any
such mortgage, pledge, lien, charge, encumbrance or claim. The City shall cooperate fully with the
Company in any such contest.
ARTICLE IX
DAMAGE, DESTRUCTION AND CONDEMNATION
Section 9.1. Damage or Destruction.
(a) If the Project Equipment is damaged or destroyed by fire or any other casualty, whether or
not covered by insurance, the Company, as promptly as practicable, may elect to do any of the following:
(1) repair, restore, replace or improve the Project Equipment as nearly as may be
practicable to the condition and character of the Project Equipment immediately prior to such
damage or destruction, with the completion of such repairs, restoration, replacement or improving
of such Project Equipment being evidenced by certificate of completion in accordance with the
provisions of Section 4.5 hereof; or
(2) if the Company shall determine that repairing, restoring, replacing or improving
the Project Equipment or any portion thereof is not practicable and desirable, any Net Proceeds of
property insurance required by Article VII hereof received with respect to such damage or loss
shall, after payment of all Additional Rent then due and payable, be paid into the Bond Fund and
shall be used to redeem Bonds on the earliest practicable redemption date or to pay the principal of
any Bonds as the same become due. Alternatively, if the Company is the sole owner of the Bonds
and it has determined that repairing, restoring, replacing or rebuilding the Project Equipment is not
practicable or desirable, it may tender the Bonds to the Trustee for cancellation in a principal
amount equal to the Net Proceeds of the property insurance and retain such Net Proceeds for its
own account.
(b) If the Company shall elect to replace, restore or repair any Project Equipment, for all
purposes of this Lease, any reference to the word "Project Equipment" shall be deemed to also include
any such new equipment and all additions thereto and all replacements and alterations thereof.
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(c) The Net Proceeds of property insurance required by Article VII hereof received with
respect to any damage or loss to the Project Equipment shall be paid to the Company. The insurance
monies, if any, paid to the Company as provided under this Article, on account of any loss or destruction
to the Project Equipment, shall be held by it in trust and applied only as provided in subsection (a) above.
(d) If any of the insurance monies paid by the insurance company to the Company as
hereinabove provided, shall remain after the completion of such repairs, restoration or replacement, and
this Lease has not been terminated, the excess shall be deposited in the Bond Fund. If the Net Proceeds
shall be insufficient to pay the entire cost of such repairs, restoration or replacement, the Company shall
pay the deficiency.
(e) In the event of any such damage by fire or any other casualty, the provisions of this Lease
shall be unaffected, and the Company shall remain and continue liable for the payment of all Basic Rent
and Additional Rent and all other charges required hereunder to be paid by the Company, as though no
damage by fire or any other casualty has occurred.
(f) The City and the Company agree that they will cooperate with each other, to such extent
as such other party may reasonably require, in connection with the prosecution or defense of any action or
proceeding arising out of, or for the collection of any insurance monies that may be due in the event of, any
loss or damage, and that they will execute and deliver to such other parties such instruments as may be
required to facilitate the recovery of any insurance monies.
(g) The Company agrees to give prompt written notice to the City and the Trustee with respect
to all fires and any other casualties occurring in, on, at or about the Project Site which damage a material
portion of the Project Equipment.
(h) The Company shall not, by reason of its inability to use all or any part of the Project
Equipment during any period in which the Project Equipment is damaged or destroyed or is being repaired,
rebuilt, restored or replaced, nor by reason of the payment of the costs of such rebuilding, repairing,
restoring or replacing, be entitled to any reimbursement from the City, the Trustee or the Bondowners or to
any abatement or diminution of the rentals payable by the Company under this Lease or of any other
obligations of the Company under this Lease except as expressly provided in this Section.
Section 9.2. Condemnation.
(a) If during the Lease Term, title to, or the temporary use of, all or any part of the Project
Equipment 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
$1,000,000, the Company shall, within 90 days after the date of entry of a final order in any eminent domain
proceedings granting condemnation or the date of sale under threat of condemnation, notify the City and
the Trustee in writing as to the nature and extent of such condemnation or loss of title and whether it is
practicable and desirable to acquire substitute equipment.
(b) If the Company determines that such substitution is practicable and desirable, the Company
shall proceed promptly with and complete with reasonable dispatch the acquisition and installation of such
substitute equipment, so as to place the Project Equipment in substantially the same condition as existed
prior to the exercise of the said power of eminent domain, including the acquisition of other equipment
suitable for the Company's operations (which equipment will be deemed a part of the Project Equipment
and available for use by the Company without the payment of any rent other than herein provided, to the
same extent as if such other equipment were specifically described herein and demised hereby); provided,
that such equipment will be acquired by the City subject to no liens, security interests or encumbrances
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prior to the lien and/or security interest afforded by the Indenture and this Lease other than Permitted
Encumbrances. In such case, any Net Proceeds received from any award or awards with respect to the
Project Equipment or any part thereof made in such condemnation or eminent domain proceedings, or of
the sale proceeds, shall be applied in the same manner as provided in Section 9.1 hereof (with respect to
the receipt of property insurance proceeds).
(c) If the Company determines that it is not practicable or desirable to acquire replacement
equipment, any Net Proceeds of condemnation awards received by the Company shall, after payment of all
Additional Rent then due and payable, be paid into the Bond Fund and shall be used to redeem Bonds on
the earliest practicable redemption date or to pay the principal of any Bonds as the same becomes due and
payable, all subject to the rights of the mortgagee under any Leasehold Security Agreement and any
Equipment Lender under any Equipment Financing Documents.
(d) The Company shall not, by reason of its inability to use all or any part of the Project
Equipment during any such period of restoration or acquisition nor by reason of the payment of the costs
of such restoration or acquisition, be entitled to any reimbursement from the City, the Trustee or the
Bondowners or to any abatement or diminution of the rentals payable by the Company under this Lease nor
of any other obligations hereunder except as expressly provided in this Section.
(e) The City shall cooperate fully with the Company in the handling and conduct of any
prospective or pending condemnation proceedings with respect to the Project Equipment or any part thereof,
and shall, to the extent it may lawfully do so, permit the Company to litigate in any such proceeding in the
name and on behalf of the City. In no event will the City voluntarily settle or consent to the settlement of
any prospective or pending condemnation proceedings with respect to the Project Equipment or any part
thereof without the prior written consent of the Company.
Section 9.3. Bondowner Approval. Notwithstanding anything to the contrary contained in
this Article IX, the proceeds of any insurance received subsequent to a casualty or of any condemnation
proceedings (or threats thereof) may prior to the application thereof by the City or the Trustee be applied
as directed in writing by the Owners 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 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
Performance Agreement. For purposes of this Section only, any person to whom Bonds have been pledged
in good faith shall be deemed to be the Owner of the Bonds.
ARTICLE X
SPECIAL COVENANTS
Section 10.1. No Warranty of Condition or Suitability by the City; Exculpation and
Indemnification. The City makes no warranty, either express or implied, as to the condition of the Project
Equipment or that it will be suitable for the Company's purposes or needs. The Company releases the City
and the Trustee from, agrees that the City 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 Equipment or the Company's
use thereof; unless such loss is the result of the City's or the Trustee's respective gross 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 repossession of the
Project Equipment because of the Company's default hereunder or upon the cancellation or termination of
this Lease for any reason other than the Company's purchase of the Project Equipment pursuant to Article
XI hereof, the Company shall peacefully surrender possession of the Project Equipment to the City in good
condition and repair, ordinary wear and tear excepted. All repairs to and restorations of the facilities,
buildings, structures or other property containing the Project Equipment required to be made because of
such removal shall be made by and at the sole cost and expense of the Company.
Section 10.3. City's Right of Access to the Project Equipment. The Company agrees that the
City and the Trustee, and their duly authorized agents, shall have the right at reasonable times during
business hours, subject to 48 hours' advance written notice and the Company's usual safety and security
requirements, to enter upon the Project Site (a) to examine and inspect the Project Equipment without
interference or prejudice to the Company's operations, (b) as may be reasonably necessary to cause to be
completed the purchase and installation provided for in Section 4.2 hereof, (c) performing such work in
and about the Project Site made necessary by reason of the Company's default under any of the provisions
of this Lease, and (d) exhibiting the Project Equipment to prospective purchasers, lessees or trustees. The
Company shall have the right to have representatives present during any such examination or inspection,
including legal counsel.
Section 10.4. Permitted Encumbrances; Equipment Financing Documents.
(a) If no Event of Default under this Lease shall have happened and be continuing, the
Company may at any time or times incur Permitted Encumbrances.
(b) The Company may request the City to (i) pledge, assign or otherwise hypothecate all or a
portion of its interest in and to the Project Equipment in connection with any Equipment Financing, and/or
(ii) acknowledge any Equipment Financing and the rights and remedies of any Equipment Lender
thereunder. Subject to the terms and conditions of this Section, the City promptly will execute and deliver
or authorize the filing of, at the Company's request and expense, all Equipment Financing Documents. The
City and the Trustee will not be liable for any of the indebtedness evidencing the Equipment Financing or
for any other obligations of the Company, as borrower under the Equipment Financing Documents in the
Company's own name or as the authorized agent for the City even if such agency relationship is not
specified. No separate signature or authorization from the City will be required for the execution and
delivery of any Equipment Financing Documents. Each Equipment Lender will be entitled to rely upon the
Equipment Financing Documents as having been executed by the Company as the agent for the City unless
the Equipment Lender has actual notice that the agency granted in this Lease has been terminated because
of an uncured Event of Default under this Lease. The City appoints the Company as its irrevocable attorney -
in -fact, coupled with an interest, to execute and deliver on behalf of the City each Equipment Financing
Document, subject to the limitations of liability set forth above.
(c) In the event of an Equipment Financing by which all or a portion of the Project Equipment
is pledged as collateral under the Equipment Financing Documents, each of the following provisions will
apply in addition to, but not excluding, provisions of the Equipment Financing Documents:
(1) This Lease may not be modified, amended, canceled or surrendered by agreement
between the City and the Company, without the prior written consent of each Equipment Lender
of which the City and the Trustee have received written notice.
(2) There will be no merger of title between the leasehold estate created by this Lease
and the ownership interest of the City in the Project Equipment, notwithstanding that this Lease or
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the leasehold estate and ownership interest will be owned by the same person or persons, without
the prior written consent of each Equipment Lender.
(3) If the mailing address of the Equipment Lender is provided to the City and the
Trustee in writing, the City will send each Equipment Lender a copy of each notice of default and
each notice of termination given to the Company under this Lease, at the same time such notice is
sent to the Company. No notice to the Company will be effective unless a copy thereof is served
upon each Equipment Lender of which the City and the Trustee has received written notice.
(4) Each Equipment Lender will have the same time period after receipt of notice
within which to remedy or cause to be remedied any payment default under this Lease plus thirty
(30) days, and the City will accept performance by the Equipment Lender as timely performance
by the Company.
(5) The Equipment Lender will not be required to continue possession or continue
legal proceedings under this Section if the particular default has been cured.
(6) The City may exercise any of its rights or remedies with respect to any other default
by the Company, subject to the rights of the Equipment Lender under this Section as to such other
defaults.
(7) In case of default by the Company under this Lease or the Performance Agreement,
other than a default in the payment of money, the City will take no action to effect a termination of
this Lease or the Performance Agreement by service of a notice or otherwise without first giving
notice to the Equipment Lender and allowing the Equipment Lender a reasonable time within which
either to (i) obtain possession of the Project Equipment and to remedy such default, or (ii) institute
and, with reasonable diligence, complete legal proceedings or otherwise acquire the Company's
leasehold estate under this Lease. The City's right to terminate this Lease and the Performance
Agreement by reason of a default that is not susceptible of being remedied by the Equipment Lender
will end with respect to such default when the Equipment Lender obtains possession of the Project
Equipment or portion thereof financed by an Equipment Financing. The Equipment Lender will
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.
