HomeMy Public PortalAboutORD16415BILL NO. 2023-087
SPONSORED BY Councilmember Hensley
ORDINANCE NO.
AN ORDINANCE APPROVING A PLAN FOR AN INDUSTRIAL DEVELOPMENT PROJECT FOR
UNILEVER MANUFACTURING (US), INC.; AUTHORIZING THE CITY OF JEFFERSON,
MISSOURI, TO ISSUE ITS TAXABLE INDUSTRIAL DEVELOPMENT REVENUE BONDS
(UNILEVER — REAL PROPERTY PROJECT), SERIES 2024B, IN A PRINCIPAL AMOUNT NOT
TO EXCEED $33,000,000, AND ITS TAXABLE INDUSTRIAL DEVELOPMENT REVENUE
BONDS (UNILEVER — PERSONAL PROPERTY PROJECT), SERIES 2024B, IN A PRINCIPAL
AMOUNT NOT TO EXCEED $50,000,000 TO FINANCE THE COSTS OF SUCH PROJECT;
AUTHORIZING AND APPROVING CERTAIN DOCUMENTS; AND AUTHORIZING CERTAIN
OTHER ACTIONS IN CONNECTION WITH THE ISSUANCE OF THE BONDS.
WHEREAS, the City of Jefferson, Missouri (the "City"), is authorized under the provisions of
Article VI, Section 27 of the Missouri Constitution, as amended, and Sections
100.010 to 100.200, inclusive, of the Revised Statutes of Missouri, as amended
(collectively, the "Act"), to purchase, construct, extend and improve certain
projects (as defined in the Act) for the purposes set forth in the Act and to issue
industrial development revenue bonds for the purpose of providing funds to pay
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, Unilever Manufacturing (US), Inc., a Delaware corporation (the "Company"), has
proposed an industrial development project (the "Project") consisting of (a)
renovating and modifying an approximately 110,000 square foot portion of the
Company's existing approximately 447,814 square foot main building in order to
incorporate automated operations for the production of a new product line (the
approximately 110,000 square foot portion of the main building that is being
renovated and modified as part of the Project is referred to herein as the "Project
Improvements"), which is situated on an approximately 2.54 acre portion of the
real estate site where the Company's other existing facilities are located at 2900
West Truman Boulevard in the City (the "Project Site") and (b) acquiring and
installing certain equipment and other personal property within the Project
Improvements (the "Project Equipment"), and has requested that the City (a)
issue its Taxable Industrial Development Revenue Bonds (Unilever — Real
Property Project), Series 2024B, in the maximum principal amount not to exceed
$33,000,000 (the "Real Property Bonds"), for the purpose of paying the costs of
the Project Improvements on the Project Site (the Project Site and Project
Improvements being collectively referred to herein as the "Real Property"), and
(b) issue its Taxable Industrial Development Revenue Bonds (Unilever— Personal
Property Project), Series 2024B, in the maximum principal amount not to exceed
$50,000,000 (the "Personal Property Bonds" and, together with the Real
Property Bonds, the "Bonds"), for the purpose of paying the costs of acquiring
and installing the Project Equipment within the Project Improvements, contingent
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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 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
Indentures (defined below) and shall have such terms, provisions, covenants and agreements as
are set forth in the Indentures. 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
rates and upon the terms set forth in the respective Indentures 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 Agreements (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 respective Indentures. 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
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be approved by the officials of the City executing such documents, such officials’ signatures thereon
being conclusive evidence of their approval thereof:
(a) Real Property Trust Indenture dated as of the date set forth therein (the “Real
Property Indenture”), between the City and UMB Bank, N.A., as trustee (the
“Trustee”), pursuant to which the Real Property Bonds will be issued and the City
will pledge and assign the payments, revenues and receipts received pursuant to
the Real Property Lease Agreement (defined herein) to the Trustee for the benefit
and security of the owners of the Real Property Bonds upon the terms and
conditions as set forth in the Real Property Indenture.
(b) Personal Property Trust Indenture dated as of the date set forth therein (the
“Personal Property Indenture” and, together with the Real Property Indenture, the
“Indentures”), between the City and the Trustee pursuant to which the Personal
Property Bonds will be issued and the City will pledge and assign the payments,
revenues and receipts received pursuant to the Personal Property Lease
Agreement (defined herein) to the Trustee for the benefit and security of the
owners of the Personal Property Bonds upon the terms and conditions as set forth
in the Personal Property Indenture.
(c) Real Property Lease Agreement dated as of the date set forth therein (the “Real
Property Lease Agreement”), between the City, as lessor, and the Company, as
lessee, under which the City will lease the Real Property to the Company pursuant
to the terms and conditions in the Real Property Lease Agreement, in consideration
of rental payments by the Company which will be sufficient to pay the principal of
and interest on the Real Property Bonds.
(d) Personal Property Lease Agreement dated as of the date set forth therein (the
“Personal Property Lease Agreement” and, together with the Real Property
Lease Agreement, the “Lease Agreements”), 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 Personal Property Lease
Agreement, in consideration of rental payments by the Company which will be
sufficient to pay the principal of and interest on the Personal Property Bonds.
(e) Real Property Bond Purchase Agreement dated as of the date set forth therein
between the City and the Company pursuant to which the Company agrees to
purchase the Real Property Bonds.
(f) Personal Property Bond Purchase Agreement dated as of the date set forth therein
between the City and the Company pursuant to which the Company agrees to
purchase the Personal Property Bonds.
(g) 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 real
and personal property taxes on the Real Property and the Project Equipment in
consideration for the Company’s agreement to create and maintain a certain level
of employment.
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(h) Special Warranty Deed from the City, as grantor, to the Company, as grantee,
pursuant to which the City will transfer title to the Project Site to the Company.
(i) Special Warranty Deed from the Company, as grantor, to the City, as grantee,
pursuant to which the Company will transfer title to the Project Site and Project
Improvements to be constructed thereon to the City.
Section 6. Execution of Documents. The Mayor is hereby authorized and directed to
execute the Bonds and to deliver the Bonds to the Trustee for authentication for and on behalf of
and as the act and deed of the City in the manner provided in the respective Indentures. The Mayor
is hereby authorized and directed to execute the City Documents and such other documents,
certificates and instruments as may be necessary or desirable to carry out and comply with the
intent of this Ordinance, for and on behalf of and as the act and deed of the City. The City Clerk 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 is hereby authorized, through the term
of each respective Lease Agreement, to execute all documents on behalf of the City (including
documents pertaining to the transfer of property or the financing or refinancing of the Project by
the Company, and such easements, licenses, rights-of-way, plats and similar documents as may
be requested by the Company) as may be required to carry out and comply with the intent of this
Ordinance, the Indentures and the Lease Agreements. The Mayor 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 Indentures, the Lease Agreements 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 either series of the Bonds,
increase the term of either Lease Agreement or adversely affect the property tax exemption as
provided for therein, waive an Event of Default (as defined in the Indentures and the Lease
Agreements), 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:''/ ✓ C ,t4P(; /g, 2024 Approved:
Presiding Offic
ATTEST:
5
03�I 4 /to z'
ayor Ro . ater
APPROVED AS TO FORM:
EXHIBIT A
TO ORDINANCE NO. _____
PLAN FOR INDUSTRIAL DEVELOPMENT PROJECT
AND COST BENEFIT ANALYSIS FOR
UNILEVER MANUFACTURING (US), INC.
EXPLANATION TO COUNCIL BILL
EXPLANATION TO COUNCIL BILL
Date: ______________ ___, 2024
Type of Ordinance: Special
EXPLANATION TO COUNCIL BILL
NOTICE TO TAXING JURISDICTIONS
To: Taxing Jurisdictions (Distribution List attached)
Re: Notice of Public Hearing – Unilever Manufacturing (US), 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 Unilever Manufacturing (US), 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, March 18, 2024, 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 (1) renovating and modifying an approximately 110,000 square foot portion of the
Company’s existing main building in order to incorporate automated operations for the production
of a new product line and (2) acquiring and installing automated packing line equipment and other
related personal property within the Project Improvements, which will be located at the site of the
Company’s existing facilities at 2900 West Truman Boulevard 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 March 18, 2024, 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: February 23, 2024
CITY OF JEFFERSON, MISSOURI
320 E. McCarty St.
Jefferson City, Missouri 65101
EXHIBIT A
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Jefferson City School District
Bryan McGraw, Superintendent
315 East Dunklin Street
Jefferson City, MO 65101
Missouri River Regional Library
Claudia Young, Director
214 Adams Street
P.O. Box 89
Jefferson City, MO 65102
City of Jefferson
Fire Pension Fund
Brian Crane, City Administrator
320 E. McCarty St.
Jefferson City MO 65101
Missouri Department of Revenue
County Tax Section
State Blind Pension Fund
301 West High Street, Room 330
Jefferson City, MO 65105
Cole County
Cole County Road and Bridge
Sam Bushman, Presiding Commissioner
311 E High Street
Jefferson City, MO 65101
Cole County Residential Services
Jim Casey, Executive Director
1908 Boggs Creek Road
Jefferson City, MO 65101
State Tax Commission of Missouri
301 W. High Street, Room 840
P.O. Box 146
Jefferson City, MO 65102
____________________________
CITY OF JEFFERSON, MISSOURI
PLAN FOR AN INDUSTRIAL DEVELOPMENT PROJECT
AND
COST-BENEFIT ANALYSIS
FOR
UNILEVER MANUFACTURING (US), INC.
_____________________________
TABLE OF CONTENTS
Page
I. PURPOSE OF THIS PLAN 1
II. DESCRIPTION OF CHAPTER 100 FINANCINGS 1
General ........................................................................................................................................ 1
Issuance and Sale of Bonds ........................................................................................................ 1
Property Tax Abatement ........................................................................................................... 2
Sales Tax Exemption .................................................................................................................. 2
III. DESCRIPTION OF THE PARTIES 2
Unilever Manufacturing (US), Inc. ........................................................................................... 2
City of Jefferson, Missouri ......................................................................................................... 2
IV. REQUIREMENTS OF THE ACT 2
Description of the Project .......................................................................................................... 2
Estimate of the Costs of the Project .......................................................................................... 3
Sources of Funds to be Expended for the Project .................................................................... 3
Statement of the Terms Upon Which the Project is to be Leased or Otherwise Disposed of
by the City ................................................................................................................................ 3
Affected Taxing Jurisdictions .................................................................................................... 4
Current Assessed Valuation of the Project............................................................................... 4
Payment in Lieu of Taxes ........................................................................................................... 5
Sales Tax Exemption – Qualified Building Materials ............................................................. 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
UNILEVER MANUFACTURING (US), INC.
I. PURPOSE OF THIS PLAN
The City of Jefferson, Missouri (the “City”), intends to issue a series of Taxable Industrial
Development Revenue Bonds (Unilever - Real Property Project), Series 2024B, in a maximum aggregate
principal amount of not to exceed $33,000,000 (the “Real Property Bonds”) and a series of Taxable
Industrial Development Revenue Bonds (Unilever - Personal Property Project), Series 2024B, in a
maximum aggregate principal amount of not to exceed $50,000,000 (the “Personal Property Bonds” and,
together with the Real Property Bonds, the “Bonds”) to finance the costs of an industrial development
project (the “Project”) for the benefit of Unilever Manufacturing (US), Inc., a Delaware corporation (the
“Company”). The Bonds will be issued pursuant to the provisions of Sections 100.010 to 100.200 of the
Revised Statutes of Missouri (“Chapter 100”) and Article VI, Section 27(b) of the Missouri Constitution
(together 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 (this “Plan”) to satisfy requirements of the Act and to
analyze the potential costs and benefits, including the related tax impact on affected taxing jurisdictions, of
using industrial revenue bonds to finance the Project and to facilitate abatement of ad valorem real and
personal property taxes on the bond-financed property.
II. DESCRIPTION OF CHAPTER 100 FINANCINGS
General. Chapter 100 authorizes cities, counties, towns and villages to issue industrial revenue
bonds to finance the purchase, construction, extension and improvement of warehouses, distribution
facilities, research and development facilities, office industries, agricultural processing industries, service
facilities that provide interstate commerce and industrial plants, including the real estate either within or
without the limits of such municipalities, buildings, fixtures and machinery. In addition, Article VI, Section
27(b) of the Missouri Constitution authorizes cities, counties, towns and villages to issue revenue bonds for
the purpose of paying all or part of the cost of purchasing, constructing, extending or improving any facility
for manufacturing, commercial, warehousing or 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, and in exchange, the benefited company promises to make payments that
are sufficient to pay the principal of and interest on the bonds as they become due. Thus, the municipality
merely acts as a conduit for the financing.
Concurrently with the closing of the bonds, the company will convey title or lease the site on which
the industrial development project is located to the municipality. 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 property while the bonds are outstanding for the property to be eligible for tax abatement, as
further described below.) The municipality will immediately lease the project site, the improvements
thereon and 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 purchase, construct and equip the project.
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Under the lease agreement, the company typically: (1) will 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 (other than those abated) 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 liability the municipality might incur as a result of its participation in the transaction.
Property Tax Abatement. Under Article X, Section 6 of the Missouri Constitution and
Section 137.100 of the Revised Statutes of Missouri, all property of any political subdivision is exempt
from taxation. In a typical transaction, the municipality holds fee title to the project and leases the project
to the benefited company. Although the Missouri Supreme Court has held that the leasehold interest is
taxable, it is taxable only to the extent that the economic value of the lease is less than the actual market
value of the lease. See Iron County v. State Tax Commission, 437 S.W.2d 665 (Mo. banc 1968) and
St. Louis County v. State Tax Commission, 406 S.W.2d 644 (Mo. banc 1966). 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 real and personal
property taxation so long as the bonds are outstanding.
If the municipality and the company determine that partial tax abatement is desirable, the company
may agree to make “payments in lieu of taxes” (sometimes referred to as “PILOTS” or “PILOT
Payments”). The amount of PILOT Payments is negotiable. The PILOT Payments are payable by
December 31 of each year and are distributed to the municipality and to each political subdivision in the
same manner and in the same proportion as property taxes would otherwise be distributed under Missouri
law.
Sales Tax Exemption. In addition to property tax abatement, qualified building materials can be
exempt from sales tax if approved by the municipality. The sales tax exemption is evidenced by a project
exemption certificate issued by the municipality.
III. DESCRIPTION OF THE PARTIES
Unilever Manufacturing (US), Inc. The Company is one of the world’s largest consumer goods
companies. The Company has more than 400 household name brands and more than 149,000 employees.
The Company’s manufacturing facility in the City produces large bottle beauty and personal care liquid
products, such as shampoos, conditioners, bodywashes and lotions. More information regarding the
Company can be found at www.unilever.com.
City of Jefferson, Missouri. The City is a home rule charter city and municipal corporation
organized and existing under the laws of the State of Missouri. The City is authorized and empowered
pursuant to the provisions of the Act to purchase, construct, extend and improve certain projects (as defined
in the Act) and to issue industrial development revenue bonds for the purpose of providing funds to pay the
costs of such projects and to lease or otherwise dispose of such projects to private persons or corporations
for manufacturing, commercial, warehousing and industrial development purposes upon such terms and
conditions as the City deems advisable.
IV. REQUIREMENTS OF THE ACT
Description of the Project. The Project consists of (1) renovating and modifying an approximately
110,000 square foot portion of the Company’s existing approximately 447,814 square foot main building
in order to incorporate automated operations for the production of a new product line (the approximately
110,000 square foot portion of the main building that is being renovated and modified as part of the Project
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is referred to as the “Project Improvements”) and (2) acquiring and installing automated packing line
equipment and other related personal property within the Project Improvements (the “Project
Equipment”). The Project Improvements are situated on and encompass an approximately 2.54 acre
portion of the real estate site where the Company’s other existing facilities are located at 2900 West Truman
Boulevard in the City (the 2.54 acre site where the Project Improvements will be constructed is referred to
as the “Project Site”)(the Project Site and the Project Improvements to be located thereon are collectively
referred to as the “Real Property”). The construction of the Project Improvements on the Project Site and
acquisition and installation of the Project Equipment is collectively referred to as the “Project.”
Estimate of the Costs of the Project. The total estimated cost of the Project is approximately
$80,250,000, of which approximately (1) $31,840,000 is attributable to the costs of the Project
Improvements and (2) $48,410,000 is attributable to the acquisition, delivery, assembly and installation of
the Project Equipment. The Bonds are being issued in a total maximum aggregate principal amount of
$83,000,000 to provide for contingencies.
Project Improvements. The Company expects to begin constructing the Project Improvements in
calendar year 2024 and anticipates the construction of the Project Improvements will be fully completed
prior to calendar year ending December 31, 2025.
Project Equipment. The Company currently expects to acquire and install portions of the Project
Equipment at the Project Site during calendar years ending December 31, 2024, and 2025. The Company
also anticipates that all of the Project Equipment will be classified as 7-year Modified Accelerated Cost
Recovery System (“MACRS”) class-life personal property for purposes of calculating deprecation for such
Project Equipment. Below is a breakdown of the anticipated total costs of acquiring, delivering, assembling
and installing the Project Equipment at the Project Site in calendar years 2024 and 2025:
Year Acquired and
Installed at Project Site
Estimated
Acquisition Cost
(Taxable Value)
Estimated
Soft Costs(1)
(Non-Taxable)
Estimated
Total Costs
2024 $20,100,000 $16,207,500 $36,307,500
2025 6,700,000 5,402,500 12,102,500
Totals: $26,800,000 $21,610,000 $48,410,000
__________________
(1) Reflects anticipated soft costs (delivery, installation, engineering, assembly, etc.) relating to the Project Equipment, which soft
costs are excludable from the calculation of personal property assessed valuation under Missouri law.
Sources of Funds to be Expended for the Project. The sources of funds to pay for, or reimburse,
the costs of constructing the Project Improvements on the Project Site will be the proceeds of the Real
Property Bonds to be issued by the City in the maximum aggregate principal amount of $33,000,000, which
will be purchased by the Company. The Real Property Bonds will be payable solely from the revenues
derived by the City from the lease of the Real Property to the Company under a Real Property Lease
(defined herein).
The sources of funds to pay for, or reimburse, the costs of acquiring and installing the Project
Equipment will be the proceeds of Personal Property Bonds to be issued by the City in the maximum
aggregate principal amount of $50,000,000, which will also be purchased by the Company. The Personal
Property Bonds will be payable solely from the revenues derived by the City from the lease of the Project
Equipment to the Company under a Personal Property Lease (defined herein).
The Bonds will not be an indebtedness or general obligation, debt or liability of the City or the
State of Missouri.
Statement of the Terms Upon Which the Project is to be Leased or Otherwise Disposed of by the
City. Simultaneously with the issuance of the Real Property Bonds, the Company will convey title to the
Real Property to the City. The City, as lessor, will then lease the Real Property back to the Company, as
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lessee, under a real property lease agreement (the “Real Property Lease”). The rental payments to be paid
to the City under the Real Property Lease for use of the Real Property will be equal to the principal of and
interest on the Real Property Bonds. The Company will also make certain PILOT Payments to the City
relating to the Real Property for distribution to the affected taxing jurisdictions, as further described herein.
Under the terms of the Real Property Lease, the Company will have the option to purchase the Real Property
at any time for nominal consideration. Unless terminated sooner pursuant to the terms thereof, the Real
Property Lease will terminate on December 31 of the tenth year following the calendar year in which the
Project Improvements are completed, but not later than December 31, 2036. The Project Improvements are
expected to be completed by December 31, 2025; therefore, the Real Property Lease is expected to terminate
on December 31, 2035.
The Company will convey title to the Project Equipment to the City as it is acquired and installed
on the Project Site. The City, as lessor, will then lease the Project Equipment back to the Company, as
lessee, under a personal property lease agreement (the “Personal Property Lease”). The rental payments
to be paid by the Company to the City under the Personal Property Lease for use of the Project Equipment
will be equal to the principal of and interest due on the Personal Property Bonds. The Company will also
make certain PILOT Payments to the City relating to the Project Equipment for distribution to the affected
taxing jurisdictions, as further described herein. Under the terms of the Personal Property Lease, the
Company will have the option to purchase the Project Equipment at any time for nominal consideration.
Unless terminated sooner pursuant to the terms thereof, the Personal Property Lease will also terminate on
December 31 of the tenth year following the calendar year in which all of the Project Equipment is expected
to be acquired and installed on the Project Site, but not later than December 31, 2036. The Company
anticipates a portion of the Project Equipment will be acquired and installed on the Project Site in calendar
year ending December 31, 2024, and the remaining portion of the Project Equipment will be acquired and
installed on the Project Site in calendar year ending December 31, 2025. Therefore, given that the Company
anticipates that all Project Equipment will be acquired and installed on the Project Site by December 31,
2025, the Personal Property Lease is expected to terminate on December 31, 2035.
Affected Taxing Jurisdictions. The Jefferson City School District is the school district financially
impacted by the Project. The City 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 of the Project.
Real Property. The most recent estimated equalized assessed valuation of the approximately
110,000 sq. ft. portion of the Company’s main building that will constitute the Project Improvements on the
Project Site is approximately $1,374,912 (which is based upon the estimated appraised value of $4,296,600
applicable to the existing 110,000 sq. ft. portion of the Company’s main building that will constitute the
Project Improvements as of January 1, 2023, multiplied by the statutorily required assessment rate of 32%
for commercial real property).
After construction of the Project Improvements is completed (which is expected to occur in 2025),
the total estimated equalized assessed valuation of the Real Property included in the Project is anticipated
to be approximately $8,175,424 (based upon the estimated 2026 assessed value of the Project Site and the
-5-
completed Project Improvements located thereon). The total equalized assessed valuation of the Real
Property was calculated based upon an estimated appraised value of the Project Site (estimated to equal
approximately $76,200) plus the estimated appraised value of the Project Improvements to be constructed
on the Project Site (estimated to equal approximately $25,472,000, which assumes 80% of the total
$31,840,000 estimated costs of the Project Improvements will be applied to the appraised value of the
Project Improvements) multiplied by the statutorily required assessment rate of 32% for commercial real
property. If the actual costs of constructing the Project Improvements is larger or smaller than anticipated,
the assessed valuation of the Real Property will likely be greater or less than the estimated $8,175,424
assessed valuation. The Cole County Assessor will make the final determination of the assessed value of
the Project Improvements.
Personal Property. The most recent equalized assessed valuation of the personal property
comprising the Project Equipment is $0 because the Company has not yet acquired or delivered any portion
of the equipment, machinery or other personal property comprising the Project Equipment to the Project
Site. The equalized assessed valuation of the personal property comprising the Project Equipment after all
Project Equipment has been acquired and installed on the Project Site, which is expected to occur by
December 31, 2025, is estimated to be approximately $6,694,194 (based upon the estimated 2026 assessed
value of all Project Equipment). This valuation was calculated based upon the estimated cost of acquiring
the equipment, machinery and other personal property comprising the Project Equipment in the amount of
approximately $26,800,000 (this amount does not include the costs associated with delivery, installation,
assembly and other soft costs of such Project Equipment which amounts are excludable from the calculation
of personal property assessed value under Missouri law), less depreciation, multiplied by the statutorily
required assessment rate of 33.33% for personal property. If the actual investment in the Project Equipment
is larger or smaller than anticipated, the assessed valuation of such Project Equipment will likely be greater
or less than the estimated $6,694,194 assessed valuation. The Cole County Assessor will make the final
determination of the assessed value of the Project Equipment.
Payments in Lieu of Taxes. If this Plan is approved by the City Council, the City intends to issue
the Bonds, take possession of the Real Property and the Project Equipment and extend real and personal
property tax abatement to the Company as further described below:
Payments in Lieu of Taxes – Real Property. On the date of issuance of the Real Property Bonds,
the Company will transfer title to the Real Property to the City. In each year before the completion of the
Project Improvements and the year in which the Project Improvements are completed (expected to be years
2024 and 2025), the Company will be required to pay a PILOT Payment equal to 100% of the real property
taxes that would otherwise be due on the Real Property, but for the City’s ownership thereof.
The Company will receive 75% real property tax abatement on the Real Property for a period of 10
years beginning in year 2026 (the year after the Project Improvements are completed) through 2035. In
each year of the 10-year real property tax abatement period (years 2026 through 2035, inclusive), the
Company will be required to pay a PILOT Payment equal to 25% of the real property taxes that would
otherwise be due on the Real Property, but for the City’s ownership thereof.
Payments in Lieu of Taxes – Project Equipment (Personal Property). The Company will receive
75% personal property tax abatement on each portion of the Project Equipment (which is expected to be
acquired and delivered to the Project Site in years 2024 and 2025) 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
Project Equipment would first be subject to personal property taxation under Missouri law, but for the
City’s ownership thereof. Therefore, the 10-year personal property tax abatement period for each portion
of the Project Equipment is expected be as follows:
(1) for the portion of the Project Equipment acquired and installed on 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
-6-
(2) for the portion of the Project Equipment expected to be acquired and installed on 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.
In each year of the 10-year personal property tax abatement period applicable to each portion of
the Project Equipment, the Company will be required to pay a PILOT Payment (commencing in 2025 for
the portion of the Project Equipment acquired and installed on the Project Site during the current calendar
year ending December 31, 2024), 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 Installed
During Calendar Year Ending
December 31
Tax Abatement
Period in Years
Calendar Years of
Personal Property
Tax Abatement
Percentage
of PILOT Payment
2024 1 through 10 2025-2034 25%
2024 -- 2035 and after 100%(1)
2025 1 through 10 2026-2035 25%
2025 -- 2036 and after 100%
_______________
(1) For the Project Equipment expected to be acquired and installed at the Project Site during calendar year ending December 31,
2024, the last year of the 10-year personal property tax abatement period applicable to that portion of the Project Equipment
will be 2034. Under the Personal Property 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.
Pursuant to Section 100.050 of the Act, certain emergency service districts may elect to be
reimbursed up to 100% of the real and personal property taxes they would have received, but for the real
and personal property tax abatement. Currently, no qualifying emergency service districts are impacted by
the Project described in this Plan. However, to the extent a qualifying emergency service district levies an
ad valorem property tax on the Real Property or the Project Equipment in the future, the emergency service
district may elect a reimbursement rate equal to 100% of the real and personal property taxes the emergency
service district would have otherwise received. If Section 100.050 of the Act is determined to apply to any
emergency service district in the future, then the Company will be required make PILOT Payments required
to satisfy the obligations to any emergency service districts as required by Section 100.050 of the Act.
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 property taxes which
would have been paid in each year had the Real Property and the Project Equipment not been exempt from
property taxation, pursuant to Section 100.050.3 of the Act.
Sales Tax Exemption – Qualified Building Materials. Qualified building materials purchased for
the construction of the Project Improvements are expected to be exempt from sales and use tax pursuant to
the provisions of Section 144.062 of the Revised Statutes of Missouri, as amended, and the City will grant
a sales tax exemption on the qualified building materials necessary to complete the Project Improvements.
For purposes of determining the impact of the sales and use tax exemptions granted by the City for the
qualified building materials on the affected taxing jurisdictions, it is assumed that:
(1) approximately $15,920,000 (equal to approximately 50% of the total $31,840,000
estimated costs of constructing the Project Improvements) in purchases of qualified building
materials will be subject to the sales and use tax exemption; and
-7-
(2) all $15,920,000 of such purchases will be subject to the sales and/or use taxes
imposed by the local taxing jurisdictions currently imposing a sales or use tax on the Project Site
where the Project Improvements will be constructed.
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 qualified building
materials is as follows:
Jurisdiction
Sales
Tax Rate
Use
Tax Rate
Estimated Sales and/or Use
Tax Revenues
Subject to Exemption
State of Missouri 4.225% 4.225% $672,620
City of Jefferson
General Revenue 1.000% --(1) 159,200(1)
Capital Improvement 0.500% --(1) 79,600(1)
Parks 0.500% --(1) 79,600(1)
Public Safety 0.250% --(1) 39,800(1)
Cole County
Capital Improvements 0.500% 0.500% 79,600
Emergency Services 0.500% 0.500% 79,600
Law Enforcement 0.375% 0.375% 59,700
Total 7.850% 5.600% $1,249,720
______________
(1) The City does not currently impose a “local use tax” corresponding to its local sales tax, which “local use tax” may
be imposed on the Company for the storage, use or consumption of any of the total $15,920,000 of qualified building
materials 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 $15,920,000 of qualified building materials 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 sales/use tax exemption on qualified building materials provided to the Company.
Cost-Benefit Analysis and Discussion of Attachments. In compliance with Section 100.050.2(3)
of the Act, this Plan has been prepared to show the costs and benefits to the City and to other taxing
jurisdictions affected by the property tax abatements for the Real Property and 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 property tax abatements for the Real Property and 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 1 of the Cost-Benefit Analysis included as
Attachment B to this Plan presents a list of the assumptions related to the determination of the real
and personal property assessed valuations and the tax formulas.
Summary of Cost-Benefit Analysis. Page 2 of the Cost-Benefit Analysis included as
Attachment B to this Plan provides a summary for each affected taxing jurisdiction of (1) the total
estimated real and personal property tax revenues that would be generated if the Real Property (i.e.,
the Project Site and Project Improvements) and the Project Equipment did not receive real and
personal property tax abatement, (2) the total estimated value of the real and personal property tax
abatement to the Company and (3) the total estimated value of the PILOT Payments to be made by
the Company for the proposed 10-year real and personal property tax abatement period for the
respective Real Property and the Project Equipment. Please note that the actual value of the Real
Property and 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 the Company.
-8-
Real Property Tax Revenues. Page 3 of the Cost Benefit Analysis included as Attachment
B to this Plan provides the projected real property tax revenues that would be generated from the
Real Property (after completion of the Project Improvements) if the Real Property did not receive
real property tax abatement. Page 4 of the Cost-Benefit Analysis provides the projected value of
the PILOT Payments to be made by the Company based on the estimated assessed value of the Real
Property (after completion of the Project Improvements). Page 5 of the Cost-Benefit Analysis
provides the projected value of the real property tax abatement to the Company for the Real
Property (after completion of the Project Improvements).
Personal Property Tax Revenues. Page 6 of the Cost-Benefit Analysis provides the
projected personal property tax revenues that would be generated from the Project Equipment if
the Project Equipment did not receive personal property tax abatement. Page 7 of the Cost-Benefit
Analysis provides the projected value of the PILOT Payments to be made by the Company based
on the estimated assessed value of the Project Equipment after installation. Page 8 of the Cost-
Benefit Analysis provides the projected value of the personal property tax abatement to the
Company.
V. ASSUMPTIONS AND BASIS OF PLAN
In preparing this Plan, we have made some key assumptions to estimate the fiscal impact of the real
and personal property tax abatement and exemptions proposed for the Real Property and 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, Gilmore & Bell, P.C., as bond counsel
to the City, has 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. Gilmore & Bell, P.C., as bond counsel to the City, does not assume any
responsibility for the accuracy, completeness or fairness of any of the information provided and has not
independently verified the accuracy, completeness or fairness of such information.
[Remainder of this page intentionally left blank.]
A-1
ATTACHMENT A
SUMMARY OF KEY ASSUMPTIONS
1. The total estimated cost of the Project is approximately $80,250,000, of which
approximately (1) $31,840,000 is attributable to the construction of the Project Improvements on the Project
Site and (2) $48,410,000 is attributed to the acquisition, delivery, assembly and installation of the Project
Equipment.
2. The Company will begin construction of the Project Improvements in calendar year 2024
and anticipates that the Project Improvements will be fully completed prior to calendar year ending
December 31, 2025.
3. The Company currently expects that the Project Equipment will be acquired and installed
on the Project Site during the calendar years ending December 31, 2024 and 2025, and all Project
Equipment will be classified as 7-year Modified Accelerated Cost Recovery System (“MACRS”) class-
life personal property for purposes of calculating deprecation for such Project Equipment. Below is a
breakdown of the anticipated total costs of acquiring, delivering, assembling and installing the Project
Equipment at the Project Site in calendar years 2024 and 2025:
Year Acquired and
Installed at Project Site
Estimated
Acquisition Cost
(Taxable Value)
Estimated
Soft Costs(1)
(Non-Taxable)
Estimated
Total Costs
2024 $20,100,000 $16,207,500 $36,307,500
2025 6,700,000 5,402,500 12,102,500
Totals: $26,800,000 $21,610,000 $48,410,000
__________________
(1) Reflects anticipated soft costs (delivery, installation, engineering, assembly, etc.) relating to the Project Equipment, which soft
costs are excludable from the calculation of personal property assessed valuation under Missouri law.
4. The Real Property and the Project Equipment will be owned by the City and leased to the
Company under the respective Real Property Lease and Personal Property Lease with option to purchase.
As along as the Real Property and the Project Equipment are owned by the City, they will be exempt from
ad valorem real and personal property taxes.
5. Beginning in calendar year 2026, the Company will receive 75% real property tax
abatement on the Real Property for a period of 10 years (calendar years 2026 through 2035, inclusive).
During each year of the 10-year real property tax abatement period, the Company will make PILOT
Payments equal 25% of the real property taxes that would otherwise be due on the Real Property, but for
the City’s ownership thereof.
6. The Company will receive 75% personal property tax abatement on each portion of the
Project Equipment (which is expected to be acquired and installed on the Project Site in calendar years
2024 and 2025) for a period of 10 years. During each year of the 10-year personal property tax abatement
period applicable to each portion of the Project Equipment expected to be acquired and installed on the
Project Site in calendar years 2024 and 2025, the Company will make PILOT Payments as follows:
(a) Project Equipment Acquired/Installed in 2024:
(i) in years 2025 through 2034, inclusive, the Company will make PILOT
Payments equal to 25% 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-2
(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.
(b) Project Equipment Acquired/Installed in 2025:
(i) in years 2026 through 2035, inclusive, the Company will make PILOT
Payments equal to 25% of the personal property taxes that would otherwise be due
on that portion of the Project Equipment, but for the City’s ownership thereof.
7. Property taxes are calculated using the following formula:
(Assessed Value * Tax Rate) / 100
8. The assessed value of the Real Property is calculated using the following formula:
Estimated Value * Assessment Ratio of 32%
9. The assessed value of the Project Equipment is calculated using the following formula:
(Acquisition Cost * Depreciation Factor) * Assessment Ratio of 33.33%
10. 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 has represented that it expects all machinery, equipment and other
personal property comprising the Project Equipment to have a 7-year recovery period. The depreciation
factor used for personal property with a 7-year recovery period is included 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):
Year
7-Year Recovery
Depreciation
Factors
0 100.00%
1 89.29%
2 70.16%
3 55.13%
4 42.88%
5 30.63%
6 18.38%
7 10.00%
8 10.00%
9 10.00%
10 and after 10.00%
11. The Real Property will be assessed in the first full year after the Project Improvements are
completed (calendar year 2026) and will be reassessed in every odd-numbered year thereafter. An estimated
growth of 2% on the Real Property has been assumed for each reassessment year (years 2027, 2029, 2031,
2033 and 2035) during the 10-year real property tax abatement period.
A-3
12. The property tax rates used in this Plan reflect the property tax rates in effect for the tax
year 2023. The property tax rates were held constant through the 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.
* * *
ATTACHMENT B
COST-BENEFIT ANALYSIS
[See attached]
ATTACHMENT B
COST-BENEFIT ANALYSIS
[See attached]
CITY OF JEFFERSON, MISSOURI
(UNILEVER PROJECT)
COST-BENEFIT ANALYSIS
PLAN FOR INDUSTRIAL DEVELOPMENT PROJECT
CITY OF JEFFERSON, MISSOURI
(UNILEVER PROJECT)
COST-BENEFIT ANALYSIS
PLAN FOR INDUSTRIAL DEVELOPMENT PROJECT
Page
Project Assumptions 1
Summary of Cost-Benefit Analysis 2
Estimated Real Property Tax Revenues Without Abatement on Real Property 3
Estimated Revenues Generated from PILOT Payments on Real Property 4
Estimated Value of Real Property Tax Abatement on Real Property 5
Estimated Personal Property Tax Revenues Without Abatement on Project Equipment 6
Estimated Revenues Generated from PILOT Payments on Project Equipment 7
Estimated Value of Personal Property Tax Abatement on Project Equipment 8
Table of Contents
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.
Initial year taxes assessed for Project Equipment (acquired in 2024): 2025
Initial year taxes assessed for Real Property (Project Site and Project Improvements) after completion of Project Improvements in 2025: 2026
Estimated 2026 appraised value of Project Site (land excluding Project Improvements):76,200$
Est. Cost Est. Appraised Value
31,840,000$ 25,472,000$
32.0%
2.0%
Estimated appraised value (acquisition cost) of Project Equipment to be purchased in 2024 and 2025:Year Acquired Est. Cost
2024 20,100,000$
2025 6,700,000$
Total Est. Cost:26,800,000$
Assessed value of as a percentage of appraised value (acquisition cost) of Project Equipment (personal property ):33.33%
Terms of real and personal property tax abatement:
75%
75%
Project Equipment is depreciated using the following 7-year recovery period schedule:
Recovery Period in Years
Year 7-Year Depreciation
0 100.00%
1 89.29%
2 70.16%
3 55.13%
4 42.88%
5 30.63%
6 18.38%
7 10.00%
8 10.00%
9 10.00%
10 and on 10.00%
**For Project Equipment acquired in 2024, 10-year period of 75% personal property tax abatement to begin in 2025.
For Project Equipment acquired in 2025, 10-year period of 75% personal property tax abatement to begin in 2026.
Project Assumptions
Estimated 2026 appraised value of Project Improvements after completion (estimated to be 80% of costs of Project Improvements):
Years 1-10* (calendar years 2026 - 2035)
Assessed value as a percentage of appraised value of Real Property (Project Site and Project Improvements)(commercial ):
Years 1-10**
(Project Equipment acquired in 2024, calendar years 2025 - 2034)
(Project Equipment acquired in 2025, calendar years 2026 - 2035)
*10-year period of 75% real property tax abatement to begin in 2026, which is the year after the year the Project
Improvements are expected to be completed (2025).
Real Property:
Project Equipment:
Estimated bi-annual growth rate of appraised value of Real Property (Project Site and Project Improvements):
City of Jefferson, Missouri
(Unilever Project)
Cost-Benefit Analysis -3 -2/22/2024
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Gilmore & Bell, P.C.