(8) If this Lease terminates prior to the expiration of the Lease Term, the City will
enter into a new lease for the Project Equipment with the Equipment Lender for the remainder of
the term, effective as of the date of such termination, at the same rent and upon the same terms,
covenants and conditions contained herein, except that such new lease shall not guarantee
possession of the Project Equipment to the Equipment Lender as against the Company and/or
anyone claiming under the Company, and the City, simultaneously with the execution and delivery
of such new lease, turns over to the new lessee all monies, if any, then held by the City under the
Lease on behalf of the Company, on condition that:
(i) the Equipment Lender will make written request for such new lease within
thirty (30) days after the date of such termination, and
(ii) on the commencement date of the term of the new lease, the new tenant
cures all defaults of the Company under this Lease (susceptible of being cured by the
Equipment Lender) which remain uncured on that date, and pays or causes to be paid all
unpaid sums which at such time would have been payable under this Lease but for such
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termination, and pays or causes to be paid to the City and the Trustee on that date all
expenses, including reasonable counsel fees, court costs and disbursements, incurred by
the City and the Trustee in connection with any such default and termination as well as in
connection with the execution and delivery of such new lease.
If more than one Equipment Lender requests a new lease, a new lease will be made with and
delivered to the Equipment Lender whose security interest is prior in lien to those of any other
Equipment Lender.
(9) If the Equipment Lender becomes the lessee under this Lease and the Equipment
Lender assigns this Lease, the Equipment Lender assigning this Lease shall be released from all
liability accruing from and after the date of such assignment with the express written consent of the
City.
(d) In the event the City or the Trustee engages counsel to review Equipment Financing
Documents in connection with any request for the City to execute any Equipment Financing Documents or
otherwise pledge the Project Equipment as collateral, the Company will reimburse the City and the Trustee
for their reasonable counsel fees and expenses incurred in connection with such review.
Section 10.5. Indemnification of City and Trustee.
(a) The Company shall indemnify and save and hold harmless the City and the Trustee and
their governing body members, officers, agents and employees (collectively, the "Indemnified Parties")
from and against all claims, demands, costs, liabilities, damages or expenses, including reasonable
attorneys' fees, by or on behalf of any Person, firm or corporation arising from the issuance of the Bonds
and the execution of the Performance Agreement, this Lease (or any instrument requested by the Company
pursuant to Section 10.4 hereof), the Indenture or any other documents entered into in connection with the
Bonds and from the conduct or management of, or from any work or thing done in or on the Project Site or
relating to the Project Equipment during the Lease Term, and against and from all claims, demands, costs,
liabilities, damages or expenses, including reasonable attorneys' fees, arising during the Lease Term from
(1) any condition of the Project Equipment, (2) any breach or default on the part of the Company in the
performance of any of its obligations under the Performance Agreement, this Lease or any related
document, (3) any contract entered into by the Company in connection with the purchase and installation
of the Project Equipment (including any mechanics' liens), (4) any act of negligence of the Company or of
any of its agents, contractors, servants, employees or licensees, (5) unless the Company has been released
from liability pursuant to Section 13.1 hereof, any act of negligence of any assignee or sublessee of the
Company, or of any agents, contractors, servants, employees or licensees of any assignee or sublessee of
the Company, (6) obtaining any applicable state and local sales and use tax exemptions for materials or
goods that become part of the Project Equipment, (7) any violation of Section 107.170 of the Revised
Statutes of Missouri, as amended, and (8) any claim relating to the presence on, escape or removal from the
Project Site or the Project Equipment during the term of the Lease of any hazardous substance or other
material regulated by any applicable Environmental Law, or compliance with any applicable Environmental
Law, whether such claim arises before, during or after the term of this Lease, including claims relating to
personal injury or damage to property; provided, however, the indemnification contained in this Section
10.5 shall not (i) extend to the City if such claims, demands, costs, liabilities, damages or expenses,
including attorneys' fees, are the result of work being performed at the Project Site by employees of the
City or the result of gross negligence or willful misconduct by the City, or (ii) extend to the Trustee if such
claims, demands, costs, liabilities, damages or expenses, including attorneys' fees, are the result of the gross
negligence or willful misconduct of the Trustee or (iii) extend to the City if such claims, demands, costs,
liabilities, damages or expenses, including attorneys' fees, are the result of the performance or failure to
perform by the City of its obligations under the Performance Agreement. Upon notice from the City or the
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Trustee, the Company shall defend them or either of them in any such action or proceeding. This
Section 10.5 shall survive any termination of this Lease and the Performance Agreement or the satisfaction
and discharge of the Indenture.
(b) In case any action shall be brought against one or more of the Indemnified Parties based
upon the foregoing indemnification and in respect of which indemnity may be sought against the Company,
the Indemnified Parties shall promptly notify the Company in writing and the Company shall promptly
assume the defense thereof, including the employment of counsel, the payment of all reasonable expenses
and the right to negotiate and consent to settlement. If the Company shall have wrongfully failed to assume
the defense of such action, the reasonable fees and expenses of counsel retained by the Indemnified Party
shall be paid by the Company. If any of the Indemnified Parties is advised by counsel retained by the
Company to defend such action that there may be legal defenses available to it which are adverse to or in
conflict with those available to the Company or any other Indemnified Party, and that the defense of such
Indemnified Party should be handled by separate counsel, the Company shall not have the right to assume
the defense of such Indemnified Party, but shall be responsible for the reasonable fees and expenses of
counsel retained by such Indemnified Party in assuming its own defense, provided, such counsel shall be
acceptable to the Company. Any one or more of the Indemnified Parties shall have the right to employ
separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Party or Indemnified Parties unless employment
of such counsel has been specifically authorized by the Company in writing, which shall not be
unreasonably withheld or delayed. The Company shall not be liable for any settlement of any such action
effected without its prior written consent by any of the Indemnified Parties, but if settled with the prior
written consent of the Company or if there be a final judgment for the plaintiff in any such action against
the Company or any of the Indemnified Parties, with or without the consent of the Company, the Company
agrees to indemnify and hold harmless the Indemnified Parties to the extent provided herein.
Section 10.6. Depreciation, Investment Tax Credit and Other Tax Benefits. The City agrees
that any depreciation, investment tax credit or any other tax benefits with respect to the Project Equipment
or any part thereof shall be made available to the Company, and the City will fully cooperate with the
Company in any effort by the Company to avail itself of any such depreciation, investment tax credit or
other tax benefits; provided, however, that the City shall not be required to incur any out-of-pocket expense
in connection therewith.
Section 10.7. Company to Maintain its Corporate Existence. The Company agrees that until
the Bonds are paid or payment is provided for in accordance with the terms of the Indenture, it will maintain
its corporate existence, and will not dissolve or otherwise dispose of all or substantially all of its assets;
provided, however, that the Company may, without violating the agreement contained in this Section,
consolidate with or merge into another domestic corporation (i.e., a corporation incorporated and existing
under the laws of one of the states of the United States) or permit one or more other domestic corporations
to consolidate with or merge into it, or may sell or otherwise transfer to another domestic corporation all or
substantially all of its assets as an entirety and thereafter dissolve, provided, the surviving, resulting or
transferee corporation either (a) becomes, in connection with the consolidation, merger or sale of assets
becomes the Owner of 100% in principal amount of the Bonds Outstanding and expressly assumes in
writing all of the obligations of the Company contained in this Lease and the Performance Agreement, or
(b) if not the Owner of 100% in principal amount of the Bonds Outstanding, expressly assumes in writing
all the obligations of the Company contained in this Lease; and, further provided, that if not the Owner of
100% in principal amount of the Bonds Outstanding, the surviving, resulting or transferee corporation, as
the case may be, has a consolidated net worth (after giving effect to said consolidation, merger or transfer)
at least (1) equal to or greater than that of the Company immediately prior to said consolidation, merger or
transfer, or (2) $100,000,000. The term "net worth", as used in this Section, shall mean the difference
obtained by subtracting total liabilities (not including as a liability any capital or surplus item) from total
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assets of the Company and all of its subsidiaries. In any such consolidation, merger or transfer the Company
shall comply with the provisions of Section 10.1 hereof to the extent applicable.
Section 10.8. Security Interests. At the written request of the Owner of the Bonds, the City and
the Company agree to enter into all instruments (including financing statements and statements of
continuation) necessary for perfection of and continuance of the perfection of the security interests of the
City and the Trustee in the Project Equipment and the rights of the Trustee under the Indenture. The Trustee
shall, pursuant to Section 805 of the Indenture, continue or cause to be continued the liens of such
instruments for so long as the Bonds shall be Outstanding. The City and the Company shall cooperate with
the Trustee in this regard by executing such continuation statements and providing such information as the
Trustee may require to file or to renew such statements and liens. The Trustee shall maintain a file showing
a description of all Project Equipment, said file to be compiled from the certificates furnished to the Trustee
pursuant to Sections 4.2, 4.4 and 8.2 hereof.
ARTICLE XI
OPTION AND OBLIGATION TO PURCHASE THE PROJECT EQUIPMENT
Section 11.1. Option to Purchase the Project Equipment. The Company shall have, and is
hereby granted, the option to purchase all or any portion of the Project Equipment at any time, including
after an Event of Default, 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. In
addition, the Company shall exercise such option in accordance with the Performance Agreement. To
exercise such option, the Company shall give written notice to the City and to the Trustee, and shall specify
therein the date of closing 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 Company 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
Company 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 Company; provided said
Remedies Notice has not been rescinded by such date (such option to take place on the 29th day following
the issuance of the Remedies Notice). The Company may rescind such exercise by providing written notice
to the City and the Trustee on or prior to the 29t' 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 Company in
the event of its exercise of the option granted in this Section shall be the sum of the following:
(a) an amount of money which, when added to the amount then on deposit in the Bond
Fund, will be sufficient to redeem all 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
(b) an amount of money equal to the Trustee's agreed to and reasonable fees, charges
and expenses under the Indenture accrued and to accrue until such redemption of the Bonds; plus
(c) an amount of money equal to all payments due and payable pursuant to the
Performance Agreement through the end of the calendar year in which the date of purchase occurs;
plus
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(d) an amount of money equal to the City's reasonable charges and expenses
incurred in connection with the Company exercising its option to purchase all or a portion of the
Project Equipment, including the fees of any attorney(s) the City engages in connection with the
exercise of such option; plus
(e) the sum of $10.00.
At its option, to be exercised at least 5 days prior to the date of closing such purchase, the Company
may deliver to the Trustee for cancellation Bonds not previously paid, and the Company shall receive a
credit against the purchase price payable by the Company in an amount equal to 100% of the principal
amount of the Bonds so delivered for cancellation, plus the accrued interest thereon.
Section 11.2. Conveyance of the Project Equipment. At the closing of the purchase of the
Project Equipment pursuant to this Article XI, the City will upon receipt of the purchase price deliver to
the Company the following:
(a) If the Indenture shall not at the time have been satisfied in full, a release from the
Trustee of the Project Equipment from the lien and/or security interest of the Indenture and this
Lease and appropriate termination of financing statements as required under the Uniform
Commercial Code; and
(b) Documents, including without limitation a bill of sale, conveying to the Company
legal title to the Project Equipment, as it then exists, subject to the following: (1) those liens and
encumbrances, if any, to which title to the Project Equipment was subject when conveyed to the
City; (2) those liens and encumbrances created by the Company or to the creation or suffering of
which the Company consented; (3) those liens and encumbrances resulting from the failure of the
Company to perform or observe any of the agreements on its part contained in this Lease; (4)
Permitted Encumbrances other than the Indenture and this Lease; and (5) if the Project Equipment
or any part thereof is being condemned, the rights and title of any condemning authority.