Draft v2 – February 27, 2024
CITY OF JEFFERSON, MISSOURI,
AND
UMB BANK, N.A.,
as Trustee
________________
REAL PROPERTY TRUST INDENTURE
Dated as of April 1, 2024
________________
Relating to:
$33,000,000
(Aggregate Maximum Principal Amount)
City of Jefferson, Missouri
Taxable Industrial Development Revenue Bonds
(Unilever - Real Property Project)
Series 2024B
(i)
REAL PROPERTY TRUST INDENTURE
TABLE OF CONTENTS
Page
Parties ................................................................................................................................ 1
Recitals............................................................................................................................... 1
Granting Clauses ................................................................................................................ 2
ARTICLE I
DEFINITIONS
Section 101. Definitions of Words and Terms ........................................................................................ 3
Section 102. Rules of Interpretation ....................................................................................................... 8
Section 103. 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 ................................................................ 10
Section 207. Persons Deemed Owners of Bonds .................................................................................. 11
Section 208. Authorization of the Bonds .............................................................................................. 11
Section 209. Mutilated, Lost, Stolen or Destroyed Bonds .................................................................... 13
Section 210. Cancellation and Destruction of Bonds Upon Payment ................................................... 13
ARTICLE III
REDEMPTION OF BONDS
Section 301. Redemption of Bonds ...................................................................................................... 14
Section 302. Effect of Call for Redemption .......................................................................................... 14
Section 303. Notice of Redemption ...................................................................................................... 15
ARTICLE IV
FORM OF BONDS
Section 401. Form Generally ................................................................................................................ 15
(ii)
ARTICLE V
CUSTODY AND APPLICATION OF BOND PROCEEDS
Section 501. Creation of Funds ............................................................................................................. 15
Section 502. Deposits into the Project Fund ......................................................................................... 15
Section 503. Disbursements from the Project Fund .............................................................................. 15
Section 504. Completion of the Project Improvements ........................................................................ 16
Section 505. Disposition Upon Acceleration ........................................................................................ 16
ARTICLE VI
REVENUES AND FUNDS
Section 601. Deposits into the Bond Fund............................................................................................ 17
Section 602. Application of Moneys in the Bond Fund ........................................................................ 17
Section 603. Payments Due on Days Other than Business Days .......................................................... 18
Section 604. Nonpresentment of Bonds................................................................................................ 18
ARTICLE VII
SECURITY FOR DEPOSITS AND INVESTMENT OF FUNDS
Section 701. Moneys to be Held in Trust .............................................................................................. 18
Section 702. Investment of Moneys in Project Fund and Bond Fund .................................................. 18
Section 703. Record Keeping ............................................................................................................... 19
ARTICLE VIII
GENERAL COVENANTS AND PROVISIONS
Section 801. Payment of Principal and Interest .................................................................................... 19
Section 802. Authority to Execute Indenture and Issue Bonds ............................................................. 19
Section 803. Performance of Covenants ............................................................................................... 19
Section 804. Instruments of Further Assurance .................................................................................... 20
Section 805. Recordings and Filings .................................................................................................... 20
Section 806. Inspection of Books ......................................................................................................... 20
Section 807. Enforcement of Rights Under the Lease .......................................................................... 20
ARTICLE IX
DEFAULT AND REMEDIES
Section 901 Events of Default; Notice; Opportunity to Cure .............................................................. 20
Section 902. Acceleration of Maturity in Event of Default .................................................................. 21
Section 903. Surrender of Possession of Trust Estate; Rights and Duties of Trustee in Possession ..... 21
Section 904. Appointment of Receivers in Event of Default ................................................................ 22
Section 905. Exercise of Remedies by the Trustee ............................................................................... 22
Section 906. Limitation on Exercise of Remedies by Owners ............................................................. 23
Section 907. Right of Owners to Direct Proceedings ........................................................................... 23
Section 908. Application of Moneys in Event of Default ..................................................................... 23
(iii)
Section 909. Remedies Cumulative ...................................................................................................... 24
Section 910. Waivers of Events of Default ........................................................................................... 25
ARTICLE X
THE TRUSTEE
Section 1001. Acceptance of the Trusts .................................................................................................. 25
Section 1002. Fees, Charges and Expenses of the Trustee ..................................................................... 28
Section 1003. Notice to Owners if Default Occurs ................................................................................. 28
Section 1004. Intervention by the Trustee .............................................................................................. 28
Section 1005. Successor Trustee Upon Merger, Consolidation or Sale .................................................. 29
Section 1006. Resignation of Trustee ..................................................................................................... 29
Section 1007. Removal of Trustee .......................................................................................................... 29
Section 1008. Appointment of Successor Trustee .................................................................................. 29
Section 1009. Vesting of Trusts in Successor Trustee ............................................................................. 30
Section 1010. Right of Trustee to Pay Taxes and Other Charges ........................................................... 30
Section 1011. Trust Estate May be Vested in Co-Trustee ....................................................................... 30
Section 1012. Accounting ....................................................................................................................... 31
Section 1013. Performance of Duties Under the Lease .......................................................................... 31
ARTICLE XI
SUPPLEMENTAL INDENTURES
Section 1101. Supplemental Indentures Not Requiring Consent of Owners .......................................... 31
Section 1102. Supplemental Indentures Requiring Consent of Owners ................................................. 32
Section 1103. Company’s Consent to Supplemental Indentures ............................................................ 32
Section 1104. Opinion of Counsel .......................................................................................................... 32
ARTICLE XII
SUPPLEMENTAL LEASES
Section 1201. Supplemental Leases Not Requiring Consent of Owners ................................................ 33
Section 1202. Supplemental Leases Requiring Consent of Owners ....................................................... 33
Section 1203. Opinion of Counsel .......................................................................................................... 33
ARTICLE XIII
SATISFACTION AND DISCHARGE OF INDENTURE
Section 1301. Satisfaction and Discharge of this Indenture ................................................................... 33
Section 1302. Bonds Deemed to be Paid ................................................................................................ 34
ARTICLE XIV
MISCELLANEOUS PROVISIONS
Section 1401. Consents and Other Instruments by Owners .................................................................... 35
Section 1402. Limitation of Rights Under this Indenture ....................................................................... 35
(iv)
Section 1403. Notices ............................................................................................................................. 35
Section 1404. Severability ...................................................................................................................... 37
Section 1405. Execution in Counterparts................................................................................................ 37
Section 1406. Governing Law ................................................................................................................ 37
Section 1407. Electronic Transaction ..................................................................................................... 37
Section 1408. City Consents and Approvals ........................................................................................... 37
Section 1409. Anti-Discrimination Against Israel Act ........................................................................... 37
Signature and Seals ............................................................................................................ 1
Exhibit A - Project Site
Exhibit B - Project Improvements
Exhibit C - Form of Real Property Bonds
Exhibit D - Form of Representation Letter
REAL PROPERTY TRUST INDENTURE
THIS REAL PROPERTY TRUST INDENTURE, dated as of April 1, 2024 (this “Indenture”),
between CITY OF JEFFERSON, MISSOURI, a home rule charter city 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 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 (collectively, the “Act”) and the City Charter to purchase, construct, extend, improve and equip
certain projects (as defined in the Act), to issue industrial development revenue bonds for the purpose of
providing funds to pay the costs of such projects and to lease or otherwise dispose of such projects to private
persons or corporations for manufacturing, commercial, research and development, office industry,
warehousing and industrial development purposes upon such terms and conditions as the City deems
advisable.
2. In accordance with Section 100.059.1 of the Act, the City Council of the City gave notice
to the affected taxing jurisdictions regarding the City’s intent to approve the issuance of two separate series
of industrial development revenue bonds under the Act in order to finance the costs of an industrial
development project (the “Project”) for the benefit of Unilever Manufacturing (US), Inc., a Delaware
corporation (the “Company”) consisting of (a) renovating and modifying an approximately 110,000 square
foot portion of the Company’s existing approximately 447,814 square foot main building in order to
incorporate automated operations for the production of a new product line (the approximately 110,000
square foot portion of the main building that is being renovated and modified as part of the Project is
referred to herein as the “Project Improvements”), which Project Improvements are situated on an
approximately 2.54 acre portion of the real estate site where the Company’s other existing facilities are
located at 2900 West Truman Boulevard in the City (as legally described on Exhibit A hereto, the “Project
Site”) and (b) acquiring and installing certain equipment and other personal property within the Project
Improvements (the “Project Equipment”).
3. Following notice to the affected taxing jurisdictions in accordance with Section 100.059.1
of the Act, the City Council of the City passed Ordinance No. [___________] on March 18, 2024 (the
“Ordinance”), (a) approving a plan for the Project and (b) authorizing the issuance of (i) the City’s Taxable
Industrial Development Revenue Bonds (Unilever - Real Property Project), Series 2024B, in the maximum
principal amount of $33,000,000 (the “Bonds”), for the purpose constructing the Project Improvements on
the Project Site (the Project Site and the Project Improvements being collectively referred to herein as the
“Real Property”), and (ii) the City’s Taxable Industrial Development Revenue Bonds (Unilever - Personal
Property Project), Series 2024B, in the maximum principal amount of $50,000,000, for the purpose of
acquiring and installing the Project Equipment within the Project Improvements.
4. Pursuant to the Ordinance, the City is authorized to enter into (a) this Indenture between
the City and the Trustee for the purpose of issuing and securing the Bonds, as provided herein, and (b) a
Real Property Lease Agreement of even date herewith (the “Lease”) with the Company, as lessee, under
which the City will lease the Real Property to the Company in consideration of rental payments to be paid
by the Company that will be sufficient to pay the principal of and interest on the Bonds as provided therein,
(c) a Performance Agreement of even date herewith (the “Performance Agreement”) with the Company
-2-
for the purpose of setting forth the terms and conditions of the exemption of the Real Property and the
Project Equipment from real and personal property taxes and certain payments in lieu of taxes to be made
by the Company with respect to the Real Property and Project Equipment, respectively and (d) such other
documents relating to the Bonds as the City and the Company deem appropriate.
5. All things necessary to make the Bonds, when authenticated by the Trustee and issued as
provided in this Indenture, the valid and legally binding obligations of the City, and to constitute this
Indenture a valid and legally binding pledge and assignment of the Trust Estate (as defined herein) herein
made for the security of the payment of the principal of and interest on the Bonds, have been done and
performed, and the execution and delivery of this Indenture and the execution and issuance of the Bonds,
subject to the terms hereof, have in all respects been duly authorized.
NOW, THEREFORE, THIS REAL PROPERTY TRUST INDENTURE WITNESSETH:
GRANTING CLAUSES
That the City, in consideration of the premises, the acceptance by the Trustee of the trusts hereby
created, the purchase and acceptance of the Bonds by the Owners (as defined herein) thereof, and of other
good and valuable consideration, the receipt of which is hereby acknowledged, and in order to secure the
payment of the principal of and interest on all of the Bonds issued and Outstanding (as defined herein)
under this Indenture from time to time according to their tenor and effect, and to secure the performance
and observance by the City of all the covenants, agreements and conditions herein and in the Bonds
contained, does hereby pledge and assign to the Trustee and its successors and assigns forever, subject to
Permitted Encumbrances, 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 Real Property, subject to the
Company’s rights under the Lease, together with the tenements, hereditaments, appurtenances,
rights, easements, privileges and immunities thereunto belonging or appertaining and, to the extent
permissible, all permits, certificates, approvals and authorizations;
(b) All right, title and interest of the City in, to and under the Lease (excluding the
Unassigned Rights, as defined herein), and all rents, revenues and receipts derived by the City from
the Real Property 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;
-3-
IN TRUST NEVERTHELESS, upon the terms and subject to the conditions herein set forth, for
the equal and proportionate benefit, protection and security of all Owners from time to time of the Bonds
Outstanding under this Indenture, without preference, priority or distinction as to lien or otherwise of any
of the Bonds over any other of the Bonds except as expressly provided in or permitted by this Indenture;
PROVIDED, HOWEVER, that if the City pays, or causes to be paid, the principal of and interest
on the Bonds, at the time and in the manner mentioned in the Bonds, according to the true intent and
meaning thereof, or provides for the payment thereof (as provided in Article XIII), and pays or causes to
be paid to the Trustee all other sums of money due or to become due to it in accordance with the terms and
provisions hereof, then upon such final payments this Indenture and the rights hereby granted shall cease,
determine and be void; otherwise, this Indenture shall be and remain in full force and effect.
THIS INDENTURE FURTHER WITNESSETH, and it is hereby expressly declared,
covenanted and agreed by and between the parties hereto, that all Bonds issued and secured hereunder are
to be issued, authenticated and delivered and that all of the Trust Estate is to be held and applied under,
upon and subject to the terms, conditions, stipulations, covenants, agreements, trusts, uses and purposes as
hereinafter expressed, and the City does hereby agree and covenant with the Trustee and with the respective
Owners from time to time, as follows:
ARTICLE I
DEFINITIONS
Section 101. Definitions of Words and Terms. In addition to any words and terms defined in
the Lease (which definitions are hereby incorporated by reference) and any words and terms defined
elsewhere in this Indenture, the following words and terms as used in this Indenture shall have the following
meanings, unless some other meaning is plainly intended:
“Act” means, collectively, Article VI, Section 27(b) of the Missouri Constitution and Sections
100.010 through 100.200 of the Revised Statutes of Missouri.
“Additional Rent” means the additional rental described in Section 5.2 of the Lease.
“Approved Investor” means (a) the Company, (b) an affiliate of the Company, (c) a Financing
Party, (d) any general business corporation or enterprise with total assets in excess of $100,000,000, or (e)
any Person approved by the City Council of the City.
“Authorized City Representative” means the Mayor, Mayor Pro-Tem, City Administrator, 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 or Mayor Pro-Tem. Such certificate may designate an alternate
or alternates, each of whom may 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 an authorized officer of the
Company. Such certificate may designate an alternate or alternates, each of whom may perform all duties
of the Authorized Company Representative.
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“Basic Rent” means the rental described in Section 5.1 of the Lease.
“Bond” or “Bonds” means the Taxable Industrial Development Revenue Bonds (Unilever - Real
Property Project), Series 2024B, in the maximum aggregate principal amount of $33,000,000, issued,
authenticated and delivered under and pursuant to this Indenture.
“Bond Fund” means the “City of Jefferson, Missouri, Bond Fund – Unilever Real Property Project
– Series 2024B” created in Section 501.
“Bond Purchase Agreement” means the Real Property Bond Purchase Agreement dated as of
April 1, 2024, between the City and the Purchaser.
“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 organized and existing under
the laws of the State.
“Closing Date” means the date identified in the Bond Purchase Agreement for the initial issuance
and delivery of the Bonds.
“Closing Price” means the amount specified in writing by the Purchaser and agreed to by the City
as the amount required to pay for the initial issuance of the Bonds on the Closing Date, which amount may
consist of all or a portion of the Project Costs spent by the Company from its own funds before the Closing
Date and, at the option of the Company, the costs of issuance of the Bonds if such costs are not paid for
from Bond proceeds.
“Company” means Unilever Manufacturing (US), Inc., a Delaware corporation, and its successors
and assigns.
“Completion Date” means the date of execution of the certificate required by Section 4.5 of the
Lease and Section 504 hereof, which shall be deemed executed and filed on December 31, 2025, if not
actually executed and filed by December 31, 2025, except as otherwise provided in Section 4.5 of the Lease.
“Cumulative Outstanding Principal Amount” means the aggregate principal amount of all
Bonds Outstanding under the provisions of this Indenture, not to exceed $33,000,000, as reflected in the
records maintained by the Trustee as provided in the Bonds and this Indenture.
“Event of Default” means, with respect to this Indenture, any Event of Default as defin ed in
Section 901 hereof and, with respect to the Lease, any Event of Default as described in Section 12.1 of the
Lease.
“Financing Document” means any loan agreement, credit agreement, security agreement,
mortgage, participation agreement, lease agreement, sublease, ground lease, hedging agreement or other
document related to the Real Property and executed by or on behalf of, or for the benefit of, a Financing
Party.
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“Financing Party” means any Person providing debt, lease or equity financing (including equity
contributions or commitments) or hedging arrangements, or any renewal, extension or refinancing of any
such financing or hedging arrangements, or any guarantee, insurance, letters of credit or credit support for
or in connection with such financing or hedging arrangements, in connection with the acquisition,
improvement, ownership, lease, operation or maintenance of the Real Property or interests or rights in the
Lease, or any part thereof, including any trustee or agent acting on any such Person’s behalf.
“Financing Parties” means each and every Financing Party.
“Full Insurable Value” means the reasonable replacement cost of the Real Property less physical
depreciation and exclusive of land, excavations, footings, foundation and parking lots as determined at the
expense of the Company from time to time.
“Government Securities” means direct obligations of, or obligations the payment of principal of
and interest on which are unconditionally guaranteed by, the United States of America.
“Indenture” means this Real Property Trust Indenture, as from time to time amended and
supplemented by Supplemental Indentures in accordance with the provisions of Article XI.
“Investment Securities” means any investment approved in writing by the Authorized City
Representative and the Owners of all of the Outstanding Bonds.
“Lease” means the Real Property Lease Agreement dated as of April 1, 2024 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.
“Net Proceeds” means, when used with respect to any insurance or condemnation award with
respect to the Real Property, the gross proceeds from the insurance or condemnation award remaining after
payment of all expenses (including attorneys’ fees, the Trustee’s fees and any extraordinary expenses of
the City and the Trustee) incurred in the collection of such gross proceeds.
“Outstanding” means, when used with reference to Bonds, as of a particular date, all Bonds
theretofore authenticated and delivered, except:
(a) Bonds previously canceled by the Trustee or delivered to the Trustee for
cancellation;
(b) Bonds deemed to be paid in accordance with the provisions of Section 1302; and
(c) Bonds in exchange for or in lieu of which other Bonds have been authenticated
and delivered pursuant to this Indenture.
“Owner” means the registered owner of any Bond as recorded on the bond registration records
maintained by the Trustee.
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“Paying Agent” means the Trustee and any other bank or trust company designated by this
Indenture as paying agent for the Bonds at which the principal of or interest on the Bonds shall be payable.
“Payment Date” means the date on which the principal of or interest on any Bond, whether at the
stated maturity thereof or the redemption date thereof, is payable, which shall be December 1 of each year
that the Bonds are Outstanding.
“Performance Agreement” means the Performance Agreement dated as of April 1, 2024, among
the City and the Company.
“Permitted Encumbrances” means, as of any particular time, as the same may encumber the
Project Site, (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) utility, access and other
easements and rights-of-way, mineral rights, restrictions, exceptions and encumbrances that will not
materially interfere with or impair the operations being conducted on the Project Site or easements granted
to the City, (d) such minor defects, irregularities, encumbrances, easements, rights-of-way and clouds on
title as normally exist with respect to properties similar in character to the Project Site and as do not in the
aggregate materially impair the property affected thereby for the purpose for which it was acquired or is
held by the City, (e) liens, security interests or encumbrances granted pursuant to the Lease or any Financing
Documents, and (f) such exceptions to title set forth in the Title Information Report File No. 98238 issued
by Cole County Abstract & Title Co.
“Person” means an individual, partnership, corporation, business trust, joint stock company,
limited liability company, bank, insurance company, unincorporated association, joint venture or other
entity of whatever nature.
“Plans and Specifications” means the plans and specifications prepared for and showing Project
Improvements to be constructed on the Project Site, as amended from time to time before the Completion
Date, the same being on file at the principal 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 or their duly appointed representatives.
“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 Costs” means all costs of purchasing the Project Site and constructing the Project
Improvements on the Project Site, including the following:
(a) all costs and expenses necessary or incident to the acquisition and construction of
the Project Improvements located on the Project Site;
(b) fees and expenses of architects, appraisers, surveyors and engineers for estimates,
surveys, soil borings and soil tests and other preliminary investigations and items necessary to the
commencement of construction, preparation of plans, drawings and specifications and supervision
of construction, as well as for the performance of all other duties of pr ofessionals and consultants
in relation to the construction of the Project Improvements or the issuance of the Bonds;
(c) all costs and expenses of every nature incurred in purchasing and constructing the
Project Improvements and otherwise improving the Project Site, including the actual cost of labor
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and materials as payable to contractors, builders and materialmen in connection with the purchase
and construction of the Project Improvements.
(d) interest accruing on the Bonds until the Completion Date;
(e) the cost of title insurance policies and the cost of any other insurance maintained
in accordance with Article VII of the Lease;
(f) reasonable expenses of administration, supervision and inspection properly
chargeable to the Real Property, legal 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 purchase and construction of the Project Improvements on the Project Site;
(g) all other items of expense not elsewhere specified in this definition as may be
necessary or incident to: (1) the authorization, issuance and sale of the Bonds, including costs of
issuance of the Bonds; (2) the purchase and construction of the Project Improvements on the Project
Site; and (3) the financing thereof; and
(h) reimbursement to the Company or those acting for it for any of the above
enumerated costs and expenses incurred and paid by them before or after the execution of the Lease.
“Project Fund” means the “City of Jefferson, Missouri, Project Fund – Unilever Real Property
Project – Series 2024B” created in Section 501.
“Project Improvements” means the renovation and modification of an approximately 110,000
square foot portion of the Company’s existing approximately 447,814 square foot main building to
incorporate automated operations for the production of a new product line, which Project Improvements
are located on the Project Site, including all additions, alterations, modifications and improvements thereto
made pursuant to the Lease, which are completed pursuant to Article IV of the Lease, and are paid for in
whole from proceeds of the Bonds, as further described on Exhibit B.
“Project Site” means all of the real estate described in Exhibit A.
“Purchaser” means the Person identified in the Bond Purchase Agreement as the purchaser of the
Bonds.
“Real Property” means, collectively, the Project Site and the Project Improvements.
“State” means the State of Missouri.
“Supplemental Indenture” means any indenture supplemental or amendatory to this Indenture
entered into by the City and the Trustee pursuant to Article XI.
“Supplemental Lease” means any supplement or amendment to the Lease entered into pursuant
to Article XII.
“Trust Estate” means the Trust Estate described in the Granting Clauses of this Indenture.
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“Trustee” means UMB Bank, N.A., Kansas City, Missouri, a national banking association duly
organized and existing and authorized to accept and execute trusts of the character herein set forth under
the laws of the United States of America, and its successor or successors and any other Person which at the
time may be substituted in its place pursuant to and at the time serving as Trustee under this Indenture.
“Unassigned Rights” means the City’s rights under the Lease to receive moneys for its own
account and the City’s rights to indemnification or to be protected from liabilities by insurance policies
required by the Lease, as provided in the Lease.
Section 102. Rules of Interpretation.
(a) Words of the masculine gender shall be deemed and construed to include correlative words
of the feminine and neuter genders.
(b) Unless the context otherwise indicates, words importing the singular number shall include
the plural and vice versa, and words importing Persons shall include firms, associations and corporations,
including governmental entities, as well as natural Persons.
(c) Wherever in this Indenture it is provided that either party shall or will make any payment
or perform or refrain from performing any act or obligation, each such provision shall, even though not so
expressed, be construed as an express covenant to make such payment or to perform, or not to perform, as
the case may be, such act or obligation.
(d) All references in this instrument to designated “Articles,” “Sections” and other
subdivisions are, unless otherwise specified, to the designated Articles, Sections and other subdivisions of
this instrument as originally executed. The words “herein,” “hereof,” “hereunder” and other words of
similar import refer to this Indenture as a whole and not to any particular Article, Section or other
subdivision.
(e) The Table of Contents and the Article and Section headings of this Indenture shall not be
treated as a part of this Indenture or as affecting the true meaning of the provisions hereof.
(f) Whenever an item or items are listed after the word “including,” such listing is not intended
to be a listing that excludes items not listed.
Section 103. Date of Indenture. The dating of this Indenture as of April 1, 2024, is intended as
and for the convenient identification of this Indenture only and is not intended to indicate that this Indenture
was executed and delivered on said date, this Indenture being executed and delivered and becoming effective
simultaneously with the initial issuance of the Bonds.
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ARTICLE II
THE BONDS
Section 201. Title and Amount of Bonds. No Bonds may be issued under this Indenture except
in accordance with the provisions of this Article. The Bonds authorized to be issued under this Indenture
shall be designated as the “City of Jefferson, Missouri, Taxable Industrial Development Revenue Bonds
(Unilever - Real Property Project), Series 2024B.” The maximum total principal amount of Bonds that may
be issued hereunder is hereby expressly limited to $33,000,000.
Section 202. Nature of Obligation. The Bonds and the interest thereon shall be special, limited
obligations of the City payable solely out of the rents, revenues and receipts derived by the City from the
Real Property 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, statutory or charter debt limitation or restriction, and are not payable in any manner by
taxation.
Section 203. Denomination, Number and Dating of the Bonds.
(a) The Bonds shall be issuable in the form of one fully-registered Bond, in substantially the
form set forth in Exhibit C, 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.
Section 204. Method and Place of Payment of Bonds.
(a) The principal of and interest on the Bonds shall be payable in any coin or currency of the
United States of America which on the respective dates of payment thereof is legal tender for payment of
public and private debts.
(b) Payment of the principal of the Bonds shall be made upon the presentation and surrender
of such Bonds at the principal payment office of any Paying Agent named in the Bonds (provided, however,
presentation and surrender shall be deemed to have been made if the Bonds are held by the Trustee in trust
for the Owner). The payment of principal on the Bonds shall be noted on the Bonds on Schedule I thereto
and the registration books maintained by the Trustee pursuant to Section 206. Payment of the interest on
the Bonds shall be made by the Trustee on each Payment Date to the Person appearing on the registration
books of the Trustee hereinafter provided for as the Owner thereof on the 15th day (whether or not a
Business Day) of the calendar month next preceding such Payment Date by check or draft mailed to such
Owner at such Owner’s address as it appears on such registration books.
(c) The Bonds and the original Schedule I thereto shall be held by the Trustee in trust, unless
otherwise directed in writing by the Owner. If the Bonds are held by the Trustee, the Trustee shall, on each
Payment Date, send a revised copy of Schedule I via facsimile or other electronic means to the Owner, the
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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.
(d) If there is one Owner of the Bonds, the Trustee is authorized to make the final or any
interim payments of principal of such Bonds by internal bank transfer or by electronic transfer to an account
at a commercial bank or savings institution designated in writing by such Owner and located in the United
States. The Trustee is also authorized to make interest payments on such Bonds by internal bank transfer
or by electronic transfer to an account at a commercial bank or savings institution designated in writing by
such Owner and located in the l United States.
(e) If the Company or any Financing Party is the sole Owner of the Bonds and the lessee under
the Lease, then the Owner may set-off its obligation to the City as lessee under the Lease against the City’s
obligation to the bondholder under this Indenture; provided that, at all times that the Owner is the only
bondholder and the lessee under the Lease, such set-off shall be deemed to occur and payment under this
Indenture shall be deemed to have been made. The Company shall provide the Trustee with a written
statement confirming such ownership upon which the Trustee may conclusively rely. In connection with
any such permitted set-off 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. On the final Payment Date, the Owner
may deliver the Bonds to the Trustee for cancellation, and the Owner, as lessee under the Lease, shall
receive a credit against the Basic Rent payable by the lessee under Section 5.1 of the Lease in an amount
equal to the principal of the Bonds so tendered for cancellation plus accrued interest thereon.
Section 205. Execution and Authentication of Bonds.
(a) The Bonds shall be executed on behalf of the City by the manual or facsimile signature of
the Mayor or Mayor Pro-Tem 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 the Bonds, such
signature or facsimile thereof shall nevertheless be valid and sufficient for all purposes, the same as if such
Person had remained in office until delivery. Any Bond may be signed by such Persons as at the actual
time of the execution of such Bond are the proper officers to sign s uch 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, which shall be manually executed by the Trustee. No Bond shall be entitled
to any security or benefit under this Indenture or shall be valid or obligatory for any purposes until such
Certificate of Authentication has been duly executed by the Trustee. The executed Certificate of
Authentication upon any Bond shall be conclusive evidence that such Bond has been duly authenticated
and delivered under this Indenture. The Certificate of Authentication on any Bond shall be deemed to have
been duly executed if signed by any authorized signatory of the Trustee.
Section 206. Registration, Transfer and Exchange of Bonds.
(a) The Trustee shall keep books for the registration and transfer of Bonds as provided in this
Indenture.
(b) The Bonds may be transferred to an Approved Investor only upon the books kept for the
registration and transfer of Bonds upon surrender thereof to the Trustee duly endorsed for transfer or
accompanied by an assignment duly executed by the Owner or such Owner’s attorney or legal
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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. The Trustee shall be fully protected in relying upon such
representation letter and shall have no duty or obligation to confirm that any transferee that provides such
representation letter is an Approved Investor. 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 Indent ure, 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 canceled by the
Trustee. The City or the Trustee may make a reasonable charge for every such exchange or transfer of
Bonds sufficient to reimburse it for any tax, fee or other governmental ch arge required to be paid with
respect to such exchange or transfer, and such charge shall be paid before any new Bond shall be delivered.
Neither the City nor the Trustee shall be required to make any such exchange or transfer of Bonds during
the 15 days immediately preceding a Payment Date on the Bonds or, in the case of any proposed redemption
of Bonds, during the 15 days immediately preceding the selection of Bonds for such redemption or after
such Bonds or any portion thereof has been selected for redemption.
(d) If any Owner fails to provide a certified taxpayer identification number to the Trustee, the
Trustee may make a charge against such Owner sufficient to pay any governmental charge required to be
paid as a result of such failure, which amount may be deducted by the Trustee from amounts otherwise
payable to such Owner under such Owner’s Bond.
Section 207. Persons Deemed Owners of Bonds. As to any Bond, the Person in whose name
the same is registered as shown on the bond registration books required by Section 206 hereof shall be
deemed and regarded as the absolute owner thereof for all purposes. Payment of or on account of the
principal of and interest on any such Bond shall be made only to or upon the order of the Owner thereof or
a legal representative thereof. All such payments shall be valid and effectual to satisfy and discharge the
liability upon such Bond, including the interest thereon, to the extent of the sum or sums so paid.
Section 208. Authorization of the Bonds.
(a) The Bonds are authorized in the aggregate maximum principal amount of $33,000,000 for
the purpose of providing funds to pay Project Costs, which Bonds shall be designated “City of Jefferson,
Missouri, Taxable Industrial Development Revenue Bonds (Unilever - Real Property Project), Series
2024B.” The Bonds shall be dated as provided in Section 203(b) hereof, shall become due on December
1 of the tenth (10th) calendar year following the calendar year in which the Completion Date occurs, which
date shall be no later than December 1, 2036 (subject to prior redemption as provided in Article III) 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.
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(c) The Bonds shall be executed without material variance from the form and in the manner
set forth in Exhibit C and delivered to the Trustee for authentication. Prior to or simultaneously with the
authentication and delivery of the Bonds by the Trustee, there shall be filed with the Trustee the following:
(1) a certified copy of the Ordinance passed by the City Council authorizing the
issuance of the Bonds and the execution of this Indenture, the Performance Agreement, the Bond
Purchase Agreement and the Lease;
(2) executed counterparts or copies 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 hereto
as Exhibit D;
(4) a request and authorization to the Trustee on behalf of the City, executed by the
Authorized City Representative, to authenticate the Bonds and deliver the same to or at the written
direction of the Purchaser upon payment (or deemed payment pursuant to Section 208(d) hereof)
to the Trustee, for the account of the City, of the purchase price thereof specified in such request
and authorization. The Trustee shall be entitled to conclusively rely upon such request and
authorization as to the name of the Purchaser and the amount of such purchase price; and
(5) such other certificates, statements, receipts, opinions and documents as the Trustee
shall reasonably require for the delivery of the Bonds.
In authenticating Bonds, the Trustee makes no certification or representation that the Bonds have
been validly issued or constitute legally binding obligations of the City.
(d) When the documents specified in subsection (c) of this Section have been filed with the
Trustee, and when the Bonds have been executed and authenticated as required by this Indenture, either:
(1) the Purchaser shall pay the Closing Price to the Trustee, and the Tr ustee shall
endorse the Bonds in an amount equal to the Closing Price and then either hold the Bonds in trust
or if so directed in writing deliver the Bonds to or upon the order of the Purchaser; or
(2) the 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 endorse the Bonds in
an amount equal to the Closing Price and then either hold the Bonds in trust or, if so directed in
writing, deliver the Bonds to the Company (or another purchaser or Financing Party designated by
the Company).
In either case, the Purchaser shall be deemed to have paid over to the Trustee, and the Trustee shall be
deemed to have deposited into the Project Fund, an amount equal to the Closing Price.
(e) Following the initial issuance and delivery of the Bonds, the Company may submit
additional requisition certificates in accordance with Section 4.4 of the Lease. If the Purchaser does not
pay to the Trustee the amount set forth in the requisition certificates, the Purchaser will be deemed to have
advanced an amount equal to the amount set forth in the requisition certificates and, if the Trustee is holding
the Bonds, the Trustee shall endorse the Bonds in an amount equal to the amount set forth in each requisition
certificate as indicated thereon. The date of endorsement of each Principal Amount Advanced as set forth
on Schedule I to the Bonds shall be the date of the City’s approval of each requisition certificate. The
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Trustee shall keep a record of the total requisitions submitted to the Trustee for the Real Property, and shall
notify the City if the requisitions submitted exceed the maximum principal amount of the Bonds.
(f) The Bonds shall bear interest at the rate of 5.00% 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, 2024, and continuing thereafter until the Cumulative Outstanding Principal
Amount is paid in full, but not later than December 1 of the tenth (10th) calendar year following the calendar
year in which the Completion Date occurs (which date shall not be later than December 1, 2036). Interest
shall be calculated on the basis of a year of 360 days consisting of 12 months of 30 days each.
(g) The Trustee shall keep and maintain a record of the amount deposited or deemed to be
deposited into the Project Fund pursuant to the terms of this Indenture as the “Principal Amount
Advanced” and shall enter the aggregate principal amount of the Bonds then-Outstanding on its records as
the “Cumulative Outstanding Principal Amount.” If the Trustee is holding the Bonds such advanced
amounts shall be reflected on Schedule I to the Bonds. To the extent that advances are deemed by Section
208(e) to have been made pursuant to a requisition, the Trustee’s records of such advances shall be based
solely on the requisitions provided to it, and the Trustee shall have no duty or obligation to determine
whether such amounts have in fact been advanced by the Purchaser. On each date upon which a portion of
the Cumulative Outstanding Principal Amount is paid to the Owners (or set-off as permitted by Section
204(e) hereof), 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 the “Principal Amount Redeemed,” and shall enter the then-Outstanding principal amount of the Bonds
as the “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. To the extent the Company, as lessee, sets-off its obligation to the City, as lessor,
under the Lease against the City’s obligation to the Company as permitted by Section 204(e) hereof, 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 Project Improvements have been
completed and the certificate of payment of all costs is filed as provided in Section 504 hereof and Section
4.5 of the Lease, 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. 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 210. Cancellation and Destruction of Bonds Upon Payment.
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(a) All Bonds that have been paid or redeemed or that have otherwise been surrendered to the
Trustee under this Indenture, either at or before maturity shall be canceled by the Trustee immediately upon
the payment, redemption or purchase of such Bonds and the surrender thereof to the Trustee.
(b) All Bonds canceled under any of the provisions of this Indenture shall be destroyed by the
Trustee in accordance with applicable laws and regulations and the Trustee’s policies and practices. Upon
request, the Trustee shall execute a certificate describing the Bonds so destroyed and shall file executed
counterparts of such certificate with the City and the Company.
ARTICLE III
REDEMPTION OF BONDS
Section 301. Redemption of Bonds.
(a) The Bonds are subject to redemption and payment at any time before the stated maturity
thereof, at the option of the City, upon written instructions from the Company, (1) in whole, if the Company,
in accordance with the terms of the Lease, exercises its option to purchase the Real Property 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, (A) Bonds aggregating at least 10% of the maximum aggregate principal amount
of Bonds authorized hereunder shall not be subject to redemption and payment before the stated maturity
thereof, and (B) the Trustee shall keep a record of the amount of Bonds to remain Outstanding following
such redemption. Any redemption of Bonds pursuant to this paragraph shall be at a redemption price equal
to the par value thereof being redeemed, plus accrued interest thereon, without premium or penalty, to the
redemption date. 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(f) or 9.2(c) of the Lease, in the event of
substantial damage to or destruction or condemnation of substantially all of the Real Property. 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 subsection (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 shall no longer be entitled to the protection, benefit or security of this Indenture
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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 there is one Owner) before the
scheduled redemption date. The Trustee shall then deliver written notice to the Owners at least 30 days
(five days if there is one Owner) before the scheduled redemption date by facsimile or other electronic
communication (if such information is on file with the Trustee) 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 special trust funds in the name of the City:
(a) “City of Jefferson, Missouri, Project Fund – Unilever Real Property Project –
Series 2024B” (herein called the “Project Fund”).
(b) “City of Jefferson, Missouri, Bond Fund – Unilever Real Property Project – Series
2024B” (herein called the “Bond Fund”).
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) hereof), including Additional Payments as defined 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 moneys
received by the Trustee from any other source for the purpose of purchasing and improving the Real
Property 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.
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(a) The moneys in the Project Fund shall be disbursed by the Trustee for the payment of, or
reimbursement to the Company (or any other party that has made payment on behalf of the Company) for
payment of, Project Costs upon receipt of requisition certificates signed by the Company and approved by
the City 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 Sections 208(d) or (e) 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 Person designated by the Company) in satisfaction of the requisition certificates.
If the Trustee is holding the Bonds, such deemed disbursement will be deemed to have been made on the
date the Trustee endorses the Bonds with respect to such amounts.
(c) In paying any requisition certificate 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 and approved by the Authorized City Representative,
and the Trustee shall not be required to make any independent investigation in connection therewith. The
execution of any requisition certificate by an Authorized Company Representative shall constitute, unto the
Trustee, an irrevocable determination that all conditions precedent to the payments requested have been
completed. 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 Improvements. The completion of the construction
of the Project Improvements on the Project Site and payment of all costs and expenses incident thereto shall
be evidenced by the filing with the Trustee of the certificate required by the provisions of Section 4.5 of
the Lease. As soon as practicable after the Completion Date, any balance remaining in the Project Fund
shall without further authorization be transferred by the Trustee to the Bond Fund and applied as provided
in Section 4.6 of the Lease.
Section 505. Disposition Upon Acceleration. If the principal of the Bonds has become due
and payable pursuant to Section 902 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 the Company of
such action.
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ARTICLE VI
REVENUES AND FUNDS
Section 601. Deposits into the Bond Fund.
(a) The Trustee shall deposit into the Bond Fund, as and when received, (1) all accrued interest
on the Bonds, if any, paid by the Purchaser; (2) all Basic Rent payable by the 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 Improvements on the Project Site or pursuant to Section 505 upon
acceleration of the Bonds; (5) subject to the terms and conditions of any Financing Document with respect
to the use thereof , the balance of any Net Proceeds of condemnation awards or insurance received by the
Trustee pursuant to Article IX of the Lease; (6) the amounts to be deposited in the Bond Fund pursuant to
Sections 9.1(f) and 9.2(c) of the Lease; (7) all interest and other income derived from investments of Bond
Fund moneys as provided in Section 702; and (8) all other moneys received by the Trustee under and
pursuant to any of the provisions of the Lease when accompanied by written directions from the Person
depositing such moneys that such moneys are to be paid into the Bond Fund.
(b) Whether or not deposits are being made to the Trustee, the Trustee shall notify the
Company in writing, at least 15 days before each date on which a payment is due under Section 5.1 of the
Lease, of the amount that is payable by the 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 and in Section 4.6 of the Lease,
moneys in the Bond Fund shall be expended solely for the payment of the principal of and int erest on the
Bonds as the same matures and becomes due or upon the redemption thereof before maturity; provided,
however, that any amounts received by the Trustee as Additional Rent under Section 5.2 of the Lease and
deposited to the Bond Fund as provided in Section 601 above, shall be expended by the Trustee for such
items of Additional Rent as they are received or due without further authorization from the City.
(b) The City hereby authorizes and directs the Trustee to withdraw sufficient funds from the
Bond Fund to pay the principal of and interest on the Bonds as the same becomes due and payable and to
make said funds so withdrawn available to the Paying Agent for the purpose of paying said principal and
interest. To the extent the Company is the Owner of all the Bonds Outstanding, payment may be made via
transaction entry on the trust records held by the Trustee.
(c) Whenever the amount in the Bond Fund from any source whatsoever is sufficient to redeem
all of the Bonds Outstanding and to pay interest to accrue thereon before and until such redemption, the
City covenants and agrees, upon request of the 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.
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(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.
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 b ut may
be made on the next succeeding Business Day with the same force and effect as if made on the date of
maturity or the date fixed for redemption, and no interest, if any, shall continue to accrue for the period
after such date.
Section 604. Nonpresentment of Bonds. If any Bond is not presented for payment when the
principal thereof becomes due, either at maturity or otherwise, or at the date fixed for redemption thereof,
if funds sufficient to pay such Bond shall have been made available to the Trustee, all liability of the City
to the Owner thereof for the payment of such Bond shall forthwith cease, determine and be completely
discharged, and thereupon it shall be the duty of the Trustee to hold such funds, without liability for interest
thereon, for the benefit of the Owner of such Bond who shall thereafter be restricted exclusively to such
funds for any claim of whatever nature on his part under this Indenture or on, or with respect to, said Bond.
If any Bond is not presented for payment within one year following the date when such Bond becomes due,
whether at 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.
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 intere st
on any moneys received hereunder except 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 before 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 shall hold such funds uninvested in cash without liability for
interest thereon. The Trustee may conclusively rely upon the Authorized Company Representative’s
written instructions as to both the suitability and legality of the directed investments and such written
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direction shall be deemed to be a certification to the Trustee that such directed investments constitute
Investment Securities. 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 while any of
the Bonds are Outstanding.
ARTICLE VIII
GENERAL COVENANTS AND PROVISIONS
Section 801. Payment of Principal and Interest. The City covenants and agrees that it will,
but solely from the rents, revenues and receipts derived from the Real Property and the Lease as described
herein, deposit or cause to be deposited in the Bond Fund sufficient sums payable under the Lease promptly
to meet and pay the principal of and interest on the Bonds as they become due and payable at the place, on
the dates and in the manner provided herein and in the Bonds according to the true intent and meaning
thereof. Nothing herein shall be construed as requiring the City to operate the Real Property as a business
other than as lessor or to use any funds or revenues from any source other than funds and revenues derived
from the Real Property.
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.