Section 11.3. Relative Position of Option and Indenture. The options and obligation to
purchase the Project Equipment granted to the Company in this Article shall be and remain prior and
superior to the Indenture and may be exercised whether or not the Company is in default under this Lease,
provided that such default will not result in nonfulfillment of any condition to the exercise of any such
option and further provided that all options herein granted shall terminate upon the termination of this
Lease.
Section 11.4. Obligation to Purchase the Project Equipment. The Company hereby agrees to
purchase, and the City hereby agrees to sell, the Project Equipment upon the occurrence of (a) the expiration
of the Lease Term following full payment of the Bonds or provision for payment thereof having been made
in accordance with the provisions of the Indenture, and (b) the final payment due by the Company under
the Performance Agreement. The amount of the purchase price under this Section shall be $10.00, plus all
payments due and payable pursuant to the Performance Agreement through the end of the calendar year in
which the date of purchase occurs, plus an amount sufficient to redeem all the then Outstanding Bonds,
plus accrued interest and the reasonable fees and expenses of the City and the Trustee.
Section 11.5. Right of Set -Off. At its option, to be exercised at least 5 days before the date of
closing such purchase, the Company may deliver to the Trustee for cancellation Bonds not previously paid,
and the Company shall receive a credit against the purchase price payable by the Company in an amount
equal to 100% of the principal amount of the Bonds so delivered for cancellation, plus the accrued interest
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thereon. The Company may set-off any payment obligation under this Article 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 shall occur and be
continuing, it is hereby defined as and declared to be and to constitute an "Event of Default" or "default"
under this Lease:
(a) Default in the due and punctual payment of Basic Rent for a period of 10 days
following written notice to the Company by the City or the Trustee (provided that such notice shall
not be required to be given more than twice in any 12-month period); or
(b) Default in the due and punctual payment of Additional Rent for a period of 30 days
following written notice to the Company by the City or the Trustee; or
(c) Default in the due observance or performance of any other covenant, agreement,
obligation or provision of this Lease on the Company's part to be observed or performed, and such
default shall continue for 30 days after the City or the Trustee has given the Company written notice
specifying such default (or such longer period as shall be reasonably required to cure such default;
provided that (1) the Company has commenced such cure within said 30-day period, and (2) the
Company diligently prosecutes such cure to completion); or
(d) The Company: (1) admits in writing its inability to pay its debts as they become
due; or (2) files a petition in bankruptcy or for reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under the United States Bankruptcy Code as
now or in the future amended or any other similar present or future federal or state statute or
regulation, or files a pleading asking for such relief; or (3) makes an assignment for the benefit of
creditors; or (4) consents to the appointment of a trustee, receiver or liquidator for all or a major
portion of its property or fails to have the appointment of any trustee, receiver or liquidator made
without the Company's consent or acquiescence, vacated or set aside; or (5) is finally adjudicated
as bankrupt or insolvent under any federal or state law; or (6) is subject to any proceeding, or suffers
the entry of a final and non -appealable court order, under any federal or state law appointing a
trustee, receiver or liquidator for all or a major part of its property or ordering the winding -up or
liquidation of its affairs, or approving a petition filed against it under the Bankruptcy Code, as now
or in the future amended, which order or proceeding, if not consented to by it, is not dismissed,
vacated, denied, set aside or stayed within 90 days after the day of entry or commencement; or (7)
suffers a writ or warrant of attachment or any similar process to be issued by any court against all
or any substantial portion of its property, and such writ or warrant of attachment or any similar
process is not contested, stayed, or is not released within 60 days after the final entry, or levy or
after any contest is finally adjudicated or any stay is vacated or set aside; or
(e) The Company vacates, abandons, ceases operations, fails to occupy or is ejected
from the Project Site or any material portion thereof, and the same remains uncared for or
abandoned for a period of 90 days; or
(f) The occurrence and continuance of an "Event of Default" by the Company under
the Performance Agreement following any applicable notice and grace period provided therein.
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Section 12.2. Remedies on Default. If any Event of Default referred to in Section 12.1 hereof
has occurred and continues beyond the period provided to cure, then the City may at the City's election
(subject, however, to any restrictions against acceleration of the maturity of the Bonds or termination of
this Lease in the Indenture), then or at any time thereafter, and while such default continues, take any one
or more of the following actions, subject, however, at all times to the Company's rights under Article XI:
(a) cause all amounts payable with respect to the Bonds for the remainder of the Lease
Term to become due and payable after giving ten (10) days prior written notice thereof to the
Company, as provided in the Indenture; or
(b) give the Company written notice of intention to terminate this Lease on a date
specified therein, which date shall not be earlier than 30 days after such notice is given, and if all
defaults have not then been cured, on the date so specified, the Owners shall tender or be deemed
to have tendered the Outstanding principal amount of the Bonds for cancellation with instruction
that such tender is in lieu of payment in accordance with Section 11.1 hereof, the Company's rights
to possession of the Project Equipment shall cease and this Lease shall thereupon be terminated,
and the City may re-enter and take possession of the Project Equipment or, if the Company has
paid all obligations due and owing under the Indenture, this Lease and the Performance Agreement,
the City shall convey the Project Equipment in accordance with Section 11.2 hereof.
Section 12.3. Survival of Obligations. The Company covenants and agrees with the City and
Owners that those of its obligations under this Lease which by their nature require performance after the
end of the Lease Term, or which are expressly stated herein as intended to survive expiration or termination
of this Lease, shall survive the cancellation and termination of this Lease, for any cause.
Section 12.4. Performance of the Company's Obligations by the City. 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 Company's part for 30 days after written notice of such failure is given
the Company by the City or the Trustee, and without waiving or releasing the Company from any obligation
hereunder, as an additional but not exclusive remedy, make any such payment or perform any such
obligation, and all reasonable sums so paid by the City or the Trustee and all incidental reasonable costs
and expenses incurred by the City or the Trustee (including, without limitation, attorneys' fees and
expenses) in performing such obligations shall be deemed Additional Rent and shall be paid to the City or
the Trustee on demand, and if not so paid by the Company, the City or the Trustee shall have the same
rights and remedies provided for in Section 12.2 hereof in the case of default by the Company in the
payment of Basic Rent.
Section 12.5. Rights and Remedies Cumulative. The rights and remedies reserved by the
Trustee, the City and the Company hereunder 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 Trustee, the City and the Company shall each be entitled to specific
performance and injunctive or other equitable relief for any breach or threatened breach of any of the
provisions of this Lease, notwithstanding 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 Company's option to re -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) above.
Section 12.6. Waiver of Breach. No waiver of any breach of any covenant or agreement herein
contained shall operate as a waiver of any subsequent breach of the same covenant or agreement or as a
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waiver of any breach of any other covenant or agreement, and in case of a breach by the Company of any
covenant, agreement or undertaking by the Company, the Trustee or the City may nevertheless accept from
the Company any payment or payments hereunder without in any way waiving the Trustee's or the City's
rights to exercise any of their respective rights and remedies provided for herein with respect to any such
breach or breaches of the Company which were in existence at the time such payment or payments were
accepted by the Trustee or the City.
Section 12.7. Trustee's Exercise of the City's Remedies. Whenever any Event of Default shall
have occurred and 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 Company and its successors and assigns may assign, transfer, encumber or dispose of
this Lease or any interest herein or part hereof for any lawful purpose under the Act, with the prior written
consent of the City not to be unreasonably withheld or delayed. Any assignee of all the rights of the
Company under this Lease shall agree to be bound by the terms of this Lease, the Performance Agreement
and any other documents related to the issuance of the Bonds as the same set forth duties, obligations and
requirements of the Company.
(b) With respect to any assignment, the Company shall comply with the following conditions:
(1) Such assignment shall be in writing, duly executed and acknowledged by the
assignor and in proper form for recording;
(2) Such assignment shall include the entire then unexpired term of this Lease; and
(3) A duplicate original of such assignment shall be delivered to the City and the
Trustee within 10 days after the execution thereof, together with an assumption agreement, duly
executed and acknowledged by the assignee in proper form for recording, by which the assignee
shall assume all of the terms, covenants and conditions of this Lease on the part of the Company to
be performed and observed.
Upon the satisfaction of the conditions set forth herein, the Company shall be relieved of all further
liability occurring on and after the effective date of such assignment. The consent of the City to any
assignment, transfer or disposition described in this section for which the City's consent is expressly required
shall not be unreasonably withheld, delayed or conditioned and the City hereby agrees to take the necessary
action (including consideration by the City Council, if necessary) to approve or disapprove of such
assignment, transfer or disposition within sixty (60) days after receipt of written notice from the Company.
The Company shall pay all costs incurred by the City in the ordinary course of business (including attorney's
fees) as a result of such assignment.
(c) No sublease of the Project Equipment shall release or discharge the Company from its
primary liability for the payment of the Basic Rent and Additional Rent hereunder and the performance of
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each and all of the covenants and agreements herein contained, and its duties and obligations under this
Lease shall continue as if no such sublease had been made. The Company shall, within ten (10) days after
the delivery thereof, furnish or cause to be furnished to the City and the Trustee a true and correct copy of
each such sublease. Any sublease may provide, at the Company's option, that the City's consent shall not
be required in respect of any further subletting thereunder if such further subletting is for a similar purpose
as the original sublease and is for a purpose permissible under the Act nor with regard to any assignment
of such further sublease by a sublessee if the assignment is to (i) any wholly -owned subsidiary or to any
parent corporation of the sublessee; or (ii) any affiliate or entity under common control with a parent or
subsidiary of the sublessee; or (iii) any entity which acquires all or substantially all of the assets or stock of
the sublessee, by merger, consolidation, acquisition or other business reorganization.
Section 13.2. Assignment of Revenues by City. The City shall assign and pledge any rents,
revenues and receipts receivable under this Lease, to the Trustee pursuant to the Indenture as security for
payment of the principal of, interest and premium, if any, on the Bonds and the Company hereby consents
to such pledge and assignment. The City and the Company recognize that the Trustee is a third party
creditor -beneficiary of this Lease.
Section 13.3. Restrictions on Sale or Encumbrance of Project Equipment by City. During
the Lease Term, the City agrees that, except to secure the Bonds to be issued pursuant to the Indenture, it
will not sell, assign, encumber, transfer or convey the Project Equipment or any interest therein, but may
assign its interest in and pledge any moneys receivable under this Lease to the Trustee pursuant to the
Indenture as security for payment of the principal of and interest on the Bonds.
ARTICLE XIV
AMENDMENTS, CHANGES AND MODIFICATIONS
Section 14.1. Amendments, Changes and Modifications. Except as otherwise provided in this
Lease or in the Indenture, subsequent to the issuance of Bonds and prior to the payment in full of the Bonds
(or provision for the payment thereof having been made in accordance with the provisions of the Indenture),
this Lease may not be effectively amended, changed, modified, altered or terminated without the prior
written consent of (a) the Trustee, given in accordance with the provisions of the Indenture, (b) the
Company, and (c) all of the Owners (in the event the Company is not the sole Owner).
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.1. Notices. All notices, certificates or other communications required or desired to
be given hereunder shall be in writing and shall be governed by Section 1403 of the Indenture.