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Section 804. Instruments of Further Assurance. The City covenants that it will do, execute,
acknowledge and deliver, or cause to be done, executed, acknowledged and deliver ed, 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 Real Property
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 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; provided that a copy of the filed initial financing statement is timely delivered to the
Trustee. In addition, unless the Trustee has been notified in writing by the City that any such initial filing
or description of collateral therein was or has become defective, the Trustee shall be fully protected in (a)
relying on such initial filing and description of collateral 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 as the initial filings were made. The Company shall be responsible for the customary
fees charged by the Trustee for the preparation and filing of continuation statements and for the reasonable
costs incurred by the Trustee in the preparation and filing of all continuation statements hereunder,
including attorneys’ fees and expenses. These fees shall be considered “extraordinary services” fees.
Section 806. Inspection of Books. The City covenants and agrees that all books and documents
in its possession relating to the Real Property and the rents, revenues and receipts derived from the Real
Property shall at all times be open to inspection by such accountants or other agencies as the Trustee may
from time to time designate.
Section 807. Enforcement of Rights Under the Lease. The Trustee, as assignee, transferee,
pledgee, and owner of a security interest under this Indenture, in its name or in the name of the City, may
enforce all assigned rights of the City and the Trustee and all obligations of the Company under and pursuant
to the Lease for and on behalf of the Owners, whether or not the City is in default hereunder.
ARTICLE IX
DEFAULT AND REMEDIES
Section 901. Events of Default; Notice; Opportunity to Cure. If any of the following events
occur, it is hereby defined as and declared to be and to constitute an “Event of Default”:
(a) Default in the due and punctual payment of the principal of any Bond, whether at
the stated maturity or accelerated maturity thereof, or at any date fixed for the redemption thereof;
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(b) Default in the due and punctual payment of the interest on any Bond, whether at
the stated maturity or accelerated maturity thereof, or at any date fixed for the redemption thereof;
(c) Default as specified in Section 12.1 of the Lease has occurred; or
(d) Default in the performance or breach of any other covenant or agreement under
this Indenture.
No default specified above shall constitute an Event of Default until the City, the Trustee or the
Owners of 25% in aggregate principal amount of all Bonds Outstanding has given actual notice of such
default by registered or certified mail or a recognized overnight delivery service to the Company and each
Financing Party, and the Company and each Financing Party have 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, any Financing Party or the City (as the
case may be) within such period and diligently pursued until the default is corrected; provided, further that
the Trustee is provided with a certification from the defaulting party to the effect that such default cannot
be corrected within such period and the Company, any Financing Party or the City, as the case may be, has
commenced or will promptly commence corrective action within such period and will diligently pursue
such action until the default is corrected. Nothing herein shall constitute an obligation of any Financing
Party to cure any defaults hereunder.
Section 902. Acceleration of Maturity in Event of Default.
(a) If an Event of Default has occurred and is continuing after the notice and cure period
described in Section 901 hereof elapses, the Trustee may, and upon the written request of the City or the
Owners of not less than 25% in aggregate principal amount of Bonds then-Outstanding, shall, by notice in
writing delivered to the City, each Financing Party, 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 written approval of a majority of the Owners of the Bonds then-Outstanding, rescind
such declaration and annul such default in its entirety. In such event, the Trustee shall rescind any
declaration of acceleration of installments of rent payments on the Bonds as provided in Section 11.1 of
the Lease.
(c) In case of any rescission, then and in every such case the City, the Trustee, the Company,
and the Owners shall be restored to their former positions and rights hereunder respectively, but no such
rescission shall extend to any subsequent or other default or Event of Default or impair any right consequent
thereon.
Section 903. Surrender of Possession of Trust Estate; Rights and Duties of Trustee in
Possession. If an Event of Default has occurred and is continuing after the notice and cure period described
in Section 901 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
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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 Real Property 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 having a lien that is senior to 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
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 hereof elapses, and if requested in writing to do so by (1) the City (in the case of
an Event of Default pursuant to Section 12.1(a)(1) (but only as it relates to Additional Rent), (a)(2) (but
only as it relates to Unassigned Rights), (a)(3) or (a)(4) of the Lease), or (2) the Owners of 25% in aggregate
principal amount of Bonds then-Outstanding and indemnified as provided in Section 1001(l) 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 proceeding
relating thereto, and any such suit or proceeding institut ed 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.
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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 Truste e indemnity as
provided in Section 1001(l) 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 th e
manner herein provided, and that all proceedings at law or in equity shall be instituted, had and maintained
in the manner herein provided and for the equal benefit of the Owners of all Bonds then-Outstanding.
Nothing in this Indenture contained shall, however, affect or impair the right of any Owner to payment of
the principal of and interest on any Bond at and after the maturity thereof or the obligation of the City to
pay the principal of and interest on each of the Bonds issued hereunder to the respective Owners thereof at
the time, place, from the source and in the manner herein and in the Bonds expressed.
Section 907. Right of Owners to Direct Proceedings.
(a) The Owners of a majority in aggregate principal amount of Bonds then-Outstanding may,
at any time, by an instrument or instruments in writing executed and delivered to the Trustee, direct the
time, method and place of conducting all proceedings to be taken in connection with the enforcement of the
terms and conditions of this Indenture, or for the appointment of a receiver or any other proceedings
hereunder; provided that such direction shall not be otherwise than in accordance with the provisions of
law and of this Indenture, including Section 1001(l) hereof.
(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(a)(1) (but only as it relates to Additional Rent), (a)(2) (but only as it
relates to Unassigned Rights), (a)(3) or (a)(4) 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 moneys shall be deposited in the Bond Fund and applied as follows:
(1) Unless the principal of all the Bonds has become or has been declared due and
payable, all such moneys shall be applied:
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FIRST -- To the payment to the Persons entitled thereto of all installments of
interest, if any, then due and payable on the Bonds, in the order in which such installments
of interest became due and payable, and, if the amount available shall not be sufficient to
pay in full any particular installment, then to the payment, ratably, according to the amounts
due on such installment, to the Persons entitled thereto, without any discrimination or
privilege;
SECOND -- To the payment to the Persons entitled thereto of the unpaid principal
of any of the Bonds which 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 Persons 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 hereof, 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 date shall cease to accrue.
(c) Whenever all of the Bonds and interest thereon, if any, have been paid under the provisions
of this Section, and all fees, expenses and charges of the City and the Trustee and any other amounts
required to be paid under this Indenture and the Lease have been paid (including any amounts payable under
the Performance Agreement), any balance remaining in the Bond Fund shall be paid to the Company as
provided in Section 602.
Section 909. Remedies Cumulative. No remedy by the terms of this Indenture conferred upon
or reserved to the Trustee or to the Owners is intended to be exclusive of any other remedy, but each and
every such remedy shall be cumulative and shall be in addition to any other remedy given to the Trustee or
to the Owners hereunder or now or hereafter existing at law or in equity or by statute. No delay or omission
to exercise any right, power or remedy accruing upon any Event of Default shall impair any such right,
power or remedy or shall be construed to be a waiver of any such Event of Default or acquiescence therein;
every such right, power or remedy may be exercised from time to time and as often as may be deemed
expedient. If the Trustee has proceeded to enforce any right under this Indenture by the appointment of a
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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, powers and remedies
of the Trustee shall continue as if no such proceedings had been taken.
Section 910. Waivers of Events of Default. The Trustee shall waive any Event of Default
hereunder and its consequences and rescind any declaration of maturity of principal of and interest, if any,
on the Bonds, but only upon the written request of the Owners of at least 50% in aggregate principal amount
of all the Bonds then-Outstanding; provided, however, that (a) there shall not be waived without the consent
of the City an Event of Default hereunder arising from an Event of Default under Section 12.1(a)(1) (but
only as it relates to Additional Rent), (a)(2) (but only as it relates to Unassigned Rights), (a)(3) or (a)(4) 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 before such waiver or rescission, all arrears of interest, or all
arrears of payments of principal when due, as the case may be, and all reasonable expenses of the Trustee
and the City (including reasonable attorneys’ fees and expenses), in connection with such default, shall
have been paid or provided for. In case of any such waiver or rescission, or in case any proceedings 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, powers
and remedies of the Trustee shall continue as if no such proceedings had been taken.
ARTICLE X
THE TRUSTEE
Section 1001. Acceptance of the Trusts. The Trustee hereby accepts the trusts imposed upon it
by this Indenture, but only upon and subject to the following express terms and conditions, and no implied
covenants or obligations shall be read into this Indenture against the Trustee:
(a) The Trustee, before the occurrence of an Event of Default and after the curing or
waiver of all Events of Default that may have occurred, undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture. If any Event of Default has occurred and
is continuing, subject to Section 1001(l) below, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and shall use the same degree of care and skill in their exercise
as a prudent Person would exercise or use under the circumstances in the conduct of its own affairs.
(b) The Trustee undertakes to perform such duties as are specifically set forth in this
Indenture, and in the absence of bad faith, negligence or willful misconduct on its part, the Trustee
may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee. 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, affiliate, 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
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and the duties hereunder, and may in all cases pay such reasonable compensation to all such agents,
affiliates, attorneys and receivers as may reasonably be employed in connection with the trusts
hereof. The Trustee shall not be responsible for any loss or damage resulting from any action or
nonaction by it taken or omitted to be taken in good faith in reliance upon such opinion or advice
of counsel addressed to the City and the Trustee.
(c) The Trustee shall not be responsible for any recital herein or in the Bonds (except
with respect to the Certificate of Authentication of the Trustee endorsed on the Bonds), or except
as provided in the Lease and particularly Section 10.8 thereof, for the recording or rerecording,
filing or refiling of this Indenture or any security agreement in connection therewith (excluding the
continuation of Uniform Commercial Code financing statements), or for insuring the Real Property
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 the 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 the 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 before taking, suffering or
omitting any action hereunder, the Trustee shall be entitled to rely upon a certificate signed by an
Authorized City Representative or an Authorized Company Representative as sufficient evidence
of the facts therein contained, and before the occurrence of a default of which the Trustee has been
notified as provided in subsection (h) of this Section or of which by said subsection it is deemed to
have notice, the Trustee shall also be at liberty to accept a similar certificate to the effect that any
particular dealing, transaction or action is necessary or expedient, but may at its discretion secure
such further evidence deemed necessary or advisable, but shall in no case be bound to secure the
same.
(g) The permissive right of the Trustee to do things enumerated in this Indenture shall
not be construed as a duty, and the Trustee shall not be answerable for other than its negligence or
willful misconduct.
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(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 may, but shall not be required to, inspect any and all of
the Real Property, and all books, papers and records of the Company pertaining to the Real Property
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.
(j) The Trustee shall not be required to give any bond or surety in respect to the
execution of its trusts and powers hereunder or otherwise in respect of the Real Property.
(k) The Trustee may, but shall not be required to, demand, in respect of the
authentication of any Bonds, the withdrawal of any cash, the release of any property, or any action
whatsoever within the purview of this Indenture, any showings, certificates, opinions, appraisals or
other information, or corporate action or evidence thereof, in addition to that by the terms hereof
required, as a condition of such action by the Trustee deemed desirable for the purpose of
establishing the right of the City to the authentication of any Bonds, the withdrawal of any cash,
the release of any property or the taking of any other action by the Trustee.
(l) Notwithstanding anything in this Indenture or the Lease to the contrary, before
taking any action under this Indenture other than the payments from moneys on deposit in the
Project Fund or the Bond Fund, as provided herein, the Trustee may require that satisfactory
indemnity be furnished to it for the reimbursement of all costs and expenses (including, without
limitation, attorneys’ fees and expenses) to which it may be put and to protect it against all liability
which it may incur in or by reason of such action, except liability which is adjudicated to have
resulted from its negligence or willful misconduct by reason of any action so taken.
(m) Notwithstanding any other provision of this Indenture to the contrary, any
provision relating to the conduct of or intended to provide authority to act, right to payment of fees
and expenses, protection, immunity and indemnification to the Trustee, shall be interpreted to
include any action of the Trustee, whether it is deemed to be in its capacity as Trustee, bond
registrar or Paying Agent.
(n) The Trustee agrees to accept and act on instructions or directions pursuant to this
Indenture sent by the City or the Company, as the case may be, by unsecured e-mail, facsimile
transmission or other similar unsecured electronic methods, provided, however, that the City or the
Company, respectively, shall provide to the Trustee an incumbency certificate listing designated
persons with the authority to provide such instructions, which incumbency certificate shall be
amended whenever a person is to be added or deleted from the listing. If the City or the Company,
as applicable, elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar
electronic method) and the Trustee acts upon such instructions, the Trustee’s understanding of such
instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or
expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such
instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written
instruction. The City or the Company, as applicable, agrees to assume all risks arising out of the
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use of such electronic methods to submit instructions and directions to the Trustee, including
without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of
interception and misuse by third parties.
(o) None of the provisions of this Indenture shall require the Trustee to expend or risk
its own funds or otherwise to incur any liability, financial or otherwise, in the performance of any
of its duties hereunder, or in the exercise of any of its rights or powers if it has reasonable grounds
for believing that repayment of such funds or indemnity satisfactory to it against such risk or
liability is not assured to it.
(p) In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces
beyond its control, including, without limitation, strikes, work stoppages, accidents, acts or war or
terrorism, civil or military disturbances, nuclear or natural catastrophes or acts o f God, and
interruptions, loss or malfunctions of utilities, communications or computer (software and
hardware) services.
(q) The Trustee shall have no responsibility with respect to any information, statement
or recital in any official statement, offering memorandum or any other disclosure material prepared
or distributed with respect to the Bonds and shall have no responsibility for compliance with any
state or federal securities laws in connection with the Bonds.
Section 1002. Fees, Charges and Expenses of the Trustee. The Trustee shall be entitled to
payment of and/or reimbursement for reasonable fees for its ordinary services rendered hereunder and all
advances, agent and counsel fees and other ordinary expenses reasonably made or incurred by the Trustee
in connection with such ordinary services. If it becomes necessary for the Trustee to perform extraordinary
services, it shall be entitled to reasonable extra compensation therefor and to reimbursement for reasonable
extraordinary expenses in connection therewith; provided that if such extraordinary services or
extraordinary expenses are caused by the negligence or willful misconduct of the Trustee, it shall not be
entitled to compensation or reimbursement therefor. The Trustee shall be entitled to payment and
reimbursement for the reasonable fees and charges of the Trustee as Paying Agent for the Bonds. Pursuant
to the provisions of Section 5.2 of the Lease, the 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 before 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. The Trustee’s right to compensation and
indemnification shall survive the satisfaction and discharge of this Indenture or its resignation or removal
hereunder and payment in full of the Bonds.
Section 1003. Notice to Owners if Default Occurs. If a default occurs of which the Trustee is
by Section 1001(h) 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 Own ers of all Bonds then-
Outstanding as shown by the bond registration books required by Section 206 hereof to be kept at the
corporate trust office of the Trustee.
Section 1004. Intervention by the Trustee. In any judicial proceeding to which the City is a
party and which, in the opinion of the Trustee and its counsel, has a substantial bearing on the interests of
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Owners, the Trustee may intervene on behalf of Owners and, subject to the provisions of Section 1001(l)
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 has occurred and is
continuing, delivered to the Trustee, the City and the Owners and signed by the Company.
Section 1008. Appointment of Successor Trustee. If the Trustee hereunder resigns or is
removed, or otherwise becomes incapable of acting hereunder, or if it is taken under the control of any
public officer or officers or of a receiver appointed by a court, a successor Trustee (a) reasonably acceptable
to the City may be appointed by the Company (so long as no Event of Default has occurred and is
continuing), or (b) reasonably acceptable to the City and the Company may be appointed by the Owners of
a majority in aggregate principal amount of Bonds then-Outstanding, by an instrument or concurrent
instruments in writing; provided, nevertheless, that in case of such vacancy, the City, by an instrument
executed and signed by its Mayor or Mayor Pro-Tem 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 with a corporate trust office in the State, and having, or whose obligations are
guaranteed by a financial institution having, a reported capital, surplus and undivided profits of not less
than $50,000,000. If no successor Trustee has been so appointed and accepted appointment in the manner
herein provided, the Trustee, at the Company’s expense, or any Owner may petition any court of competent
jurisdiction for the appointment of a successor Trustee, until a successor has been appointed as above
provided.
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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 and upon payment of its outstanding fees and expenses, 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 Real Property 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 Real Property, if not otherwise caused to be paid; but the Trustee shall be under no
obligation to make any such payment unless it has been requested to do so by the Owners of at least 25%
of the aggregate principal amount of Bonds then-Outstanding and has been provided adequate funds for the
purpose of such payment.
Section 1011. Trust Estate May be Vested in Co-Trustee.
(a) It is the purpose of this Indenture that there shall be no violation of any law of any
jurisdiction (including particularly the State) denying or restricting the right of banking corporations or
associations to transact business as trustee in such jurisdiction. It is recognized that in case of litigation
under this Indenture or the Lease, and in particular in case of the enforcement of either this Indenture or the
Lease upon the occurrence of an Event of Default or if the Trustee deems that by reason of any present or
future law of any jurisdiction it cannot exercise any of the powers, rights or remedies herein granted to the
Trustee, or take any other action which may be desirable or necessary in connection therewith, it may be
necessary or desirable that the Trustee appoint an additional individual or institution as a co-trustee or
separate trustee, and the Trustee is hereby authorized to appoint such co-trustee or separate trustee.
(b) If the Trustee appoints an additional individual or institution as a co-trustee or separate
trustee (which appointment shall be subject to the approval of the 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.
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(c) Should any deed, conveyance or instrument in writing from the City be required by the co-
trustee or separate trustee so appointed by the Trustee for more fully and certainly vesting in and confirming
to such co-trustee or separate trustee such properties, rights, powers, trusts, duties and obligations, any and
all such deeds, conveyances and instruments in writing shall, on request, be executed, acknowledged and
delivered by the City.
(d) If any co-trustee or separate trustee shall die, become incapable of acting, resign or be
removed, all the properties, rights, powers, trusts, duties and obligations of such co-trustee or separate
trustee, so far as permitted by law, shall vest in and be exercised by the Trustee until the appointment of a
successor to such co-trustee or separate trustee.
Section 1012. Accounting. The Trustee shall render an annual accounting for the period ending
December 31 of each year to the City, the Company and to any Owner requesting the same and, upon the
request of the City, the Company or any Owner, at such Owner’s expense, a monthly accounting to any
such party, showing in reasonable detail all financial transactions relating to the Trust Estate during the
accounting period and the balance in any funds or accounts created by this Indenture as of the beginning
and close of such accounting period.
Section 1013. Performance of Duties Under the Lease. The Trustee hereby accepts and agrees
to perform all duties and obligations 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 shall be entitled to receive and may rely upon an opinion of
counsel in exercising such judgment);
(b) To grant to or confer upon the Trustee for the benefit of the Owners any additional
rights, remedies, powers or authority that may lawfully be granted to or conferred upon the Owners
or the Trustee or both of them;
(c) To more precisely identify any portion of the Real Property or to add additional
property thereto;
(d) To conform this Indenture to amendments to the Lease made by the City and the
Company; or
(e) To subject to this Indenture additional revenues, properties or collateral.
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Section 1102. Supplemental Indentures Requiring Consent of Owners.
(a) Exclusive of Supplemental Indentures covered by Section 1101 hereof and subject to the
terms and provisions contained in this Section, and not otherwise, the Owners of not less than a majority in
aggregate principal amount of the Bonds then-Outstanding may, from time to time, anything contained in
this Indenture to the contrary notwithstanding, 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 interest, if any, on an y 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 any 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 registratio n books required by
Section 206. Such notice shall briefly set forth the nature of the proposed Supplemental Indenture and shall
state that copies thereof are on file at the corporate trust office of the Trustee for inspection by all Owners.
If within 60 days or such longer period as may be prescribed by the City following the mailing of such
notice, the Owners of not less than a majority in aggregate principal amount of the Bonds Outstanding at
the time of the execution of any such Supplemental Indenture shall have consented to and approved the
execution thereof as herein provided, no Owner shall have any right to object to any of the terms and
provisions contained therein, or the operation thereof, or in any manner to question the propriety of the
execution thereof, or to enjoin or restrain the Trustee or the City from executing the same or from taking
any action pursuant to the provisions thereof.
Section 1103. Company’s Consent to Supplemental Indentures. Anything herein to the
contrary notwithstanding, a Supplemental Indenture under this Article shall not become effective unless
and until the Company and the Financing Parties, if any, 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 and any Financing Party
of which the Trustee has received written notice thereof at least 15 days before the proposed date of
execution and delivery of the Supplemental Indenture.
Section 1104. Opinion of Counsel. In executing, or accepting the additional trusts created by,
any Supplemental Indenture permitted by this Article or the modification thereby of the trusts created by
this Indenture, the Trustee and the City shall receive, and, shall be fully protected in relying upon, an opinion
of counsel addressed and delivered to the Trustee and the City stating that the execution of such
Supplemental Indenture is permitted by and in compliance with this Indenture and will, upon the execution
and delivery thereof, be a valid and binding obligation of the City. The Trustee may, but shall not be
obligated to, enter into any such Supplemental Indenture which affects the Trustee’s rights, duties or
immunities under this Indenture or otherwise.
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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 Real Property or add additional property thereto or (d) in
connection with any other change therein which, in the judgment of the Trustee, does not materially and
adversely affect the Trustee or security for the Owners. In exercising such judgment, the Trustee may rely
upon an opinion of counsel.
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 and 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 Supplement al
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 Company 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 execution of such Supplemental
Lease is authorized or permitted by the Lease and this Indenture and the applicable law and will upon the
execution and delivery thereof be valid and binding obligations of the parties thereto.
ARTICLE XIII
SATISFACTION AND DISCHARGE OF INDENTURE
Section 1301. Satisfaction and Discharge of this Indenture.
(a) When the principal of and interest on all the Bonds have been paid in accordance with their
terms or provision has been made for such payment, as provided in Section 1302 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 the Paying Agent to the date of
retirement of the Bonds, then the right, title and interest of the Trustee in respect hereof shall thereupon
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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) has been made or caused to be made
in accordance with the terms thereof, or (2) has been provided for by depositing with the Trustee or other
commercial bank or trust company having full trust powers and authorized to accept trusts in the State in
trust and irrevocably set aside exclusively for such payment (A) moneys sufficient to make such payment
or (B) Government Securities maturing as to principal and interest in such amounts and at such times as
will ensure the availability of sufficient moneys to make such payment, or (3) has 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 hereof or irrevocable instructions shall have been given to the Trustee to give
such notice.
(c) Notwithstanding any provision of any other section of this Indenture which may be
contrary to the provisions of this Section, all moneys or Government Securities set aside and held in trust
pursuant to the provisions of this Section for the payment of Bonds shall be applied to and used solely for
the payment of the particular Bonds, with respect to which such moneys or Government Securities have
been so set aside in trust.
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ARTICLE XIV
MISCELLANEOUS PROVISIONS
Section 1401. Consents and Other Instruments by Owners.
(a) Any consent, request, direction, approval, objection or other instrument required by this
Indenture to be signed and executed by the Owners may be in any number of concurrent writings of similar
tenor and may be signed or executed by such Owners in person or by agent appointed in writing. Proof of
the execution of any such instrument or of the writing appointing any such agent and of the ownership of
Bonds (other than the assignment of ownership of a Bond) if made in the following manner, shall be
sufficient for any of the purposes of this Indenture, and shall be conclusive in favor of the Trustee with
regard to any action taken, suffered or omitted under any such instrument, namely:
(1) The fact and date of the execution by any Person of any such instrument may be
proved by the certificate of any officer in any jurisdi ction who by law has power to take
acknowledgments within such jurisdiction that the Person signing such instrument acknowledged
before him the execution thereof, or by affidavit of any witness to such execution.
(2) The fact of ownership of Bonds and the amount or amounts, numbers and other
identification of such Bonds, and the date of holding the same shall be proved by the registration
books of the City maintained by the Trustee pursuant to Section 206 hereof.
(b) In determining whether the Owners of the requisite principal amount of Bonds Outstanding
have given any request, demand, authorization, direction, notice, consent or waiver under this Indenture,
Bonds owned by the Company shall be disregarded and deemed not to be Outstanding under this Indenture,
except that, in determining whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Bonds which the Trustee knows to be so owned
shall be so disregarded; provided, the foregoing provisions shall not be applicable if the Company is the
only Owner of the Bonds. Notwithstanding the foregoing, Bonds so owned which have been pledged in
good faith shall not be disregarded as aforesaid if the pledgee establishes to the satisfaction of the Trustee
the pledgee’s right so to act with respect to such Bonds and the pledgee is not the Company or any affiliate
thereof.
Section 1402. Limitation of Rights Under this Indenture. With the exception of rights herein
expressly conferred, nothing expressed or mentioned in or to be implied from this Indenture or the Bonds
is intended or shall be construed to give any Person other than the parties hereto, and the Owners, if any,
any right, remedy or claim under or in respect to this Indenture, this Indenture and all of the covenants,
conditions and provisions hereof being intended to be and being for the sole and exclusive benefit of the
parties hereto, the Financing Parties, if any, 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 the
Owners, if the same is duly mailed by registered or certified mail, postage prepaid, or sent by overnight
delivery or other delivery service which requires written acknowledgment of receipt by the addressee,
addressed as follows:
(a) To the City:
City of Jefferson, Missouri
320 East McCarty Street
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Jefferson City, Missouri 65101
Attention: City Administrator and City Attorney
with a copy to:
Gilmore & Bell, P.C.
2405 Grand Boulevard, Suite 1100
Kansas City, Missouri 64108
ATTN: Haden Crumpton, Esq.
(b) To the Trustee:
UMB Bank, N.A.
928 Grand Boulevard
Kansas City, Missouri 64106
Attention: Corporate Trust Department
(c) To the Company:
Unilever Manufacturing (US), Inc.
2900 West Truman Boulevard
Jefferson City, Missouri 65109
ATTN: Michael Whelan, Director of Operations
with copies to:
Unilever United States, Inc.
700 Sylvan Avenue
Englewood Cliffs, New Jersey 07632
ATTN: General Counsel
Lathrop GPM LLP
2345 Grand Boulevard, Suite 2200
Kansas City, Missouri 64108
ATTN: Catherine Logan, Esq.
(d) To the Owners if the same is duly mailed by first-class, registered or certified mail
addressed to each of the Owners of Bonds at the time Outstanding as shown by the bond registration
books required by Section 206 hereof to be kept at the corporate trust office of the Trustee.
All notices given by certified or registered mail as aforesaid shall be deemed fully given as of the
date they are so mailed, provided that any of the foregoing given to the Trustee shall be effective only upon
receipt. All notices given by overnight delivery or other delivery service shall be deemed fully given as of
the date when received. A duplicate copy of each notice, certificate or other communication given
hereunder by either the City or the Trustee to the other shall also be given to the 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 addresses to which subsequent notices, certificates or other communications shall be
sent.
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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 whatsoever.
Section 1405. Execution in Counterparts. This Indenture may be executed in several
counterparts, each of which shall be an original and all of which shall constitute but one and the same
instrument.
Section 1406. Governing Law. This Indenture shall be governed exclusively by and construed
in accordance with the applicable laws of the State.
Section 1407. Electronic Transaction. The parties agree that the transaction described herein
may be conducted and related documents may be sent, received or stored by electronic means. Copies,
telecopies, facsimiles, electronic files and other reproductions of original executed documents shall be
deemed to be authentic and valid counterparts of such original documents for all purposes, including the
filing of any claim, action or suit in the appropriate court of law.
Section 1408. City Consents and Approvals. Pursuant to the Ordinance, the Mayor or Mayor
Pro-Tem and the City Administrator are authorized to execute all documents on behalf of the City (including
documents pertaining to the transfer of property or the financing or refinancing of the Real Property by the
Company, and such easements, licenses, rights-of-way, plats and similar documents as may be requested
by the Company) as may be required to carry out and comply with the intent of the Ordinance, this Indenture
and the Lease. The Mayor or Mayor Pro-Tem and the City Administrator are also authorized, unless
expressly prohibited herein, to grant on behalf of the City such consents, estoppels and waivers relating to
the Bonds, this Indenture, the Lease or the Performance Agreement as may be requested during the term
thereof; provided, such consents, estoppels and/or waivers shall not increase the principal amount of the
Bonds, increase the term of the Lease or adversely affect the tax exemption as provided for therein, waive
an Event of Default, or materially change the nature of the transaction unless approved by the City Council.
Section 1409. 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.]
Real Property Trust Indenture
City of Jefferson, Missouri
Taxable Industrial Development Revenue Bonds
(Unilever - Real Property Project)
Series 2024B
S-1
IN WITNESS WHEREOF, the City of Jefferson, Missouri, has caused this Indenture to be signed
in its name and behalf by its Mayor and the seal of the City to be hereunto affixed and attested by 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 a duly authorized officer, all as of the date first above written.
CITY OF JEFFERSON, MISSOURI
By:
Name: Ron L. Fitzwater
Title: Mayor
[SEAL]
ATTEST:
By:
Name: Emily Donaldson
Title: City Clerk
Real Property Trust Indenture
City of Jefferson, Missouri
Taxable Industrial Development Revenue Bonds
(Unilever - Real Property Project)
Series 2024B
S-2
UMB BANK, N.A., as Trustee
By:
Name:
Title:
A-1
EXHIBIT A
PROJECT SITE
The land situated in the County of Cole, State of Missouri, and described as follows:
B-1
EXHIBIT B
PROJECT IMPROVEMENTS
The Project Improvements consist of the renovation and modification of an approximately 110,000
square foot portion of the Company’s existing approximately 447,814 square foot main building to
incorporate automated operations for the production of a new product line, which Project Improvements
are located on the Project Site, including all additions, alterations, modifications and improvements thereto
made pursuant to the Lease, which are completed pursuant to Article IV of the Lease and are paid for in
whole from proceeds of the Bonds
C-1
EXHIBIT C
FORM OF BOND
THIS BOND OR ANY PORTION HEREOF MAY BE TRANSFERRED, ASSIGNED OR
NEGOTIATED ONLY TO AN APPROVED INVESTOR AS DEFINED IN THE
HEREIN-DESCRIBED INDENTURE.
No. 1 Not to Exceed
$33,000,000
UNITED STATES OF AMERICA
STATE OF MISSOURI
CITY OF JEFFERSON, MISSOURI
TAXABLE INDUSTRIAL DEVELOPMENT REVENUE BOND
(UNILEVER - REAL PROPERTY PROJECT)
SERIES 2024B
Interest Rate Maturity Date Dated Date
5.00% December 1 of the tenth (10th) year
after the calendar year in which the
Completion Date occurs, but no later
than December 1, 2036
April [___], 2024
OWNER: UNILEVER MANUFACTURING (US), INC.
MAXIMUM PRINCIPAL AMOUNT: THIRTY THREE MILLION DOLLARS
CITY OF JEFFERSON, MISSOURI, a home rule charter city 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
electronic transfer to an account at a commercial bank or savings institution located in the United States.
Interest on the Cumulative Outstanding Principal Amount (as hereinafter defined) at the per annum Interest
Rate stated above, payable in arrears on each December 1, commencing on December 1, 2024, 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-2
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 (Unilever - Real Property Project), Series
2024B,” in the maximum aggregate principal amount of $33,000,000 (the “Bonds”), to be issued for the
purpose of renovating and modifying an approximately 110,000 square foot portion of the existing
approximately 447,814 square foot main building of Unilever Manufacturing (US), Inc., a Delaware
corporation (the “Company”), in order to incorporate automated operations for the production of a new
product line (the approximately 110,000 square foot portion of the main building that is being renovated
and modified is referred to herein as the “Project Improvements”), which Project Improvements are
situated on an approximately 2.54 acre portion of the real estate site where the Company’s other existing
facilities are located at 2900 West Truman Boulevard in the City (“Project Site” and, together with the
Project Improvements, the “Real Property”). The City will lease the Real Property to the Company under
the terms of a Real Property Lease Agreement dated as of April 1, 2024 (said Real Property Lease
Agreement, as amended and supplemented from time to time in accordance with the provisions thereof,
being herein called the “Lease”), between the City and the Company, all pursuant to the authority of and
in full compliance with the provisions, restrictions and limitations of the Constitution, the statutes of the
State of Missouri, including particularly the Act and the City Charter, and pursuant to proceedings duly had
by the City Council.
THE BONDS are issued under and are equally and ratably secured and entitled to the protection
given by a Real Property Trust Indenture dated as of April 1, 2024 (said Real Property 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 UMB Bank, N.A., Kansas City, Missouri, as trustee
(the “Trustee”). Capitalized terms not defined herein shall have the meanings set forth in the Indenture.
Reference is hereby made to the Indenture for a description of the provisions, among others, with
respect to the nature and extent of the security for the Bonds, the rights, duties and obligations of the City,
the Trustee and the Owners, and the terms upon which the Bonds are issued and secured.
THE BONDS are subject to redemption and payment at any time before the stated maturity thereof,
at the option of the City, upon written instructions from the Company, (1) in whole, if the Company
exercises its option to purchase the Real Property and deposits an amount sufficient to effect such purchase
pursuant to the Lease on the applicable redemption date, or (2) in part, if the Company prepays additional
Basic Rent pursuant to the Lease; provided, however, if only a portion of the Bonds are to be redeemed,
Bonds aggregating at least 10% of the maximum principal amount of Bonds authorized under the Indenture
shall not be subject to redemption and payment before the stated maturity thereof. Any redemption of
Bonds pursuant to this paragraph shall be at a redemption price equal to the par value thereof being
redeemed, plus accrued interest thereon, without premium or penalty, to the redemption date.
THE BONDS are subject to mandatory redemption, in whole or in part, to the extent of amounts
deposited in the Bond Fund pursuant to Section 9.1(f) or 9.2(c) of the Lease, in the event of substantial
damage to or destruction or condemnation of substantially all of the Real Property. 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 under the Indenture. Any redemption of
Bonds pursuant to this paragraph shall be at a redemption price equal to the par value thereof being
C-3
redeemed, plus accrued interest thereon, without premium or penalty, to the redemption date. Before giving
notice of redemption to the Owners pursuant to this paragraph, money in an amount equal to the redemption
price shall have been deposited in the Bond Fund.
If the Bonds are to be called for optional redemption, the Company shall deliver written notice to
the City and the Trustee that it has elected to redeem all or a portion of the Bonds at least 40 days (10 days
if there is one Owner) before the scheduled redemption date. The Trustee shall then deliver written notice
to the Owner of this Bond at least 30 days (five days if there is one Owner) before the scheduled redemption
date by first-class mail (or facsimile, if there is one Owner) stating the date upon which the Bonds will be
redeemed and paid.
THE BONDS, including interest thereon, are special, limited obligations of the City and are
payable solely out of the rents, revenues and receipts derived by the City from the Real Property and the
Lease and not from any other fund or source of the City, and are secured by a pledge and assignment of the
Real Property 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 the State of
Missouri shall be liable thereon, and the Bonds shall not constitute an indebtedness within the meaning of
any constitutional, statutory or charter debt limitation or restriction, and are not payable in any manner by
taxation. Pursuant to the provisions of the Lease, rental payments sufficient for the prompt payment when
due of the principal of and interest on the Bonds are to be paid by the 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 – Unilever Real Property Project.”
THE OWNER of this Bond shall have no right to enforce the provisions of the Indenture or to
institute action to enforce the covenants therein, or to take any action with respect to any Event of Default
under the Indenture, or to institute, appear in or defend any suit or other proceedings with respect thereto,
except as provided in the Indenture. In certain events, on the conditions, in the manner and with the effect
set forth in the Indenture, the principal of all the Bonds issued under the Indenture and then-Outstanding
may become or may be declared due and payable before the stated maturity thereof, together with interest
accrued thereon. Modifications or alterations of this Bond or the Indenture may be made only to the extent
and in the circumstances permitted by the Indenture.
THIS BOND is transferable, as provided in the Indenture, only upon the books of the City kept for
that purpose at the above-mentioned office of the Trustee by the Owner hereof in person or by such Person’s
duly authorized attorney, upon surrender of this Bond together with a written instrument of transfer
reasonably satisfactory to the Trustee duly executed by the Owner or such Person’s duly authorized
attorney, and thereupon a new fully-registered Bond or Bonds, in the same aggregate principal amount of
this Bond, 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 $33,000,000.
C-4
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.
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
By:
Ron L. Fitzwater, Mayor
[SEAL]
ATTEST:
By:
Emily Donaldson, City Clerk
CERTIFICATE OF AUTHENTICATION
This Bond is the Taxable Industrial Development Revenue Bond (Unilever - Real Property Project),
Series 2024B, described in the Indenture. The effective date of registration of this Bond is set forth below.
UMB BANK, N.A., as Trustee
____________________ By:
Date Authorized Signatory
C-5
SCHEDULE I
TABLE OF CUMULATIVE OUTSTANDING PRINCIPAL AMOUNT
CITY OF JEFFERSON, MISSOURI
TAXABLE INDUSTRIAL DEVELOPMENT REVENUE BOND
(UNILEVER - REAL PROPERTY PROJECT)
SERIES 2024B
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 the Bonds, with full power of substitution in the premises.
Dated: ______________________.
[NAME OF TRANSFEREE]
a [type of entity]
By:
[Authorized Officer of Transferee]
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:
D-1
EXHIBIT D
FORM OF REPRESENTATION LETTER
City of Jefferson, Missouri
320 East McCarthy Street
Jefferson City, Missouri 65101
ATTN: Mayor
UMB Bank, N.A.
928 Grand Boulevard
Kansas City, Missouri 64106
ATTN: Corporate Trust Department
Re: $33,000,000 Maximum Principal Amount of Taxable Industrial Development Revenue
Bonds (Unilever - Real Property Project), Series 2024B of the City of Jefferson, Missouri
Ladies and Gentlemen:
In connection with the purchase of the above-referenced bonds (the “Bonds”), the undersigned
purchaser of the Bonds hereby represents, warrants and agrees as follows:
1. The undersigned understands that (a) the Bonds have been issued under and pursuant to a
Real Property Trust Indenture dated as of April 1, 2024 (the “Indenture”), between the City of Jefferson,
Missouri (the “City”), and UMB Bank, 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 Real Property
(as defined in the Indenture) to Unilever Manufacturing (US), Inc., a Delaware corporation (the
“Company”), under a Real Property Lease Agreement dated as of April 1, 2024 (the “Lease”), between
the City and the Company, with certain of such rents, revenues and receipts being pledged and assigned by
the City to the Trustee under the Indenture to secure the payment of the principal of and interest on the
Bonds. Capitalized terms not defined herein shall have the meanings set forth in the Indenture.
2. The undersigned 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
Real Property 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 of Missouri (the “State”) or any political subdivision thereof, and neither the City, the State nor any
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.
3. The undersigned understands that the Bonds are transferable only in the manner provided
for in the Indenture and discussed below and warrants that it is acquiring the Bonds for its own account
with the intent of holding the Bonds as an investment, and the acquisition of the Bonds is not made with a
view toward their distribution or for the purpose of offering, selling or otherwise participating in a
distribution of the Bonds.
4. The undersigned is an Approved Investor, as defined in the Indenture.
D-2
5. The undersigned agrees not to attempt to offer, sell, hypothecate or otherwise distribute the
Bonds to others unless authorized by the terms of the Indenture and, if requested by the City, upon receipt
of an opinion of counsel reasonably acceptable to the City, the Company and the purchaser that all
registration and disclosure requirements of the Securities and Exchange Commission and all other
appropriate federal and State securities laws and the securities law of any other applicable state are complied
with.
6. The Company has (a) furnished to the undersigned such information about itself as the
undersigned deems necessary in order for it to make an informed investment decision with respect to the
purchase of the Bonds, (b) made available to the undersigned, during the course of this transaction, ample
opportunity to ask questions of, and to receive answers from, appropriate officers of the City and the terms
and conditions of the offering of the Bonds, and (c) provided to the undersigned all additional information
which it has requested. [*Delete this paragraph if the Company is the purchaser of the Bonds.*]
7. The undersigned is now, and was when it agreed to purchase the Bonds, familiar with the
operations of the Company and fully aware of terms and risks of the Bonds. [*Delete previous sentence if
the Company is the purchaser of the Bonds.*] The undersigned believes that the Bonds which it is acquiring
is a security of the kind that it wishes to purchase and hold for investment and that the nature and amount
thereof are consistent with its investment program.
8. The undersigned is fully aware of and satisfied with (a) the current status of the title to the
Real Property 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.
9. The undersigned understands and agrees that the interest on the Bonds is subject to federal
and state income taxation.
10. The undersigned hereby directs the Trustee to hold the Bonds in trust pursuant to
Section 204(c) of the Indenture.
Dated: , 20___
[PURCHASER OF BONDS]
By:
Name:
Title:
Gilmore & Bell, P.C.
Draft v2 – February 27, 2024
CITY OF JEFFERSON, MISSOURI,
AND
UMB BANK, N.A.,
as Trustee
________________
PERSONAL PROPERTY TRUST INDENTURE
Dated as of April 1, 2024
________________
Relating to:
$50,000,000
(Aggregate Maximum Principal Amount)
City of Jefferson, Missouri
Taxable Industrial Development Revenue Bonds
(Unilever - Personal Property Project)
Series 2024B
(i)
PERSONAL PROPERTY TRUST INDENTURE
TABLE OF CONTENTS
Page
Parties ................................................................................................................................. 1
Recitals................................................................................................................................ 1
Granting Clauses ................................................................................................................. 2
ARTICLE I
DEFINITIONS
Section 101. Definitions of Words and Terms ........................................................................................ 3
Section 102. Rules of Interpretation ....................................................................................................... 8
Section 103. Date of Indenture ............................................................................................................... 8
ARTICLE II
THE BONDS
Section 201. Title and Amount of Bonds ................................................................................................ 8
Section 202. Nature of Obligation .......................................................................................................... 8
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 ................................................................ 10
Section 207. Persons Deemed Owners of Bonds .................................................................................. 11
Section 208. Authorization of the Bonds .............................................................................................. 11
Section 209. Mutilated, Lost, Stolen or Destroyed Bonds .................................................................... 13
Section 210. Cancellation and Destruction of Bonds Upon Payment ................................................... 13
ARTICLE III
REDEMPTION OF BONDS
Section 301. Redemption of Bonds ...................................................................................................... 13
Section 302. Effect of Call for Redemption .......................................................................................... 14
Section 303. Notice of Redemption ...................................................................................................... 14
ARTICLE IV
FORM OF BONDS
Section 401. Form Generally ................................................................................................................ 15
(ii)
ARTICLE V
CUSTODY AND APPLICATION OF BOND PROCEEDS
Section 501. Creation of Funds ............................................................................................................. 15
Section 502. Deposits into the Project Fund ......................................................................................... 15
Section 503. Disbursements from the Project Fund .............................................................................. 15
Section 504. Completion of the Purchase and Installation of the Project Equipment .......................... 16
Section 505. Disposition Upon Acceleration ........................................................................................ 16
ARTICLE VI
REVENUES AND FUNDS
Section 601. Deposits into the Bond Fund............................................................................................ 16
Section 602. Application of Moneys in the Bond Fund ........................................................................ 17
Section 603. Payments Due on Days Other than Business Days .......................................................... 17
Section 604. Nonpresentment of Personal Property Bonds .................................................................. 17
ARTICLE VII
SECURITY FOR DEPOSITS AND INVESTMENT OF FUNDS
Section 701. Moneys to be Held in Trust .............................................................................................. 18
Section 702. Investment of Moneys in Project Fund and Bond Fund .................................................. 18
Section 703. Record Keeping ............................................................................................................... 18
ARTICLE VIII
GENERAL COVENANTS AND PROVISIONS
Section 801. Payment of Principal and Interest .................................................................................... 19
Section 802. Authority to Execute Indenture and Issue Personal Property Bonds ............................... 19
Section 803. Performance of Covenants ............................................................................................... 19
Section 804. Instruments of Further Assurance .................................................................................... 19
Section 805. Recordings and Filings .................................................................................................... 19
Section 806. Inspection of Books ......................................................................................................... 20
Section 807. Enforcement of Rights Under the Lease .......................................................................... 20
ARTICLE IX
DEFAULT AND REMEDIES
Section 901. Events of Default; Notice; Opportunity to Cure .............................................................. 20
Section 902. Acceleration of Maturity in Event of Default .................................................................. 21
Section 903. Surrender of Possession of Trust Estate; Rights and Duties of Trustee in Possession ..... 21
Section 904. Appointment of Receivers in Event of Default ................................................................ 21
Section 905. Exercise of Remedies by the Trustee ............................................................................... 22
Section 906. Limitation on Exercise of Remedies by Owners ............................................................. 22
Section 907. Right of Owners to Direct Proceedings ........................................................................... 23
Section 908. Application of Moneys in Event of Default ..................................................................... 23
(iii)
Section 909. Remedies Cumulative ...................................................................................................... 24
Section 910. Waivers of Events of Default ........................................................................................... 24
ARTICLE X
THE TRUSTEE
Section 1001. Acceptance of the Trusts .................................................................................................. 25
Section 1002. Fees, Charges and Expenses of the Trustee ..................................................................... 28
Section 1003. Notice to Owners if Default Occurs ................................................................................. 28
Section 1004. Intervention by the Trustee .............................................................................................. 28
Section 1005. Successor Trustee Upon Merger, Consolidation or Sale .................................................. 28
Section 1006. Resignation of Trustee ..................................................................................................... 28
Section 1007. Removal of Trustee .......................................................................................................... 29
Section 1008. Appointment of Successor Trustee .................................................................................. 29
Section 1009. Vesting of Trusts in Successor Trustee ............................................................................. 29
Section 1010. Right of Trustee to Pay Taxes and Other Charges ........................................................... 29
Section 1011. Trust Estate May be Vested in Co-Trustee ....................................................................... 30
Section 1012. Accounting ....................................................................................................................... 30
Section 1013. Performance of Duties Under the Lease .......................................................................... 30
ARTICLE XI
SUPPLEMENTAL INDENTURES
Section 1101. Supplemental Indentures Not Requiring Consent of Owners .......................................... 31
Section 1102. Supplemental Indentures Requiring Consent of Owners ................................................. 31
Section 1103. Company's Consent to Supplemental Indentures ............................................................. 32
Section 1104. Opinion of Counsel .......................................................................................................... 32
ARTICLE XII
SUPPLEMENTAL LEASES
Section 1201. Supplemental Leases Not Requiring Consent of Owners ................................................ 32
Section 1202. Supplemental Leases Requiring Consent of Owners ....................................................... 32
Section 1203. Opinion of Counsel .......................................................................................................... 33
ARTICLE XIII
SATISFACTION AND DISCHARGE OF INDENTURE
Section 1301. Satisfaction and Discharge of this Indenture ................................................................... 33
Section 1302. Bonds Deemed to be Paid ................................................................................................ 33
ARTICLE XIV
MISCELLANEOUS PROVISIONS
Section 1401. Consents and Other Instruments by Owners .................................................................... 34
Section 1402. Limitation of Rights Under this Indenture ....................................................................... 35
(iv)
Section 1403. Notices ............................................................................................................................. 35
Section 1404. Severability ...................................................................................................................... 36
Section 1405. Execution in Counterparts................................................................................................ 36
Section 1406. Governing Law ................................................................................................................ 36
Section 1407. Electronic Transaction ..................................................................................................... 36
Section 1408. City Consents and Approvals ........................................................................................... 36
Section 1409. Anti-Discrimination Against Israel Act ........................................................................... 37
Signature and Seals .................................................................................................................................. S-1
Exhibit A - Project Equipment
Exhibit B - Form of Personal Property Bonds
Exhibit C - Form of Representation Letter
PERSONAL PROPERTY TRUST INDENTURE
THIS PERSONAL PROPERTY TRUST INDENTURE, dated as of April 1, 2024
(this “Indenture”), between CITY OF JEFFERSON, MISSOURI, a home rule charter city 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
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 (collectively, the “Act”) and the City Charter to purchase, construct, extend, improve and equip
certain projects (as defined in the Act), to issue industrial development revenue bonds for the purpose of
providing funds to pay the costs of such projects and to lease or otherwise dispose of such projects to private
persons or corporations for manufacturing, commercial, research and development, office industry,
warehousing and industrial development purposes upon such terms and conditions as the City deems
advisable.
2. In accordance with Section 100.059.1 of the Act, the City Council of the City gave notice
to the affected taxing jurisdictions regarding the City’s intent to approve the issuance of two separate series
of industrial development revenue bonds under the Act in order to finance the costs of an industrial
development project (the “Project”) for the benefit of Unilever Manufacturing (US), Inc., a Delaware
corporation (the “Company”) consisting of (a) renovating and modifying an approximately 110,000 square
foot portion of the Company’s existing approximately 447,814 square foot main building in order to
incorporate automated operations for the production of a new product line (the approximately 110,000
square foot portion of the main building that is being renovated and modified as part of the Pr oject is
referred to herein as the “Project Improvements”), which Project Improvements are situated on an
approximately 2.54 acre portion of the real estate site where the Company’s other existing facilities are
located at 2900 West Truman Boulevard in the City (the “Project Site”) and (b) acquiring and installing
certain equipment and other personal property within the Project Improvements (the “Project
Equipment”).
3. Following notice to the affected taxing jurisdictions in accordance with Section 100.059.1
of the Act, the City Council of the City passed Ordinance No. [________] on March 18, 2024 (the
“Ordinance”), (a) approving a plan for the Project and (b) authorizing the issuance of (i) the City’s Taxable
Industrial Development Revenue Bonds (Unilever - Real Property Project), Series 2024B, in the maximum
principal amount of $33,000,000, for the purpose constructing the Project Improvements on the Project Site
(the Project Site and the Project Improvements being collectively referred to herein as the “Real
Property”), and (ii) the City’s Taxable Industrial Development Revenue Bonds (Unilever - Personal
Property Project), Series 2024B, in the maximum principal amount of $50,000,000 (the “Bonds”), for the
purpose of acquiring and installing the Project Equipment within the Project Improvements.
4. Pursuant to the Ordinance, the City is authorized to enter into (a) this Indenture between
the City and the Trustee for the purpose of issuing and securing the Bonds, as provided herein, and (b) a
Personal Property Lease Agreement of even date herewith (the “Lease”) with the Company, as lessee,
under which the City will lease the Project Equipment to the Company in consideration of rental payments
to be paid by the Company that will be sufficient to pay the principal of and interest on the Bonds as
provided therein, (c) a Performance Agreement of even date herewith (the “Performance Agreement”)
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with the Company for the purpose of setting forth the terms and conditions of the exemption of the Real
Property and the Project Equipment from real and personal property taxes and certain payments in lieu of
taxes to be made by the Company with respect to the Real Property and Project Equipment, respectively
and (d) such other documents relating to the Bonds as the City and the Company deem appropriate.
5. All things necessary to make the Bonds, when authenticated by the Trustee and issued as
provided in this Indenture, the valid and legally binding obligations of the City, and to constitute this
Indenture a valid and legally binding pledge and assignment of the Trust Estate (as defined herein) herein
made for the security of the payment of the principal of and interest on the Bonds, have been done and
performed, and the execution and delivery of this Indenture and the execution and issuance of the Bonds,
subject to the terms hereof, have in all respects been duly authorized.
NOW, THEREFORE, THIS PERSONAL PROPERTY TRUST INDENTURE
WITNESSETH:
GRANTING CLAUSES
That the City, in consideration of the premises, the acceptance by the Trustee of the trusts hereby
created, the purchase and acceptance of the Bonds by the Owners (as defined herein) thereof, and of other
good and valuable consideration, the receipt of which is hereby acknowledged, and in order to secure the
payment of the principal of and interest on all of the Bonds issued and Outstanding (as defined herein)
under this Indenture from time to time according to their tenor and effect, and to secure the performance
and observance by the City of all the covenants, agreements and conditions herein and in the Bonds
contained, does hereby pledge and assign to the Trustee and its successors and assigns forever, subject to
Permitted Encumbrances, 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, subject to
the Company’s rights under the Lease, together with the tenements, hereditaments, appurtenances,
rights, easements, privileges and immunities thereunto belonging or appertaining and, to the extent
permissible, all permits, certificates, approvals and authorizations;
(b) All right, title and interest of the City in, to and under the Lease (excluding the
Unassigned Rights, as defined herein), and all rents, revenues and receipts derived by the City from
the Project 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;
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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 o f any
of the Bonds over any other of the Bonds except as expressly provided in or permitted by this Indenture;
PROVIDED, HOWEVER, that if the City pays, or causes to be paid, the principal of and interest
on the Bonds, at the time and in the manner mentioned in the Bonds, according to the true intent and
meaning thereof, or provides for the payment thereof (as provided in Article XIII), and pays or causes to
be paid to the Trustee all other sums of money due or to become due to it in accordance with the terms and
provisions hereof, then upon such final payments this Indenture and the rights hereby granted shall cease,
determine and be void; otherwise, this Indenture shall be and remain in full force and effect.
THIS INDENTURE FURTHER WITNESSETH, and it is hereby expressly declared,
covenanted and agreed by and between the parties hereto, that all Bonds issued and secured hereunder are
to be issued, authenticated and delivered and that all of the Trust Estate is to be held and applied under,
upon and subject to the terms, conditions, stipulations, covenants, agreements, trusts, uses and purposes as
hereinafter expressed, and the City does hereby agree and covenant with the Trustee and with the respective
Owners from time to time, as follows:
ARTICLE I
DEFINITIONS
Section 101. Definitions of Words and Terms. In addition to any words and terms defined in
the Lease (which definitions are hereby incorporated by reference) and any words and terms defined
elsewhere in this Indenture, the following words and terms as used in this Indenture shall have the following
meanings, unless some other meaning is plainly intended:
“Act” means, collectively, Article VI, Section 27(b) of the Missouri Constitution and Sections
100.010 through 100.200 of the Revised Statutes of Missouri.
“Additional Rent” means the additional rental described in Section 5.2 of the Lease.
“Approved Investor” means (a) the Company, (b) an affiliate of the Company, (c) a Financing
Party, (d) any general business corporation or enterprise with total assets in excess of $100,000,000, or (e)
any Person approved by the City Council of the City.
“Authorized City Representative” means the Mayor, Mayor Pro-Tem, City Administrator, 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 or Mayor Pro-Tem. Such certificate may designate an alternate
or alternates, each of whom may 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 an authorized officer of the
Company. Such certificate may designate an alternate or alternates, each of whom may perform all duties
of the Authorized Company Representative.
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“Basic Rent” means the rental described in Section 5.1 of the Lease.
“Bond” or “Bonds” means the Taxable Industrial Development Revenue Bonds (Unilever -
Personal Property Project), Series 2024B, in the maximum aggregate principal amount of $50,000,000,
issued, authenticated and delivered under and pursuant to this Indenture.
“Bond Fund” means the “City of Jefferson, Missouri, Bond Fund – Unilever Personal Property
Project – Series 2024B” created in Section 501.
“Bond Purchase Agreement” means the Personal Property Bond Purchase Agreement dated as
of April 1, 2024, between the City and the Purchaser.
“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 organized and existing under
the laws of the State.
“Closing Date” means the date identified in the Bond Purchase Agreement for the initial issuance
and delivery of the Bonds.
“Closing Price” means the amount specified in writing by the Purchaser and agreed to by the City
as the amount required to pay for the initial issuance of the Bonds on the Closing Date, which amount may
consist of all or a portion of the Project Costs spent by the Company from its own funds before the Closing
Date and, at the option of the Company, the costs of issuance of the Bonds if such costs are not paid for
from Bond proceeds.
“Company” means Unilever Manufacturing (US), Inc., a Delaware corporation, and its successors
and assigns.
“Completion Date” means the date of execution of the certificate required by Section 4.5 of the
Lease and Section 504 hereof, which shall be deemed executed and filed on December 31, 2025, if not
actually executed and filed by December 31, 2025, except as otherwise provided in Section 4.5 of the Lease.
“Cumulative Outstanding Principal Amount” means the aggregate principal amount of all
Bonds Outstanding under the provisions of this Indenture, not to exceed $50,000,000, as reflected in the
records maintained by the Trustee as provided in the Bonds and this Indenture.
“Event of Default” means, with respect to this Indenture, any Event of Default as defined in
Section 901 hereof and, with respect to the Lease, any Event of Default as described in Section 12.1 of the
Lease.
“Financing Document” means any loan agreement, credit agreement, security agreement,
mortgage, participation agreement, lease agreement, sublease, ground lease, hedging agreement or other
document related to the Project Equipment and executed by or on behalf of, or for the benefit of, a Financing
Party.
-5-
“Financing Party” means any Person providing debt, lease or equity financing (including equity
contributions or commitments) or hedging arrangements, or any renewal, extension or refinancing of any
such financing or hedging arrangements, or any guarantee, insurance, letters of credit or credit support for
or in connection with such financing or hedging arrangements, in connection with the acquisition,
ownership, lease, operation or maintenance of the Project Equipment or interests or rights in the Lease, or
any part thereof, including any trustee or agent acting on any such Person’s behalf.
“Financing Parties” means each and every Financing Party.
“Full Insurable Value” means the reasonable replacement cost of the Project Equipment less
physical depreciation, as determined at the expense of the Company from time to time.
“Government Securities” means direct obligations of, or obligations the payment of principal of
and interest on which are unconditionally guaranteed by, the United States of America.
“Indenture” means this Personal Property Trust Indenture, as from time to time amended and
supplemented by Supplemental Indentures in accordance with the provisions of Article XI.
“Investment Securities” means any investment approved in writing by the Authorized Company
Representative and the Owners of all of the Outstanding Bonds.
“Lease” means the Personal Property Lease Agreement dated as of April 1, 2024, 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.
“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, the Trustee’s fees and any extraordinary expenses
of the City and the Trustee) incurred in the collection of such gross proceeds.
“Outstanding” means, when used with reference to Bonds, as of a particular date, all Bonds
theretofore authenticated and delivered, except:
(a) Bonds previously canceled by the Trustee or delivered to the Trustee for
cancellation;
(b) Bonds deemed to be paid in accordance with the provisions of Section 1302; and
(c) Bonds in exchange for or in lieu of which other Bonds have been authenticated
and delivered pursuant to this Indenture.
“Owner” means the registered owner of any Bond as recorded on the bond registration records
maintained by the Trustee.
“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.
-6-
“Payment Date” means the date on which the principal of or interest on any Bond, whether at the
stated maturity thereof or the redemption date thereof, is payable, which shall be December 1 of each year
that the Bonds are Outstanding.
“Performance Agreement” means the Performance Agreement dated as of April 1, 2024 among
the City and the Company.
“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, security interests
or encumbrances granted pursuant to the Lease and any Financing Documents and (d) unrecorded licenses
or other rights granted in the ordinary course of business.
“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.
“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 Costs” means all costs of purchasing and installing the Project Equipment, including the
following:
(a) all costs and expenses necessary or incident to the acquisition and installation 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, materials, machinery, furnishings and
equipment as payable to contractors and materialmen in connection with the purchase and
installation of the Project Equipment;
(d) interest accruing on the Bonds until the Completion Date;
(e) the cost of any insurance maintained in accordance with Article VII of the Lease;
(f) reasonable expenses of administration, supervision and inspection properly
chargeable to the Project Equipment, legal 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 purchase and installation of the Project Equipment;
-7-
(g) all other items of expense not elsewhere specified in this definition as may be
necessary or incident to: (1) the authorization, issuance and sale of the Bonds, including costs of
issuance of the Bonds; (2) the purchase and installation of the Project Equipment; and (3) the
financing thereof; and
(h) reimbursement to the Company or those acting for it for any of the above
enumerated costs and expenses incurred and paid by them before or after the execution of the Lease.
“Project Equipment” means all items of machinery, equipment and other personal property
acquired on or before the Completion Date for installation in the Project Improvements pursuant to Article
IV of the Lease and paid for in whole from proceeds of the Bonds, as further described in Exhibit A.
“Project Fund” means the “City of Jefferson, Missouri, Project Fund – Unilever Personal Property
Project – Series 2024B” created in Section 501.
“Project Improvements” means the renovation and modification of an approximately 110,000
square foot portion of the Company’s existing approximately 447,814 square foot main building to
incorporate automated operations for the production of a new product line, which Project Improvements
are located on the Project Site.
“Project Site” means the approximately 2.54-acre portion of the real estate site where the
Company’s existing facilities are located at 2900 West Truman Boulevard in the City upon which the
Project Improvements and Project Equipment are or will be located.
“Purchaser” means the Person identified in the Bond Purchase Agreement as the purchaser of the
Bonds.
“State” means the State of Missouri.
“Supplemental Indenture” means any indenture supplemental or amendatory to this Indenture
entered into by the City and the Trustee pursuant to Article XI.
“Supplemental Lease” means any supplement or amendment to the Lease entered into pursuant
to Article XII.
“Trust Estate” means the Trust Estate described in the Granting Clauses of this Indenture.
“Trustee” means UMB Bank, N.A., Kansas City, Missouri, a national banking association duly
organized and existing and authorized to accept and execute trusts of the character herein set forth under
the laws of the United States of America, and its successor or successors and any other Person 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.
-8-
Section 102. Rules of Interpretation.
(a) Words of the masculine gender shall be deemed and construed to include correlative words
of the feminine and neuter genders.
(b) Unless the context otherwise indicates, words importing the singular number shall include
the plural and vice versa, and words importing Persons shall include firms, associations and corporations,
including governmental entities, as well as natural Persons.
(c) Wherever in this Indenture it is provided that either party shall or will make any payment
or perform or refrain from performing any act or obligation, each such provision shall, even though not so
expressed, be construed as an express covenant to make such payment or to perform, or not to perform, as
the case may be, such act or obligation.
(d) All references in this instrument to designated “Articles,” “Sections” and other
subdivisions are, unless otherwise specified, to the designated Articles, Sections and other subdivisions of
this instrument as originally executed. The words “herein,” “hereof,” “hereunder” and other words of
similar import refer to this Indenture as a whole and not to any particular Article, Section or other
subdivision.
(e) The Table of Contents and the Article and Section headings of this Indenture shall not be
treated as a part of this Indenture or as affecting the true meaning of the provisions hereof.
(f) Whenever an item or items are listed after the word “including,” such listing is not intended
to be a listing that excludes items not listed.
Section 103. Date of Indenture. The dating of this Indenture as of April 1, 2024, is intended as
and for the convenient identification of this Indenture only and is not intended to indicate that this Indenture
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 the “City of Jefferson, Missouri, Taxable Industrial Development Revenue Bonds
(Unilever - Personal Property Project), Series 2024B.” The maximum total principal amount of Bonds that
may be issued hereunder is hereby expressly limited to $50,000,000.
Section 202. Nature of Obligation. The Bonds and the interest thereon shall be 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. 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
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constitutional, statutory or charter debt limitation or restriction, and are not payable in any manner by
taxation.
Section 203. Denomination, Number and Dating of the Bonds.
(a) The Bonds shall be issuable in the form of one fully-registered Bond, in substantially the
form set forth in Exhibit B, in the denomination of $0.01 or any multiple thereof.
(b) The Bonds shall be dated by the Trustee as of the date of initial delivery thereof as provided
herein. If the Bonds are at any time thereafter transferred, any replacement Bonds shall be dated as of the
date of authentication thereof.
Section 204. Method and Place of Payment of Bonds.
(a) The principal of and interest on the Bonds shall be payable in any coin or currency of the
United States of America which on the respective dates of payment thereof is legal tender for payment of
public and private debts.
(b) Payment of the principal of the Bonds shall be made upon the presentation and surrender
of such Bonds at the principal payment office of any Paying Agent named in the Bonds (provided, however,
presentation and surrender shall be deemed to have been made if the Bonds are held by the Trustee in trust
for the Owner). The payment of principal on the Bonds shall be noted on the Bonds on Schedule I thereto
and the registration books maintained by the Trustee pursuant to Section 206. Payment of the interest on
the Bonds shall be made by the Trustee on each Payment Date to the Person appearing on the registration
books of the Trustee hereinafter provided for as the Owner thereof on the 15th day (whether or not a
Business Day) of the calendar month next preceding such Payment Date by check or draft mailed to such
Owner at such Owner’s address as it appears on such registration books.
(c) The Bonds and the original Schedule I thereto shall be held by the Trustee in trust, unless
otherwise directed in writing by the Owner. If the Bonds are held by the Trustee, the Trustee shall, on each
Payment Date, send a revised copy of Schedule I via facsimile or other electronic means to the Owner, the
Company (if not the Owner) and the City. Absent manifest error, the amounts shown on Schedule I as
noted by the Trustee shall be conclusive evidence of the principal amount paid on the Bonds.
(d) If there is one Owner of the Bonds, the Trustee is authorized to make the final or any
interim payments of principal of such Bonds by internal bank transfer or by electronic transfer to an account
at a commercial bank or savings institution designated in writing by such Owner and located in the United
States. The Trustee is also authorized to make interest payments on such Bonds by internal bank transfer
or by electronic transfer to an account at a commercial bank or savings institution designated in writing by
such Owner and located in the United States.
(e) If the Company or any Financing Party is the sole Owner of the Bonds and the lessee under
the Lease, then the Owner may set-off its obligation to the City as lessee under the Lease against the City’s
obligation to the bondholder under this Indenture; provided that, at all times that the Owner is the only
bondholder and the lessee under the Lease, such set-off shall be deemed to occur and payment under this
Indenture shall be deemed to have been made. The Company shall provide the Trustee with a written
statement confirming such ownership upon which the Trustee may conclusively rely. In connection with
any such permitted set-off 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. On the final Payment Date, the Owner
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may deliver the Bonds to the Trustee for cancellation, and the Owner, as lessee under the Lease, shall
receive a credit against the Basic Rent payable by the lessee under Section 5.1 of the Lease in an amount
equal to the principal of the Bonds so tendered for cancellation plus accrued interest thereon.
Section 205. Execution and Authentication of Bonds.
(a) The Bonds shall be executed on behalf of the City by the manual or facsimile signature of
the Mayor or Mayor Pro-Tem 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 the Bonds, such
signature or facsimile thereof shall nevertheless be valid and sufficient for all purposes, the same as if such
Person had remained in office until delivery. Any Bond may be signed by such Persons as at the actual
time of the execution of such Bond are the proper officers to sign such Bond although at the date of such
Bond such Persons may not have been such officers.
(b) The Bonds shall have endorsed thereon a Certificate of Authentication substantially in the
form set forth in Exhibit B, which shall be manually executed by the Trustee. No Bond shall be entitled to
any security or benefit under this Indenture or shall be valid or obligatory for any purposes until such
Certificate of Authentication has been duly executed by the Trustee. The executed Certificate of
Authentication upon any Bond shall be conclusive evidence that such Bond has been duly authenticated
and delivered under this Indenture. The Certificate of Authentication on any Bond shall be deemed to have
been duly executed if signed by any authorized signatory of the Trustee.
Section 206. Registration, Transfer and Exchange of Bonds.
(a) The Trustee shall keep books for the registration and transfer of Bonds as provided in this
Indenture.
(b) The Bonds may be transferred to an Approved Investor only upon the books kept for the
registration and transfer of Bonds upon surrender thereof to the Trustee duly endorsed for transfer or
accompanied by an assignment duly executed by the Owner or such Owner’s attorney or legal
representative in such form as shall be satisfactory to the Trustee. In connection with any such transfer of
the Bonds, the City and the Trustee shall receive an executed representation letter signed by the proposed
assignee in substantially the form of Exhibit C. The Trustee shall be fully protected in relying upon such
representation letter and shall have no duty or obligation to confirm that any transferee that provides such
representation letter is an Approved Investor. 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 canceled by the
Trustee. The City or the Trustee may make a reasonable charge for every such exchange or transfer of
Bonds sufficient to reimburse it for any tax, fee or other governmental charge required to be paid with
respect to such exchange or transfer, and such charge shall be paid before any new Bond shall be delivered.
Neither the City nor the Trustee shall be required to make any such exchange or transfer of Bonds during
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the 15 days immediately preceding a Payment Date on the Bonds or, in the case of any proposed redemption
of Bonds, during the 15 days immediately preceding the selection of Bonds for such redemption or after
such Bonds or any portion thereof has been selected for redemption.
(d) If any Owner fails to provide a certified taxpayer identification number to the Trustee, the
Trustee may make a charge against such Owner sufficient to pay any governmental charge required to be
paid as a result of such failure, which amount may be deducted by the Trustee from amounts otherwise
payable to such Owner under such Owner’s Bond.
Section 207. Persons Deemed Owners of Bonds. As to any Bond, the Person in whose name
the same is registered as shown on the bond registration books required by Section 206 hereof shall be
deemed and regarded as the absolute owner thereof for all purposes. Payment of or on account of the
principal of and interest on any such Bond shall be made only to or upon the order of the Owner thereof or
a legal representative thereof. All such payments shall be valid and effectual to satisfy and discharge the
liability upon such Bond, including the interest thereon, to the extent of the sum or sums so paid.
Section 208. Authorization of the Bonds.
(a) The Bonds are authorized in the aggregate maximum principal amount of $50,000,000 for
the purpose of providing funds to pay Project Costs, which Bonds shall be designated “City of Jefferson,
Missouri, Taxable Industrial Development Revenue Bonds (Unilever - Personal Property Project), Series
2024B.” The Bonds shall be dated as provided in Section 203(b) hereof, shall become due on December
1 of the tenth (10th) calendar year following the calendar year in which the Completion Date occurs, which
date shall be no later than December 1, 2036 (subject to prior redemption as provided in Article III) 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 B and delivered to the Trustee for authentication. Prior to or simultaneously with the
authentication and delivery of the Bonds by the Trustee, there shall be filed with the Trustee the following:
(1) a certified copy of the Ordinance passed by the City Council authorizing the
issuance of the Bonds and the execution of this Indenture, the Performance Agreement, the Bond
Purchase Agreement and the Lease;
(2) executed counterparts or copies 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 hereto
as Exhibit C;
(4) a request and authorization to the Trustee on behalf of the City, executed by the
Authorized City Representative, to authenticate the Bonds and deliver the same to or at the written
direction of the Purchaser upon payment (or deemed payment pursuant to Section 208(d) hereof)
to the Trustee, for the account of the City, of the purchase price thereof specified in such request
and authorization. The Trustee shall be entitled to conclusively rely upon such request and
authorization as to the name of the Purchaser and the amount of such purchase price; and
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(5) such other certificates, statements, receipts, opinions and documents as the Trustee
shall reasonably require for the delivery of the Bonds.
In authenticating the Bonds, the Trustee makes no certification or representation that the Bonds
have been validly issued or constitute legally binding obligations of the City.
(d) When the documents specified in subsection (c) of this Section have been filed with the
Trustee, and when the Bonds have been executed and authenticated as required by this Indenture, either:
(1) the Purchaser shall pay the Closing Price to the Trustee, and the Trustee shall
endorse the Bonds in an amount equal to the Closing Price and then either hold the Bonds in trust
or, if so directed in writing, deliver the Bonds to or upon the order of the Purchaser; or
(2) the 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 endorse the Bonds in
an amount equal to the Closing Price and then either hold the Bonds in trust or, if so directed in
writing, deliver the Bonds to the Company (or another purchaser or Financing Party designated by
the Company).
In either case, the Purchaser shall be deemed to have paid over to the Trustee, and the Trustee shall be
deemed to have deposited into the Project Fund, an amount equal to the Closing Price.
(e) Following the initial issuance and delivery of the Bonds, the Company may submit
additional requisition certificates in accordance with Section 4.4 of the Lease. If the Purchaser does not
pay to the Trustee the amount set forth in the requisition certificates, the Purchaser will be deemed to have
advanced an amount equal to the amount set forth in the requisition certificates and, if the Trustee is holding
the Bonds, the Trustee shall endorse the Bonds in an amount equal to the amount set forth in each requisition
certificate as indicated thereon. The date of endorsement of each Principal Amount Advanced as set forth
on Schedule I to the Bonds shall be the date of the City’s approval of each requisition certificate. The
Trustee shall keep a record of the total requisitions submitted to the Trustee for the Project Equipment and
shall notify the City if the requisitions submitted exceed the maximum principal amount of the Bonds.
(f) The Bonds shall bear interest at the rate of 5.00% 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, 2024, and continuing thereafter until the Cumulative Outstanding Principal
Amount is paid in full, but not later than December 1 of the tenth (10th) calendar year following the calendar
year in which the Completion Date occurs (which date shall not be later than December 1, 2036). Interest
shall be calculated on the basis of a year of 360 days consisting of 12 months of 30 days each.
(g) The Trustee shall keep and maintain a record of the amount deposited or deemed to be
deposited into the Project Fund pursuant to the terms of this Indenture as the “Principal Amount
Advanced” and shall enter the aggregate principal amount of the Bonds then-Outstanding on its records as
the “Cumulative Outstanding Principal Amount.” If the Trustee is holding the Bonds such advanced
amounts shall be reflected on Schedule I to the Bonds. To the extent that advances are deemed by Section
208(e) to have been made pursuant to a requisition, the Trustee’s records of such advances shall be based
solely on the requisitions provided to it, and the Trustee shall have no duty or obligation to determine
whether such amounts have in fact been advanced by the Purchaser. On each date upon which a portion of
the Cumulative Outstanding Principal Amount is paid to the Owners (or set-off as permitted by Section
204(e)), pursuant to the redemption provisions of this Indenture, the Trustee shall enter on its records and
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Schedule I to the Bonds, if the Trustee is holding the Bonds, the principal amount paid on the Bonds as the
“Principal Amount Redeemed,” and shall enter the then-Outstanding principal amount of the Bonds as
the “Cumulative Outstanding Principal Amount.” The records maintained by the Trustee as to amounts
deposited into the Project Fund or principal amounts paid on the Bonds shall be the official records of the
Cumulative Outstanding Principal Amount for all purposes, absent manifest error, and shall be in
substantially the form of the Table of Cumulative Outstanding Principal Amount as set out in the form of
Bonds in Exhibit B. To the extent the Company, as lessee, sets-off its obligation to the City, as lessor,
under the Lease against the City’s obligation to the Company as permitted by Section 204(e) hereof 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 Project Equipment has been
acquired and installed and the certificate of payment of all costs is filed as provided in Section 504 hereof
and Section 4.5 of the Lease, 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. 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 210. Cancellation and Destruction of Bonds Upon Payment.
(a) All Bonds that have been paid or redeemed or that have otherwise been surrendered to the
Trustee under this Indenture, either at or before maturity shall be canceled by the Trustee immediately upon
the payment, redemption or purchase of such Bonds and the surrender thereof to the Trustee.
(b) All Bonds canceled under any of the provisions of this Indenture shall be destroyed by the
Trustee in accordance with applicable laws and regulations and the Trustee’s policies and practices. Upon
request, the Trustee shall execute a certificate describing the Bonds so destroyed and shall file executed
counterparts of such certificate with the City and the Company.
ARTICLE III
REDEMPTION OF BONDS
Section 301. Redemption of Bonds.
(a) The Bonds are subject to redemption and payment at any time before the stated maturity
thereof, at the option of the City, upon written instructions from the Company, (1) in whole, if the Company,
in accordance with the terms of the Lease, exercises its option to purchase the Project Equipment and
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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, (A) Bonds aggregating at least 10% of the maximum aggregate principal
amount of Bonds authorized hereunder shall not be subject to redemption and payment before the stated
maturity thereof, and (B) the Trustee shall keep a record of the amount of Bonds to remain Outstanding
following such redemption. Any redemption of Bonds pursuant to this paragraph shall be at a redemption
price equal to the par value thereof being redeemed, plus accrued interest thereon, without premium or
penalty, to the redemption date. 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(f) or 9.2(c) of the Lease, in the event of
substantial damage to or destruction or condemnation of substantially all of the Project 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 subsection (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, 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 there is one Owner) before the
scheduled redemption date. The Trustee shall then deliver written notic e to the Owners at least 30 days
(five days if there is one Owner) before the scheduled redemption date by facsimile or other electronic
communication (if such information is on file with the Trustee) 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.
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ARTICLE IV
FORM OF BONDS
Section 401. Form Generally. The Bonds and the Trustee’s Certificate of Authentication to be
endorsed thereon shall be issued in substantially the forms set forth in Exhibit B. The Bonds may have
endorsed thereon such legends or text as may be necessary or appropriate to conform to any applicable rules
and regulations of any governmental authority or any custom, usage or requirements of law with respect
thereto.
ARTICLE V
CUSTODY AND APPLICATION OF BOND PROCEEDS
Section 501. Creation of Funds. There are hereby created and ordered to be established in the
custody of the Trustee the following special trust funds in the name of the City:
(a) “City of Jefferson, Missouri, Project Fund – Unilever Personal Property Project –
Series 2024B” (herein called the “Project Fund”).
(b) “City of Jefferson, Missouri, Bond Fund – Unilever Personal Property Project –
Series 2024B” (herein called the “Bond Fund”).
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) hereof), including Additional Payments as defined 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 moneys
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 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 and approved by
the City 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 Sections 208(d) or (e) 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 Person designated by the Company) in satisfaction of the requisition certificates.
If the Trustee is holding the Bonds such deemed disbursement will be deemed to have been made on the
date the Trustee endorses the Bonds with respect to such amounts.
(c) In paying any requisition certificate 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
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signed by the Authorized Company Representative and approved by the Authorized City Representative,
and the Trustee shall not be required to make any independent investigation in connection therewith. The
execution of any requisition certificate by an Authorized Company Representative shall constitute, unto the
Trustee, an irrevocable determination that all conditions precedent to the payments requested have been
completed. 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 Purchase and Installation of the Project Equipment. The
completion of the purchase and installation of the Project Equipment and payment of all costs and expenses
incident thereto shall be evidenced by the filing with the Trustee of the certificate required by the provisions
of Section 4.5 of the Lease. As soon as practicable after the Completion Date, any balance remaining in
the Project Fund shall without further authorization be transferred by the Trustee to the Bond Fund and
applied as provided in Section 4.6 of the Lease.
Section 505. Disposition Upon Acceleration. If the principal of the Bonds has become due
and payable pursuant to Section 902 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 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 purchase and installation of the Project Equipment or pursuant to Section
505 upon acceleration of the Bonds; (5) subject to the terms and conditions of any Financing Document
with respect to the use thereof, the balance of any Net Proceeds of condemnation awards or insurance
received by the Trustee pursuant to Article IX of the Lease; (6) the amounts to be deposited in the Bond
Fund pursuant to Sections 9.1(f) and 9.2(c) of the Lease; (7) all interest and other income derived from
investments of Bond Fund moneys as provided in Section 702; and (8) all other moneys received by the
Trustee under and pursuant to any of the provisions of the Lease when accompanied by written directions
from the Person depositing such moneys that such moneys are to be paid into the Bond Fund.
(b) Whether or not deposits are being made to the Trustee, the Trustee shall notify the
Company in writing, at least 15 days before each date on which a payment is due under Section 5.1 of the
Lease, of the amount that is payable by the Company pursuant to such Section.
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Section 602. Application of Moneys in the Bond Fund.
(a) Except as provided in Section 604 and Section 908 hereof and in Section 4.6 of the Lease,
moneys in the Bond Fund shall be expended solely for the payment of the principal of and interest on the
Bonds as the same matures and becomes due or upon the redemption thereof before maturity; provided,
however, that any amounts received by the Trustee as Additional Rent under Section 5.2 of the Lease and
deposited to the Bond Fund as provided in Section 601 above, shall be expended by the Trustee for such
items of Additional Rent as they are received or due without further authorization from the City.
(b) The City hereby authorizes and directs the Trustee to withdraw sufficient funds from the
Bond Fund to pay the principal of and interest on the Bonds as the same becomes due and payable and to
make said funds so withdrawn available to the Paying Agent for the purpose of paying said principal and
interest. To the extent the Company is the Owner of all the Bonds Outstanding, payment may be made via
transaction entry on the trust records held by the Trustee.
(c) Whenever the amount in the Bond Fund from any source whatsoever is sufficient to redeem
all of the Bonds Outstanding and to pay interest to accrue thereon before and until such redemption, the
City covenants and agrees, upon request of the 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.
Section 603. Payments Due on Days Other than Business Days. In any case where the date
of maturity of principal of or interest, if any, on the Bonds or the date fixed for redemption of any Bonds is
not a Business Day, then payment of principal or interest, if any, need not be made on such date but may
be made on the next succeeding Business Day with the same force and effect as if made on the date of
maturity or the date fixed for redemption, and no interest, if any, shall continue to accrue for the period
after such date.
Section 604. Nonpresentment of Bonds. If any Bond is not presented for payment when the
principal thereof becomes due, either at maturity or otherwise, or at the date fixed for redemption thereof,
if funds sufficient to pay such Bond shall have been made available to the Trustee, all liability of the City
to the Owner thereof for the payment of such Bond shall forthwith cease, determine and be completely
discharged, and thereupon it shall be the duty of the Trustee to hold such funds, without liability for interest
thereon, for the benefit of the Owner of such Bond who shall thereafter be restricted exclusively to such
funds for any claim of whatever nature on his part under this Indenture or on, or with respect to, said Bond.