Section 15.2. City Shall Not Unreasonably Withhold Consents and Approvals. Wherever in
this Lease it is provided that the City shall, may or must give its approval or consent, or execute
supplemental agreements or schedules, the City shall not unreasonably, arbitrarily or unnecessarily
withhold or refuse to give such approvals or consents or refuse to execute such supplemental agreements
or schedules; provided, however, that nothing in this Lease shall be interpreted to affect the City's rights to
approve or deny any additional project or matter unrelated to the Project Equipment subject to zoning,
building permit or other regulatory approvals by the City.
so
Section 15.3. Net Lease. The parties hereto agree (a) that this Lease shall be deemed and
construed to be a net lease, (b) that the payments of Basic Rent are designed to provide the City and the
Trustee funds adequate in amount to pay all principal of and interest accruing on the Bonds as the same
become due and payable, (c) that to the extent that the payments of Basic Rent are not sufficient to provide
the City and the Trustee with funds sufficient for the purposes aforesaid, the Company shall be obligated
to pay, and it does hereby covenant and agree to pay, upon demand therefor, as Additional Rent, such
further sums of money, in cash, as may from time to time be required for such purposes, and (d) that if after
the principal of and interest on the Bonds and all costs incident to the payment of the Bonds (including the
reasonable fees and expenses of the City and the Trustee) have been paid in full the Trustee or the City
holds unexpended funds received in accordance with the terms hereof such unexpended funds shall, after
payment therefrom of all sums then due and owing by the Company under the terms of this Lease, and
except as otherwise provided in this Lease and the Indenture, become the absolute property of and be paid
over forthwith to the Company.
Section 15.4. Limitation on Liability of City. No provision, covenant or agreement contained
in this Lease, the Indenture or the Bonds, or any obligation herein or therein imposed upon the City, or the
breach thereof, shall constitute or give rise to or impose upon the City a pecuniary liability or a charge upon
the general credit or taxing powers of the City or the State of Missouri.
Section 15.5. Governing Law. This Lease shall be construed in accordance with and governed
by the laws of Missouri.
Section 15.6. Binding Effect. This Lease shall be binding upon and shall inure to the benefit of
the City and the Company and their respective successors and assigns.
Section 15.7. Severability. If for any reason any provision of this Lease shall be determined to
be invalid or unenforceable, the validity and enforceability of the other provisions hereof shall not be
affected thereby.
Section 15.8. Electronic Storage. The parties hereto agree that the transaction described herein
may be conducted and related documents may be received, sent 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 15.9. Performance by Company. Notwithstanding any section of this Lease to the
contrary, the performance by the Company of any duty, obligation, or other of the Company's requirements
under this Lease shall constitute performance by the Company and no Company default shall occur as a result
of the Company's performance and satisfaction of any such requirement.
Section 15.10. Execution in Counterparts. This Lease may be executed simultaneously in
several counterparts, each of which shall be deemed to be an original and all of which shall constitute but
one and the same instrument.
Section 15.11 Anti -Discrimination Against Israel Act. Pursuant to Section 34.600 of the
Revised Statutes of Missouri, the Company certifies it is not currently engaged in and shall not, for the
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.
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Section 15.12 Complete Agreement. The Company and the City understand that oral or
unexecuted agreements or commitments to loan money, extend credit or to forbear from enforcing
repayment of a debt including promises to extend or renew such debt are not enforceable. To protect the
Company and the City from misunderstanding or disappointment, any agreements the Company and the
City reach covering such matters are contained in this Lease, the Bond Purchase Agreement and in the
Performance Agreement, which are the complete and exclusive statements of the agreement between the
Company and the City, except as the Company and the City may later agree in writing to modify this Lease
and the Performance Agreement.
[Remainder of this page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed in their
respective names by their duly authorized signatories, all as of the date first above written.
[SEAL]
ATTEST:
By:
Name: Emily Donaldson
Title: City Clerk
Lease Agreement
City of Jefferson, Missouri
Taxable Industrial Development Revenue Bonds
(Scholastic Inc. Project)
Series2023
CITY OF JEFFERSON, MISSOURI
By: _
Name:
Title:
Carrie Tergin
Mayor
S-1
Lease Agreement
City of Jefferson, Missouri
Taxable Industrial Development Revenue Bonds
(Scholastic Inc. Project)
Series2023
SCHOLASTIC INC.,
Name:
Title:
S-2
EXHIBIT A
DESCRIPTION OF THE PROJECT SITE
The Project Site consists of the real property site upon which the Company's existing facility is
located (with a street address of 6336 Algoa Road, Jefferson City, Missouri 65101) where the Project
Equipment will be situated and installed.
A-1
EXHIBIT B
PROJECT EQUIPMENT
All items of machinery, equipment and other personal property acquired pursuant to Article IV of
this Lease to be installed and used on the Project Site by the Company and paid for, or reimbursed, with
Bond proceeds and all additions, replacements, alterations, substitutions thereto now or hereafter effected
and specifically designated by the Company. A replacement item may be included by the Company as a
part of the Project Equipment under the conditions set forth in this Lease.
EXHIBIT C
[FORM OF REQUISITION CERTIFICATE]
Requisition No.
Date:
REQUISITION CERTIFICATE
TO: BOKF, N.A., AS TRUSTEE UNDER A TRUST INDENTURE DATED AS OF FEBRUARY
1, 2023, BETWEEN THE CITY OF JEFFERSON, MISSOURI, AND THE TRUSTEE, AND
A LEASE AGREEMENT DATED AS OF FEBRUARY 1, 2023, BETWEEN THE CITY OF
JEFFERSON, MISSOURI, AND SCHOLASTIC INC.
The undersigned Authorized Company Representative hereby states and certifies that (capitalized
words and terms used herein shall have the meanings given to such words and terms in the above -
referenced Indenture):
1. A total of $ is requested to pay for Project Costs, which may include
reimbursement to the Company for payments made by it, and 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 hereto.
2. Set forth on Schedule 2 hereto is a description of the Project Equipment acquired, which
is being paid for in whole with Bond proceeds pursuant to this Requisition Certificate. Attached hereto as
Exhibit A to this Requisition Certificate is the Bill of Sale transferring said Project Equipment to the City.
3. The items for which payment is requested are or were necessary and appropriate in
connection with the purchase and installation of the Project Equipment, have been properly incurred and
are a proper charge against the Project Fund, and have been paid by the Company 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, (a) there are no, to the best of our
knowledge, outstanding disputed statements for which payment is requested for labor, wages, materials,
supplies or services in connection with the acquisition and installation of the Project Equipment which, if
unpaid, might become the basis of a vendors', mechanics', laborers' or materialmen's statutory or similar
lien upon the Project Equipment or any part thereof, and (b) no part of the several amounts paid or due as
stated above has been or is being made the basis for the withdrawal of any moneys from the Project Fund
in any previous or pending application for payment made pursuant to said Lease.
SCHOLASTIC INC.
By:
Name:
Title:
C-1
SCHEDULE I TO REQUISITION CERTIFICATE
PROJECT COSTS
Payee and Address Description Amount
C-2
SCHEDULE 2 TO REQUISITION CERTIFICATE
PROJECT EQUIPMENT
Serial, Identification or
Item (Description) Account Number
Taxable Non -Taxable Cost of
Cost of Equipment Equipment
C-3
EXHIBIT A TO REQUISITION CERTIFICATE
BILL OF SALE
WITNESSETH: With respect to any equipment, machinery or other personal property described
in Schedule 2 to this Requisition Certificate and for which Project Costs are disbursed pursuant to this
Requisition Certificate, SCHOLASTIC INC., a New York corporation, authorized to do business in the
State of Missouri ("Seller"), in consideration of such disbursement, and other good and valuable
consideration, the receipt whereof is hereby acknowledged, has hereby BARGAINED and SOLD, such
equipment, machinery or other personal property described in Schedule 2 to this Requisition Certificate,
and by these presents does now GRANT and CONVEY, unto the CITY OF JEFFERSON, MISSOURI,
a home rule charter city and political subdivision organized and existing under the laws of the State of
Missouri (`Buyer"), and its successors and assigns, all of its right, title and interest, if any, in and to all
machinery, equipment and other personal property described in Schedule 2 to this Requisition Certificate,
and such machinery, equipment and other personal property shall constitute a portion of the "Project
Equipment" to be installed or located on the "Project Site" as such terms are defined between the Lease
Agreement dated as of February 1, 2023, between the Buyer and the Seller.
TO HAVE AND TO HOLD the same unto Buyer, its successors and assigns, subject however to
the terms of the Lease Agreement and those liens and/or encumbrances as therein set forth.
The property is being conveyed "as is," "where is" and "with all faults" as of the date of this Bill
of Sale, without any representation or warranty whatsoever as to its condition, fitness for any particular
purpose, merchantability, or any other warranty, express of implied.
IN WITNESS WHEREOF, Seller has caused this Bill of Sale to be executed in its corporate name
by its duly authorized officer this day of , 20_.
SCHOLASTIC, INC.,
a New York corporation
By: _
Name:
Title:
C-4
APPENDIX I
Form of Performance Agreement
[See Document No. 4 in the Transcript]
Gilmore & Bell, P.C.
Draft v1— January 5, 2023
$44,700,000
(Aggregate Maximum Principal Amount)
CITY OF JEFFERSON, MISSOURI
TAXABLE INDUSTRIAL DEVELOPMENT REVENUE BONDS
(SCHOLASTIC INC. PROJECT)
SERIES 2023
DATED AS OF FEBRUARY 1, 2023
BOND PURCHASE AGREEMENT
City of Jefferson, Missouri
320 East McCarty Street
Jefferson City, Missouri 65101
Ladies and Gentlemen:
On the basis of the representations and covenants and upon the terms and conditions contained in
this Bond Purchase Agreement (the "Bond Purchase Agreement"), Scholastic Inc., a New York
corporation (the "Purchaser"), offers to purchase from the City of Jefferson, Missouri (the "City"), the
above -referenced series of Taxable Industrial Development Revenue Bonds (Scholastic Inc. Project), Series
2023 (the "Bonds"), to be issued by the City, under and pursuant to Ordinance No. [ ] passed by the
City Council of the City on February 6, 2023 (the "Ordinance") and a Trust Indenture dated as of February
1, 2023 (the "Indenture"), by and between the City and BOKF, N.A., Kansas City, Missouri, as trustee
(the "Trustee"). Capitalized terms not otherwise defined herein shall have the meanings set forth in
Section 101 of the Indenture.
SECTION 1. REPRESENTATIONS AND AGREEMENTS
(a) By the City's acceptance hereof, the City hereby represents to the Purchaser that:
(1) The City is a home rule charter city and municipal corporation duly organized and
validly existing under the laws of the State of Missouri. The City is authorized under Article VI,
Section 27(b) of the Missouri Constitution and Sections 100.010 through 100.200 of the Revised
Statutes of Missouri, as amended, and its Charter to authorize, issue and deliver the Bonds and to
consummate all transactions contemplated by this Bond Purchase Agreement, the Ordinance, the
Indenture, the Lease, the Performance Agreement and any and all other agreements relating thereto.
The proceeds of the Bonds shall be used for the purpose of financing the Project for the benefit of
Scholastic Inc., a New York corporation (the "Company"), and to pay for the costs incurred in
connection with the issuance of the Bonds.
(2) There is no controversy, suit or other proceeding of any kind pending or threatened
wherein or whereby any question is raised or may be raised, questioning, disputing or affecting in
any way the legal organization of the City or its boundaries, or the right or title of any of its officers
to their respective offices, or the legality of any official act leading up to the issuance of the Bonds
or the constitutionality or validity of the indebtedness represented by the Bonds or the validity of
the Bonds, the Ordinance, the Lease, the Indenture, the Performance Agreement or this Bond
Purchase Agreement.