If any Bond is not presented for payment within one year following the date when such Bond becomes due,
whether at 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
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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.
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 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 before 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 shall hold such funds uninvested in cash without liability for
interest thereon. The Trustee may conclusively rely upon the Authorized Company Representative’s
written instructions as to both the suitability and legality of the directed investments and such written
direction shall be deemed to be a certification to the Trustee that such directed investments constitute
Investment Securities. 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 Investmen t
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 while any of
the Bonds are Outstanding.
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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 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
in a business-like manner other than as lessor or to use any funds or revenues from any source other than
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 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; provided that a copy of the filed initial financing statement is timely delivered to the
Trustee. In addition, unless the Trustee has been notified in writing by the City that any such initial filing
or description of collateral therein was or has become defective, the Trustee shall be fully protected in (a)
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relying on such initial filing and description of collateral 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 as the initial filings were made. The Company shall be responsible for the customary
fees charged by the Trustee for the preparation and filing of continuation statements and for the reasonable
costs incurred by the Trustee in the preparation and filing of all continuation statements hereunder,
including attorneys’ fees and expenses. These fees shall be considered “extraordinary services” fees.
Section 806. Inspection of 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.
Section 807. Enforcement of Rights Under the Lease. The Trustee, as assignee, transferee,
pledgee, and owner of a security interest under this Indenture, in its name or in the name of the City, may
enforce all assigned rights of the City and the Trustee and all obligations of the Company under and pursuant
to the Lease for and on behalf of the Owners, whether or not the City is in default hereunder.
ARTICLE IX
DEFAULT AND REMEDIES
Section 901. Events of Default; Notice; Opportunity to Cure. If any of the following events
occur, it is hereby defined as and declared to be and to constitute an “Event of Default”:
(a) Default in the due and punctual payment of the principal of any Bond, whether at
the stated maturity or accelerated maturity thereof, or at any date fixed for the redemption thereof;
(b) Default in the due and punctual payment of the interest on any Bond, whether at
the stated maturity or accelerated maturity thereof, or at any date fixed for the redemption thereof;
(c) Default as specified in Section 12.1 of the Lease has occurred; or
(d) Default in the performance or breach of any other covenant or agreement under
this Indenture.
No default specified above shall constitute an Event of Default until the City, the Trustee or the
Owners of 25% in aggregate principal amount of all Bonds Outstanding has given actual notice of such
default by registered or certified mail or a recognized overnight delivery service to the Company and each
Financing Party, and the Company and each Financing Party have 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, any Financing Party or the City (as the
case may be) within such period and diligently pursued until the default is corrected; provided, further that
the Trustee is provided with a certification from the defaulting party to the effect that such default cannot
be corrected within such period and the Company, any Financing Party or the City, as the case may be, has
commenced or will promptly commence corrective action within such period and will diligently pursue
such action until the default is corrected. Nothing herein shall constitute an obligation of any Financing
Party to cure any defaults hereunder.
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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 hereof elapses, the Trustee may, and upon the written request of the City or the
Owners of not less than 25% in aggregate principal amount of Bonds then-Outstanding, shall, by notice in
writing delivered to the City, each Financing Party, 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 written approval of a majority of the Owners of the Bonds then-Outstanding, rescind
such declaration and annul such default in its entirety. In such event, the Trustee shall rescind any
declaration of acceleration of installments of rent payments on the Bonds as provided in Section 11.1 of
the Lease.
(c) In case of any rescission, then and in every such case the City, the Trustee, the Company,
and the Owners shall be restored to their former positions and rights hereunder respectively, but no such
rescission shall extend to any subsequent or other default or Event of Default or impair any right consequent
thereon.
Section 903. Surrender of Possession of Trust Estate; Rights and Duties of Trustee in
Possession. If an Event of Default has occurred and is continuing after the notice and cure period described
in Section 901 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 wi thout 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 having a lien that is senior to 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
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of a receiver or receivers of the Trust Estate or any part thereof, pending such proceedings, with such powers
as the court making such appointment shall confer.
Section 905. Exercise of Remedies by the Trustee.
(a) Upon the occurrence of an Event of Default, the Trustee may pursue any available remedy
at law or in equity by suit, action, mandamus or other proceeding to enforce the payment of the principal
of and interest on the Bonds then-Outstanding and all other amounts due hereunder, and to enforce and
compel the performance of the duties and obligations of the City or the Company as herein set forth or as
set forth in the Lease, respectively.
(b) If an Event of Default has occurred and is continuing after the notice and cure period
described in Section 901 hereof elapses, and if requested in writing to do so by (1) the City (in the case of
an Event of Default pursuant to Section 12. 1(a)(1) (but only as it relates to Additional Rent), (a)(2) (but
only as it relates to Unassigned Rights), (a)(3) or (a)(4) of the Lease), or (2) the Owners of 25% in aggregate
principal amount of Bonds then-Outstanding and indemnified as provided in Section 1001(l) 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 proceeding
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(l) 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 in equity shall be instituted, had and maintained
in the manner herein provided and for the equal benefit of the Owners of all Bonds then-Outstanding.
Nothing in this Indenture contained shall, however, affect or impair the right of any Owner to payment of
the principal of and interest on any Bond at and after the maturity thereof or the obligation of the City to
pay the principal of and interest on each of the Bonds issued hereunder to the respective Owners thereof at
the time, place, from the source and in the manner herein and in the Bonds expressed.
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Section 907. Right of Owners to Direct Proceedings.
(a) The Owners of a majority in aggregate principal amount of Bonds then-Outstanding may,
at any time, by an instrument or instruments in writing executed and delivered to the Trustee, direct the
time, method and place of conducting all proceedings to be taken in connection with the enforcement of the
terms and conditions of this Indenture, or for the appointment of a receiver or any other proceedings
hereunder; provided that such direction shall not be otherwise than in accordance with the provisions of
law and of this Indenture, including Section 1001(l) hereof.
(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(a)(1) (but only as it relates to Additional Rent), (a)(2) (but only as it
relates to Unassigned Rights), (a)(3) or (a)(4) 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 moneys shall be deposited in the Bond Fund and applied as follows:
(1) Unless the principal of all the Bonds has become or has been declared due and
payable, all such moneys shall be applied:
FIRST -- To the payment to the Persons entitled thereto of all installments of
interest, if any, then due and payable on the Bonds, in the order in which such installments
of interest became due and payable, and, if the amount available shall not be sufficient to
pay in full any particular installment, then to the payment, ratably, according to the amounts
due on such installment, to the Persons entitled thereto, without any discrimination or
privilege;
SECOND -- To the payment to the Persons entitled thereto of the unpaid principal
of any of the Bonds which 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 Persons entitled thereto, without any discrimination or privilege.
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(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 hereof, 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 date shall cease to accrue.
(c) Whenever all of the Bonds and interest thereon, if any, have been paid under the provisions
of this Section, and all fees, expenses and charges of the City and the Trustee and any other amounts
required to be paid under this Indenture and the Lease have been paid (including any amounts payable under
the Performance Agreement), any balance remaining in the Bond Fund shall be paid to the Company as
provided in Section 602.
Section 909. Remedies Cumulative. No remedy by the terms of this Indenture conferred upon
or reserved to the Trustee or to the Owners is intended to be exclusive of any other remedy, but each and
every such remedy shall be cumulative and shall be in addition to any other remedy given to the Trustee or
to the Owners hereunder or now or hereafter existing at law or in equity or by statute. No delay or omission
to exercise any right, power or remedy accruing upon any Event of Default shall impair any such right,
power or remedy or shall be construed to be a waiver of any such Event of Default or acquiescence therein;
every such right, power or remedy may be exercised from time to time and as often as may be deemed
expedient. If the Trustee has proceeded to enforce any right under this Indenture by the appointment of a
receiver, by entry, or otherwise, and such proceedings have been discontinued or abandoned for any reason,
or have been determined adversely, then and in every such case the City, the Company, the Trustee and the
Owners shall be restored to their former positions and rights hereunder, and all rights, powers and remedies
of the Trustee shall continue as if no such proceedings had been taken.
Section 910. Waivers of Events of Default. The Trustee shall waive any Event of Default
hereunder and its consequences and rescind any declaration of maturity of principal of and interest, if any,
on the Bonds, but only upon the written request of the Owners of at least 50% in aggregate principal amount
of all the Bonds then-Outstanding; provided, however, that (a) there shall not be waived without the consent
of the City an Event of Default hereunder arising from an Event of Default under Section 12.1(a)(1) (but
only as it relates to Additional Rent), (a)(2) (but only as it relates to Unassigned Rights), (a)(3) or (a)(4) 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 before such waiver or rescission, all arrears of interest, or all
arrears of payments of principal when due, as the case may be, and all reasonable expenses of the Trustee
and the City (including reasonable attorneys’ fees and expenses), in connection with such default, shall
have been paid or provided for. In case of any such waiver or rescission, or in case any proceedings 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
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shall extend to any subsequent or other default, or impair any right consequent thereon and all rights, powers
and remedies of the Trustee shall continue as if no such proceedings had been taken.
ARTICLE X
THE TRUSTEE
Section 1001. Acceptance of the Trusts. The Trustee hereby accepts the trusts imposed upon it
by this Indenture, but only upon and subject to the following express terms and conditions, and no implied
covenants or obligations shall be read into this Indenture against the Trustee:
(a) The Trustee, before the occurrence of an Event of Default and after the curing or
waiver of all Events of Default that may have occurred, undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture. If any Event of Default has occurred and
is continuing, subject to Section 1001(l) below, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and shall use the same degree of care and skill in their exercise
as a prudent Person would exercise or use under the circumstances in the conduct of its own affairs.
(b) The Trustee undertakes to perform such duties as are specifically set forth in this
Indenture, and in the absence of bad faith, negligence or willful misconduct on its part, the Trustee
may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee. 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, affiliate, 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,
affiliates, attorneys and receivers as may reasonably be employed in connection with the trusts
hereof. The Trustee shall not be responsible for any loss or damage resulting f rom any action or
nonaction by it taken or omitted to be taken in good faith in reliance upon such opinion or advice
of counsel addressed to the City and the Trustee.
(c) The Trustee shall not be responsible for any recital herein or in the Bonds (except
with respect to the Certificate of Authentication of the Trustee endorsed on the Bonds), or except
as provided in the Lease and particularly Section 10.8 thereof, for the recording or rerecording,
filing or refiling of this Indenture or any security agreement in connection therewith (excluding the
continuation of Uniform Commercial Code financing statements), 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 wit h 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 the Trustee. The Trustee
shall not be accountable for the use or application by the City or the Company of the proceeds of
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any of the Bonds or of any money paid to or upon the order of the City or the 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 Inden ture 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 before taking, suffering or
omitting any action hereunder, the Trustee shall be entitled to rely upon a certificate signed by an
Authorized City Representative or an Authorized Company Representative as sufficient evidence
of the facts therein contained, and before the occurrence of a default of which the Trustee has been
notified as provided in subsection (h) of this Section or of which by said subsection it is deemed to
have notice, the Trustee shall also be at liberty to accept a similar certificate to the effect that any
particular dealing, transaction or action is necessary or expedient, but may at its discretion secure
such further evidence deemed necessary or advisable, but shall in no case be bound to secure the
same.
(g) The permissive right of the Trustee to do things enumerated in this Indenture shall
not be construed as a duty, and the Trustee shall not be answerable for other than its negligence or
willful misconduct.
(h) The Trustee shall not be required to take notice or be deemed to have notice of any
default hereunder except failure by the City to cause to be made any of the payments to the Trustee
required to be made in Article VI 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 may, 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.
(j) The Trustee shall not be required to give any bond or surety in respect to the
execution of its trusts and powers hereunder or otherwise in respect of the Project Equipment.
(k) The Trustee may, but shall not be required to, demand, in respect of the
authentication of any Bonds, the withdrawal of any cash, the release of any property, or any action
whatsoever within the purview of this Indenture, any showings, certificates, opinions, appraisals or
other information, or corporate action or evidence thereof, in addition to that by the terms hereof
required, as a condition of such action by the Trustee deemed desirable for the purpose of
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establishing the right of the City to the authentication of any Bonds, the withdrawal of any cash,
the release of any property or the taking of any other action by the Trustee.
(l) Notwithstanding anything in this Indenture or the Lease to the contrary, before
taking any action under this Indenture other than the payments from moneys on deposit in the
Project Fund or the Bond Fund, as provided herein, the Trustee may require that satisfactory
indemnity be furnished to it for the reimbursement of all costs and expenses (including, without
limitation, attorneys’ fees and expenses) to which it may be put and to protect it against all liability
which it may incur in or by reason of such action, except liability which is adjudicated to have
resulted from its negligence or willful misconduct by reason of any action so taken.
(m) Notwithstanding any other provision of this Indenture to the contrary, any
provision relating to the conduct of or intended to provide authority to act, right to payment of fees
and expenses, protection, immunity and indemnification to the Trustee, shall be interpreted to
include any action of the Trustee, whether it is deemed to be in its capacity as Trustee, bond registrar
or Paying Agent.
(n) The Trustee agrees to accept and act on instructions or directions pursuant to this
Indenture sent by the City or the Company, as the case may be, by unsecured e-mail, facsimile
transmission or other similar unsecured electronic methods, provided, however, that the City or the
Company, respectively, shall provide to the Trustee an incumbency certificate listing designated
persons with the authority to provide such instructions, which incumbency certificate shall be
amended whenever a person is to be added or deleted from the listing. If the City or the Company,
as applicable, elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar
electronic method) and the Trustee acts upon such instructions, the Trustee’s understanding of such
instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or
expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such
instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written
instruction. The City or the Company, as applicable, agrees to assume all risks arising out of the
use of such electronic methods to submit instructions and directions to the Trustee, including
without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of
interception and misuse by third parties.
(o) None of the provisions of this Indenture shall require the Trustee to expend or risk
its own funds or otherwise to incur any liability, financial or otherwise, in the performance of any
of its duties hereunder, or in the exercise of any of its rights or powers if it has reasonable grounds
for believing that repayment of such funds or indemnity satisfactory to it against such risk or
liability is not assured to it.
(p) In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces
beyond its control, including, without limitation, strikes, work stoppages, accidents, acts or war or
terrorism, civil or military disturbances, nuclear or nat ural catastrophes or acts of God, and
interruptions, loss or malfunctions of utilities, communications or computer (software and
hardware) services.
(q) The Trustee shall have no responsibility with respect to any information, statement
or recital in any official statement, offering memorandum or any other disclosure material prepared
or distributed with respect to the Bonds and shall have no responsibility for compliance with any
state or federal securities laws in connection with the Bonds.
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Section 1002. Fees, Charges and Expenses of the Trustee. The Trustee shall be entitled to
payment of and/or reimbursement for reasonable fees for its ordinary services rendered hereunder and all
advances, agent and counsel fees and other ordinary expenses reasonably made or incurred by the Trustee
in connection with such ordinary services. If it becomes necessary for the Trustee to perform extraordinary
services, it shall be entitled to reasonable extra compensation therefor and to reimbursement for reasonable
extraordinary expenses in connection therewith; provided that if such extraordinary services or
extraordinary expenses are caused by the negligence or willful misconduct of the Trustee, it shall not be
entitled to compensation or reimbursement therefor. The Trustee shall be entitled to payment and
reimbursement for the reasonable fees and charges of the Trustee as Paying Agent for the Bonds. Pursuant
to the provisions of Section 5.2 of the Lease, the 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 before 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. The Trustee’s right to compensation and
indemnification shall survive the satisfaction and discharge of this Indenture or its resignation or removal
hereunder and payment in full of the Bonds.
Section 1003. Notice to Owners if Default Occurs. If a default occurs of which the Trustee is
by Section 1001(h) 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
corporate trust office of the Trustee.
Section 1004. Intervention by the Trustee. In any judicial proceeding to which the City is a
party and which, in the opinion of the Trustee and its counsel, has a substantial bearing on the interests of
Owners, the Trustee may intervene on behalf of Owners and, subject to the provisions of Section 1001(l)
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
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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 has occurred and is
continuing, delivered to the Trustee, the City and the Owners and signed by the Company.
Section 1008. Appointment of Successor Trustee. If the Trustee hereunder resigns or is
removed, or otherwise becomes incapable of acting hereunder, or if it is taken under the control of any
public officer or officers or of a receiver appointed by a court, a successor Trustee (a) reasonably acceptable
to the City may be appointed by the Company (so long as no Event of Default has occurred and is
continuing), or (b) reasonably acceptable to the City and the Company may be appointed by the Owners of
a majority in aggregate principal amount of Bonds then-Outstanding, by an instrument or concurrent
instruments in writing; provided, nevertheless, that in case of such vacancy, the City, by an instrument
executed and signed by its Mayor or Mayor Pro-Tem 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 with a corporate trust office in the State, and having, or whose obligations are
guaranteed by a financial institution having, a reported capital, surplus and undivided profits of not less
than $50,000,000. If no successor Trustee has been so appointed and accepted appointment in the manner
herein provided, the Trustee, at the Company’s expense, or any Owner may petition any court of competent
jurisdiction for the appointment of a successor Trustee, until a successor has been appointed as above
provided.
Section 1009. Vesting of Trusts in Successor Trustee. Every successor Trustee appointed
hereunder shall execute, acknowledge and deliver to its predecessor and also to the City and the 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 and upon payment of its outstanding fees and expenses, 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 i nstrument 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
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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 has been requested to do so by the Owners of at least 25%
of the aggregate principal amount of Bonds then-Outstanding and has been provided adequate funds for the
purpose of such payment.
Section 1011. Trust Estate May be Vested in Co-Trustee.
(a) It is the purpose of this Indenture that there shall be no violation of any law of any
jurisdiction (including particularly the State) denying or restricting the right of banking corporations or
associations to transact business as trustee in such jurisdiction. It is recognized that in case of litigation
under this Indenture or the Lease, and in particular in case of the enforcement of either this Indenture or the
Lease upon the occurrence of an Event of Default or if the Trustee deems that by reason of any present or
future law of any jurisdiction it cannot exercise any of the powers, rights or remedies herein granted to the
Trustee, or take any other action which may be desirable or necessary in connection therewith, it may be
necessary or desirable that the Trustee appoint an additional individual or institution as a co-trustee or
separate trustee, and the Trustee is hereby authorized to appoint such co-trustee or separate trustee.
(b) If the Trustee appoints an additional individual or institution as a co-trustee or separate
trustee (which appointment shall be subject to the approval of the 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 or separate trustee such properties, rights, powers, trusts, duties and obligations, any and
all such deeds, conveyances and instruments in writing shall, on request, be executed, acknowledged and
delivered by the City.
(d) If any co-trustee or separate trustee shall die, become incapable of acting, resign or be
removed, all the properties, rights, powers, trusts, duties and obligations of such co-trustee or separate
trustee, so far as permitted by law, shall vest in and be exercised by the Trustee until the appointment of a
successor to such co-trustee or separate trustee.
Section 1012. Accounting. The Trustee shall render an annual accounting for the period ending
December 31 of each year to the City, the Company and to any Owner requesting the same and, upon the
request of the City, the Company or any Owner, at such Owner’s expense, a monthly accounting to any
such party, showing in reasonable detail all financial transactions relating to the Trust Estate during the
accounting period and the balance in any funds or accounts created by this Indenture as of the beginning
and close of such accounting period.
Section 1013. Performance of Duties Under the Lease. The Trustee hereby accepts and agrees
to perform all duties and obligations assigned to it under the Lease.
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ARTICLE XI
SUPPLEMENTAL INDENTURES
Section 1101. Supplemental Indentures Not Requiring Consent of Owners. The City and the
Trustee may from time to time, without the consent of or notice to any of the Owners, enter into such
Supplemental Indenture or Supplemental Indentures as shall not be inconsistent with the terms and
provisions hereof, for any one or more of the following purposes:
(a) To cure any ambiguity or formal defect or omission in this Indenture, or to make
any other change which, in the judgment of the Trustee, is not to the material prejudice of the
Trustee or the Owners (provided the Trustee shall be entitled to receive and may rely upon an
opinion of counsel in exercising such judgment);
(b) To grant to or confer upon the Trustee for the benefit of the Owners any additional
rights, remedies, powers or authority that may lawfully be granted to or conferred upon the Owners
or the Trustee or both of them;
(c) To more precisely identify the Project Equipment or to add additional property
thereto;
(d) To conform this Indenture to amendments to the Lease made by the City and the
Company; or
(e) To subject to this Indenture additional revenues, properties or collateral.
Section 1102. Supplemental Indentures Requiring Consent of Owners.
(a) Exclusive of Supplemental Indentures covered by Section 1101 hereof and subject to the
terms and provisions contained in this Section, and not otherwise, the Owners of not less than a majority in
aggregate principal amount of the Bonds then-Outstanding may, from time to time, anything contained in
this Indenture to the contrary notwithstanding, 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 a mount 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 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 any 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 executi on of such
Supplemental Indenture to be mailed to each Owner as shown on the bond registration books required by
Section 206. Such notice shall briefly set forth the nature of the proposed Supplemental Indenture and shall
state that copies thereof are on file at the corporate trust office of the Trustee for inspection by all Owners.
If within 60 days or such longer period as may be prescribed by the City following the mailing of such
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notice, the Owners of not less than a majority in aggregate principal amount of the Bonds Outstanding at
the time of the execution of any such Supplemental Indenture shall have consented to and approved the
execution thereof as herein provided, no Owner shall have any right to object to any of the terms and
provisions contained therein, or the operation thereof, or in any manner to question the propriety of the
execution thereof, or to enjoin or restrain the Trustee or the City from executing the same or from taking
any action pursuant to the provisions thereof.
Section 1103. Company’s Consent to Supplemental Indentures. Anything herein to the
contrary notwithstanding, a Supplemental Indenture under this Article shall not become effective unless
and until the Company and the Financing Parties, if any, 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 and any Financing Party
of which the Trustee has received written notice thereof at least 15 days before the proposed date of
execution and delivery of the Supplemental Indenture.
Section 1104. Opinion of Counsel. In executing, or accepting the additional trusts created by,
any Supplemental Indenture permitted by this Article or the modification thereby of the trusts create d 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 or (d) in
connection with any other change therein which, in the judgment of the Trustee, does not materially and
adversely affect the Trustee or security for the Owners. In exercising such judgment, the Trustee may rely
upon an opinion of counsel.
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 and 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 Supplement al
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
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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 City or the Company 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 execution of such Supplemental
Lease is authorized or permitted by the Lease and this Indenture and the applicable law and will upon the
execution and delivery thereof be valid and binding obligations of the parties thereto.
ARTICLE XIII
SATISFACTION AND DISCHARGE OF INDENTURE
Section 1301. Satisfaction and Discharge of this Indenture.
(a) When the principal of and interest on all the Bonds have been paid in accordance with their
terms or provision has been made for such payment, as provided in Section 1302 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 the Paying Agent to the date of
retirement of the Bonds, then the right, title and interest of the Trust ee 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) has been made or caused to be made
in accordance with the terms thereof, or (2) has been provided for by depositing with the Trustee or other
commercial bank or trust company having full trust powers and authorized to accept trusts in the State in
trust and irrevocably set aside exclusively for such payment (A) moneys sufficient to make such payment
or (B) Government Securities maturing as to principal and interest in such amounts and at such times as
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will ensure the availability of sufficient moneys to make such payment, or (3) ha s 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 hereof or irrevocable instructions shall have been given to the Trustee to give
such notice.
(c) Notwithstanding any provision of any other section of this Indenture which may be
contrary to the provisions of this Section, all moneys or Government Securities set aside and held in trust
pursuant to the provisions of this Section for the payment of Bonds shall be applied to and used solely for
the payment of the particular Bonds, with respect to which such moneys or Government Securities have
been so set aside in trust.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
Section 1401. Consents and Other Instruments by Owners.
(a) Any consent, request, direction, approval, objection or other instrument required by this
Indenture to be signed and executed by the Owners may be in any number of concurrent writings of similar
tenor and may be signed or executed by such Owners in person or by agent appointed in writing. Proof of
the execution of any such instrument or of the writing appointing any such agent and of the ownership of
Bonds (other than the assignment of ownership of a Bond) if made in the following manner, shall be
sufficient for any of the purposes of this Indenture, and shall be conclusive in favor of the Trustee with
regard to any action taken, suffered or omitted under any such instrument, namely:
(1) The fact and date of the execution by any Person of any such instrument may be
proved by the certificate of any officer in any jurisdiction who by law has power to take
acknowledgments within such jurisdiction that the Person signing such instrument acknowledged
before him the execution thereof, or by affidavit of any witness to such execution.
(2) The fact of ownership of Bonds and the amount or amounts, numbers and other
identification of such Bonds, and the date of holding the same shall be proved by the registration
books of the City maintained by the Trustee pursuant to Section 206 hereof.
(b) In determining whether the Owners of the requisite principal amount of Bonds Outstanding
have given any request, demand, authorization, direction, notice, consent or waiver under this Indenture,
Bonds owned by the Company shall be disregarded and deemed not to be Outstanding under this Indenture,
except that, in determining whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Bonds which the Trustee knows to be so owned
shall be so disregarded; provided, the foregoing provisions shall not be applicable if the Company is the
only Owner of the Bonds. Notwithstanding the foregoing, Bonds so owned which have been pledged in
good faith shall not be disregarded as aforesaid if the pledgee establishes to the satisfaction of the Trustee
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the pledgee’s right so to act with respect to such Bonds and the pledgee is not the Company or any affiliate
thereof.
Section 1402. Limitation of Rights Under this Indenture. With the exception of rights herein
expressly conferred, nothing expressed or mentioned in or to be implied from this Indenture or the Bonds
is intended or shall be construed to give any Person other than the parties hereto, and the Owners, if any,
any right, remedy or claim under or in respect to this Indenture, this Indenture and all of the covenants,
conditions and provisions hereof being intended to be and being for the sole and exclusive benefit of the
parties hereto, the Financing Parties, if any, 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 the
Owners, if the same is duly mailed by registered or certified mail, postage prepaid, or sent by overnight
delivery or other delivery service which requires written acknowledgment of receipt by the addressee,
addressed as follows:
(a) To the City:
City of Jefferson, Missouri
320 East McCarty Street
Jefferson City, Missouri 65101
Attention: City Administrator and City Attorney
with a copy to:
Gilmore & Bell, P.C.
2405 Grand Boulevard, Suite 1100
Kansas City, Missouri 64108
ATTN: Haden Crumpton, Esq.
(b) To the Trustee:
UMB Bank, N.A.
928 Grand Boulevard
Kansas City, Missouri 64106
Attention: Corporate Trust Department
(c) To the Company:
Unilever Manufacturing (US), Inc.
2900 West Truman Boulevard
Jefferson City, Missouri 65109
ATTN: Michael Whelan, Director of Operations
with copies to:
Unilever United States, Inc.
700 Sylvan Avenue
Englewood Cliffs, New Jersey 07632
ATTN: General Counsel
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Lathrop GPM LLP
2345 Grand Boulevard, Suite 2200
Kansas City, Missouri 64108
ATTN: Catherine Logan, Esq.
(d) To the Owners if the same is duly mailed by first-class, registered or certified mail
addressed to each of the Owners of Bonds at the time Outstanding as shown by the bond registration
books required by Section 206 hereof to be kept at the corporate trust office of the Trustee.
All notices given by certified or registered mail as aforesaid shall be deemed fully given as of the
date they are so mailed, provided that any of the foregoing given to the Trustee shall be effective only upon
receipt. All notices given by overnight delivery or other delivery service shall be deemed fully given as of
the date when received. A duplicate copy of each notice, certificate or other communication given
hereunder by either the City or the Trustee to the other shall also be given to the 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 addresses 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 whatsoever.
Section 1405. Execution in Counterparts. This Indenture may be executed in several
counterparts, each of which shall be an original and all of which shall constitute but one and the same
instrument.
Section 1406. Governing Law. This Indenture shall be governed exclusively by and construed
in accordance with the applicable laws of the State.
Section 1407. Electronic Transaction. The parties agree that the transaction described herein
may be conducted and related documents may be sent, received or stored by electronic means. Copies,
telecopies, facsimiles, electronic files and other reproductions of original executed documents shall be
deemed to be authentic and valid counterparts of such original documents for all purposes, including the
filing of any claim, action or suit in the appropriate court of law.
Section 1408. City Consents and Approvals. Pursuant to the Ordinance, the Mayor or Mayor
Pro-Tem and the City Administrator are authorized to execute all documents on behalf of the City (including
documents pertaining to the transfer of property or the financing or refinancing of the Real Property by the
Company, and such easements, licenses, rights-of-way, plats and similar documents as may be requested
by the Company) as may be required to carry out and comply with the intent of the Ordinance, this Indenture
and the Lease. The Mayor or Mayor Pro-Tem and the City Administrator are also authorized, unless
expressly prohibited herein, to grant on behalf of the City such consents, estoppels and waivers relating to
the Bonds, this Indenture, the Lease or the Performance Agreement as may be requested during the term
thereof; provided, such consents, estoppels and/or waivers shall not increase the principal amount of the
Bonds, increase the term of the Lease or adversely affect the tax exemption as provided for therein , waive
an Event of Default, or materially change the nature of the transaction unless approved by the City Council.
-37-
Section 1409. 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.]
Personal Property Trust Indenture
City of Jefferson, Missouri
Taxable Industrial Development Revenue Bonds
(Unilever – Personal Property Project)
Series 2024B
S-1
IN WITNESS WHEREOF, the City of Jefferson, Missouri, has caused this Indenture to be signed
in its name and behalf by its Mayor and the seal of the City to be hereunto affixed and attested by 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 a duly authorized officer, all as of the date first above written.
CITY OF JEFFERSON, MISSOURI
By:
Name: Ron L. Fitzwater
Title: Mayor
[SEAL]
ATTEST:
By:
Name: Emily Donaldson
Title: City Clerk
Personal Property Trust Indenture
City of Jefferson, Missouri
Taxable Industrial Development Revenue Bonds
(Unilever – Personal Property Project)
Series 2024B
S-2
UMB BANK, N.A., as Trustee
By:
Name:
Title:
A-1
EXHIBIT A
PROJECT EQUIPMENT
The Project Equipment consists of all items of machinery, equipment and other personal property
acquired on or before the Completion Date for installation in the Project Improvements located on the
Project Site pursuant to Article IV of the Lease and paid for in whole from proceeds of the Bonds.
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EXHIBIT B
FORM OF BOND
THIS BOND OR ANY PORTION HEREOF MAY BE TRANSFERRED, ASSIGNED OR
NEGOTIATED ONLY TO AN APPROVED INVESTOR AS DEFINED IN THE
HEREIN-DESCRIBED INDENTURE.
No. 1 Not to Exceed
$50,000,000
UNITED STATES OF AMERICA
STATE OF MISSOURI
CITY OF JEFFERSON, MISSOURI
TAXABLE INDUSTRIAL DEVELOPMENT REVENUE BOND
(UNILEVER - PERSONAL PROPERTY PROJECT)
SERIES 2024B
Interest Rate Maturity Date Dated Date
5.00% December 1 of the tenth (10th)
year after the calendar year in
which the Completion Date
occurs, but no later than
December 1, 2036
April [___], 2024
OWNER: UNILEVER MANUFACTURING (US), INC.
MAXIMUM PRINCIPAL AMOUNT: FIFTY MILLION DOLLARS
CITY OF JEFFERSON, MISSOURI, a home rule charter city 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
electronic transfer to an account at a commercial bank or savings institution located in the United States.
Interest on the Cumulative Outstanding Principal Amount (as hereinafter defined) at the per annum Interest
Rate stated above, payable in arrears on each December 1, commencing on December 1, 2024, 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
B-2
shall accrue from the date that such advancement is made, computed on the basis of a year of 360 days
consisting of 12 months of 30 days each.
As used herein, the term “Cumulative Outstanding Principal Amount” means all Bonds outstanding
under the terms of the hereinafter defined Indenture, as reflected on Schedule I hereto maintained by the
Trustee.
THIS BOND is one of a duly authorized series of Bonds of the City designated “City of Jefferson,
Missouri, Taxable Industrial Development Revenue Bonds (Unilever - Personal Property Project), Series
2024B,” in the maximum aggregate principal amount of $50,000,000 (the “Bonds”), to be issued for the
purpose of acquiring and installing certain machinery, equipment and other personal property (the “Project
Equipment”) within an approximately 110,000 square foot portion of the main building of Unilever
Manufacturing (US), Inc., a Delaware corporation (the “Company”) that is being renovated and modified
by the Company to incorporate automated operations for the production of a new product line, which is
situated on an approximately 2.54 acre portion of the real estate site where the Company’s other existing
facilities are located at 2900 West Truman Boulevard in the City. The City will lease the Project Equipment
to the Company under the terms of a Personal Property Lease Agreement dated as of April 1, 2024 (said
Personal Property Lease Agreement, as amended and supplemented from time to time in accordance with
the provisions thereof, being herein called the “Lease”), between the City and the Company, all pursuant
to the authority of and in full compliance with the provisions, restrictions and limitations of the Constitution,
the statutes of the State of Missouri, including particularly the Act and the City Charter, and pursuant to
proceedings duly had by the City Council.
THE BONDS are issued under and are equally and ratably secured and entitled to the protection
given by a Personal Property Trust Indenture dated as of April 1, 2024 (said Personal Property 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 UMB Bank, N.A., Kansas City, Missouri, as trustee
(the “Trustee”). Capitalized terms not defined herein shall have the meanings set forth in the Indenture.
Reference is hereby made to the Indenture for a description of the provisions, among others, with
respect to the nature and extent of the security for the Bonds, the rights, duties and obligations of the City,
the Trustee and the Owners, and the terms upon which the Bonds are issued and secured.
THE BONDS are subject to redemption and payment at any time before the stated maturity thereof,
at the option of the City, upon written instructions from the Company, (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; provided, however, if only a portion of the Bonds are to be
redeemed, Bonds aggregating at least 10% of the maximum principal amount of Bonds authorized under
the Indenture shall not be subject to redemption and payment before the stated maturity thereof. Any
redemption of Bonds pursuant to this paragraph shall be at a redemption price equal to the par value thereof
being redeemed, plus accrued interest thereon, without premium or penalty, to the redemption date.
THE BONDS are subject to mandatory redemption, in whole or in part, to the extent of amounts
deposited in the Bond Fund pursuant to Section 9.1(f) or 9.2(c) of the Lease, in the event of substantial
damage to or destruction or condemnation of substantially all of the Project 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 under the Indenture. Any redemption
of Bonds pursuant to this paragraph shall be at a redemption price equal to the par value thereof being
B-3
redeemed, plus accrued interest thereon, without premium or penalty, to the redemption date. Before giving
notice of redemption to the Owners pursuant to this paragraph, money in an amount equal to the redemption
price shall have been deposited in the Bond Fund.
If the Bonds are to be called for optional redemption, the Company shall deliver written notice to
the City and the Trustee that it has elected to redeem all or a portion of the Bonds at least 40 days (10 days
if there is one Owner) before the scheduled redemption date. The Trustee shall then deliver written notice
to the Owner of this Bond at least 30 days (five days if there is one Owner) before the scheduled redemption
date by first-class mail (or facsimile, if there is one Owner) stating the date upon which the Bonds will be
redeemed and paid.
THE BONDS, including interest thereon, are special, limited 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 are 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 the State of
Missouri shall be liable thereon, and the Bonds shall not constitute an indebtedness within the meaning of
any constitutional, statutory or charter debt limitation or restriction, and are not payable in any manner by
taxation. Pursuant to the provisions of the Lease, rental payments sufficient for the prompt payment when
due of the principal of and interest on the Bonds are to be paid by the 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 – Unilever Personal Property Project.”
THE OWNER of this Bond shall have no right to enforce the provisions of the Indenture or to
institute action to enforce the covenants therein, or to take any action with respect to any Event of Default
under the Indenture, or to institute, appear in or defend any suit or other proceedings with respect thereto,
except as provided in the Indenture. In certain events, on the conditions, in the manner and with the effect
set forth in the Indenture, the principal of all the Bonds issued under the Indenture and then-Outstanding
may become or may be declared due and payable before the stated maturity thereof, together with interest
accrued thereon. Modifications or alterations of this Bond or the Indenture may be made only to the extent
and in the circumstances permitted by the Indenture.
THIS BOND is transferable, as provided in the Indenture, only upon the books of the City kept for
that purpose at the above-mentioned office of the Trustee by the Owner hereof in person or by such Person’s
duly authorized attorney, upon surrender of this Bond together with a written instrument of transfer
reasonably satisfactory to the Trustee duly executed by the Owner or such Person’s duly authorized
attorney, and thereupon a new fully-registered Bond or Bonds, in the same aggregate principal amount of
this Bond, 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 $50,000,000.
THIS BOND shall not be valid or become obligatory for any purposes or be entitled to any security
or benefit under the Indenture until the Certificate of Authentication hereon shall have been e xecuted by
the Trustee.
B-4
IT IS HEREBY CERTIFIED AND DECLARED that all acts, conditions and things required to
exist, happen and be performed precedent to and in the execution and delivery of the Indenture and the
issuance of this Bond do exist, have happened and have been performed in due time, form and manner as
required by the Constitution and laws of the State of Missouri.
IN WITNESS WHEREOF, the City of Jefferson, Missouri, has caused this Bond to be executed
in its name by the manual or facsimile signature of its Mayor, attested by the manual or facsimile signature
of its City Clerk and its corporate seal to be affixed hereto or imprinted hereon.
CITY OF JEFFERSON, MISSOURI
By:
Ron L. Fitzwater, Mayor
[SEAL]
ATTEST:
By:
Emily Donaldson, City Clerk
CERTIFICATE OF AUTHENTICATION
This Bond is the Taxable Industrial Development Revenue Bond (Unilever - Personal Property
Project), Series 2024B, described in the Indenture. The effective date of registration of this Bond is set
forth below.
UMB BANK, N.A., as Trustee
____________________ By:
Date Authorized Signatory
B-5
SCHEDULE I
TABLE OF CUMULATIVE OUTSTANDING PRINCIPAL AMOUNT
CITY OF JEFFERSON, MISSOURI
TAXABLE INDUSTRIAL DEVELOPMENT REVENUE BOND
(UNILEVER - PERSONAL PROPERTY PROJECT)
SERIES 2024B
Bond No. 1
Date
Principal Amount
Advanced
Principal Amount
Redeemed
Cumulative
Outstanding
Principal
Amount
Notation
Made
By
B-6
FORM OF ASSIGNMENT
(NOTE RESTRICTIONS ON TRANSFERS)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
____________________________________________________________________________________
Print or Typewrite Name, Address and Social Security or
other Taxpayer Identification Number of Transferee
the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints
_____________________________ attorney to transfer the within Bond on the books kept by the Trustee
for the registration and transfer of the Bonds, with full power of substitution in the premises.
Dated: ______________________.
[NAME OF TRANSFEREE]
a [type of entity]
By:
[Authorized Officer of Transferee]
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-1
EXHIBIT C
FORM OF REPRESENTATION LETTER
City of Jefferson, Missouri
320 East McCarthy Street
Jefferson City, Missouri 65101
ATTN: Mayor
UMB Bank, N.A.
928 Grand Boulevard
Kansas City, Missouri 64106
ATTN: Corporate Trust Department
Re: $50,000,000 Maximum Principal Amount of Taxable Industrial Development Revenue
Bonds (Unilever - Personal Property Project), Series 2024B of the City of Jefferson,
Missouri
Ladies and Gentlemen:
In connection with the purchase of the above-referenced bonds (the “Bonds”), the undersigned
purchaser of the Bonds hereby represents, warrants and agrees as follows:
1. The undersigned understands that (a) the Bonds have been issued under and pursuant to a
Personal Property Trust Indenture dated as of April 1, 2024 (the “Indenture”), between the City of
Jefferson, Missouri (the “City”), and UMB Bank, 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 Unilever Manufacturing (US), Inc., a Delaware corporation (the
“Company”), under a Personal Property Lease Agreement dated as of April 1, 2024 (the “Lease”),
between the City and the Company, with certain of such rents, revenues and receipts being pledged and
assigned by the City to the Trustee under the Indenture to secure the payment of the principal of and interest
on the Bonds. Capitalized terms not defined herein shall have the meanings set forth in the Indenture.
2. The undersigned 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 of Missouri (the “State”) or any political subdivision thereof, and neither the City, the State nor
any 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.
3. The undersigned understands that the Bonds are transferable only in the manner provided
for in the Indenture and discussed below and warrants that it is acquiring the Bonds for its own account
with the intent of holding the Bonds as an investment, and the acquisition of the Bonds is not made with a
view toward their distribution or for the purpose of offering, selling or otherwise participating in a
distribution of the Bonds.
C-2
4. The undersigned is an Approved Investor, as defined in the Indenture.
5. The undersigned agrees not to attempt to offer, sell, hypothecate or otherwise distribute the
Bonds to others unless authorized by the terms of the Indenture and, if requested by the City, upon receipt
of an opinion of counsel reasonably acceptable to the City, the Company and the purchaser that all
registration and disclosure requirements of the Securities and Exchange Commission and all other
appropriate federal and State securities laws and the securities law of any other applicable state are complied
with.
6. The Company has (a) furnished to the undersigned such information about itself as the
undersigned deems necessary in order for it to make an informed investment decision with respect to the
purchase of the Bonds, (b) made available to the undersigned, during the course of this transaction, ample
opportunity to ask questions of, and to receive answers from, appropriate officers of the City and the terms
and conditions of the offering of the Bonds, and (c) provided to the undersigned all additional information
which it has requested. [*Delete this paragraph if the Company is the purchaser of the Bonds.*]
7. The undersigned is now, and was when it agreed to purchase the Bonds, familiar with the
operations of the Company and fully aware of terms and risks of the Bonds. [*Delete previous sentence if
the Company is the purchaser of the Bonds.*] The undersigned believes that the Bonds which it is acquiring
is a security of the kind that it wishes to purchase and hold for investment and that the nature and amount
thereof are consistent with its investment program.
8. The undersigned 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.
9. The undersigned understands and agrees that the interest on the Bonds is subject to federal
and state income taxation.
10. The undersigned hereby directs the Trustee to hold the Bonds in trust pursuant to
Section 204(c) of the Indenture.
Dated: , 20___
[PURCHASER OF BONDS]
By:
Name:
Title:
Gilmore & Bell, P.C.
Draft v2 – February 27, 2024
CITY OF JEFFERSON, MISSOURI,
As Lessor,
AND
UNILEVER MANUFACTURING (US), INC.,
As Lessee
____________
REAL PROPERTY LEASE AGREEMENT
Dated as of April 1, 2024
____________
Relating to:
$33,000,000
(Aggregate Maximum Principal Amount)
City of Jefferson, Missouri
Taxable Industrial Development Revenue Bonds
(Unilever - Real Property Project)
Series 2024B
Certain rights of the City of Jefferson, Missouri (the “City”), in this Real Property Lease Agreement
have been pledged and assigned to UMB Bank, N.A., Kansas City, Missouri, as Trustee under the
Real Property Trust Indenture dated as of April 1, 2024, between the City and the Trustee.
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1. Definitions of Words and Terms ......................................................................................... 2
Section 1.2. Rules of Interpretation ........................................................................................................ 2
Section 1.3. Date of Lease ...................................................................................................................... 2
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
Section 3.2. Lease Term ......................................................................................................................... 4
Section 3.3. Possession and Use of the Real Property ............................................................................ 4
ARTICLE IV
PURCHASE AND IMPROVEMENT OF THE REAL PROPERTY
Section 4.1. Issuance of the Bonds ......................................................................................................... 5
Section 4.2. Purchase and Improvement of the Real Property................................................................ 5
Section 4.3. Project Costs ....................................................................................................................... 6
Section 4.4. Payment for Project Costs ................................................................................................... 6
Section 4.5. Establishment of Completion Date ..................................................................................... 7
Section 4.6. Surplus in Project Fund ....................................................................................................... 7
Section 4.7. Project Site and Project Improvements Property of the City .............................................. 7
Section 4.8. Non-Project Improvements, Machinery and Equipment Property of the Company ........... 8
Section 4.9. Construction Contracts ....................................................................................................... 8
ARTICLE V
RENT PROVISIONS
Section 5.1. Basic Rent ........................................................................................................................... 8
Section 5.2. Additional Rent ................................................................................................................... 9
Section 5.3. Obligations of Company Absolute and Unconditional ....................................................... 9
Section 5.4. Prepayment of Basic Rent ................................................................................................. 10
(ii)
ARTICLE VI
MAINTENANCE, TAXES AND UTILITIES
Section 6.1. Maintenance and Repairs .................................................................................................. 10
Section 6.2. Taxes, Assessments and Other Governmental Charges .................................................... 10
Section 6.3. Utilities.............................................................................................................................. 11
Section 6.4. Property Tax Exemption ................................................................................................... 11
ARTICLE VII
INSURANCE
Section 7.1. Title Commitment or Report ............................................................................................. 11
Section 7.2. Casualty Insurance ............................................................................................................ 12
Section 7.3. Public Liability Insurance ................................................................................................. 12
Section 7.4. Blanket Insurance Policies; Self Insurance ....................................................................... 13
Section 7.5. Worker’s Compensation ................................................................................................... 13
Section 7.6. Sovereign Immunity ......................................................................................................... 13
ARTICLE VIII
ALTERATION OF THE REAL PROPERTY
Section 8.1. Additions, Modifications and Improvements to the Real Property................................... 13
Section 8.2. Additional Improvements on the Project Site ................................................................... 13
Section 8.3. Permits and Authorizations ............................................................................................... 14
Section 8.4. Mechanics’ Liens .............................................................................................................. 14
Section 8.5. Notice of Improvements Subject to Bonding Requirements ............................................ 15
ARTICLE IX
DAMAGE, DESTRUCTION AND CONDEMNATION
Section 9.1. Damage or Destruction ..................................................................................................... 15
Section 9.2. 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 .................................................................................................... 18
Section 10.3. Right of Access to the Real Property ................................................................................ 19
Section 10.4. Granting of Easements; Deed of Trust and Financing Arrangements .............................. 19
Section 10.5. Indemnification of City and Trustee ................................................................................. 21
Section 10.6. Depreciation and Other Tax Benefits ............................................................................... 22
Section 10.7. Company to Maintain its Existence .................................................................................. 22
Section 10.8. Security Interests ............................................................................................................... 22
(iii)
Section 10.9. Environmental Matters, Warranties, Covenants and Indemnities Regarding
Environmental Matters ..................................................................................................... 23
ARTICLE XI
OPTION AND OBLIGATION TO PURCHASE THE REAL PROPERTY
Section 11.1. Option to Purchase the Real Property ............................................................................... 24
Section 11.2. Conveyance of the Real Property ..................................................................................... 25
Section 11.3. Relative Position of Option and Indenture ........................................................................ 25
Section 11.4. Obligation to Purchase the Real Property ......................................................................... 25
Section 11.5. Right to Set-Off ................................................................................................................ 26
ARTICLE XII
DEFAULTS AND REMEDIES
Section 12.1. Events of Default .............................................................................................................. 26
Section 12.2. Remedies on Default ......................................................................................................... 27
Section 12.3. Survival of Obligations ..................................................................................................... 27
Section 12.4. Performance of the Company’s Obligations by the City .................................................. 28
Section 12.5. Rights and Remedies Cumulative ..................................................................................... 28
Section 12.6. Waiver of Breach .............................................................................................................. 28
Section 12.7. Trustee’s Exercise of the City’s Remedies ....................................................................... 28
ARTICLE XIII
ASSIGNMENT AND SUBLEASE
Section 13.1. Assignment; Sublease ....................................................................................................... 29
Section 13.2. Assignment of Revenues by City ...................................................................................... 29
Section 13.3. Prohibition Against Fee Mortgage of Real Property ........................................................ 29
Section 13.4. Restrictions on Sale or Encumbrance of Real Property by City ....................................... 29
ARTICLE XIV
AMENDMENTS, CHANGES AND MODIFICATIONS
Section 14.1. Amendments, Changes and Modifications ....................................................................... 30
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.1. Notices .............................................................................................................................. 30
Section 15.2. City Shall Not Unreasonably Withhold Consents and Approvals .................................... 31
Section 15.3. Net Lease .......................................................................................................................... 31
Section 15.4. Limitation on Liability of City .......................................................................................... 31
Section 15.5. Governing Law ................................................................................................................. 32
Section 15.6. Binding Effect ................................................................................................................... 32
Section 15.7. Severability ....................................................................................................................... 32
(iv)
Section 15.8. Execution in Counterparts................................................................................................. 32
Section 15.9. Electronic Storage ............................................................................................................. 32
Section 15.10. City Consents and Approvals............................................................................................ 32
Section 15.11. Anti-Discrimination Against Israel Act ............................................................................ 32
Signatures and Seal ......................................................................................................... S-1
Exhibit A - Project Site
Exhibit B - Form of Requisition Certificate
REAL PROPERTY LEASE AGREEMENT
THIS REAL PROPERTY LEASE AGREEMENT, dated as of April 1, 2024 (this “Lease”),
between CITY OF JEFFERSON, MISSOURI, a home rule charter city organized existing under the laws
of the State of Missouri (the “City”), as lessor, and UNILEVER MANUFACTURING (US), INC., a
corporation organized and existing under the laws of the State of Delaware (the “Company”), as lessee;
RECITALS:
1. The City is authorized and empowered pursuant to the provisions of Article VI, Section
27(b) of the Missouri Constitution and Sections 100.010 through 100.200, inclusive, of the Revised Statutes
of Missouri (collectively, the “Act”) and the City Charter to purchase, construct, extend, improve and equip
certain projects (as defined in the Act), to issue industrial development revenue bonds for the purpose of
providing funds to pay the costs of such projects and to lease or otherwise dispose of such projects to private
persons or corporations for manufacturing, commercial, research and development, office industry,
warehousing and industrial development purposes upon such terms and conditions as the City deems
advisable.
2. In accordance with Section 100.059.1 of the Act, the City Council of the City gave notice
to the affected taxing jurisdictions regarding the City’s intent to approve the issuance of two separate series
of industrial development revenue bonds under the Act in order to finance the costs of an industrial
development project (the “Project”) for the benefit of the Company consisting of (a) renovating and
modifying an approximately 110,000 square foot portion of the Company’s existing approximately 447,814
square foot main building in order to incorporate automated operations for the production of a new product
line (the approximately 110,000 square foot portion of the main building that is being renovated and
modified as part of the Project is referred to herein as the “Project Improvements”), which Project
Improvements are situated on an approximately 2.54 acre portion of the real estate site where the
Company’s other existing facilities are located at 2900 West Truman Boulevard in the City (as legally
described on Exhibit A hereto, the “Project Site”) and (b) acquiring and installing certain equipment and
other personal property within the Project Improvements (the “Project Equipment”).
3. Following notice to the affected taxing jurisdictions in accordance with Section 100.059.1
of the Act, the City Council of the City passed Ordinance No. [_________] on March 18, 2024 (the
“Ordinance”), (a) approving a plan for the Project and (b) authorizing the issuance of (i) the City’s Taxable
Industrial Development Revenue Bonds (Unilever - Real Property Project), Series 2024B, in the maximum
principal amount of $33,000,000 (the “Bonds”), for the purpose constructing the Project Improvements on
the Project Site (the Project Site and the Project Improvements being collectively referred to herein as the
“Real Property”), and (ii) the City’s Taxable Industrial Development Revenue Bonds (Unilever - Personal
Property Project), Series 2024B, in the maximum principal amount of $50,000,000, for the purpose of
acquiring and installing the Project Equipment within the Project Improvements.
4. Pursuant to the Ordinance, the City is authorized to enter into (a) a Real Property Trust
Indenture of event date herewith (the “Indenture”) with UMB Bank, N.A., Kansas City, Missouri, as
trustee (the “Trustee”), for the purpose of issuing and securing the Bonds, as provided therein, and (b) this
Lease with the Company, as lessee, under which the City will lease the Real Property to the Company in
consideration of rental payments to be paid by the Company that will be sufficient to pay the principal of
and interest on the Bonds as provided herein.
5. The Ordinance further authorized the City to enter into a Performance Agreement of even
date herewith (the “Performance Agreement”) with the Company for the purpose of setting forth the terms
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and conditions of the exemption of the Real Property and the Project Equipment from real and personal
property taxes and certain payments in lieu of taxes to be made by the Company with respect to the Real
Property and the Project Equipment, respectively.
6. Pursuant to the foregoing, the City desires to lease the Real Property to the Company and
the Company desires to lease the Real Property from the City, for the rentals and upon the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual representations, covenants
and agreements herein contained, the receipt and sufficiency of which are hereby acknowledged, the City
and the Company do hereby represent, covenant and agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions of Words and Terms. In addition to any words and terms defined
elsewhere in this Lease, capitalized words and terms used in this Lease shall have the meanings given to
such words and terms in Section 101 of the Indenture (which definitions are hereby incorporated by
reference).
Section 1.2. Rules of Interpretation.
(a) Words of the masculine gender shall be deemed and construed to include correlative words
of the feminine and neuter genders.
(b) Unless the context otherwise indicates, words importing the singular number shall include
the plural and vice versa, and words importing Persons shall include firms, associations and corporations,
including governmental entities, as well as natural Persons.
(c) Wherever in this Lease it is provided that either party shall or will make any payment or
perform or refrain from performing any act or obligation, each such provision shall, even though not so
expressed, be construed as an express covenant to make such payment or to perform, or not to perform, as
the case may be, such act or obligation.
(d) All references in this instrument to designated “Articles,” “Sections” and other
subdivisions are, unless otherwise specified, to the designated Articles, Sections and other subdivisions of
this instrument as originally executed. The words “herein,” “hereof,” “hereunder” and other words of
similar import refer to this Lease as a whole and not to any particular Article, Section or other subdivision.
(e) The Table of Contents and the Article and Section headings of this Lease shall not be
treated as a part of this Lease or as affecting the true meaning of the provisions hereof.
(f) Whenever an item or items are listed after the word “including,” such listing is not intended
to be a listing that excludes items not listed.
Section 1.3. Date of Lease. The dating of this Lease as of April 1, 2024, is intended as and for
the convenient identification of this Lease only and is not intended to indicate that this Lease was executed
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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 duly organized and validly existing under the
laws of the State of Missouri. Under the provisions of the Act, the City has lawful power and
authority to enter into the transactions contemplated by this Lease and to carry out its obligations
hereunder. By proper action of its 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 of this Lease, the City agrees to (1) acquire the Project
Site, subject to Permitted Encumbrances, and (2) construct or cause the construction of the Project
Improvements on the Project Site. The City agrees to lease the Real Property to the Company and
to sell the Real Property to the Company if the Company exercises its option to purchase the Real
Property or upon termination of this Lease, all for the purpose of furthering the public purposes of
the Act.
(c) To the City’s knowledge, no member of the City Council or any other officer of
the City has any significant or conflicting interest, financial, employment or otherwise, in the
Company or in the transactions contemplated hereby.
(d) To finance 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.
(e) The Bonds are to be issued under and secured by the Indenture, pursuant to which
the Real Property and the net earnings therefrom, consisting of all rents, revenues and receipts to
be derived by the City from the leasing or sale of the Real Property, will be pledged and assigned
to the Trustee as security for payment of the principal of and interest on the Bonds and amounts
owing pursuant to this Lease.
(f) The City will not knowingly take any affirmative action that would permit a lien
to be placed on the Real Property 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 and any Financing Party; provided, however, the City’s execution of this Lease, the
Indenture and the Performance Agreement shall not be deemed to violate this Section 2.1(f).
(g) The City will not operate the Real Property as a business or in any other manner
except as the lessor thereof, except subsequent to an Event of Default hereunder (following the
expiration of any notice and/or cure period) in accordance with the provisions dealing with the
exercise of remedies set forth herein and subject to all rights and powers of the Trustee as set forth
herein and in the Indenture.
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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 organized, validly existing and in good
standing under the laws of the State of Delaware and is authorized to transact business in, 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 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, to the best of the Company’s knowledge, conflict with or result in
a breach of any of the terms, conditions or provisions of, or constitute a default under, any
mortgage, deed of trust, lease or any other restriction, 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 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 Real Property, upon completion of the Project Improvements in accordance
with the Plans and Specifications, will comply in all material respects with all applicable building
and zoning, health, environmental and safety orders and laws and all other applicable laws, rules
and regulations.
ARTICLE III
GRANTING PROVISIONS
Section 3.1. Granting of Leasehold Estate. The City hereby exclusively rents, leases and lets
the Real Property to the Company, and the Company hereby rents, leases and hires the Real Property 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.
Subject to earlier termination pursuant to the provisions of this Lease, the lease of the Real Property shall
terminate on December 31 of the tenth year following the calendar year in which the Completion Date
occurs, but no later than December 31, 2036.
Section 3.3. Possession and Use of the Real Property.
(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 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
Real Property (subject to Permitted Encumbrances and the City’s and the Trustee’s right of access pursuant
to Section 10.3 hereof) and shall peaceably and quietly have, hold and enjoy the Real Property during the
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Lease Term. The City covenants and agrees that it will not take any action, other than expressly pursuant
to Article XII, the Indenture and the Performance Agreement, to prevent the Company from having quiet
and peaceable possession and enjoyment of the Real Property during the Lease Term and will, at the request
and expense of the Company, cooperate with the Company to defend the Company’s quiet and peaceable
possession and enjoyment of the Real Property.
(b) Subject to the provisions of this Section, the Company shall have the exclusive right to use
the Real Property for any lawful purpose contemplated by the Act and consistent with the terms of 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 Real Property, as to
the manner of use or the condition of the Real Property, or that otherwise may be applicable by virtue of
the City’s ownership of the Real Property. 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. The Company shall pay all costs, expenses, claims, fines, penalties and damages that may in
any manner arise out of, or be imposed as a result of, the failure of the Company to comply with the
provisions of this Section. Notwithstanding any provision contained in this Section, however, the Company
may, at its own cost and expense, contest or review by legal or other appropriate procedures the validity or
legality of any such governmental statute, law, ordinance, order, judgment, decree, regulation, direction or
requirement, or any such requirement, rule or regulation of an insurer, and during such contest or review
the Company may refrain from complying therewith.
ARTICLE IV
PURCHASE AND IMPROVEMENT OF THE REAL PROPERTY
Section 4.1. Issuance of the Bonds. To provide funds for the payment of Project Costs, the
City agrees that, upon request of the Company, it will issue, sell and cause to be delivered the Bonds to the
purchaser thereof in accordance with the provisions of the Indenture and the Bond Purchase Agreement.
The proceeds of the sale of the Bonds, when received, shall be paid over to the Trustee for the account of
the City. The Trustee shall promptly deposit such proceeds, when received, as provided in the Indenture to
be used and applied as provided in this Lease and in the Indenture. Alternatively, the Trustee shall (pursuant
to Section 208(d) or (e) of the Indenture), endorse the Bonds in an amount equal to the requisition
certificates submitted pursuant to Section 4.4 hereof. In that event, so long as the sole Owner of the Bonds
is the lessee under this Lease, 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 certificates.
Section 4.2. Purchase and Improvement of the Real Property. The City and the Company
agree that the Company, as the agent of the City, shall, but solely from the Project Fund (or from funds
deemed to be deposited into the Project Fund upon delivery of a requisition certificate as permitted by
Section 208(d) or (e) of the Indenture), purchase, construct and improve the Real Property as follows:
(a) The City will acquire fee title to the Real Property at the execution and delivery of
this Lease.
(b) On behalf of the City, the Company will construct the Project Improvements on
the Project Site and otherwise improve the Project Site in accordance with the Plans and
Specifications. The Company may revise the Plans and Specifications from time to time as it deems
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necessary to carry out the construction of the Project Improvements, but revisions that would alter
the intended purpose of the Project Improvements may be made only with the prior written approval
of the City. The Company agrees that all real property described in the Plans and Specifications,
with such changes and additions as may be made hereunder, is desirable and appropriate in
connection with the Project Improvements. The provisions of this paragraph are in addition to and
do not supersede the provisions of Section 8.2 hereof.
(c) The Company will comply with the provisions of Section 107.170 of the Revised
Statutes of Missouri, as amended, to the extent applicable to the construction of the Project
Improvements on the Project Site or any other subsequent improvements made to the Real Property.
(d) The Company will cause the construction of the Project Improvements to be
completed on or before the Completion Date, except as otherwise provided in Section 4.5 hereof.
If such purchase and improvement commences before the receipt of proceeds from the sale of the
Bonds, the Company agrees to advance all funds necessary for such purpose.
(e) The Project Improvements shall be constructed in a good and workmanlike manner
and in strict compliance with all applicable laws, orders and ordinances.
(f) The Company may enter into one or more construction contracts to complete the
Project Improvements. All construction contracts entered into by or on behalf of the Company
shall (i) not allow for recourse against the City by a contractor in connection with the contractor’s
construction of the applicable portion of the Project Improvements and (ii) include an
acknowledgment that the contractor may not perfect a mechanic’s lien against the C ity (although
such acknowledgment does not preclude the contractor from perfecting a mechanic’s lien against
the Company’s leasehold interest in the Real Property).
(g) Notwithstanding anything to the contrary contained herein, the Company shall not
commence construction of the Project Improvements until providing the City with a payment bond
satisfying the requirements of Section 107.170, RSMo., in a form reasonably satisfactory to the
City attorney or special counsel engaged by the City.
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) 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 delivery of a requisition certificate as permitted by Section 208(d) or (e) 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 of the Completion Date. The maximum amount of Project Costs for which requisition
certificates may be submitted is expressly limited to $33,000,000.
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 hereof and Section 208(d) or (e) 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
hereof and Section 208(d) or (e) of the Indenture, upon receipt by the Trustee of certificates in substantially
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the form attached hereto as Exhibit B, signed by an Authorized Company Representative and approved by
an Authorized City Representative. The information in each certificate shall be accurate in all material
respects to the best of the Company’s knowledge when given, and 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 .
Upon request by the City, the Company shall provide the City with copies of invoices, bills, lien waivers
and other reasonable documentation to support each submitted requisition certificate.
(b) The Trustee may rely conclusively on any such certificate and shall not be required to make
any independent inspection or investigation in connection therewith. The approval of any requisition
certificate by an Authorized Company Representative and an Authorized City Representative shall
constitute, unto the Trustee, an irrevocable determination that all conditions precedent to the payments
requested have been completed.
Section 4.5. Establishment of Completion Date.
The Completion Date shall be evidenced to the City and the Trustee by a certificate signed by an
Authorized Company Representative stating (a) that the construction of the Project Improvements have
been substantially completed in accordance with the Plans and Specifications, (b) the date of substantial
completion thereof, and (c) that all costs and expenses of the construction of the Project Improvements 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. Notwithstanding the foregoing, such certificate shall be deemed given on December 31,
2025 if not actually filed with the City by December 31, 2025, subject to any delay to the extent caused by
force majeure, including, without limitation, damage or destruction by fire or casualty, strike, lockout, civil
disorder, war, restrictive government regulations, litigation, pandemic or epidemic, lack of issuance of any
permits and/or legal authorization, through no fault of the Company, by the governmental entity necessary
for the construction and occupation of the Project Improvements, shortage or delay in shipment of material
or fuel, acts of God, unusually adverse weather or wet soil conditions, or other like causes beyond the
Company’s reasonable control, including without limitation any litigation, court order or judgment resulting
from any litigation affecting the validity of this Lease, the Indenture, the Performance Agreement or the
Real Property (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. If requested by the Company, the City shall provide
acknowledgement to the Company of its receipt and approval of the Company’s notice of 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 in Project Fund. Upon receipt of the certificate described in Section 4.5,
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 (a) the payment of
principal and premium, if any, of the Bonds through the payment (including regularly scheduled principal
payments, if any) or redemption thereof at the earliest date permissible under the terms of the Indenture, or
(b) at the option of the 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.
Section 4.7. Project Site and Project Improvements Property of the City. The Project Site
and the Project Improvements located or to be located on the Project Site at the execution hereof, all work
and materials related to the Project Improvements as such work progresses and all additions or enlargements
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thereto or thereof, the Real Property as fully improved, anything under this Lease which becomes, is deemed
to be, or constitutes a part of the Real Property, and the Real Property as repaired, rebuilt, rearranged,
restored or replaced by the Company under the provisions of this Lease, except as otherwise specifically
provided herein, shall immediately when erected or installed become the absolute property of the City,
subject only to this Lease, the Indenture, Permitted Encumbrances and any Financing Document. Upon
reasonable request of and at the expense of the Company, the City agrees to cooperate with the Company
regarding the enforcement of any claims the Company may have against third parties relating to the
construction of the Project Improvements.
Section 4.8. Non-Project Improvements, Machinery and Equipment Property of the
Company. Except for the Project Equipment, any improvements or items of machinery or equipment
located at the Project Site which do not constitute part of the Project Improvements and the entire purchase
price of which is paid for by the Company with the Company’s own funds, and no part of the purchase
price of which is paid for from funds deposited pursuant to the terms of this Lease in the Project Fund, shall
be the property of the Company and shall not constitute a part of the Real Property for purposes of Section
6.4 hereof, and therefore, shall be subject to property taxation, to the extent otherwise provided by law.
Section 4.9. Construction Contracts. The Company may enter into one or more construction
contracts to complete the Project Improvements. All construction contracts entered into by or on behalf of
the Company shall (i) not allow for recourse against the City by a contractor in connection with the
contractor’s construction of the applicable portion of the Project Improvements and (ii) include an
acknowledgment that the contractor may not perfect a mechanic’s lien against the City (although such
acknowledgment does not preclude the contractor from perfecting a mechanic’s lien against the Company’s
leasehold interest in the Real Property).
ARTICLE V
RENT PROVISIONS
Section 5.1. Basic Rent. The Company covenants and agrees to pay or cause to be paid to the
Trustee in same day funds for the account of the City during the Lease Term, on or before 11:00 a.m.,
Trustee’s local time, on each Payment Date, as Basic Rent for the Real Property, an amount which, when
added to any collected funds then on deposit in the Bond Fund and available for the payment of principal
of the Bonds and the interest thereon on such Payment Date, shall be equal to the amount payable on such
Payment Date as principal of the Bonds and the interest thereon as provided in the Indenture. Except as
offset pursuant to the right of the 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 Company (or any Financing Party) is the sole Owner of the Bonds,
the Company may set-off the then-current Basic Rent payment against the City’s obligation to the Company
(or any Financing Party) as sole 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 and that pursuant to the set-off, the City is deemed to have paid its obligation to
the Company (or any Financing Party) as sole Owner of the Bonds to pay principal of and interest on the
Bonds under the Indenture. On the final Payment Date, the Company will (a) if the Trustee holds the Bonds,
notify the Trustee of the Bonds not previously paid that are to be canceled, or (b) if an entity other than the
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Trustee holds the Bonds, deliver or cause to be delivered to the Trustee for cancellation Bonds not
previously paid. The Company shall receive a credit against the Basic Rent payable by the Company in an
amount equal to the principal amount of the Bonds so tendered for cancellation plus accrued interest
thereon.
Section 5.2. Additional Rent. The Company shall pay or cause to be paid as Additional Rent,
within 30 days after receiving an itemized invoice therefor, the following amounts:
(a) all fees, charges and expenses, including agent and attorneys’ fees and expenses,
of the City, the Trustee and the Paying Agent incurred under or arising from the Indenture, this
Lease or the Performance Agreement, including but not limited to (i) claims by contractors or
subcontractors, as and when the same becomes due (ii) any disposition of this Lease pursuant to
Article XIII hereof and (iii) the review and execution of any Financing Documents;
(b) all costs incident to the issuance of the Bonds (which are to be paid on the Closing
Date) and the payment of the principal of and interest on the Bonds as the same becomes due and
payable, including all costs and expenses in connection with the call, redemption and payment of
all Outstanding Bonds;
(c) all fees, charges and expenses incurred in connection with the enforcement of any
rights under this Lease, the Indenture or the Performance Agreement by the City, the Trustee or the
Owners, including reasonable attorneys’ fees and expenses; and
(d) all other payments of whatever nature that the Company has agreed in writing to
pay or assume under the provisions of this Lease, the Performance Agreement or the Indenture.
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 becomes due, and to perform all of its other obligations,
covenants and agreements hereunder shall be absolute and unconditional, without notice or demand, and
without abatement, deduction, set-off (except as provided in Section 5.1 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 Improvements have been started
or completed, or whether the City’s title thereto or to any part thereof is defective or nonexistent, and
notwithstanding any damage to, loss, theft or destruction of, the Real Property 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 Real Property, 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 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, nor the right of the Company to terminate this Lease and
repurchase the Real Property as provided in Article XI.
(b) Nothing in this Lease shall be construed to release the City from the performance of any
agreement on its part herein contained or as a waiver by the 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
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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 Owners and the City.
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, occupanc y and
use hereunder, and in such event the City hereby agrees, at the Company’s expense, 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.
(a) 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.
(b) 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.
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 Real Property in reasonably safe operating condition and keep, or cause to be
kept, the Real Property in good repair, reasonable wear, tear, depreciation and obsolescence excepted,
making from time to time all repairs thereto and renewals and replacements thereof it determines to be
necessary. Without limiting the generality of the foregoing, the Company shall at all times remain in
compliance with all provisions of the City’s applicable codes relating to maintenance and appearance. The
Company shall also comply with Section 8.5 hereof.
Section 6.2. Taxes, Assessments and Other Governmental Charges.
(a) Subject to subsection (b) of this Section, the Company shall promptly pay and discharge,
as the same becomes due, all taxes and assessments, general and special, and other governmental charges
of any kind whatsoever that may be lawfully taxed, charged, levied, assessed or imposed upon or against
or be payable for or in respect of the Real Property, or any part thereof or interest therein (including the
leasehold estate of the Company therein), or any buildings, improvements, machinery and equipment at any
time installed thereon by the Company, or the income therefrom, including any new taxes and assessments
not of the kind enumerated above to the extent that the same are lawfully made, levied or assessed in lieu
of or in addition to taxes or assessments now customarily levied against real 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 Real Property; provided that with respect to any special assessments or other
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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 may, in its own name or in the City’s name, contest the validity or amount
of any tax, assessment or other governmental charge which the Company is required to bear, pay and
discharge pursuant to the terms of this Article by appropriate legal proceedings instituted at least 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 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 from any costs and expenses
the City 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 the PILOT Payments (as defined in the Performance
Agreement) to be made by the Company under the Performance Agreement to the extent of any ad valorem
taxes imposed with respect to the Real Property paid 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
Real Property shall be paid by the Company and shall be contracted by the Company in the Company’s
own name and the Company shall, at its sole cost and expense, procure any and all permits, licenses or
authorizations necessary in connection therewith.
Section 6.4. Property Tax Exemption. The City and the Company expect that while the Real
Property is owned by the City and is subject to this Lease, the Real Property will be exempt from all ad
valorem 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. The City and the
Company further acknowledge and agree that the City’s obligations hereunder are contingent upon the
Company making the payments and otherwise complying with the terms of the Performance Agreement
relating to the Real Property during the term of this Lease. The terms and conditions of the Performance
Agreement relating to the Real Property are incorporated herein as if fully set forth herein.
ARTICLE VII
INSURANCE
Section 7.1. Title Commitment or Report. Before conveying title to the Real Property to the
City, the Company will purchase from a title insurance company reasonably acceptable to the City, a
commitment for title insurance or provide such other report in a form reasonably acceptable to the City
showing the ownership of and encumbrances on the Project Site. A copy of such policy or report shall be
provided to the City and the Trustee.
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Section 7.2. Casualty Insurance.
(a) The Company shall at its sole cost and expense obtain and maintain throughout the Lease
Term a policy or policies of insurance (including, if appropriate, builder’s risk insurance) to keep the Real
Property 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 throughout the Lease Term with a generally recognized
responsible insurance company or companies authorized to do business in the State of Missouri or generally
recognized international insurers or reinsurers as may be selected by the Company. The Company shall
deliver certificates of insurance for such policies to the City and the Trustee on the date of execution of this
Lease and promptly after annual renewal of each insurance policy and endorsement. All such policies of
insurance pursuant to this Section, and all renewals thereof, shall include an endorsement naming the City
and the Company as insureds, as their respective interests may appear, shall name the Trustee as loss payee
and, to the extent such agreement is reasonably commercially available from the insurer, shall contain an
agreement by the insurer that, notwithstanding any right of cancellation reserved to such insurer, such policy
or contract shall continue in force for at least 10 days’ after written notice of cancellation to the City, the
Company, the Trustee and each other insured or loss payee named therein . The Trustee’s sole duty with
respect to the Company’s compliance with the insurance requirements hereunder shall be to receive
certificates of insurance pursuant to this Section and to hold the same solely as repository for the benefit of
the Owners. The Trustee makes no representation as to, and shall have no responsibility for, the sufficiency
or adequacy of the insurance.
(b) In the event of loss or damage to the Real Property, the Net Proceeds of casualty insurance
carried pursuant to this Section shall be, subject to the rights of any Financing Party under any Financing
Document, and unless otherwise provided by law, (1) paid over to the Trustee and applied as provided in
Article IX, or (2) applied as directed in writing by, or on behalf of, the Owners of 100% in principal amount
of the Bonds Outstanding.
Section 7.3. Public Liability Insurance.
(a) The Company shall at its sole cost and expense maintain or cause to be maintained at all
times during the Lease Term commercial general liability insurance (including but not limited to coverage
for operations, contingent liability, operations of subcontractors, completed operations and contractual
liability), under which the City and the Trustee shall be named as additional insureds, properly protecting
and indemnifying the City and the Trustee, in an amount not less than the limits of liability set by Section
537.610 of the Revised Statutes of Missouri, as amended (subject to reasonable loss deductible clauses not
to exceed the amounts normally or generally carried by the Company). The policies of said insurance shall,
to the extent such agreement is reasonably commercially available from the insurer, contain an agreement
by the insurer that, notwithstanding any right of cancellation reserved to such insurer, such policy or
contract shall continue in force for at least 10 days after written notice of cancellation to the Company, the
City, the Trustee and each other insured or loss payee named therein. Certificates of such policies shall be
furnished to the City and the Trustee on the date of execution of this Lease and promptly after renewal of
each insurance policy. The Trustee’s sole duty with respect to the Company’s compliance with the
insurance requirements hereunder shall be to receive certificates of insurance pursuant to this Section and
to hold the same solely as repository for the benefit of the Owners. The Trustee makes no representation
as to, and shall have no responsibility for, the sufficiency or adequacy of the insurance.
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(b) In the event of a general liability occurrence, the Net Proceeds of liability insurance carried
pursuant to this Section shall be applied toward the extinguishment or satisfaction of the liability with
respect to which such proceeds have been paid.
Section 7.4. Blanket Insurance Policies; 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 . The
Company may satisfy any of the insurance requirements set forth in this Article using self-insurance or
insurance through a subsidiary or affiliate; so long as (i) the insurance is underwritten by a subsidiary or
other affiliate of the Company with a separate net worth of at least $150,000,000, or (ii) the Company funds
such self-insurance by appropriate reserves.
Section 7.5. Worker’s Compensation. The Company agrees throughout the Lease Term to
maintain or cause to be maintained the worker’s compensation coverage required by the laws of the State
of Missouri.
Section 7.6. Sovereign Immunity. Notwithstanding anything to the contrary contained herein,
nothing in this Lease shall be construed to broaden the liability of the City beyond the provisions of Sections
537.600 to 537.610 of the Revised Statutes of Missouri, 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 REAL PROPERTY
Section 8.1. Additions, Modifications and Improvements to the Real Property.
(a) The Company may make such additions, modifications and improvements in and to any
part of the Real Property as the Company from time to time may deem necessary or desirable for its business
purposes. All additions, modifications and improvements made pursuant to this Section shall (1) be made
in a good and workmanlike manner and in material compliance with all laws, orders and ordinances
applicable thereto and (2) when commenced, be prosecuted to completion with due diligence. Any such
additions, modifications and improvements shall be subject to ad valorem taxes, or if for any reason the
Cole County Assessor determines that such additions, modifications and improvements are not subject to
ad valorem real property taxes, the Company shall make payments in lieu of taxes in an amount equal to
the taxes that would otherwise be due but for the City’s ownership thereof, unless otherwise agreed to by
the City.
(b) Following the Completion Date, the Company shall notify the City in writing of any
improvements to the Real Property, other than the Project Improvements being financed with proceeds of
the Bonds, that in the aggregate are reasonably expected to exceed $1,000,000 during any calendar year. If
such improvements constitute personal property, such improvements shall remain the property of the
Company, shall not become part of the Real Property and shall be subject to ad valorem taxes.
Section 8.2. Additional Improvements on the Project Site. Subject to Section 8.1(b) and
Section 8.6 hereof, the Company may, at its sole cost and expense, construct on portions of the Project Site
not theretofore occupied by buildings or improvements such additional buildings and improvements as the
Company from time to time may deem necessary or desirable for its business purposes. All additional
buildings and improvements constructed on the Project Site by the Company, and not paid for with Bond
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proceeds, pursuant to the authority of this Section shall not be included in the Real Property and, during the
life of this Lease, shall remain the property of the Company and the Company may add to, alter or raze and
remove the same at any time. All additional buildings and improvements shall (a) be made in a good and
workmanlike manner and in material compliance with all material laws, orders and ordinances applicable
thereto and (b) when commenced, shall be prosecuted to completion with due diligence. The Company
covenants and agrees (1) to make or cause to be made any repairs and restorations required to be made to
the Real Property because of the construction of, addition to, alteration or removal of said additional
buildings or improvements, and (2) to promptly and with due diligence either raze and remove or repair,
replace or restore any of said additional buildings and improvements as may from time to time be damaged
by fire or other casualty. The Company shall pay all ad valorem taxes and assessments payable with respect
to such additional buildings and improvements which remain the property of the Company. If for any
reason the City determines that such additional buildings and improvements are not subject to ad valorem
taxes, the Company shall make payments in lieu of taxes in an amount equal to the taxes that would
otherwise be due on such additional buildings and improvements under this Section, unless otherwise
agreed to by the City.
Section 8.3. Permits and Authorizations. The Company shall not do or permit others under
its control to do any work on the Real Property related to any repair, rebuilding, restoration, replacement,
modification or addition to the Real Property, or any part thereof, unless all requisite municipal and other
governmental permits and authorizations shall have been first procured. The City agrees to act promptly
on all requests for such municipal permits and authorizations. The City shall cooperate with the Company
to obtain, amend, or maintain any existing or future municipal or other governmental permit or authorization
for the Real Property which requires the City’s signature, certification, or consent as the owner of any part
of the Real Property, including executing any required applications, certifications, or reports. All such work
shall be done in a good and workmanlike manner and in material compliance with all applicable material
building and zoning laws and governmental regulations and requirements, and in accordance with the
requirements, rules and regulations of all insurers under the policies required to be carried under the
provisions of Article VII.
Section 8.4. Mechanics’ Liens.
(a) The Company will not directly or indirectly create, incur, assume or suffer to exist any lien
on or with respect to the Real Property, except Permitted Encumbrances, and the Company shall promptly
notify the City of the imposition of any such lien of which the Company is aware and shall promptly, at its
own expense, take such action as may be necessary to fully discharge or release any such lien. Whenever
and as often as any mechanics’ or other similar lien is filed against the Real Property, or any part thereof,
purporting to be for or on account of any labor done or services or materials furnished in connection with
any work relating to the Real Property, the Company shall discharge or cause to be discharged the same of
record. Notice is hereby given that the City shall not be liable for any labor, services or materials furnished
to the Company or anyone claiming by, through or under the Company upon credit, and that no mechanics’
or other similar lien for any such labor, services or materials shall attach to or affect the reversionary or
other estate of the City in and to the Real Property or any part thereof.
(b) Notwithstanding subsection (a) above, and subject to the terms of any Financing Document
executed by the Company in favor and for the benefit of any Financing Party, the Company may contest
any such mechanics’ or other similar lien if the Company (1) within 60 days after the Company becomes
aware of any such lien notifies the City and the Trustee in writing of its intention so to do, (2) diligently
prosecutes such contest, (3) at all times effectively stays or prevents any official or judicial sale of the Real
Property, or any part thereof or interest therein, under execution or otherwise, (4) promptly pays or
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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 lien, the interest of the City in the
Real Property will be subject to loss or forfeiture. In that event, the Company shall promptly, at its own
expense, take such action as may be reasonably 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 the discharge or removal of any such mortgage, pledge, lien, charge,
encumbrance or claim. The City shall cooperate fully with the Company in any such contest.
Section 8.5. Notice of Improvements Subject to Bonding Requirements. The Company
shall notify the City and any Financing Party in writing of any portion of the Real Property and, following
the Completion Date of the Project Improvements, any subsequent repair, renovation, modification or
improvement of the Real Property that is subject to Section 107.170 of the Revised Statutes of Missouri or
any other law requiring payment or performance bonds for such work prior to beginning construction of
the applicable portion of the Real Property or subsequent repair, renovation, modification or improvement.