(b) The Purchaser represents as follows:
(1) The Purchaser is a corporation duly organized, validly existing and in good
standing under the laws of the State of New York and is in good standing and duly authorized to
conduct business in the State of Missouri;
(2) The execution, delivery and performance of this Bond Purchase Agreement by the
Purchaser has been duly authorized by all necessary action of the Purchaser and does not and will
not conflict with or result in the breach of any of the terms, conditions or provisions of, or constitute
a default under, its organizational documents, any law, court or administrative regulation, decree
or 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) When executed and delivered by the Purchaser, this Bond Purchase Agreement
will be, and is, a legal, valid and binding obligation, enforceable in accordance with its terms,
subject, as to enforcement, to any applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting the enforcement of creditors' rights generally and further subject to the
availability of equitable remedies; and
(4) Any certificate signed by an authorized officer or agent of the Purchaser and
delivered to the City shall be deemed a representation and warranty by the Purchaser to such party
as to the statements made therein.
SECTION 2. PURCHASE, SALE AND DELIVERY OF THE BONDS
(a) On the basis of the representations and covenants contained herein and in the other
agreements referred to herein, and subject to the terms and conditions herein set forth and in the Indenture,
the Purchaser agrees to purchase from the City and the City agrees to sell to the Purchaser the Bonds on the
terms and conditions set forth herein.
(b) 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) for the Bonds, which
amount shall be deposited or deemed deposited in the Project Fund as provided in the Indenture and shall
thereafter on the Closing Date immediately be applied to the payment of Project Costs as provided in the
Lease. From time to time after the Closing Date as additional Project Costs are incurred, the Purchaser may
make additional payments with respect to the Bonds ("Additional Payments") to the Trustee under the
Indenture, which Additional Payments shall be deposited or deemed deposited in the Project Fund and
applied to the payment of Project Costs; provided that the sum of the Closing Price and all such Additional
Payments for the Bonds shall not, in the aggregate, exceed $44,700,000.
(c) As used herein, the term "Closing Date" shall mean February 13, 2023, or such other date
as shall be mutually agreed upon by the City and the Purchaser; the term "Closing Price" shall mean, with
respect to the Bonds, that certain 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 any Project Costs spent by the Company from its own funds on or before the Closing Date,
including costs of issuance.
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(d) The Bonds shall be issued under and secured as provided in the Ordinance and in 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 $44,700,000; provided, that the
principal amount of the Bonds outstanding at any time shall be that amount recorded in the official bond
registration records of the Trustee, absent manifest error, and further provided that interest shall be payable
on the Bonds only on the outstanding principal amount of the Bonds, as more fully provided in the
Indenture.
(e) The Purchaser agrees to indemnify and hold harmless the City, the Trustee, and any
member, officer, official or employee of the City or of the Trustee and any person controlling the Trustee
within the meaning of Section 15 of the Securities Act of 1933, as amended (collectively, the "Indemnified
Parties"), against any and all losses, claims, damages, liabilities or expenses whatsoever to the extent
caused by any violation by the Purchaser of, or failure by the Purchaser to comply with, any federal or state
securities laws in connection with the Bonds.
(f) In case any action shall be brought against one or more of the Indemnified Parties based
upon the foregoing indemnification and in respect of which indemnity may be sought against the Purchaser,
the Indemnified Parties shall promptly notify the Purchaser in writing and the Purchaser shall promptly
assume the defense thereof, including the employment of counsel, the payment of all expenses and the right
to negotiate and consent to settlement. Any one or more of the Indemnified Parties shall have the right to
employ separate counsel in any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Party or Indemnified Parties. The
Purchaser shall not be liable for any settlement of any such action effected without its consent by any of the
Indemnified Parties, but if settled with the consent of the Purchaser or if there be a final judgment for the
plaintiff in any such action against the Purchaser or any of the Indemnified Parties, with or without the
consent of the Purchaser, then provided that the Purchaser was given prompt written notice and the ability
to assume the defense thereof as required by this paragraph, the Purchaser agrees to indemnify and hold
harmless the Indemnified Parties to the extent provided herein.
SECTION 3. CONDITIONS TO THE PURCHASER'S OBLIGATIONS
The Purchaser's obligations hereunder shall be subject to the due performance by the City of the
City's obligations and agreements to be performed hereunder on or prior to the Closing Date and to the
accuracy of and compliance with the City's representations contained herein, as of the date hereof and as
of the Closing Date, and are also subject to the following conditions:
(a) There shall be delivered to the Purchaser on or prior to the Closing Date a duly
executed copy of the Ordinance, the Trust Indenture, the Performance Agreement, this Bond
Purchase Agreement and the Lease and any other instrument contemplated thereby and such
documents shall be in full force and effect and shall not have been modified or changed except as
may have been agreed to in writing by the Purchaser.
(b) The City shall confirm on the Closing Date by a certificate that at and as of the
Closing Date the City has taken all action necessary to issue the Bonds and that there is no
controversy, suit or other proceeding of any kind pending or threatened wherein any question is
raised affecting in any way the legal organization of the City or the legality of any official act shown
to have been done in the transcript of proceedings leading up to the issuance of the Bonds, or the
constitutionality or validity of the indebtedness represented by the Bonds or the validity of the
Bonds or any proceedings in relation to the issuance or sale thereof.
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(c) The Purchaser shall execute a certificate, dated the Closing Date, to the effect that
(i) 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
existence or powers of the Purchaser, (ii) 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 under the Lease, the Performance
Agreement or this Bond Purchase Agreement (iii) 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 (iv) such other matters as are reasonably requested by
the other parties in connection with the issuance of the Bonds.
SECTION 4. THE PURCHASER'S RIGHT TO CANCEL
The Purchaser shall have the right to cancel its obligation hereunder to purchase the Bonds by
notifying the City in writing of its election to make such cancellation at any time prior to the Closing Date.
SECTION 5. CONDITIONS OF OBLIGATIONS
The obligations of the parties hereto are subject to the receipt of the approving opinion of Gilmore
& Bell, P.C., as Bond Counsel to the City (if one is requested), with respect to the validity of the
authorization and issuance of the Bonds.
SECTION 6. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY
All of the representations and agreements by either party shall remain operative and in full force
and effect, and shall survive delivery of the Bonds to the Purchaser.
SECTION 7. PAYMENT OF EXPENSES
The Company shall pay all reasonable expenses and costs to effect the authorization, preparation,
issuance, delivery and sale of the Bonds. To the best of the City's knowledge and belief, the only expenses
payable by the Company in connection with the issuance of the Bonds are the following: (1) the legal fees
of Gilmore & Bell, P.C., as Bond Counsel to the City, in the amount of $[ ] (which includes
the bond counsel fee plus a fee for the preparation of the cost -benefit analysis required by the plan for
industrial development), and (2) the Trustee's initial acceptance fee ($1,000.00) and first year's
administrative fee ($1,500.00) totaling $2,500.00.
SECTION 8. NOTICE
Any notice or other communication to be given under this Agreement may be given by mailing or
delivering the same in writing to:
(a) To the City:
City of Jefferson, Missouri
320 East McCarty Street
Jefferson City, Missouri 65101
Attention: City Administrator
Phone: (573) 634-6306
M
with a copy to:
City Counselor
City of Jefferson, Missouri
320 East McCarty Street
Jefferson City, Missouri 65101
Phone: (573) 634-6570
(b) To the Trustee:
BOKF, N.A.
2405 Grand Boulevard, Suite 840
Kansas City, Missouri 64108
Attention: Corporate Trust Department
(c) To the Purchaser:
Scholastic Inc.
557 Broadway
New York, New York 10012
Attention: Jonathan Feldberg
SECTION 9. APPLICABLE LAW; ASSIGNABILITY
This Bond Purchase Agreement shall be governed by the laws of the State of Missouri and may be
assigned by the Purchaser upon the terms of Section 13.1 of the Lease. Any such assignee shall agree to
be bound by the terms of this Bond Purchase Agreement.
SECTION 10. 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 11. EXECUTION OF COUNTERPARTS
This Bond Purchase Agreement may be executed in several counterparts, each of which shall be
regarded as an original and all of which shall constitute one and the same document.
SECTION 12. ANTI -DISCRIMINATION AGAINST ISRAEL ACT
Pursuant to Section 34.600 of the Revised Statutes of Missouri, the Purchaser certifies that it is not
currently engaged in and will 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.
-5-
Date of Execution:
February 13, 2023
Very truly yours,
SCHOLASTIC INC.,
as Purchaser
By:
Name:
Title:
Accepted and Agreed to this 13th day of February, 2023.
SCHOLASTIC INC.,
as Company
By:
Name:
Title:
Bond Purchase Agreement
City of Jefferson, Missouri
Taxable Industrial Development Revenue Bonds
(Scholastic Inc. Project)
Series 2023
S-1
Accepted and Agreed to this 13th day of February, 2023.
[SEAL]
ATTEST:
By:
Name: Emily Donaldson
Title: City Clerk
Bond Purchase Agreement
City of Jefferson, Missouri
Taxable Industrial Development Revenue Bonds
(Scholastic Inc. Project)
Series2023
CITY OF JEFFERSON, MISSOURI
Bv:
Name: Carrie Tergin
Title: Mayor
S-2
Gilmore & Bell, P.C.
Draft v2 — January 12, 2023
191.910117491107 /Relej W:T";711111u I Biel I
Dated as of February 1, 2023
BETWEEN
CITY OF JEFFERSON, MISSOURI
AND
SCHOLASTIC INC.
Prepared By:
Gilmore & Bell, P.C.
Kansas City, Missouri
191.910117;7U/:\e[yWET"1901luluIoleo I
THIS PERFORMANCE AGREEMENT, dated as of February 1, 2023 ("Agreement") from
time to time amended and supplemented in accordance with the provisions hereof, is between CITY OF
JEFFERSON, MISSOURI, a home rule charter city and municipal corporation organized and existing
under the laws of the State of Missouri (the "City"), and SCHOLASTIC INC., a corporation organized
and existing under the laws of the State of New York and authorized to do business in the State of Missouri
(the "Company").
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, inclusive, of the Revised
Statutes of Missouri, as amended (collectively, the "Act"), to purchase, construct, extend and improve
certain projects (as defined in Section 100.010 of the Revised Statutes of Missouri, as amended) and to
issue industrial development revenue bonds for the purpose of providing funds to pay the costs of such
projects and to lease or otherwise dispose of such projects to private persons or corporations for
manufacturing, commercial, research and development, warehousing and industrial development purposes
upon such terms and conditions as the City shall deem advisable.
2. The City Council of the City adopted Resolution No. RS2022-32 on October 17, 2022,
expressing the official intent of the City to issue industrial development revenue bonds under the Act to
finance an economic development project for the Company (the "Project"), consisting of acquiring and
installing new machinery, equipment and other personal property (the "Project Equipment" as more fully
described on Exhibit A hereto) to be installed at the Company's existing facility located at 6336 Algoa
Road in the City (the "Project Site" as more fully described on Exhibit A hereto).
3. Following notice to the affected taxing jurisdictions in accordance with Section 100.059.1
of the Act, the City Council of the City adopted Ordinance No. [I on February 6, 2023 (the
"Ordinance"), (a) approving a plan for the Company's Project (the "Chapter 100 Plan") and (b)
authorizing the issuance of Taxable Industrial Development Revenue Bonds (Scholastic Inc. Project),
Series 2023, in the maximum aggregate principal amount of $44,700,000 (the "Bonds"), to pay the costs
of the Project.
4. Pursuant to the Ordinance, the City is authorized to execute and deliver (a) the Trust
Indenture dated as of February 1, 2023 (the "Indenture"), between the City and BOKF, N.A., as bond
trustee (the "Trustee"), for the purpose of issuing and securing the Bonds, (b) the Lease Agreement dated
as of February 1, 2023 (the "Lease"), with the Company, as lessee, under which the City, as lessor, will
cause the Company to acquire and install the Project Equipment and will lease the Project Equipment to
the Company, in consideration of rental payments to be paid by the Company which will be sufficient to
pay the principal of and interest on the Bonds, and (c) this Agreement, between the City and the Company,
for the purpose of setting forth the terms and conditions of the Project Equipment's exemption from ad
valorem personal property taxes and certain payments in lieu of taxes to be made by the Company with
respect to the Project Equipment.
5. Pursuant to the foregoing, the City desires to enter into this Agreement with the Company
for the purpose of setting forth the terms and conditions of the Project Equipment's exemption from ad
valorem personal property taxes and certain payments in lieu of taxes to be made by the Company with
respect to the Project Equipment in consideration of the purchase and installation of the Project Equipment
at the direction of the Company as more fully described in the Lease.
NOW, THEREFORE, in consideration of the premises and the mutual representations, covenants
and agreements herein contained, the City and the Company hereby represent, covenant and agree as
follows:
I:\;71Y[aNaI
DEFINITIONS
Section 1.1. Definitions of Words and Terms. In addition to the capitalized words and terms
defined elsewhere in this Agreement and the capitalized words and terms defined in Section 101 of the
Indenture and Section 1.1 of the Lease, which definitions are hereby incorporated herein by reference, the
following capitalized words and terms as used in this Agreement shall have the following meanings:
"Additional Jobs PILOT Payment" means any additional payment in lieu of taxes (in addition
to the Base PILOT Payments set forth Section 3.2 hereof) as further described in Section 3.3 hereof.
"Agreement" means this Performance Agreement dated as of February 1, 2023, between the City
and the Company, as from time to time amended and supplemented in accordance with the provisions
hereof.
"Annual Compliance Report" means the Annual Compliance Report reflecting the number of
Jobs the Company maintains at the Project Site as of each Test Date that is required to be filed with the
City in accordance with Section 3.3 hereof, a form of which is attached hereto as Exhibit B.
"Base PILOT Payment" means the payments in lieu of taxes described in Section 3.2 hereof.
"County" means Cole County, Missouri.
"County Assessor" means the Assessor of Cole County, Missouri.
"Event of Default" means any Event of Default as provided in Section 6.1 hereof.
"Job" means a full-time equivalent position with the Company that is filled by a worker who is
employed at the Project Site, which for purposes of the calculating the Jobs as required by Section 3.3
hereof shall include the Company's facilities located in the City at the following street addresses: 6336
Algoa Road, Jefferson City, Missouri 65 10 1; 2931 E McCarty, Jefferson City, Missouri 65 10 1; and 3030
Robinson Road, Jefferson City, Missouri 65 10 1, scheduled to work not less than 37.5 hours per week and
is eligible to receive normal full-time employee benefits offered by the Company. Positions filled by
workers who are not directly employed by the Company do not qualify as "Jobs" for purposes of this
definition.
"PILOT Payments" means, collectively, the Base PILOT Payments as described in Section 3.2
hereof and any Additional Jobs PILOT Payments as described in Section 3.3 hereof.
"Project" means the acquisition and installation of the Project Equipment.
"Project Equipment" means all items of machinery, equipment or other personal property
acquired and installed on the Project Site, the costs of which will be paid in whole or in part, or for which
the Company will be reimbursed, in whole or in part, from the proceeds of the sale of the Bonds.
-2-
"Project Site" means all of the real estate and facilities located thereon described in Exhibit A
attached hereto and by this reference made a part hereof where the Project Equipment will be installed. For
purposes of calculating the Jobs as required in Section 3.3 hereof, the term "Project Site" shall include the
Company's facilities located in the City with the following street addresses: 6336 Algoa Road, Jefferson
City, Missouri 65101; 2931 E McCarty, Jefferson City, Missouri 65101; and 3030 Robinson Road,
Jefferson City, Missouri 65101.
"Test Date" means October 31 of each year, beginning October 31, 2024 and ending on October
31, 2035.
ARTICLE II
ISSUANCE OF BONDS
Section 2.1. Issuance of the Bonds. As described herein, the City intends to issue the Bonds
(to be purchased by the Company) under the Act for the purpose of paying (or reimbursing) all or a portion
of the Project Costs (as defined in the Indenture). In connection with the issuance of the Bonds, the City
will acquire title to the Project Equipment from the Company in accordance with the terms of the Lease
and this Agreement.
ARTICLE III
PERSONAL PROPERTY TAX EXEMPTION;
PAYMENTS IN LIEU OF TAXES
Section 3.1. Personal Property Tax Exemption.
(a) The City expects the Project Equipment to be exempt from ad valorem personal property
taxation from and after January 1 of the year following the City's acquisition thereof and continuing so long
as the City owns title to such Project Equipment. The first year of the exemption period shall begin on
January 1, 2024. Notwithstanding any other provision of this Agreement to the contrary, the last year of
such personal property tax exemption period shall begin on January 1, 2035 and end on December 31, 2035.
(b) The Company covenants and agrees that, during each year the Project Equipment is exempt
from ad valorem personal property taxes by reason of the City owning title to the Project Equipment, the
Company will make annual Base PILOT Payments to the City in such amounts as described in Section 3.2
of this Agreement relating to the Project Equipment. Each Base PILOT Payment required to be paid under
Section 3.2 of this Agreement, together with any Additional Jobs PILOT Payment required to be paid under
Section 3.3 of this Agreement, are collectively referred to herein as a "PILOT Payment". The City and
the Company hereby agree that the personal property tax abatement provided by this Agreement, and the
Company's obligation to pay any PILOT Payment, shall only apply to machinery, equipment or other
personal property financed with proceeds of the Bonds (i.e., machinery, equipment and other personal
property constituting a part of the Project Equipment) and shall not apply to any machinery, equipment or
other personal property not financed with the proceeds of the Bonds.
-3-
Section 3.2. Payments in Lieu of Taxes.
(a) It is expected that the Company will acquire the Project Equipment with proceeds of the
Bonds (either directly or by reimbursement of the Company) and deliver portions of the Project Equipment
to the Project Site during calendar years ending December 31, 2023, 2024 and 2025. The anticipated cost
of the investments in the Project Equipment to be acquired or reimbursed with proceeds of the Bonds and
delivered to the Project Site in calendar years 2023, 2024 and 2025 is reflected in the table below:
Year Project Equipment Acquired
and Delivered to Project Site
Anticipated Cost of
Project Equipment
2023
$8,500,000
2024
17,230,000
2025
18,800,000
(b) The Company and the City agree that each portion of the Project Equipment will be exempt
from ad valorem personal property taxes for a period not exceeding ten (10) years, which 10-year period of
personal property tax abatement will begin the year in which the applicable portion of the Project Equipment
would have first been subject to personal property taxation under Missouri law absent the City's ownership
of such Project Equipment; however, in no event will the personal property tax abatement period for any
portion of the Project Equipment extend beyond the calendar year ending December 31, 2035. Therefore,
the 10-year personal property tax abatement period for each portion of the Project Equipment will be as
follows:
(1) for the portion of the Project Equipment acquired and delivered to the Project Site
during calendar year ending December 31, 2023, the 10-year period of personal property
tax abatement will be from calendar year 2024 through calendar year 2033;
(2) for the portion of the Project Equipment acquired and delivered to the Project Site
during calendar year ending December 31, 2024, the 10-year period of personal property
tax abatement will be from calendar year 2025 through calendar year 2034; and
(3) for the portion of the Project Equipment expected to be acquired and delivered to
the Project Site during calendar year ending December 31, 2025, the 10-year period of
personal property tax abatement will be from calendar year 2026 through calendar year
2035.
(c) Under the Lease, the City will own and have title to all of the equipment, machinery and
other personal property comprising the Project Equipment throughout the Lease Term; as a result, the
equipment, machinery and other personal property comprising the Project Equipment would otherwise be
exempt from ad valorem personal property taxes during the entire Lease Term (which Lease Term will end
not later than December 31, 2035) due to the City's ownership of such Project Equipment. However,
pursuant to this Section 3.2(c), the Company agrees that it shall make a Base PILOT Payment to the City
(or to the County if so directed by the City) on or before December 31 of each year, commencing December
31, 2024 (for the portion of the Project Equipment acquired and delivered to the Project Site during calendar
year ending December 31, 2023), in an amount equal to the applicable "Percentage of Base PILOT
Payment" reflected in the table below multiplied by the amount of ad valorem personal property taxes
which would have been due with respect to the applicable portion of the Project Equipment had the Project
Equipment not been exempt from such personal property taxes due to the City's ownership thereof-
Project Equipment
Acquired and Delivered
During Calendar Year Ending
December 31
Tax Abatement
Period in Years
Calendar Years of
Personal Property
Tax Abatement
Percentage of
Base PILOT Payment
2023
1 through 10
2024-2033
50%
2023
--
2034 and after
100%0)
2024
1 through 10
2025-2034
50%
2024
--
2035 and after
100%(2)
2025
1 through 10
2026-2035
50%
2025
--
2036 and after
100%
(1) For equipment, machinery and other personal property comprising the Project Equipment acquired and delivered to the Project
Site during calendar year ending December 31, 2023, the last year of the 10-year personal property tax abatement applicable
to that portion of the Project Equipment will be 2033. Under the Lease, it is expected the City will own all portions of the
Project Equipment and lease all portions of the Project Equipment to the Company until calendar year ending December 31,
2035; therefore, in calendar years 2034 and 2035, the Company will be required to pay a Base PILOT Payment equal to 100%
of the ad valorem personal property taxes that would otherwise be due with respect to that portion of the Project Equipment
originally acquired and delivered to the Project Site in 2023.
(2) For equipment, machinery and other personal property comprising the Project Equipment acquired and delivered to the Project
Site during calendar year ending December 31, 2024, the last year of the 10-year personal property tax abatement applicable
to that portion of the Project Equipment will be 2034. Under the Lease, it is expected the City will own all portions of the
Project Equipment and lease all portions of the Project Equipment to the Company until calendar year ending December 31,
2035; therefore, in calendar year 2035, the Company will be required to pay a Base PILOT Payment equal to 100% of the ad
valorem personal property taxes that would otherwise be due with respect to that portion of the Project Equipment originally
acquired and delivered to the Project Site in 2024.
(d) Pursuant to Section 11.4 of the Lease, the Company shall exercise its option to purchase
the Project Equipment no later than December 31, 2035. If title to the Project Equipment has not been
transferred by the City to the Company before January 1, 2036, then by not later than December 31, 2036,
and not later than December 31 of each year thereafter until title to the Project Equipment is transferred to
the Company, the Company shall pay to the City (or to the County at the direction of the City) a Base
PILOT Payment equal to 100% of the personal property taxes that would otherwise be due on the Project
Equipment, but for the City's ownership thereof.
(e) The City and the Company expect the County Assessor will, until this Agreement is
terminated, determine an assessed valuation with respect to the Project Equipment in accordance with
Article X, Section 4(b) of the Missouri Constitution and Section 137.115 of the Revised Statutes of
Missouri, as amended, as if title to the Project Equipment were in the name of the Company and not the
City. Such assessment shall be performed as of January 1 of each year. To facilitate the assessment, the
Company agrees to provide to the County Assessor, on or before March 1 of each year or such other date
on which personal property declarations are required by State law to be made, a report that includes the
following information:
(1) a list of equipment, machinery and other personal property comprising the Project
Equipment and the cost thereof, in form and content consistent with the personal property
declarations that the Company makes with respect to other personal property located at the Project
Site; and
(2) such other information as the County Assessor may reasonably require to complete
the assessment of the Project Equipment.