The failure to provide the written notification required by this Section will not be deemed to be a material
breach of this Lease. However, the Company agrees and acknowledges that (a) the City and its governing
body members, officers, agents and employees shall be fully indemnified by the Company, as provided in
Section 10.5 hereof, against any claims, demands, costs, liabilities, damages or expenses, including
attorneys’ fees, arising from the Company’s failure to provide the written notice as required by this Section
or to secure any payment or performance bonds required by Section 107.170 of the Revised Statutes o f
Missouri or other applicable law and (b) the Company’s leasehold interest under this Lease may be subject
to mechanic’s or other similar liens, which the Company shall promptly resolve in accordance with Section
8.5 hereof.
ARTICLE IX
DAMAGE, DESTRUCTION AND CONDEMNATION
Section 9.1. Damage or Destruction.
(a) If the Real Property is damaged or destroyed by fire or any other casualty, whether or not
covered by insurance, the Company, as promptly as practicable, shall either (1) make the determination
described in subsection (f) below, or (2) repair, restore, replace or rebuild the same so that upon completion
of such repairs, restoration, replacement or rebuilding the Real Property is of a value not less than the value
thereof immediately before the occurrence of such damage or destruction, or (3) at the Company’s option,
construct upon the Project Site new buildings and improvements, together with all new fixtures which are
either to be attached to or are to be used in connection with the operation or maintenance thereof, provided
that (i) the value of the Real Property shall not be less than the value thereof immediately before the
occurrence of such damage or destruction and (ii) the nature of such new buildings, improvements, and
fixtures will not impair the character of the Real Property as a “project” permitted by the Act.
If the Company elects to construct any such new buildings and improvements, for all purposes of
this Lease, any reference to the words “Real Property” shall be deemed to also include any such new
buildings and improvements and all additions thereto and all replacements and alterations thereof.
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Unless the Company makes the determination described in subsection (f) below, the Net Proceeds
of casualty insurance required by Article VII hereof received with respect to such damage or loss to the
Real Property shall be used to pay the cost of repairing, restoring, replacing or rebuilding the Real Property
or any part thereof. Insurance monies in an amount less than $1,000,000 may be paid to or retained by the
Company to be held in trust and used as provided herein. Insurance monies in any amount of $1,000,000
or more shall be (1) paid to the Trustee and deposited in the Project Fund and shall be disbursed as provided
in Section 4.4 hereof to pay the cost of repairing, restoring, replacing or rebuilding the Real Property or
any part thereof, or (2) applied as directed in writing by, or on behalf of, the Owners of 100% in principal
amount of the Bonds Outstanding, subject to the rights of any Financing Party. If the Company makes the
determination described in subsection (f) below, the Net Proceeds shall be deposited with the Trustee and
used to redeem Bonds as provided in subsection (f), subject to the rights of any Financing Party.
(b) If any of the insurance monies paid by the insurance company as hereinabove provided
remain after the completion of such repairs, restoration, replacement or rebuilding, and this Lease has not
been terminated, the excess shall be deposited in the Bond Fund, subject to the rights of any Financing
Party, except as otherwise provided by law. Completion of such repairs, restoration, replacement or
rebuilding shall be evidenced by a certificate of completion delivered by the Company to the City and the
Trustee in accordance with the provisions of Section 4.5 hereof. If the Net Proceeds are insufficient to pay
the entire cost of such repairs, restoration, replacement or rebuilding, the Company shall pay the deficiency.
(c) Except as otherwise provided in this Lease, in the event of any such damage by fire or any
other casualty, the provisions of this Lease shall be unaffected and the Company shall remain and continue
to be liable for the payment of all Basic Rent and Additional Rent and all other charges required hereunder
to be paid by the Company, as though no damage by fire or any other casualty has occurred.
(d) The City and the Company agree that they will cooperate with each other, to such extent
as such other party may reasonably require, in connection with the prosecution or defense of any action or
proceeding arising out of, or for the collection of any insurance monies that may be due in the event of, any
loss or damage, and that they will execute and deliver to such other parties such instruments as may be
required to facilitate the recovery of any insurance monies.
(e) The Company agrees to give prompt written notice to the City, the Trustee and any
Financing Party with respect to all fires and any other casualties occurring in, on, at or about the Project
Site causing (in the Company’s opinion) damage of more than $1,000,000.
(f) If the Company determines that rebuilding, repairing, restoring or replacing the Real
Property is not practicable or desirable, or if the Company does not have the right under any Financing
Document to use any Net Proceeds for repair or restoration of the Real Property, any Net Proceeds of
casualty insurance required by Article VII hereof received with respect to such damage or loss shall, after
payment of all Additional Rent then due and payable, be paid into the Bond Fund and shall be used to
redeem Bonds on the earliest practicable redemption date or to pay the principal of any Bonds as the same
becomes due, all subject to the rights of any Financing Party under the Financing Documents (if any). The
Company agrees to be reasonable in exercising its judgment pursuant to this subsection (f). Alternatively,
if the Company is the sole owner of the Bonds and it has determined that rebuilding, repairing, restoring or
replacing the Real Property is not practicable or desirable, it may tender Bonds to the Trustee for
cancellation in a principal amount equal to the Net Proceeds of the casualty insurance and retain such
proceeds for its own account.
(g) The Company shall not, by reason of its inability to use all or any part of the Real Property
during any period in which the Real Property is damaged or destroyed or is being repaired, rebuilt, restored
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or replaced, nor by reason of the payment of the costs of such repairing, rebuilding, restoring or replacing,
be entitled to any reimbursement from the City, the Trustee or the Owners or to any abatement or diminution
of the rentals payable by the Company under this Lease or of any other obligations of the Company under
this Lease except as expressly provided in this Section.
(h) The rights of the City and the Trustee to any Net Proceeds of casualty insurance required
by Article VII hereof will be subject to the rights of any Financing Party with respect to such Net Proceeds.
(i) Nothing herein shall be deemed to authorize the Company to allow an unsafe, dangerous,
unhealthy or injurious condition to exist on the Real Property or any portion thereof, in violation of any
applicable laws, codes and ordinances due to a fire or other casualty.
Section 9.2. Condemnation.
(a) If during the Lease Term, title to, or the temporary use of, all or any part of the Real
Property 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, the
Trustee and any Financing Party under the Financing Documents (if any) in writing as to the nature and
extent of such condemnation or loss of title and whether it is practicable and desirable to purchase or
construct substitute improvements.
(b) If the Company determines that such substitution is practicable and desirable, the Company
shall proceed promptly with and complete with reasonable dispatch the acquisition or construction of such
substitute improvements, including the acquisition or construction of other improvements suitable for the
Company’s operations at the Project Site (which improvements will be deemed a part of the Real Property
and available for use and occupancy by the Company without the payment of any rent other than herein
provided, to the same extent as if such improvements were specifically described herein and demised
hereby), so as to place the Real Property in substantially the same condition as existed before the exercise
of the power of eminent domain; provided, that such improvements will be acquired by the City subject to
no liens, security interests or encumbrances before the lien and/or security interest afforded by the Indenture
and this Lease other than Permitted Encumbrances. In such case, any Net Proceeds received from any
award or awards with respect to the Real Property or any part thereof made in such condemnation or eminent
domain proceedings, or of the sale proceeds, shall be applied in the same manner as provided in Section
9.1 hereof (with respect to the receipt of casualty insurance proceeds).
(c) If the Company determines that it is not practicable or desirable to acquire or construct
substitute improvements, any Net Proceeds of condemnation awards received by the Company shall, after
payment of all Additional Rent then due and payable, be paid into the Bond Fund and shall be used to
redeem Bonds on the earliest practicable redemption date or to pay the principal of any Bonds as the same
becomes due and payable, all subject to the rights of any Financing Party under the Financing Documents
(if any).
(d) The Company shall not, by reason of its inability to use all or any part of the Real Property
during any such period of acquisition or restoration nor by reason of the payment of the costs of such
acquisition or restoration, be entitled to any reimbursement from the City, the Trustee or the Owners or to
any abatement or diminution of the rentals payable by the Company under this Lease or of any other
obligations hereunder except as expressly provided in this Section.
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(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 Real Property or any part thereof and
shall, to the extent it may lawfully do so, permit the Company to litigate in any such proceedings in the
name and on behalf of the City. In no event will the City voluntarily settle or consent to the settlement of
any prospective or pending condemnation proceedings with respect to the Real Property or any part thereof
without the prior written consent of the Company or any Financing Party.
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) shall before 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 paragraph, the Financing Parties, if any, shall be deemed a
pledgee of the Bonds.
ARTICLE X
SPECIAL COVENANTS
Section 10.1. No Warranty of Condition or Suitability by the City; Exculpation. The City
makes no warranty, either express or implied, as to the condition of the Real Property 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 Real Property or the Company’s use thereof, unless such loss is the
result of the City’s or the Trustee’s (or their respective employees’, consultants’ and agents’) 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 re-entry to the extent
provided in Section 12.2(a)(2) hereof, the Company shall peacefully surrender possession of the Real
Property to the City in good condition and repair; provided, however, the Company may within 90 days (or
such later date as the City may agree to) after the termination of this Lease remove from the Project Site
any buildings, improvements, furniture, trade fixtures, machinery and equipment owned by the Company
and not constituting part of the Real Property. All repairs to and restorations of the Real Property required
to be made because of such removal shall be made by and at the sole cost and expense of the Company, and
during said 90-day (or extended) period the Company shall bear the sole responsibility for and bear the sole
risk of loss for said buildings, improvements, furniture, trade fixtures, machinery and equipment owned by
the Company and not constituting part of the Real Property. All buildings, improvements, furniture, trade
fixtures, machinery and equipment owned by the Company and which are not so removed from the Project
Site before the expiration of said period shall be the separate and absolute property of the City.
Notwithstanding the foregoing, if the Company has paid all obligations due and owing under the Indenture
(unless such obligations have been canceled), this Lease and the Performance Agreement have been paid
or otherwise met, the City shall convey the Real Property in accordance with Section 11.2 hereof.
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Section 10.3. Right of Access to the Real Property. The City may conduct such periodic
inspections of the Real Property as may be generally provided in the City’s municipal code. In addition,
the Company agrees that the City and the Trustee and their duly authorized agents may, at reasonable times
during normal business hours and, except in the event of emergencies, upon not less than five Business
Days’ prior notice, subject to the Company’s usual business, proprietary, safety, confidentiality and security
requirements, enter upon the Project Site (a) to examine and inspect the Real Property without interference
or prejudice to the Company’s operations, (b) to monitor the purchase and construction of the Project
Improvements provided for in Section 4.2 as may be reasonably necessary, (c) to examine all files, records,
books and other materials in the Company’s possession pertaining to the purchase, construction or
maintenance of the Real Property, or (d) upon either (1) the occurrence and continuance of an Event of
Default or (2) the Company’s failure to purchase the Real Property at the end of the Lease Term, to exhibit
the Real Property to prospective purchasers, lessees or trustees.
Section 10.4. Granting of Easements; and Financing Arrangements.
(a) Subject to Sections 10.4(b) and (c), if no Event of Default under this Lease has occurred
and is continuing beyond any applicable cure period, the City agrees that it will execute and deliver and
will cause and direct the Trustee in writing to execute and deliver any instrument necessary or appropriate
to confirm and grant, release or terminate any sublease, easement, license, right-of-way or other right or
privilege, or any similar agreement or other arrangement, upon receipt by the City and the Trustee of: (1) a
copy of the instrument of grant, release or termination or of the agreement or other arrangement, (2) a
written application signed by an Authorized Company Representative requesting such instrument, and (3) a
certificate executed by an Authorized Company Representative stating that such grant, release or
termination is not detrimental to the proper conduct of the business of the Company, will not impair the
effective use or interfere with the efficient and economical operation of the Real Property, will not
materially adversely affect the security intended to be given by or under the Indenture and will be a
Permitted Encumbrance, and that the Company will defend, indemnify and save and hold harmless the City
from and against all claims, demands, costs, liabilities, damages or expenses, including attorneys’ fees,
arising from the execution and delivery of any instrument, agreement or other arrangement pursuant to this
Section. If no Event of Default has occurred and is continuing beyond any applicable grace or cure period,
any payments or other consideration received by the Company for any such grant or with respect to or under
any such agreement or other arrangement shall be and remain the property of the Company; but, subject to
Sections 10.4(b) and (c), upon (A) termination of this Lease for any reason other than the redemption of
the Bonds and/or the purchase of the Real Property by the Company, or (B) the occurrence and continuance
of an Event of Default by the Company, all rights then existing of the Company with respect to or under
such grant, agreement or other arrangement shall inure to the benefit of and be exercisable by the City and
the Trustee.
(b) The City acknowledges and agrees that the Company may finance and refinance its rights
and interests in the Real Property, this Lease and the leasehold estate created hereby and, in connection
therewith, the Company may execute Financing Documents with one or more Financing Parties.
Notwithstanding anything contained to the contrary in this Lease, the Company may, at any time and from
time to time, with prior notice to but without the consent of the City (1) execute one or more Financing
Documents upon the terms contained in this Section 10.4 and (2) sublease or assign this Lease, the leasehold
estate or any sublease and rights in connection therewith, and/or grant liens or security interests therein, to
any Financing Party. Any further sublease or assignment by any Financing Party shall be subject to th e
provisions of Section 13.1(c) hereof.
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(c) Upon notice by the Company to the City in writing that the Company has executed one or
more Financing Documents under which it has granted rights in this Lease to a Financing Party, which
includes the name and address of such Financing Party, then the following provisions shall apply in respect
of each such Financing Party and any Financing Party existing as of the date of the execution and delivery
hereof:
(1) there shall be no merger of this Lease or of the leasehold estate created hereby with
fee title to the Real Property, notwithstanding that this Lease or said leasehold estate and said fee
title shall be owned by the same Person or Persons, without the prior written consent of each such
Financing Party;
(2) the City shall serve upon each such Financing Party (at the address, if any,
provided to the City) a copy of each notice of the occurrence of an Event of Default and each notice
of termination given to the Company under this Lease, at the same time as such notice is served
upon the Company. No such notice to the Company shall be effective unless a copy thereof is thus
served upon each such Financing Party;
(3) each such Financing Party shall have the same period of time which the Company
has, after the service of any required notice upon it, within which to remedy or cause to be remedied
any payment default under this Lease which is the basis of the notice plus 30 days, and the City
shall accept performance by such Financing Party as timely performance by the Company;
(4) the City may exercise any of its rights or remedies with respect to any other Event
of Default by the Company, subject to the rights of the Financing Parties under this Section 10.4(c)
as to such other Events of Default;
(5) upon the occurrence and continuance of an Event of Default by the Company under
this Lease, other than a default in the payment of money, the City shall take no action to effect a
termination of this Lease by service of a notice or otherwise, without first giving notice thereof to
each such Financing Party and permitting each such Financing Party (or its designee, nominee,
assignee or transferee) a reasonable time within which to remedy such default in the case of an
Event of Default which is susceptible of being cured (provided that the period to remedy such Event
of Default shall continue beyond any period set forth in this Lease to effect said cure so long as the
Financing Party (or its designee, nominee, assignee or transferee) is diligently prosecuting such
cure); provided that the Financing Party (or its designee, nominee, assignee or transferee) shall pay
or cause to be paid to the City and the Trustee all expenses, including reasonable attorneys’ fees,
court costs and disbursements incurred by the City or the Trustee in connection with any such
default;
(6) each such Financing Party (and its designees, nominees, assignees or transferees)
may enter the Project Site and possess and use the Project Improvements at such reasonable times
and manner as are necessary or desirable to effectuate the remedies and enforce its respective rights
under its respective Financing Documents;
(7) except for terminations of this Lease expressly authorized herein, this Lease may
not be modified, amended, canceled or surrendered by agreement between the City and the
Company, without the prior written consent of each such Financing Party; and
(8) any Financing Party may, upon an event of default under any of the Financing
Documents, on behalf of the Company and without the consent of the Company, but only after
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having first caused the redemption of the Bonds, exercise on behalf of the Company the right to
purchase the Real Property pursuant to Section 11.1 hereof, upon compliance with the provisions
of that Section. The Company agrees that the City will have no liability for taking direction from
any Financing Party in connection with a conveyance of the Real Property back to the Company
pursuant to Article XI.
(d) In connection with the execution of one or more Financing Document s and upon the
request of the Company, the City agrees to execute such documents as shall be reasonably requested by a
Financing Party and which are usual and customary in connection with the closing of the financing or
refinancing pursuant to the Financing Documents, including, without limitation, subordination of the City’s
fee interest in the Real Property to any deed of trust. Moreover, to facilitate the recordation of a deed of
trust, the City agrees to transfer its fee interest in the Real Property to the Company, if the Company re-
conveys the Real Property back to the City immediately following the recordation of such documents via a
special warranty deed in a form reasonably acceptable to the City Attorney. This Lease, the Indenture or
any related document shall not merge into any such deed or otherwise be affected by any such transfer. The
Company agrees to reimburse the City for any and all costs and expenses incurred by the City pursuant to
this Section, including reasonable attorneys’ fees and expenses, in complying with such request.
(e) The Company’s obligations under any mortgage or Financing Document relating to the
Real Property entered into after the date of execution of this Lease, except for any construction loans or other
Financing Documents related to the Project Improvements that the Company now or hereafter has in place
with any Financing Party, shall be subordinate to the Company’s obligations under this Lease.
(f) Notwithstanding the foregoing, the City may agree to other provisions and documents
requested by the Company or any Financing Party not contemplated by this Section 10.4, subject to approval
by the City Council.
Section 10.5. Indemnification of City and Trustee. The Company shall defend, indemnify and
save and hold harmless the City and the Trustee and their governing body members, officers, agents and
employees from and against all claims, demands, costs, liabilities, damages or expenses, including
attorneys’ fees, by or on behalf of any Person, firm or corporation arising from the issuance of the Bonds
and the execution of the Performance Agreement, this Lease (or any instrument requested by the Company
pursuant to Section 10.4 hereof), the Indenture, or any other document entered into in connection with the
Bonds and from the conduct or management of, or from any work or thing done on the Real Property during
the Lease Term, and against and from all claims, demands, costs, liabilities, damages or expenses, including
attorneys’ fees, arising during the Lease Term from (a) any condition of the Real Property, (b) 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, (c) any contract entered into in connection with the
construction of the Project Improvements (including mechanics’ liens), (d) any act of negligence of the
Company or of any of its agents, contractors, servants, employees or licensees, (e) unless the Company has
been released from liability pursuant to Section 13.1(c) 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, (f) obtaining any applicable state and local sales and use tax exemptions for
materials or goods that become part of the Real Property, and (g) any violation of Section 107.170 of the
Revised Statutes of Missouri; provided, however, the indemnification contained in this Section 10.5(a)-(e)
hereof shall not extend to (i) the City to the extent that such claims, demands, costs, liabilities, damages or
expenses, including attorneys’ fees, are the result of malfeasance in office or willful or wanton neglect of
duty by the City or any of its officers and employees, whether elective or appointive, or (ii) the Trustee to
the extent that such claims, demands, costs, liabilities, damages or expenses, including attorneys’ fees, are
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the result of gross negligence or willful misconduct of the Trustee. Upon written notice from the City or
the Trustee of any such claim or demand, the Company shall defend them or either of them in any such
action or proceeding; provided, that the City shall cooperate with the Company and provide reasonable
assistance in such defense. All costs related to the defense of the City or the Trustee shall be paid by the
Company. This Section 10.5 hereof shall survive any termination of the Performance Agreement and this
Lease or the satisfaction and discharge of the Indenture.
Section 10.6. Depreciation and Other Tax Benefits. The City and the Company hereby
acknowledge and agree that:
(a) this Lease is intended to be and shall be treated as a “financing lease” for federal
income tax purposes;
(b) solely for federal income tax purposes, the Company shall be treated as the owner
of the Real Property and, as such, shall be entitled to claim all depreciation and amortization
deductions and other tax benefits attributable to the ownership of the Real Property;
(c) each party shall report and file all federal income tax returns consistent with the
intended tax treatment; and
(d) the City will fully cooperate with the Company in any effort by the Company to
avail itself of any such depreciation, amortization deductions and other tax benefits.
Section 10.7. Company to Maintain its 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 in good standing, 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 Person or permit one or more other Persons to consolidate
with or merge into it, or may sell or otherwise transfer to another Person all or substantially all of its assets
as an entirety and thereafter dissolve or convert into a different type of legal entity, if the surviving, resulting
or transferee Person expressly assumes in writing all the obligations of the Company contained in this Lease
and the surviving, resulting or transferee Person either (a) has a long-term debt rating or is controlled by or
under common control with an entity with a long-term debt rating in any of the top three long-term debt
rating categories by any nationally recognized rating service, (b) is controlled by, under common control
with or controls the Company, or (c) is otherwise approved by the City Council. This Section does not limit
the Company’s transfer rights under Section 13.1 hereof.
Section 10.8. Security Interests. The City and the Company hereby authorize the Trustee to
file all appropriate financing and continuation statements as may be required under the Uniform
Commercial Code in order to fully preserve and protect the security of the Owners and the rights of the
Trustee under the Indenture. Upon the written instructions of the Owners or pledgees of 100% of the Bonds
then-Outstanding, the Trustee shall file all continuation instruments the Owners deem necessary to be filed
and shall continue or cause to be continued such instruments for so long as the Bonds are Outstanding. The
City and the Company shall cooperate with the Trustee in this regard by providing such information as the
Trustee may require to file or to renew such statements.
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Section 10.9. Environmental Matters, Warranties, Covenants and Indemnities Regarding
Environmental Matters.
(a) As used in this Section, the following terms have the following meanings:
“Environmental Laws” means any now-existing or hereafter enacted or promulgated federal,
state, local, or other law, statute, ordinance, order, rule, regulation or court order pertaining to (1)
environmental protection, regulation, contamination or clean-up, (2) toxic waste, (3) underground storage
tanks, (4) asbestos or asbestos-containing materials, or (5) the handling, treatment, storage, use or disposal
of Hazardous Substances, including without limitation the Comprehensive Environmental Response,
Compensation and Liability Act and the Resource Conservation and Recovery Act, all as amended from
time to time.
“Hazardous Substances” means all (1) “hazardous substances” (as defined in 42 U.S.C.
§9601(14)), (2) “chemicals” subject to regulation under Title III of the Superfund Amendments and
Reauthorization Act of 1986, as amended from time to time (3) natural gas liquids, liquefied natural gas or
synthetic gas, (4) any petroleum, petroleum-based products or crude oil, or (5) any other hazardous or toxic
substances, wastes or materials, pollutants, contaminants or any other substances or materials which are
included under or regulated by any Environmental Law.
(b) The Company warrants and represents to the City and the Trustee that, during the term of
this Lease, it will not introduce any conditions on the Project Site that violate any applicable Environmental
Laws.
(c) The Company will provide the City and the Trustee with copies of any notifications of
releases of Hazardous Substances or of any environmental hazards or potential hazards in violation of
Environmental Laws which are given by or on behalf of the Company to any federal, state or local or other
agencies or authorities or which are received by the Company from any federal, state or local or other
agencies or authorities with respect to the Project Site. Such copies shall be sent to the City and the Trustee
concurrently with their being mailed or delivered to the governmental agencies or authorities or within 10
days after they are made or received by the Company. The Company will provide to the City for review
only, any environmental assessments (“Assessments”) and reports regarding the correction or remediation
of material environmental issues required by Environmental Laws to be addressed in the Assessments
(“Reports”) concerning the Real Property; upon completion of the City’s review of the Assessments and
Reports, the City shall immediately return to the Company all originals and copies of the Assessments and
Reports.
(d) The Company will provide the City and the Trustee with copies of all emergency and
hazardous chemical inventory forms (hereinafter “Environmental Notices”) concerning Hazardous
Substances on the Project Site it sends to any federal, state or local governmental authority or agency as
required pursuant to the Emergency Planning and Community Right -to-Know Act of 1986, 42 U.S.C.A.
§11001 et seq., or any other applicable Environmental Laws. Such copies of Environmental Notices shall
be sent to the City and the Trustee concurrently with their being mailed to any such governmental authority
or agency.
(e) The Company will comply with and operate and at all times use, keep and maintain the
Real Property and every part thereof (whether or not such property constitutes a facility, as defined in 42
U.S.C. § 9601 et. seq.) in conformance with all applicable Environmental Laws. Without limiting the
generality of the foregoing, the Company will not use, generate, treat, store, dispose of or otherwise
introduce any Hazardous Substance into or on the Real Property or any part thereof nor cause, suffer, allow
or permit anyone else to do so except in compliance with all applicable Environmental Laws.
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(f) The Company agrees to defend, indemnify, protect and hold harmless the City and the
Trustee and their directors, officers, shareholders, officials or employees from and against any and all
claims, demands, costs, liabilities, damages or expenses, including reasonable attorneys’ fees, arising from
(1) any release (as defined in 42 U.S.C. § 9601 (22)), actual or alleged, of any Hazardous Substances, upon
the Project Site or respecting any products or materials now or hereafter located upon the Project Site,
regardless of whether such release or alleged release has occurred before the date hereof or hereafter occurs
and regardless of whether such release or alleged release occurs as a result of any act, omission, negligence
or misconduct of the Company or any third party or otherwise, (2) (A) any violation now existing or
hereafter arising (actual or alleged) of, or any other liability under or in connection with, any applicable
Environmental Laws relating to or affecting the Real Property, or (B) any violation now existing or hereafter
arising of, or any other liability under or in connection with, any applicable Environmental Laws relating
to any products or materials previously, now or hereafter located upon the Project Site, regardless of
whether such violation or alleged violation or other liability is asserted or has occurred or arisen before the
date hereof or hereafter is asserted or occurs or arises and regardless of whether such violation or alleged
violation or other liability occurs or arises, as the result of any act, omission, negligence or misconduct of
the Company or any third party or otherwise, (3) any assertion by any third party of any claims or demands
for any loss or injury arising out of, relating to or in connection with any Hazardo us Substances on or
allegedly on the Project Site, or (4) any material breach, falsity or failure of any of the representations,
warranties, covenants and agreements contained in this Section. The City shall cooperate with the Company
in the defense of any matters included within the foregoing indemnity without any obligation to expend
money. This Section 10.9(f) shall survive any termination of this Lease.
ARTICLE XI
OPTION AND OBLIGATION TO PURCHASE THE REAL PROPERTY
Section 11.1. Option to Purchase the Real Property. The Company shall have, and is hereby
granted, the option to purchase all or any portion of the Real Property at any time, upon payment in full or
redemption of the Outstanding Bonds to be redeemed or provision for their payment or redemption having
been made pursuant to Article XIII of the Indenture. To exercise such option, the Company shall (a) give
written notice to the City and 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, (b) provide
evidence of payment of all real property taxes with respect to the Real Property, if any, and (c) 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 purchase 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
before the 29th day and by taking such action as may be required to cure the default that led to the giving
of the Remedies Notice. The purchase price payable by the Company in the event of its exercise of the
option granted in this Section shall be the sum of the following:
(1) an amount of money which, when added to the amount then on deposit in the Bond
Fund, will be sufficient to redeem all or a portion of the then-Outstanding Bonds on the earliest
redemption date next succeeding the closing date, including, without limitation, principal and
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interest to accrue to said redemption date and redemption expense, or the Company, as sole Owner
of the Bonds, can tender the Outstanding principal amount of the Bonds for cancellation with
instructions that such tender is in lieu of payment of the amount sufficient to redeem the then-
Outstanding Bonds as provided in Section 11.5 hereof; plus
(2) an amount of money equal to the Trustee’s and the Paying Agent’s agreed to and
reasonable fees, charges and expenses under the Indenture accrued and to accrue until such
redemption of the Bonds; plus
(3) 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 Real
Property (the City hereby agreeing to provide the Company with prior written notice if such charges
and expenses are expected to exceed $2,500); plus
(4) an amount of money equal to all payments due and payable by the Company
pursuant to the Performance Agreement through the end of the calendar year in which the date of
purchase occurs; plus
(5) the sum of $10.00.
Section 11.2. Conveyance of the Real Property. At the closing of the purchase of the Real
Property pursuant to this Article, the City will upon receipt of the purchase price deliver to the Company
the following:
(a) a release from the Trustee of the Real Property from the lien and/or security interest
of the Indenture and this Lease and appropriate termination of financing statements as required
under the Uniform Commercial Code; and
(b) documents, including without limitation a special warranty deed as to the Real
Property, conveying to the Company, or at the direction of the Company another Person, legal title
to the Real Property, as it then exists, in recordable form, subject to the following: (1) those liens
and encumbrances, if any, to which title to the Real Property 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 Real Property 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 option to purchase the Real
Property 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 option will
not result in nonfulfillment of any condition to the exercise of any such option (including the payment of
all amounts specified in Section 11.1) and further provided that the option herein granted shall terminate
upon the termination of this Lease.
Section 11.4. Obligation to Purchase the Real Property. The Company hereby agrees to
purchase, and the City hereby agrees to sell, the Real Property 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, (b) payment of the sum of the items set forth in Sections
11.1(1)-(5) hereof, (c) payment of all real property taxes with respect to the Real Property, and (d) the final
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payment due under the Performance Agreement. The amount of the purchase price under this Section shall
be an amount sufficient to redeem all of the then-Outstanding Bonds, 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 accrued interest and the reasonable fees and expenses of the City and the Trustee.
Section 11.5. Right to Set-Off. At its option, to be exercised at least five days before the date
of closing of any purchase under this Article XI, 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. The Company may set-off any payment obligation under
this Article XI by tendering a corresponding amount of the Bonds to the Trustee for cancellation.
ARTICLE XII
DEFAULTS AND REMEDIES
Section 12.1. Events of Default.
(a) If any one or more of the following events occurs and is continuing beyond any applicable
cure period, it is hereby defined as and declared to be and to constitute an “Event of Default” under this
Lease:
(1) default in the due and punctual payment of Basic Rent or Additional Rent within
10 days after written notice thereof from the City to the Company and any Financing Party; or
(2) 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 continues for 60 days after the City or the Trustee has given the Company and any Financing
Party written notice specifying such default (or such longer period as is reasonably required to cure
such default, provided that (i) the Company or any Financing Party, as applicable, has commenced
such cure within said 60-day period, and (ii) the Company or any Financing Party, as applicable,
diligently prosecutes such cure to completion); or
(3) the Company: (i) admits in writing its inability to pay its debts as they become
due; or (ii) files a petition in bankruptcy or for reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under the 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 (iii) makes an assignment for the benefit of
creditors; or (iv) consents to the appointment of a trustee, receiver or liquidator for all or a
substantial portion of its property or fails to have the appointment of any trustee, receiver or
liquidator made without the Company’s consent or acquiescence, vacated or set aside; or (v) is
finally adjudicated as bankrupt or insolvent under any federal or state law; or (vi) is subject to any
proceeding, or suffers the entry of a final and non-appealable court order, under any federal or state
law appointing a trustee, receiver or liquidator for all or a substantial part of its property or ordering
the winding-up or liquidation of its affairs, or approving a petition filed against it under the United
States Bankruptcy Code, as now or in the future amended, which proceeding or order, if not
consented to by it, is not dismissed, vacated, denied, set aside or stayed within 90 days after the
day of commencement or entry; or (vii) suffers a writ or warrant of attachment or any similar
process to be issued by any court against all or any substantial portion of its property, and such writ
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or warrant of attachment or any similar process is not contested, stayed or released within 60 days
after the final entry or levy or after any contest is finally adjudicated or any stay is vacated or set
aside; or
(4) an Event of Default by the Company under the Performance Agreement, as defined
therein.
(b) The Trustee shall give each Financing Party notice of the occurrence of any Event of
Default of which the Trustee has notice pursuant to the terms of the Indenture. Any Financing Party may,
at its election, but shall have no obligation to, cure such Event of Default.
Section 12.2. Remedies on Default.
(a) 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 follo wing
actions, in addition to the remedies provided in Section 12.5 hereof:
(1) cause all amounts payable with respect to the Bonds for the remainder of the term
of this Lease to become due and payable, as provided in the Indenture; or
(2) give the Company written notice of intention to terminate this Lease on a date
specified therein, which date shall not be earlier than 60 days after such notice is given, and if all
defaults have not then been cured, on the date so specified, the Owners shall tender or be deemed
to have tendered the Outstanding principal amount of the Bonds for cancellation with instructions
that such tender is in lieu of payment in accordance with Section 11.5 hereof, the Company’s rights
to possession of the Real Property shall cease (subject to the Financing Documents of any Financing
Party) and this Lease shall thereupon be terminated, and the City may re-enter and take possession
of the Real Property or the City may convey the Real Property to the Company (subject to the
Financing Documents of any Financing Party) and bring an action against the Company for the
purchase price of the Real Property under Section 11.1 hereof; provided, however, if the Company
has paid all of its obligations due and owing under the Indenture, this Lease and the Performance
Agreement, the City shall convey the Real Property in accordance with Section 11.2 hereof (subject
to the Financing Documents of any Financing Party). The Company’s right to cause the
conveyance of the Real Property in accordance with Section 11.2 hereof shall survive the expiration
or termination of this Lease.
(b) If the City defaults on any of its obligations under this Lease, the Company’s sole remedy
for such default shall be to sue for specific performance of this Lease.
Section 12.3. Survival of Obligations. The Company covenants and agrees with the City and
the Owners that its obligations under this Lease shall survive the cancellation and termination of this Lease,
for any cause, and that the Company shall continue to pay the Basic Rent and Additional Rent (to the extent
the Bonds remain Outstanding) and perform all other obligations provided for in this Lease, all at the time
or times provided in this Lease; provided, however, that upon (a) the payment of all Basic Rent and
Additional Rent required under Article V hereof, (b) the satisfaction and discharge of the Indenture under
Section 1301 thereof, and (c) the Company’s exercise of the purchase option contained in Section 11.01
hereof, the Company’s obligations under this Lease shall thereupon cease and terminate in full, except that
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the indemnification contained in Article X and the obligations with respect to compensation of the City
and the Trustee shall not so terminate until paid.
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 so obligated) upon the continuance
of such failure on the Company’s part for 60 days after written notice of such failure is given to the
Company by the City or the Trustee, and without waiving or releasing the Company from any obligation
hereunder, as an additional but not exclusive remedy, make any such payment or perform any such
obligation, and all reasonable sums so paid by the City or the Trustee and all necessary incidental reasonable
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 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 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 or elsewhere in
this Lease to the contrary, however, the Company’s option to purchase the Real Property as provided in
Article XI 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(a)(2) hereof. The parties agree that no provision of this Lease
shall be construed to allow the City to require the Company to acquire, construct or install the Project
Improvements or to retain or create jobs.
Section 12.6. Waiver of Breach. No waiver of any breach of any covenant or agreement herein
contained shall operate as a waiver of any subsequent breach of the same covenant or agreement or as a
waiver of any breach of any other covenant or agreement, and in case of a breach by the Company of any
covenant, agreement or undertaking by the Company, the City may nevertheless accept from the Company
any payment or payments hereunder without in any way waiving the City’s right to exercise any of its rights
and remedies provided for herein with respect to any such default or defaults of the Company which were
in existence at the time such payment or payments were accepted by the City.
Section 12.7. Trustee’s Exercise of the City’s Remedies. Whenever any Event of Default has
occurred and is continuing beyond any applicable cure period, the Trustee may, but except as otherwise
provided in the Indenture shall not be obligated 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.
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ARTICLE XIII
ASSIGNMENT AND SUBLEASE
Section 13.1. Assignment; Sublease.
(a) The Company may sublease, assign, transfer, encumber or dispose of this Lease or any
interest herein or part hereof for any lawful purpose under the Act upon providing written notice of the
City. Except as otherwise provided in this Section or in Section 10.4 hereof, the Company must obtain the
City’s prior written consent to any such disposition, unless such disposition is (1) to an entity controlled by
or under common control with or controlling the Company, (2) to an entity into which the Company is
being merged or consolidated, or (3) an assignment to any Financing Party.
(b) With respect to any assignment, the Company shall comply with the following conditions:
(1) the Company shall notify the City and the Trustee of the assignment in writing;
(2) such assignment shall be in writing, duly executed and acknowledged by the
assignor and in proper form for recording;
(3) such assignment shall include the entire then unexpired term of this Lease; and
(4) a duplicate original of such assignment shall be delivered to the City and the
Trustee within 10 days after the execution thereof, together with an assumption agreement, duly
executed and acknowledged by the assignee and in proper form for recording, by which the assignee
shall assume all of the terms, covenants and conditions of this Lease on the part of the Company to
be performed and observed.
(c) Any assignee of all the rights of the Company shall agree to be bound by the terms of this
Lease and the Performance Agreement and any other documents related to the issuance of the Bonds. Upon
such assignment of all the rights of the Company and agreement by the assignee to be bound by the terms
of this Lease and the Performance Agreement and any other documents related to the issuance of the Bonds,
the Company shall be released from and have no further obligations under this Lease, the Performance
Agreement or any other documents related to the issuance of the Bonds.
Section 13.2. Assignment of Revenues by City. The City shall pledge and assign any rents,
revenues and receipts receivable under this Lease to the Trustee pursuant to the Indenture as security for
payment of the principal of, interest and premium, if any, on the Bonds, and the Company hereby consents
to such pledge and assignment.
Section 13.3. Prohibition Against Fee Mortgage of Real Property. The City shall not
mortgage its fee interest in the Real Property but may assign its interest in and pledge any moneys receivable
under this Lease to the Trustee pursuant to the Indenture as security for payment of the principal of and
interest on the Bonds.
Section 13.4. Restrictions on Sale or Encumbrance of Real Property by City. During the
Lease Term, the City agrees that, except to secure the Bonds to be issued pursuant to the Indenture and
except to enforce its rights under Section 12.2(a) hereof, it will not sell, assign, encumber, mortgage,
transfer or convey the Real Property or any interest therein.
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ARTICLE XIV
AMENDMENTS, CHANGES AND MODIFICATIONS
Section 14.1. Amendments, Changes and Modifications. Except as otherwise provided in this
Lease or in the Indenture, subsequent to the issuance of the Bonds and before the payment in full of the
Bonds (or provision for the payment thereof having been made in accordance with the provisions of the
Indenture), this Lease may not be effectively amended, changed, modified, altered or terminated without
the prior written consent of the Trustee, given in accordance with the provisions of the Indenture, which
consent, however, shall not be unreasonably withheld, and the written consent of all of the Owners and any
Financing Party.
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.1. Notices. All notices, certificates or other communications required or desired to
be given hereunder shall be in writing and shall be deemed duly given when (a) mailed by registered or
certified mail, postage prepaid, or (b) sent by overnight delivery or other delivery service which requires
written acknowledgment of receipt by the addressee, addressed as follows:
(1) To the City:
City of Jefferson, Missouri
320 East McCarty Street
Jefferson City, Missouri 65101
Attention: City Administrator and City Attorney
with a copy to:
Gilmore & Bell, P.C.
2405 Grand Boulevard, Suite 1100
Kansas City, Missouri 64108
ATTN: Haden Crumpton, Esq.
(2) To the Trustee:
UMB Bank, N.A.
928 Grand Boulevard
Kansas City, Missouri 64106
Attention: Corporate Trust Department
(3) To the Company:
Unilever Manufacturing (US), Inc.
2900 West Truman Boulevard
Jefferson City, Missouri 65109
ATTN: Michael Whelan, Director of Operations
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with copies to:
Unilever United States, Inc.
700 Sylvan Avenue
Englewood Cliffs, New Jersey 07632
ATTN: General Counsel
Lathrop GPM LLP
2345 Grand Boulevard, Suite 2200
Kansas City, Missouri 64108
ATTN: Catherine Logan, Esq.
All notices given by certified or registered mail as aforesaid shall be deemed fully given as of the
date they are so mailed, provided, however, that notice to the Trustee shall be effective only upon receipt.
A duplicate copy of each notice, certificate or other communication given hereunder by either the City or
the Company to the other shall also be given to the Trustee. The City, the Company and the Trustee may
from time to time designate, by notice given hereunder to the others of such parties, such other addresses
to which subsequent notices, certificates or other communications shall be sent.
Section 15.2. City Shall Not Unreasonably Withhold Consents and Approvals. Wherever in
this Lease it is provided that the City shall, may or must give its approval or consent, or execute
supplemental agreements or schedules, the City will 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 Real Property, and the Real Property
remains subject to zoning, building permit or other regulatory approvals by the City.