-5-
The itemization of the Project Equipment shall be consistent with the information provided by the
Company to the City and the Trustee under Section 4.2 of the Lease and shall be of sufficient specificity
so as to enable the appropriate City and County officials to determine which personal property as reported
on the annual personal property declaration constitutes Project Equipment (and therefore is owned by the
City) and which personal property does not constitute Project Equipment (and therefore is owned by the
Company).
(f) The County Assessor shall notify the City and the Company of the assessed valuation of
the Project Equipment in writing.
Section 3.3. Adjustment of Payments In Lieu of Taxes for Failure to Maintain Certain
Level of Jobs at Project Site.
(a) As of the date of this Agreement, the City and Company agree that the Company currently
maintains 919 Jobs at the Project Site, and the Company covenants and agrees to maintain at least 90% (or
827) of said Jobs the Company currently maintains at the Project Site for so long as the personal property
tax abatement described in this Agreement is in effect. The Company will calculate the total number of
Jobs maintained at the Project Site as of October 31 each year (each a "Test Date"), commencing with
October 31, 2024, and ending with October 31, 2035, as follows:
The total number of Jobs at the Project Site will be measured by determining the actual
number of Jobs on that last day of each month on each of the immediately preceding 12
months ending on each Test Date (i.e., the last day of each month of November 30 through
the following applicable October 31 Test Date) and then dividing the sum of the actual
number of Jobs on the last day of each respective month by twelve (12) to get the twelve
(12)-month average number of Jobs.
(b) If the Company fails to maintain at least 827 Jobs at the Project Site as of a particular Test
Date (i.e., October 31, 2024 through October 31, 2035) as certified by the Company to the City and an
officer of Jefferson City Regional Economic Partnership (who will be assisting the City monitoring
compliance with Section 3.3 of this Agreement) in the Annual Compliance Report described in subsection
(c) of this Section 3.3, the Company shall pay an Additional Jobs PILOT Payment, which will be in addition
to the Base PILOT Payment required to be paid by the Company set forth in Section 3.2 of this Agreement,
to the City on or before December 31 of the calendar year in which the Test Date evidencing the failure to
meet the Jobs requirement occurs. The Additional Jobs PILOT Payment will be in an amount equal to the
formula percentage calculated below (the "Jobs PILOT %") multiplied by the amount of ad valorem
personal property taxes which would have been due with respect to the Project Equipment had the Project
Equipment not been exempt from such personal property taxes due to the City's ownership thereof:
When the Percentage of the Base PILOT is 50%:
Jobs PILOT % _ .50 - (.50 X Actual Number of Jobs
827
Jobs PILOT % x B = Additional Jobs PILOT Payment
B = 100% of ad valorem personal property taxes that would have otherwise been required to be
paid by the Company with respect to the Project Equipment but for the City's ownership of
such Project Equipment
M
(c) The Company shall annually file with the City and Jefferson City Regional Economic
Partnership (who will be assisting the City with monitoring the Company's compliance with this Section
3.3), commencing on November 15, 2024, and continuing on each November 15 thereafter while this
Agreement remains in effect, an Annual Compliance Report in the form attached hereto as Exhibit B. The
Company also agrees to provide reasonable access to its payroll records for purposes of verifying the
number of Jobs, subject to such limitations as the Company determines to be necessary to maintain the
privacy of the payroll information of individuals and to comply with all of the Company's legal obligations
with respect to the privacy of the payroll information of individuals.
(d) The calculations set forth in this Section 3.3 shall be performed as of each Test Date, with
any resulting Additional Jobs PILOT Payment due as a result of such calculation to be applicable for the
calendar year in which such Test Date occurs. In no event shall the Additional Jobs PILOT Payment
pursuant to this Section 3.3, when added to the Base PILOT Payment calculated pursuant to Section 3.2 of
this Agreement, exceed 100% of the actual ad valorem personal property taxes that would have otherwise
been payable on the Project Equipment, but for the City's ownership thereof, for the given year.
Section 3.4. Distribution of PILOTS. Within 30 days of the date of receipt of each PILOT
Payment, the City Clerk, or other designated billing/collection agent, shall distribute each PILOT Payment,
after reduction for the administrative costs of the City as provided by Section 3.5 hereof, among the taxing
jurisdictions in proportion to the amount of personal property taxes which would have been paid in each
year had the Project Equipment not been exempt from ad valorem personal property taxation pursuant to
this Agreement and the City's ownership of the Project Equipment.
Section 3.5. Obligation of City to Effect Personal Property Tax Abatement. The City
agrees to take all actions within its control to obtain and/or maintain in effect the personal property tax
exemption referred to in Section 3.1 hereof, including any filing required with any governmental
authorities; provided, however, the City shall not be liable for any failure of the County or any other
governmental taxing authority to recognize the personal property tax exemption provided herein, and the
City shall not be required to file litigation to effect the personal property tax exemption. The City covenants
that it will not voluntarily take any action intended to cause or induce the levy or assessment of ad valorem
personal property taxes on the Project Equipment. If such a levy or assessment should occur, the City shall,
at the Company's request and at the expense of the Company, cooperate with the Company in all reasonable
ways to prevent and/or remove any levy or assessment against the Project Equipment.
Section 3.6. Administration Costs. Under Section 100.050 of the Act, the City may require
the Company to reimburse the City for its actual costs of issuing the Bonds and administering the Chapter
100 Plan including costs associated with this Agreement in an amount no greater than $1,000.00 per year.
The City will provide a statement for such costs to the Company not later than November 15t' of each year,
and the Company will reimburse the City for its costs on or before December 3 1 " of each year continuing
until December 3 1 " of the year in which this Agreement expires or is terminated.
Section 3.7. Other Property Taxes In Connection with the Project Equipment. The
personal property tax exemption provided by the City's ownership of the Project Equipment is expected to
apply to all interests in the Project Equipment during the period the Project Equipment is owned by the
City. If any ad valorem personal property taxes are levied by or on behalf of any taxing jurisdiction against
any interest in the Project Equipment during the period the City owns the Project Equipment (including,
without limitation, any ad valorem personal property taxes levied against the Company's rights in the
Lease), the amount of ad valorem personal property tax payments related to such levy or levies which are
paid by the Company and received by the City (or County) shall be credited against and reduce on a pro
-7-
rata basis the amount of the PILOT Payments the Company is obligated to pay pursuant to this Agreement.
The Company shall be responsible for any personal property taxes related to any interest in the Project
Equipment or other personal property, equipment or machinery located on the Project Site which the
Company owns in its own name or granted to the Company other than pursuant to the Lease.
Section 3.8. Sales Tax Exemption for Certain Personal Property Approved by the
Missouri Department of Economic Development.
(a) The City recognizes that the Company has applied to the Missouri Department of
Economic Development ("DED") for certification of the extent to which certain personal property
constitutes eligible tangible personal property for purposes of exemption from sales and use tax. The City
will cooperate with the Company and take reasonable efforts to facilitate the exemption of such personal
property as is approved by DED (the "DED Approved Personal Property"). Upon receipt by the City of
a conditional approval letter from DED (and proof that the Company has provided its tax clearance letter
to the Missouri Department of Revenue and has complied with any other requirements of the conditional
approval letter), the City will provide the Company with a project exemption certificate for the DED
Approved Personal Property. Such project exemption certificate shall not be used by the Company in
connection with the acquisition of any Project Equipment or other personal property other than the DED
Approved Personal Property, as approved in the DED conditional approval letter.
(b) Upon a determination by the Missouri Department of Revenue that any purchase made by
the Company using a project exemption certificate described in subsection (a) above was not exempt from
sales or use tax, the Company shall pay to the Missouri Department of Revenue all sales or use taxes so
determined to be due (whether by virtue of failure of the Company to comply with the terms of this
Agreement or the procedures and requirements of DED or otherwise). The Company shall indemnify and
defend the City and its respective officers, employees and agents against and from any and all causes of
action or actions in law or equity, liens, claims damages, loss, costs or expenses of any nature whatsoever
by any person or entity, arising out of the City's furnishing of the project exemption certificates to or at the
request of the Company or its affiliates. There shall be no reduction in PILOT Payments for any sales or
use taxes paid by the Company in connection with the Project.
Section 3.9. Credits for Certain Tax Payments. Nothing in this Agreement shall be construed
to require the Company to make duplicate tax payments. The Company shall receive a credit hereunder to
such extent it has made any payment for ad valorem personal property taxes on the Project Equipment to
the City.
Section 3.10. Company's Right To Protest Taxes. Notwithstanding any other provision of this
Agreement to the contrary, nothing in this Agreement shall be construed to limit or in any way restrict the
availability of any provision of State law which confers upon the Company the right to appeal, protest or
otherwise contest any property tax valuation, assessment, classification or any portion thereof on behalf of
or in the City's name following written notice to the City from the Company, but solely at the Company's
expense.
Section 3.11. PILOT Payments Following Cessation of Operations at the Project Site. If for
any reason the Company completely vacates, abandons or ceases operations at the Project Site during the
term of this Agreement, and fails to exercise its option to purchase the Project Equipment within 90 days
after such vacancy, abandonment or cessation of operations, the Company shall make a PILOT Payment to
the City (to be distributed as provided in Section 3.4 hereof) equal to 100% of the ad valorem personal
property taxes that would otherwise be payable to each taxing jurisdiction if the Project Equipment was not
owned by the City. Such PILOT Payment shall be made on or before December 31 in the year in which
the Company first ceases operations at the Project Site and on each December 31 thereafter for each year
10
in which the Project Equipment is, on January 1 of such year, still titled in the name of the City, and the
Company has ceased operations at the Project Site.
Section 3.12. No Abatement on Special Assessments, Licenses or Fees. The City and the
Company hereby agree that the personal property tax exemptions described in this Agreement shall not
apply to special assessments and shall not serve to reduce or eliminate any other licenses or fees owing to
the City or any other taxing jurisdiction with respect to the Project Equipment. The Company hereby agrees
to make payments with respect to all special assessments, licenses and fees which would otherwise be due
with respect to the Project Equipment if such Project Equipment was not owned by the City.
Section 3.13. No Abatement on Real Property. The City and the Company hereby agree that
the personal property tax exemptions described in this Agreement shall not apply to any real property owned
by the Company.
ARTICLE IV
COVENANTS, REPRESENTATIONS AND AGREEMENTS OF THE COMPANY
Section 4.1. Inspection. The Company agrees that the City and its duly authorized agents shall
have the right at reasonable times (during business hours), subject to at least 48 hours advance notice and
to the Company's usual business proprietary, safety and security requirements, to enter upon the Project
Site to examine and inspect the Project Equipment and the records of the Company which demonstrate
compliance with this Agreement.
Section 4.2. Compliance with Laws. To the best of the Company's knowledge, the Project
Equipment is and will be in material compliance with all applicable federal, State and local laws, statutes,
ordinances, rules, regulations, executive orders and codes pertaining to or affecting the Project Equipment,
including environmental laws, subject to all applicable rights of the Company to contest the same.
Section 4.3. Purchase, Installation and Operation. The Project Equipment will be
purchased, installed and operated in a manner that is consistent with the description of the Project
Equipment contained in this Agreement and in the Lease. In the event the Project Equipment purchased
and installed is materially inconsistent with the description of the Project Equipment contained herein and
in the presentation to the City Council of the City, the City reserves the right to declare an Event of Default
in accordance with Section 6.1 hereof.
Section 4.4. Indemnification. The Company shall indemnify and save and hold harmless the
City and the County Assessor from and against all claims, demands, costs, liabilities, damages or expenses,
including reasonable attorneys' fees, by or on behalf of any person, firm or corporation arising from the
conduct or management of, or from any work or thing done in, on or about, the Project Site or the Project
Equipment, as applicable, during the term of the Lease, and against and from all claims, demands, costs,
liabilities, damages or expenses, including reasonable attorneys' fees, arising during the term of the Lease
from any event described in Section 10.5 of the Lease to the extent and subject to the limitations provided
therein.
Section 4.5. Costs of Issuance of the Bonds. The Company agrees to pay on the date of the
initial issuance of the Bonds, all costs of issuance incurred in connection therewith, provided that a closing
memorandum detailing all costs of issuance is provided to the Company for review at least two Business
Days prior to the initial issuance of the Bonds.
BE
ARTICLE V
SALE AND ASSIGNMENT
The benefits granted by the City to the Company pursuant to this Agreement shall belong solely to
the Company, and such benefits shall not be transferred, assigned, pledged or in any other manner
hypothecated, except as provided in Section 13.1 of the Lease.
ARTICLE VI
DEFAULT AND REMEDIES
Section 6.1. Events of Default. If any one or more of the following events occurs and is
continuing, it is hereby defined as and declared to be and to constitute an Event of Default hereunder:
(a) the Company fails to make any PILOT Payments required to be paid hereunder
within 10 days after written notice and demand given by the City;
(b) The occurrence and continuance of an Event of Default by the Company under the
Lease following any applicable notice and grace period provided therein;
(c) the Company shall fail to perform any of its obligations hereunder for a period of
60 days (or such longer period as the City and the Company may agree in writing) following written
notice to the Company from the City of such failure which notice shall include a specific description
of the Company's failure hereunder; provided however, that if such failure is not subject to cure
within such 60 days, such failure shall not constitute an Event of Default hereunder if the Company
initiates action to cure such default and pursues such action diligently; or
(d) any representation of the Company contained herein proves to be materially false
or erroneous and is not corrected or brought into compliance within 60 days (or such longer period
as the City and the Company may agree in writing) after the City has given written notice to the
Company specifying the false or erroneous representation and requiring it to be remedied; provided,
however, that if such matter is not subject to cure within such 60 days after such notice, it shall not
constitute and Event of Default hereunder if the Company initiates action to cure the default within
such 60 days after such notice and pursues such action diligently.
Section 6.2. Remedies on Default. Upon an Event of Default hereunder, this Agreement may
be terminated by written notice to the Company from the City. Upon such termination, the Company shall
make a PILOT Payment to the City equal to the pro rata amount of ad valorem personal property taxes that
would be due for the remaining portion of the year assuming the Project Equipment was placed on the tax
rolls effective on the date of termination through December 31; provided, however, the PILOT Payments
following cessation of operations shall be governed by Section 3.11; and provided further, the Company
shall receive a credit for all PILOT Payments made pursuant to Section 3.2 hereof and such credit shall
reduce the amount of any payments due under this Section.
Section 6.3. Payments on Defaulted Amounts. Any PILOT Payments due hereunder which
are not paid when due shall be subject to penalties imposed by State law on overdue ad valorem personal
property taxes from the date such payment was first due.
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Section 6.4. Enforcement. In addition to the remedies specified in Section 6.2, upon the
occurrence of an Event of Default, the City or any taxing jurisdictions that would benefit from the PILOT
Payments provided for in this Agreement may bring an action for specific performance to enforce such
payments.
Section 6.5. Failure of the City to Perform its Obligations. In the event the City shall fail to
perform any of its obligations hereunder for (a) a period of 60 days (or such longer period as the Company
and the City may agree in writing) following written notice to the City from the Company of such failure
which notice shall include a specific description of the City's failure hereunder, or (b) if such failure is not
subject to cure within such 60 days, the City shall have failed to initiate action to cure such default and shall
pursue such action diligently; the Company may declare that the City is in default under this Agreement
and may pursue any legal remedy available to it to enforce this Agreement.
ARTICLE VII
TERM OF AGREEMENT
Section 7.1. Term of Agreement. This Agreement shall become effective upon execution, and
subject to earlier termination pursuant to the provisions of this Agreement (including particularly the
following sentence and Article VI hereof), shall terminate on December 31, 2035. This Agreement shall
automatically terminate upon the earlier to occur of the following:
(a) the payment in full of the Bonds (or any bonds issued to refund the Bonds) and the
payment of all amounts due under this Agreement;
(b) the expiration of the Lease Term set forth in Section 3.2 of the Lease; or
(c) the occurrence and continuance of an uncured Event of Default and the subsequent
termination of this Agreement pursuant to the provisions of the Lease and this Agreement.
Section 7.2 Payments in Final Year. The foregoing provisions of Section 7.1 shall not relieve
the Company of its obligation to make any PILOT Payments owing during the year in which the Bonds are
paid in full, to the extent the Company receives the ad valorem personal property tax abatement
contemplated for that year and such PILOT Payment is due under this Agreement.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1. Severability. If for any reason any provision of this Agreement shall be
determined to be invalid or unenforceable, the validity and enforceability of the other provisions hereof
shall not be affected thereby.
Section 8.2. Governing Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of Missouri.
Section 8.3. Execution in Counterparts. This Agreement may be executed simultaneously in
several counterparts, each of which shall be deemed to be an original and all of which shall constitute but
one and the same instrument.
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Section 8.4. Waiver. The City and the Company acknowledge and agree that the amounts
payable hereunder shall constitute payments due the City under the Lease executed in connection with the
Bonds. The Company shall not be entitled to any extension of payment of such amounts as a result of a
filing by or against the Company in any bankruptcy court.
Section 8.5. Entire Agreement. This Agreement, together with the Lease, the Indenture and
any other documents entered into of even date herewith in connection with the issuance of the Bonds,
constitute the entire agreement of the parties with respect to the subject matter hereof. This Agreement
shall not be modified except by written agreement signed on behalf of the parties hereto by their duly
authorized representatives.
Section 8.6. Electronic Transactions. 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 8.7. Notices. All notices, certificates or other communications required or desired to
be given hereunder shall be given in the manner specified in the Indenture.
Section 8.8. Employee Verification. The Company will comply with and satisfy the
requirements of Section 285.530.2, RSMo., as amended, which requires (a) any business entity receiving
tax abatement to, by sworn affidavit and provision of documentation, annually affirm its enrollment and
participation in a federal work authorization program with respect to the employees working in connection
with the business entity receiving tax abatement, and (b) every such business entity to annually sign an
affidavit affirming that it does not knowingly employ any person who is an unauthorized alien in connection
with the entity receiving tax abatement. The Company shall provide such affidavits and documentation to
the City Clerk on or before November 15 of each year during the term of this Agreement, beginning
November 15, 2023, and also upon execution of this Agreement.
Section 8.9. Complete Agreement. The Company and the City understand that oral or
unexecuted agreements or commitments to loan money, extend credit or to forbear from enforcing
repayment of a debt including promises to extend or renew such debt are not enforceable. To protect the
Company and the City from misunderstanding or disappointment, any agreements the Company and the
City reach covering such matters are contained in this Agreement and in the Lease, which are the complete
and exclusive statements of the agreement between the Company and the City, except as the Company and
the City may later agree in writing to modify this Agreement and the Lease.
Section 8.10. Anti -Discrimination Against Israel Act. Pursuant to Section 34.600 of the
Revised Statutes of Missouri, the Company certifies it is not currently engaged in and shall not, for the
duration of this 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.
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Section 8.11. Date of Performance Agreement. The dating of this Agreement as of February 1,
2023, is intended as and for the convenient identification of this Agreement only and is not intended to indicate
that this Agreement was executed and delivered on said date, this Agreement being executed and delivered
and becoming effective simultaneously with the initial issuance of the Bonds.
[Remainder of this page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in their
respective corporate names, all as of the date first above written.
[SEAL]
ATTEST:
By: _
Name:
Title:
Emily Donaldson
City Clerk
Performance Agreement
City of Jefferson
Taxable Industrial Development Revenue Bonds
(Scholastic Inc. Project)
Series 2023
CITY OF JEFFERSON, MISSOURI
By: _
Name
Title:
Carrie Tergin
Mayor
S-1
Performance Agreement
City of Jefferson
Taxable Industrial Development Revenue Bonds
(Scholastic Inc. Project)
Series 2023
SCHOLASTIC INC., a New York corporation
M.
Name:
Title:
S-2
The County Assessor of Cole County, Missouri, acknowledges receipt of this Agreement and
agrees to perform the duties imposed on the County Assessor by Article III of this Agreement.
Performance Agreement
City of Jefferson
Taxable Industrial Development Revenue Bonds
(Scholastic Inc. Project)
Series 2023
OFFICE OF COLE COUNTY, MISSOURI
ASSESSOR
By: _
Name
Title:
Christopher Estes
County Assessor
S-3
IW41,111.11 W
DESCRIPTION OF THE PROJECT EQUIPMENT
All items of machinery, equipment and other personal property acquired pursuant to Article IV of
the Lease to be installed and used on the Project Site by the Company and paid for, or reimbursed, with
Bond proceeds and all additions, replacements, alterations, substitutions thereto now or hereafter effected
and specifically designated by the Company. A replacement item may be included by the Company as a
part of the Project Equipment under the conditions set forth in the Lease.
DESCRIPTION OF THE PROJECT SITE
The Project Site consists of the real property site upon which the Company's existing facility is
located (with a street address of 6336 Algoa Road, Jefferson City, Missouri 65101) where the Project
Equipment will be situated and installed.
Exhibit A - 1
EXHIBIT B
ANNUAL COMPLIANCE REPORT
Date: November_, 20
To: City of Jefferson, Missouri
302 E. McCarty Street
Jefferson City, Missouri 65101
Jefferson City Regional Economic Partnership
630 Bolivar Street, Suite 202
Jefferson City, Missouri 65101
Attention: Missy Bonnot
Email: missybonnot(aN jcrep.org
A. COMPANY INFORMATION (SCHOLASTIC INC.)
Name:
Address:
City:
State:
Zip Code:
Contact: Telephone:
Title: Email:
[Remainder of this page intentionally left blank.]
Exhibit B - 1
11-�1U�t"11iUi11Lh1r10x17;7urill11930
The number of total "Jobs" maintained by the Company at the Project Site (which includes the
Company's facilities located at: 6336 Algoa Road, Jefferson City, Missouri 65101; 2931 E McCarty,
Jefferson City, Missouri 65101; and 3030 Robinson Road, Jefferson City, Missouri 65101) on the last day
of each of the immediately preceding 12 months ending on October 31, 20_ (the October 3l't prior to this
Report) is set forth in the table on below in the column labeled "Total Jobs. "
The 12-month average of the actual number of "Jobs," which is calculated in accordance with the
Performance Agreement dated as of February 1, 2023, between the Company and the City (the
"Performance Agreement"), maintained by the Company at the Project Site was as set forth
below in the row labeled "12-Month Average of Jobs."
According to Section 3.3 of the Performance Agreement, the Company is required to maintain at
least 827 Jobs
Total Jobs
November
December
January
February
March
April
May
June
Jul
August
September
October
12-Month Average of Jobs:
(') This 12-month average of the actual number of "Jobs" should be equal to or greater than 827 because the
Company is required to maintain at least 827 Jobs at the Project Site in accordance with Section 3.3 of the
Performance Agreement.
Attached is a copy of a report verifying the above calculation containing at a minimum the
following information for each Job:
1. Name or Other Employee Identification Information.
2. Hire Date.
3. Termination Date.
Exhibit B - 1
I�M01;7111yWNYIQ7 F
The undersigned hereby represents and certifies that, to the best knowledge and belief of the
undersigned, this Annual Compliance Report contains no information or data, contained herein or in the
exhibits or attachments, that is false or incorrect in any material respect.
Dated this day of ,
Signature:
Name:
Title:
Exhibit B - 1