Section 15.3. Net Lease. The parties hereto agree (a) that this Lease shall be deemed and
construed to be a net lease, (b) that the payments of Basic Rent are designed to provide the City and the
Trustee funds adequate in amount to pay all principal of and interest accruing on the Bonds as the same
becomes due and payable, (c) that to the extent that the payments of Basic Rent are not sufficient to provide
the City and the Trustee with funds sufficient for the purposes aforesaid, the Company shall be obligated to
pay, and it does hereby covenant and agree to pay, upon demand therefor, as Additional Rent, such further
sums of money, in cash, as may from time to time be required for such purposes, and (d) that if after the
principal of and interest on the Bonds and all costs incident to the payment of the Bonds (including the fees
and expenses of the City and the Trustee) have been paid in full the Trustee or the City holds unexpended
funds received in accordance with the terms hereof such unexpended funds shall, after payment therefrom
of all sums then due and owing by the Company under the terms of this Lease, and except as otherwise
provided in this Lease and the Indenture, become the absolute property of and be paid over forthwith to the
Company.
Section 15.4. Limitation on Liability of City. No provision, covenant or agreement contained
in this Lease, the Indenture or the Bonds, or any obligation herein or therein imposed upon the City, or the
breach thereof, shall constitute or give rise to or impose upon the City a pecuniary liability or a charge upon
the general credit or taxing powers of the City or the State of Missouri.
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Section 15.5. Governing Law. This Lease shall be construed in accordance with and governed
by the laws of the State of Missouri.
Section 15.6. Binding Effect. This Lease shall be binding upon and shall inure to the benefit of
the City and the Company and their respective successors and assigns.
Section 15.7. Severability. If for any reason any provision of this Lease shall be determined to
be invalid or unenforceable, the validity and enforceability of the other provisions hereof shall not be
affected thereby.
Section 15.8. Execution in Counterparts. This Lease may be executed in several counterparts,
each of which shall be deemed to be an original and all of which shall constitute but one and the same
instrument.
Section 15.9. Electronic Transaction. The parties agree that the transaction described herein
may be conducted and related documents may be sent, received or stored by electronic means. Copies,
telecopies, facsimiles, electronic files and other reproductions of original executed documents shall be
deemed to be authentic and valid counterparts of such original documents for all purposes, including the
filing of any claim, action or suit in the appropriate court of law.
Section 15.10. City Consents and Approvals. Pursuant to the Ordinance, the Mayor or Mayor
Pro-Tem and the City Administrator are authorized to execute all documents on behalf of the City (including
documents pertaining to the transfer of property or the financing or refinancing of the Real Property by the
Company and such easements, licenses, rights-of-way, plats and similar documents as may be requested by
the Company) as may be required to carry out and comply with the intent of the Ordinance, the Indenture
and this Lease. The Mayor or the Mayor Pro-Tem and the City Administrator are 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 Indenture, this Lease or the Performance Agreement as may be
requested during the term hereof; provided, such consents, estoppels and/or waivers shall not increase the
principal amount of the Bonds, increase the term of this Lease or adversely affect the tax exemption as
provided for herein, waive an Event of Default, or materially change the nature of the transaction unless
approved by the City Council.
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.
[Remainder of Page Intentionally Left Blank]
Real Property Lease Agreement
City of Jefferson, Missouri
Taxable Industrial Development Revenue Bonds
(Unilever – Real Property Project)
Series 2024B
S-1
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed in their
respective names by their duly authorized signatories, all as of the date first above written.
CITY OF JEFFERSON, MISSOURI
By:
Name: Ron L. Fitzwater
Title: Mayor
[SEAL]
ATTEST:
By:
Name: Emily Donaldson
Title: City Clerk
Real Property Lease Agreement
City of Jefferson, Missouri
Taxable Industrial Development Revenue Bonds
(Unilever – Real Property Project)
Series 2024B
S-2
UNILEVER MANUFACTURING (US), INC.,
a Delaware corporation
By:
Name: Natalia Cavaliere
Title: Vice President & Assistant Secretary
A-1
EXHIBIT A
PROJECT SITE
The land situated in the County of Cole, State of Missouri, and described as follows:
B-1
EXHIBIT B
FORM OF REQUISITION CERTIFICATE
Requisition No. _____
Date: _______________
REQUISITION CERTIFICATE
TO: UMB BANK, N.A., AS TRUSTEE UNDER A REAL PROPERTY TRUST INDENTURE
DATED AS OF APRIL 1, 2024, BETWEEN THE CITY OF JEFFERSON, MISSOURI, AND
THE TRUSTEE, AND A REAL PROPERTY LEASE AGREEMENT DATED AS OF
APRIL 1, 2024, BETWEEN THE CITY OF JEFFERSON, MISSOURI, AND UNILEVER
MANUFACTURING (US), INC.
The undersigned Authorized Company Representative hereby states and certifies that:
1. A total of $__________ is requested to pay for Project Costs relating to the construction of
the Project Improvements. The total amount of this requisition and all prior requisitions for Project Costs
are as follows:
Date of Project Costs
Amount Submitted in
this Requisition
Requisitions Submitted to Date
(Including this Requisition)
2. A total of $__________ has been requested to pay for all Project Costs to date, including
the Project Costs listed above, which total amount is less than $33,000,000.
3. 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.
4. Each of the items for which payment is requested are provided for in the Plans and
Specifications, are or were desirable and appropriate in connection with the purchase and construction of
the Project Improvements on the Project Site, have been properly incurred and are a proper charge against
the Project Fund, 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.
5. As of this date, except for the amounts referred to above, to the best of my knowledge there
are no outstanding disputed statements for which payment is requested for labor, wages, materials, supplies
or services in connection with the construction of the Project Improvements on the Project Site which, if
B-2
unpaid, might become the basis of a vendors’, mechanics’, laborers’ or materialmen’s statutory or similar
lien upon the Real Property or any part thereof.
6. Capitalized words and terms used in this Requisition Certificate, including schedules and
exhibits hereto, have the meanings given to such words and terms in Section 101 of the Real Property Trust
Indenture.
7. With respect to any such requisition, the Company (i) certifies they have reviewed any wire
instructions set forth in such written disbursement direction to confirm such wire instructions are accurate,
and (ii) agrees they will not seek recourse from the Trustee as a result of losses incurred by it for making
the disbursement in accordance with the disbursement direction.
UNILEVER MANUFACTURING (US), INC.,
By:
Authorized Company Representative
Approved this _____ day of ____________________, 20___.
CITY OF JEFFERSON, MISSOURI
By:
Authorized City Representative
B-3
SCHEDULE 1 TO REQUISITION CERTIFICATE
PROJECT COSTS
Payee and Address Description Amount
Gilmore & Bell, P.C.
Draft v2 – February 27, 2024
CITY OF JEFFERSON, MISSOURI,
As Lessor,
AND
UNILEVER MANUFACTURING (US), INC.,
As Lessee
____________
PERSONAL PROPERTY LEASE AGREEMENT
Dated as of April 1, 2024
____________
Relating to:
$50,000,000
(Aggregate Maximum Principal Amount)
City of Jefferson, Missouri
Taxable Industrial Development Revenue Bonds
(Unilever - Personal Property Project)
Series 2024B
Certain rights of the City of Jefferson, Missouri (the “City”), in this Personal Property Lease
Agreement have been pledged and assigned to UMB Bank, N.A., Kansas City, Missouri, as Trustee
under the Personal Property Trust Indenture dated as of April 1, 2024, between the City and the
Trustee.
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1. Definitions of Words and Terms ....................................................................................... 2
Section 1.2. Rules of Interpretation ....................................................................................................... 2
Section 1.3. Date of 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
Section 3.2. Lease Term ........................................................................................................................ 4
Section 3.3. Possession and Use of the Project Equipment ................................................................... 5
ARTICLE IV
PURCHASE AND INSTALLATION OF THE PROJECT EQUIPMENT
Section 4.1. Issuance of the Bonds ........................................................................................................ 5
Section 4.2. Purchase and Installation of the Project Equipment .......................................................... 6
Section 4.3. Project Costs ...................................................................................................................... 7
Section 4.4. Payment for Project Costs ................................................................................................. 7
Section 4.5. Establishment of Completion Date.................................................................................... 7
Section 4.6. Surplus in Project Fund ..................................................................................................... 8
Section 4.7. Project Equipment Property of the City ............................................................................ 8
Section 4.8. Machinery and Equipment Property of the Company ....................................................... 8
ARTICLE V
RENT PROVISIONS
Section 5.1. Basic Rent ......................................................................................................................... 8
Section 5.2. Additional Rent ................................................................................................................. 9
Section 5.3. Obligations of the Company Absolute and Unconditional ................................................ 9
Section 5.4. Prepayment of Basic Rent ............................................................................................... 10
ARTICLE VI
MAINTENANCE, TAXES AND UTILITIES
Section 6.1. Maintenance and Repairs ................................................................................................ 10
(ii)
Section 6.2. Taxes, Assessments and Other Governmental Charges .................................................. 11
Section 6.3. Utilities ............................................................................................................................ 11
Section 6.4. Property Tax Exemption ................................................................................................. 11
ARTICLE VII
INSURANCE
Section 7.1. Casualty Insurance .......................................................................................................... 12
Section 7.2. Public Liability Insurance ............................................................................................... 12
Section 7.3. Blanket Insurance Policies .............................................................................................. 13
Section 7.4. Worker’s Compensation .................................................................................................. 13
Section 7.5. Sovereign Immunity ...................................................................................................... 13
ARTICLE VIII
ALTERATION OF THE PROJECT EQUIPMENT
Section 8.1. Additions, Modifications and Improvements to the Project Equipment ......................... 13
Section 8.2. Removal and Replacement of Project Equipment ........................................................... 14
Section 8.3. Permits and Authorizations ............................................................................................. 14
Section 8.4. Mechanics’ Liens ............................................................................................................ 14
ARTICLE IX
DAMAGE, DESTRUCTION AND CONDEMNATION
Section 9.1. Damage or Destruction .................................................................................................... 15
Section 9.2. Condemnation ................................................................................................................. 17
Section 9.3. Bondowner Approval ...................................................................................................... 17
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 .................................................................................................. 18
Section 10.3. Right of Access to the Project Equipment ....................................................................... 18
Section 10.4. Security Agreements and Financing Arrangements ........................................................ 19
Section 10.5. Indemnification of City and Trustee ............................................................................... 21
Section 10.6. Depreciation and Other Tax Benefits .............................................................................. 21
Section 10.7. Company to Maintain its Existence ................................................................................. 22
Section 10.8. Security Interests ............................................................................................................. 22
ARTICLE XI
OPTION AND OBLIGATION TO PURCHASE THE PROJECT EQUIPMENT
Section 11.1. Option to Purchase the Project Equipment ...................................................................... 22
Section 11.2. Conveyance of the Project Equipment ............................................................................ 23
Section 11.4. Obligation to Purchase the Project Equipment ................................................................ 24
Section 11.5. Right to Set-Off ............................................................................................................... 24
(iii)
ARTICLE XII
DEFAULTS AND REMEDIES
Section 12.1. Events of Default ............................................................................................................. 24
Section 12.2. Remedies on Default ....................................................................................................... 25
Section 12.3. Survival of Obligations ................................................................................................... 25
Section 12.4. Performance of the 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 ...................................................................... 26
ARTICLE XIII
ASSIGNMENT AND SUBLEASE
Section 13.1. Assignment; Sublease ..................................................................................................... 27
Section 13.2. Assignment of Revenues by City .................................................................................... 27
Section 13.3. Restrictions on Sale or Encumbrance of Project Equipment by City .............................. 27
ARTICLE XIV
AMENDMENTS, CHANGES AND MODIFICATIONS
Section 14.1. Amendments, Changes and Modifications ...................................................................... 28
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.1. Notices ............................................................................................................................. 28
Section 15.2. City Shall Not Arbitrarily Withhold Consents and Approvals ........................................ 29
Section 15.3. Net Lease ......................................................................................................................... 29
Section 15.4. Limitation on Liability of City ........................................................................................ 29
Section 15.5. Governing Law ................................................................................................................ 29
Section 15.6. Binding Effect; Third-Party Beneficiary ......................................................................... 30
Section 15.7. Severability...................................................................................................................... 30
Section 15.8. Execution in Counterparts ............................................................................................... 30
Section 15.9. Electronic Transaction ..................................................................................................... 30
Section 15.10. City Consents and Approvals .......................................................................................... 30
Section 15.11. Anti-Discrimination Against Israel Act .......................................................................... 30
Signatures and Seal ................................................................................................................................... S-1
Exhibit A - Project Equipment
Exhibit B - Form of Requisition Certificate
PERSONAL PROPERTY LEASE AGREEMENT
THIS PERSONAL PROPERTY LEASE AGREEMENT, dated as of April 1, 2024
(this “Lease”), between CITY OF JEFFERSON, MISSOURI, a home rule charter city organized and
existing under the laws of the State of Missouri (the “City”), as lessor, and UNILEVER
MANUFACTURING (US), INC., a corporation organized and existing under the laws of the State of
Delaware and authorized to do business in the State of Missouri (the “Company”), as lessee;
RECITALS:
1. The City is authorized and empowered pursuant to the provisions of Article VI, Section
27(b) of the Missouri Constitution and Sections 100.010 through 100.200, inclusive, of the Revised Statutes
of Missouri (collectively, the “Act”) and the City Charter to purchase, construct, extend, improve and equip
certain projects (as defined in the Act), to issue industrial development revenue bonds for the purpose of
providing funds to pay the costs of such projects and to lease or otherwise dispose of such projects to private
persons or corporations for manufacturing, commercial, research and development, office industry,
warehousing and industrial development purposes upon such terms and conditions as the City deems
advisable.
2. In accordance with Section 100.059.1 of the Act, the City Council of the City gave notice
to the affected taxing jurisdictions regarding the City’s intent to approve the issuance of two separate series
of industrial development revenue bonds under the Act in order to finance the c osts of an industrial
development project (the “Project”) for the benefit of the Company consisting of (a) renovating and
modifying an approximately 110,000 square foot portion of the Company’s existing approximately 447,814
square foot main building in order to incorporate automated operations for the production of a new product
line (the approximately 110,000 square foot portion of the main building that is being renovated and
modified as part of the Project is referred to herein as the “Project Improvements”), which Project
Improvements are situated on an approximately 2.54 acre portion of the real estate site where the
Company’s other existing facilities are located at 2900 West Truman Boulevard in the City (the “Project
Site) and (b) acquiring and installing certain equipment and other personal property within the Project
Improvements (the “Project Equipment”).
3. Following notice to the affected taxing jurisdictions in accordance with Section 100.059.1
of the Act, the City Council of the City passed Ordinance No. [_______] on March 18, 2024 (the
“Ordinance”), (a) approving a plan for the Project and (b) authorizing the issuance of (i) the City’s Taxable
Industrial Development Revenue Bonds (Unilever - Real Property Project), Series 2024B, in the maximum
principal amount of $33,000,000, for the purpose constructing the Project Improvements on the Project Site
(the Project Site and the Project Improvements being collectively referred to herein as the “Real
Property”), and (ii) the City’s Taxable Industrial Development Revenue Bonds (Unilever - Personal
Property Project), Series 2024B, in the maximum principal amount of $50,000,000 (the “Bonds”), for the
purpose of acquiring and installing the Project Equipment within the Project Improvements.
4. Pursuant to the Ordinance, the City is authorized to enter into (a) a Personal Property Trust
Indenture of event date herewith (the “Indenture”) with UMB Bank, N.A., Kansas City, Missouri, as
trustee (the “Trustee”), for the purpose of issuing and securing the Bonds, as provided therein, and (b) this
Lease with the Company, as lessee, under which the City will lease the Project Equipment to the Company
in consideration of rental payments to be paid by the Company that will be sufficient to pay the principal
of and interest on the Bonds as provided herein.
-2-
5. The Ordinance further authorized the City to enter into a Performance Agreement of even
date herewith (the “Performance Agreement”) with the Company for the purpose of setting forth the terms
and conditions of the exemption of the Real Property and the Project Equipment from real and personal
property taxes and certain payments in lieu of taxes to be made by the Company with respect to the Real
Property and Project Equipment, respectively.
6. 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 rentals and upon the terms
and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual representations, covenants
and agreements herein contained, the receipt and sufficiency of which are hereby acknowledged, the City
and the Company do hereby represent, covenant and agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions of Words and Terms. In addition to any words and terms defined
elsewhere in this Lease, capitalized words and terms used in this Lease shall have the meanings given to
such words and terms in Section 101 of the Indenture (which definitions are hereby incorporated by
reference).
Section 1.2. Rules of Interpretation.
(a) Words of the masculine gender shall be deemed and construed to include correlative words
of the feminine and neuter genders.
(b) Unless the context otherwise indicates, words importing the singular number shall include
the plural and vice versa, and words importing Persons shall include firms, associations and corporations,
including governmental entities, as well as natural Persons.
(c) Wherever in this Lease it is provided that either party shall or will make any payment or
perform or refrain from performing any act or obligation, each such provision shall, even though not so
expressed, be construed as an express covenant to make such payment or to perform, or not to perform, as
the case may be, such act or obligation.
(d) All references in this instrument to designated “Articles,” “Sections” and other
subdivisions are, unless otherwise specified, to the designated Articles, Sections and other subdivisions of
this instrument as originally executed. The words “herein,” “hereof,” “hereunder” and other words of
similar import refer to this Lease as a whole and not to any particular Article, Section or other subdivision.
(e) The Table of Contents and the Article and Section headings of this Lease shall not be
treated as a part of this Lease or as affecting the true meaning of the provisions hereof.
(f) Whenever an item or items are listed after the word “including,” such listing is not intended
to be a listing that excludes items not listed.
-3-
Section 1.3. Date of Lease. The dating of this Lease as of April 1, 2024, 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 duly organized and validly existing under the
laws of the State of Missouri. Under the provisions of the Act, the City has lawful power and
authority to enter into the transactions contemplated by this Lease and to carry out its obligations
hereunder. By proper action of its 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 of this Lease, the City agrees to acquire and install the
Project Equipment or cause the Project Equipment to be acquired and installed at the Project Site,
subject to Permitted Encumbrances. The City agrees to lease the Project Equipment to the
Company and to sell the Project Equipment to the Company if the Company exercises its option to
purchase the Project Equipment or upon termination of this Lease, all for the purpose of furthering
the public purposes of the Act.
(c) To the City’s knowledge, no member of the City Council or any other officer of
the City has any significant or conflicting interest, financial, employment or otherwise, in the
Company or in the transactions contemplated hereby.
(d) To finance the costs of the Project Equipment, the City proposes to issue the Bonds
which will be scheduled to mature as set forth in Article II of the Indenture and will be subject to
redemption prior to maturity in accordance with the provisions of Article III of the Indenture.
(e) The Bonds are to be issued under and secured by the Indenture, pursuant to which
the Project Equipment and the net earnings therefrom, consisting of all rents, revenues and receipts
to be derived by the City from the leasing or sale of the Project Equipment, will be pledged and
assigned to the Trustee as security for payment of the principal of and interest on the Bon ds and
amounts owing pursuant to this Lease.
(f) The City will not knowingly take any affirmative action that would permit a lien
to be placed on the Project 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 and any Financing Party; provided, however, the City’s execution of this Lease, the
Indenture and the Performance Agreement shall not be deemed to violate this Section 2.1(f).
(g) The City will not operate the Project Equipment in any business-like manner or in
any other manner except as the lessor thereof, except subsequent to an Event of Default hereunder
(following the expiration of any notice and/or cure period) in accordance with the provisions
-4-
dealing with the exercise of remedies set forth herein and subject to all rights and powers of the
Trustee as set forth herein and in the Indenture.
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 organized, validly existing and in good standing
under the laws of the State of Delaware and is authorized to transact business in, 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 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, to the best of the Company’s knowledge, conflict with or result in
a breach of any of the terms, conditions or provisions of, or constitute a default under, any
mortgage, deed of trust, lease, security agreement or any other restriction, 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 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 the purchase and installation of the Project Equipment are
in accordance with sound accounting and engineering principles.
(e) The Project Equipment will be located at the Project Site and will comply in all
material respects with all applicable laws, rules and regulations.
ARTICLE III
GRANTING PROVISIONS
Section 3.1. Granting of Leasehold Estate. The City hereby exclusively rents, leases and lets
the Project 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.
Subject to earlier termination pursuant to the provisions of this Lease, the lease of the Project Equipment
-5-
shall terminate on December 31 of the tenth year following the calendar year in which the Completion Date
occurs, but no later than December 31, 2036.
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 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 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 hereof, the Indenture and the Performance Agreement, 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 to defend the Company’s
quiet and peaceable possession and enjoyment of the Project Equipment.
(b) Subject to the provisions of this Section, the Company shall have the exclusive right to use
the Project Equipment for any lawful purpose contemplated by the Act and consistent with the terms of 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, or that otherwise may be applicable by
virtue of the City’s ownership of the Project Equipment. The Company shall also comply with the
mandatory requirements, rules and regulations of all insurers under the policies carried under the provisions
of Article VII hereof. The Company shall pay all costs, expenses, claims, fines, penalties and damages
that may in any manner arise out of, or be imposed as a result of, the failure of the Company to comply
with the provisions of this Section. Notwithstanding any provision contained in this Section, however, the
Company may, at its own cost and expense, contest or review by legal or other appropriate procedures the
validity or legality of any such governmental statute, law, ordinance, order, judgment, decree, regulation,
direction or requirement, or any such requirement, rule or regulation of an insurer, and during such contest
or review the Company may refrain from complying therewith.
ARTICLE IV
PURCHASE AND INSTALLATION OF THE PROJECT EQUIPMENT
Section 4.1. Issuance of the Bonds. To provide funds for the payment of Project Costs, the
City agrees that, upon request of the Company, it will issue, sell and cause to be delivered the Bonds to the
purchaser thereof in accordance with the provisions of the Indenture and the Bond Purchase Agreement.
The proceeds of the sale of the Bonds, when received, shall be paid over to the Trustee for the account of
the City. The Trustee shall promptly deposit such proceeds, when received, as provided in the Indenture to
be used and applied as provided in this Lease and in the Indenture. Alternatively, the Trustee shall (pursuant
to Section 208(d) or (e) of the Indenture), endorse the Bonds in an amount equal to the requisition
certificates submitted pursuant to Section 4.4 hereof. In that event, so long as the sole Owner of the Bonds
is the lessee under this Lease, 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 certificates.
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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 from
funds deemed to be deposited into the Project Fund upon the delivery of a requisition certificate as permitted
by Section 208(d) or (e) 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 currently installed at the Project Site, if any, and a bill of sale and any other
necessary instruments for transfer of legal title to the Project Equipment will be delivered to the
City.
(b) On behalf of the City, the Company will purchase and install or cause to be
purchased and installed the Project Equipment at the Project Site. Title to the Project Equipment
following the Company’s acquisition and for purposes of transferring the Project Equipment to the
City thereafter, shall be evidenced by bills of sale in substantially the form attached to the form of
the requisition certificate attached as Exhibit B. Such bills of sale or other instruments of transfer,
along with a requisition certificate pursuant to Section 4.4 hereof, 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
property taxes) in the next succeeding year and (2) be submitted to the City by no later than January
31.
(c) 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 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 “Cole County Assessor”). 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 upon such information in compiling a list of the Project Equipment in accordance
with Section 10.8 hereof.
(d) Each requisition certificate submitted by the Company pursuant to Section 4.4
hereof or other bill of sale or other instrument of transfer and each personal property declaration
form shall be of sufficient specificity so as to enable the City’s officials and the Cole County
Assessor, 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).
(e) The City and the Company agree that, pursuant to Section 4.8 hereof, property
purchased in whole or in part by the Company with the Company’s own funds and not from Bond
proceeds submitted as part of a requisition certificate, shall not constitute part of the Project
Equipment and shall remain the property of the Company and shall, therefore, be subject to
taxation.
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(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.
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) 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 the Company’s delivery of a requisition certificate as permitted by Section 208(d) or (e) 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 of the Completion Date. The maximum amount of Project Costs
for which requisition certificates may be submitted is expressly limited to $50,000,000. 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) 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) of the Indenture, upon receipt by the Trustee of certificates in substantially
the form attached hereto as Exhibit B, signed by an Authorized Company Representative and approved by
an Authorized City Representative. The information in each certificate shall be accurate in all material
respects to the Company’s knowledge when given, and 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. Upon request
by the City, the Company shall provide the City with copies of invoices, bills, lien waivers and other
reasonable documentation to support each submitted requisition certificate.
(b) The Trustee may rely conclusively on any such certificate and shall not be required to make
any independent inspection or investigation in connection therewith. The approval of any requisition
certificate by an Authorized Company Representative and an Authorized City Representative shall
constitute, unto the Trustee, an irrevocable determination that all conditions precedent to the payments
requested have been completed.
Section 4.5. Establishment of Completion Date. The Completion Date for the acquisition and
installation of the Project Equipment shall be evidenced to the City and the Trustee by a certificate signed
by an 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, and (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. Notwithstanding the foregoing, such certificate shall be deemed
given on December 31, 2025, if not actually filed with the City by December 31, 2025, subject to any delay
to the extent caused by force majeure, including, without limitation, damage or destruction of the Project
Equipment by fire or casualty, strike, lockout, civil disorder, war, restrictive government regulations,
litigation, pandemic or epidemic, 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,
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including without limitation any litigation, court order or judgment resulting from any litigation affecting
the validity of this Lease, the Indenture, the Performance Agreement 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. If requested by the Company, the City shall provide acknowledgement
to the Company of its receipt and approval of the Company’s notice of 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 in Project Fund. On or promptly after the Completion Date, 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 (a) the payment of principal and
premium, if any, of the Bonds through the payment (including regularly scheduled principal payments, if
any) or redemption thereof at the earliest date permissible under the terms of the Indenture, or (b) at the
option of the 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.
Section 4.7. Project Equipment Property of the 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 installed
become the absolute property of the City, subject only to this Lease, the Indenture, Permitted Encumbrances
and any Financing Document. Nothing herein shall limit the Company’s right to own personal property
which is not part of the Project Equipment to be acquired by the City pursuant to Section 4.2 hereof.
Section 4.8. Machinery and Equipment Property of 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 either paid for from funds deposited pursuant to the terms of this Lease in the
Project Fund or included on a requisition certificate, shall be the property of the Company and shall not
constitute a part of the Project Equipment for purposes of Section 6.4 hereof, and therefore, shall be subject
to property taxation, to the extent otherwise provided by law.
ARTICLE V
RENT PROVISIONS
Section 5.1. Basic Rent. The Company covenants and agrees to pay or cause to be paid to the
Trustee in same day funds for the account of the City during the Lease Term, on or before 11:00 a.m.,
Trustee’s local time, on each Payment Date, as Basic Rent for the Project Equipment, an amount which,
when added to any collected funds then on deposit in the Bond Fund and available for the payment of
principal of the Bonds and the interest thereon on such Payment Date, shall be equal to the amount payable
on such Payment Date as principal of the Bonds and the interest thereon as provided in the In denture.
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
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notwithstanding any other provision in this Lease, the Indenture, the Bond Purchase Agreement or the
Performance Agreement to the contrary, and provided that the Company (or any Financing Party) is the sole
Owner of the Bonds, the Company may set-off the then-current Basic Rent payment against the City’s
obligation to the Company (or any Financing Party) as sole 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 and that pursuant to the set-off, the City is deemed to have paid
its obligation to the Company (or any Financing Party) as sole Owner of the Bonds to pay principal of and
interest on the Bonds under the Indenture. On the final Payment Date, the Company will (a) if the Trustee
holds the Bonds, notify the Trustee of the Bonds not previously paid that are to be canceled or (b) if an
entity other than the Trustee holds the Bonds, deliver or cause to be delivered to the Trustee for cancellation
Bonds not previously paid. The Company shall receive a credit against the Basic Rent payable by the
Company in an amount equal to the principal amount of the Bonds so tendered for cancellation plus accrued
interest thereon.
Section 5.2. Additional Rent. The Company shall pay or cause to be paid as Additional Rent,
within 30 days after receiving an itemized invoice therefor, the following amounts:
(a) all fees, charges and expenses, including agent and attorneys’ fees and expenses,
of the City, the Trustee and the Paying Agent incurred under or arising from the Indenture, this
Lease or the Performance Agreement, including but not limited to (i) claims by contractors or
subcontractors, as and when the same becomes due, (ii) any disposition of this Lease pursuant to
Article XIII hereof and (iii) the review and execution of any Financing Document;
(b) all costs incident to the issuance of the Bonds (which are to be paid on the Closing
Date) and the payment of the principal of and interest on the Bonds as the same become s due and
payable, including all costs and expenses in connection with the call, redemption and payment of
all Outstanding Bonds;
(c) all fees, charges and expenses incurred in connection with the enforcement of any
rights under this Lease, the Indenture or the Performance Agreement by the City, the Trustee or the
Owners, including reasonable attorneys’ fees and expenses; and
(d) all other payments of whatever nature that the Company has agreed in writing to
pay or assume under the provisions of this Lease, the Performance Agreement or the Indenture.
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 becomes due, and to perform all of its other obligations,
covenants and agreements hereunder shall be absolute and unconditional, without notice or demand, and
without abatement, deduction, set-off (except as provided in Section 5.1 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 has 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, any change in the tax or other laws of the United States of America, the State of Missouri or
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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 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 hereof
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.
(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 Owners and the City.
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, at the Company’s expense, 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.
(a) 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.
(b) 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.
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 (reasonable wear
tear and obsolescence expected), 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.
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Section 6.2. Taxes, Assessments and Other Governmental Charges.
(a) Subject to subsection (b) of this Section, the Company shall promptly pay and discharge,
as the same becomes due, all taxes and assessments, general and special, and other governmental charges
of any kind whatsoever that may be lawfully taxed, charged, levied, assessed or imposed upon or against
or be payable for or in respect of the Project Equipment, or any part thereof or interest therein (including
the leasehold estate of the Company therein) 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 may, in its own name or in the City’s name, contest the validity or amount
of any tax, assessment or other governmental charge which the Company is required to bear, pay and
discharge pursuant to the terms of this Article by appropriate legal proceedings instituted at least 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 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 from any costs and expenses
the City 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 the PILOT Payments (as defined in the Performance
Agreement) to be made by the Company under the Performance Agreement to the extent of any ad valorem
personal property taxes imposed with respect to the Project Equipment paid 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 by the Company and shall be contracted by the Company in the Company’s own
name and the Company shall, at its sole cost and expense, procure any and all permits, licenses or
authorizations necessary in connection therewith.
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 will 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.
The City and the Company further acknowledge and agree that the City’s obligations hereunder are
contingent upon the Company making the payments and otherwise complying with the terms of the
Performance Agreement relating to the Project Equipment during the term of this Lease. The terms and
conditions of the Performance Agreement relating to the Project Equipment are incorporated herein as if
fully set forth herein.
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ARTICLE VII
INSURANCE
Section 7.1. Casualty Insurance.
(a) The Company shall at its sole cost and expense obtain and 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 throughout
the Lease Term with a generally recognized responsible insurance company or companies authorized to do
business in the State of Missouri or generally recognized international insurers or reinsurers as may be
selected by the Company. The Company shall deliver certificates of insurance for such policies to the City
and the Trustee on the date of execution of this Lease and promptly after renewal of each insurance policy.
All such policies of insurance pursuant to this Section, and all renewals thereof, shall name the City and the
Company as insureds, as their respective interests may appear, shall name the Trustee as loss payee and, to
the extent such agreement is available from the insurer, shall contain an agreement by the insurer that,
notwithstanding any right of cancellation reserved to such insurer, such policy or contract shall continue in
force for at least 10 days’ after written notice of cancellation to the City, the Company, the Trustee and
each other insured or loss payee named therein. The Trustee’s sole duty with respect to the Company’s
compliance with the insurance requirements hereunder shall be to receive certificates of insurance pursuant
to this Section and to hold the same solely as repository for the benefit of the Owners. The Trustee makes
no representation as to, and shall have no responsibility for, the sufficiency or adequacy of the insurance.
(b) In the event of loss or damage to the Project Equipment, the Net Proceeds of casualty
insurance carried pursuant to this Section shall be, subject to the rights of any Financing Party under any
Financing Document, and unless otherwise provided by law, (1) paid over to the Trustee and applied as
provided in Article IX, or (2) applied as directed in writing by, or on behalf of, the Owners of 100% in
principal amount of the Bonds Outstanding.
Section 7.2. Public Liability Insurance.
(a) The Company shall at its sole cost and expense maintain or cause to be maintained at all
times during the Lease Term commercial general liability insurance (including but not limited to coverage
for operations, contingent liability, operations of subcontractors, completed operations and contractual
liability), under which the City and the Trustee shall be named as additional insureds, properly protecting
and indemnifying the City and the Trustee, in an amount not less than the limits of liability set by Section
537.610 of the Revised Statutes of Missouri, as amended (subject to reasonable loss deductible clauses not
to exceed the amounts normally or generally carried by the Company). The policies of said insurance shall,
to the extent such agreement is reasonably commercially available from the insurer, contain an agreement
by the insurer that, notwithstanding any right of cancellation reserved to such insurer, such policy or
contract shall continue in force for at least 10 days after written notice of cancellation to the Company, the
City, the Trustee and each other insured or loss payee named therein. Certificates of such policies shall be
furnished to the City and the Trustee on the date of execution of this Lease and promptly after renewal of
each insurance policy. The Trustee’s sole duty with respect to the Company’s compliance with the
insurance requirements hereunder shall be to receive certificates of insurance pursuant to this Section and
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to hold the same solely as repository for the benefit of the Owners. The Trustee makes no representation
as to, and shall have no responsibility for, the sufficiency or adequacy of the insurance.
(b) In the event of a general liability occurrence, the Net Proceeds of liability insurance carried
pursuant to this Section shall be applied toward the extinguishment or satisfaction of the liability with
respect to which such proceeds have been paid.
Section 7.3. 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. The
Company may satisfy any of the insurance requirements set forth in this Article using self-insurance or
insurance through a subsidiary or affiliate; so long as (i) the insurance is underwritten by a subsidiary or
other affiliate of the Company with a separate net worth of at least $150,000,000, or (ii) the Company funds
such insurance by appropriate reserves.
Section 7.4. Worker’s Compensation. The Company agrees throughout the Lease Term to
maintain or cause to be maintained the worker’s compensation coverage required by the laws of the State
of Missouri.
Section 7.5. 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.
(a) The Company may make such additions, modifications and improvements 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 (i) be made in workmanlike manner and will comply in all materi al respects with all
laws, orders and ordinances applicable thereto, (ii) when commenced, be prosecuted to completion with
due diligence, and (iii) 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 or deemed to be 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 and
equipment shall be subject to ad valorem personal property taxation.
(b) Following the Completion Date, any additions of machinery and equipment installed at the
Project Site by the Company shall remain the property of the Company and shall not become part of the
Project Equipment. Such machinery and equipment shall be subject to ad valorem personal property taxes.
If for any reason the Cole County Assessor determines that such additions of machinery and equipment are
not subject to ad valorem personal property taxes, the Company shall make payments in lieu of taxes in an
amount equal to the taxes that would otherwise be due on such machinery and equipment but for the City’s
ownership thereof, unless otherwise agreed to by the City.
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Section 8.2. Removal and Replacement of Project Equipment.
(a) The Company may, if no uncured Event of Default (as defined in Section 12.1) exists and
is continuing, remove from the Project Site and sell, exchange, replace or otherwise dispose of, without
responsibility or accountability to the City or the Trustee with respect thereto, any items of machinery and
equipment, or parts thereof, which constitute a part of the Project Equipment and which have become
inadequate, obsolete, worn out, unsuitable, undesirable, unnecessary or damaged or destroyed by casualty
or otherwise, notwithstanding the provisions of Article IX, or which, in the sound discretion of the
Company, are otherwise no longer useful to the Company in its operations. Before any such removal of
any item of machinery or equipment which constitutes a part of the Project Equipment, the Company shall
deliver to the City and the Trustee a certificate signed by an Authorized Company Representative containing
a complete description of the machinery or equipment that the Company proposes to remove. 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 the Project Equipment removed. Notwithstanding anything contained herein to the contrary,
title to any item of the Project Equipment removed from the Project Site as provided herein shall
automatically vest in the Company without further instrument or action, and such vesting of title shall be
self-operative effective upon removal. Any Project Equipment removed from the Project Site shall no
longer be entitled to the tax exemption afforded by virtue of the City’s ownership thereof.
(b) In all cases, the Company shall pay all of the costs and expenses of any such removal and
shall immediately repair at its expense all damage to the Project Site caused thereby. The Company’s right
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 that 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. 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. The City agrees to act
promptly on all requests for such municipal permits and authorizations. The City shall cooperate with the
Company to obtain, amend, or maintain any existing or future municipal or other governmental permit or
authorization for the Project Equipment which requires the City’s signature, certification, or consent as the
owner of any part of the Project Equipment, including executing any required applications, certifications,
or reports. All such work shall be done in a good and workmanlike manner and in material compliance
with all applicable material building and zoning laws and governmental regulations and requirements, and
in accordance with the requirements, rules and regulations of all insurers under the policies required to be
carried under the provisions of Article VII.
Section 8.4. Mechanics’ Liens.
(a) The 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 any such lien of which the Company is aware and shall
promptly, at its own expense, take such action as may be necessary to fully discharge or release any such
lien. Whenever and as often as any mechanics’ or other similar lien is filed against the Project Equipment,
or any part thereof, purporting to be for or on account of any labor done or services or materials furnished
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in connection with any work relating to the Project Equipment, the Company shall discharge the same of
record. Notice is hereby given that the City shall not be liable for any labor, services or materials furnished
to the Company or anyone claiming by, through or under the Company upon credit, and that no mechanics’
or other similar lien for any such labor, services or materials shall attach to or affect the reversionar y or
other estate of the City in and to the Project Equipment or any part thereof.
(b) Notwithstanding subsection (a) above, and subject to the terms of any Financing Document
executed by the Company in favor of and for the benefit of any Financing Party, the Company may contest
any such mechanics’ or other similar lien if the Company (1) within 60 days after the Company becomes
aware of any such lien 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 lien, 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 reasonably 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 the discharge or removal of 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, shall either (1) make the determination
described in subsection (f) below, or (2) repair, restore or replace the same so that upon completion of such
repairs, restoration, replacement or rebuilding the Project Equipment is of a value not less than the value
thereof immediately before the occurrence of such damage or destruction.
If the Company elects to repair, restore or replace any of the Project Equipment, for all purposes of
this Lease, any reference to the words “Project Equipment” shall be deemed to also include any replacement
machinery, equipment and fixtures.
Unless the Company makes the determination described in subsection (f) below, the Net Proceeds
of casualty insurance required by Article VII received with respect to such damage or loss to the Project
Equipment shall be used to pay the cost of repairing, restoring or replacing the Project Equipment or any
part thereof. Insurance monies in an amount less than $1,000,000 may be paid to or retained by the
Company to be held in trust and used as provided herein. Insurance monies in any amount of $1,000,000
or more shall be (1) paid to the Trustee and deposited in the Project Fund and shall be disbursed as provided
in Section 4.4 hereof to pay the cost of repairing, restoring, or replacing the Project or any part thereof, or
(2) applied as directed in writing by, or on behalf of, the Owners of 100% in principal amount of the Bonds
Outstanding, subject to the rights of any Financing Party. If the Company makes the determination
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described in subsection (f) below, the Net Proceeds shall be deposited with the Trustee and used to redeem
Bonds as provided in subsection (f), subject to the rights of any Financing Party.
(b) If any of the insurance monies paid by the insurance company as hereinabove provided
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, subject to the rights of any Financing Party
under any Financing Document, except as otherwise provided by law. Completion of such repairs,
restoration or replacement shall be evidenced by a certificate of completion delivered by the Company to
the City and the Trustee in accordance with the provisions of Section 4.5. If the Net Proceeds are
insufficient to pay the entire cost of such repairs, restoration, or replacement, the Company shall pay the
deficiency.
(c) Except as otherwise provided in this Lease, in the event of any such damage by fire or any
other casualty, the provisions of this Lease shall be unaffected and the Company shall remain and continue
to be liable for the payment of all Basic Rent and Additional Rent and all other charges required hereunder
to be paid by the Company, as though no damage by fire or any other casualty has occurred.
(d) The City and the Company agree that they will cooperate with each other, to such extent
as such other party may reasonably require, in connection with the prosecution or defense of any action or
proceeding arising out of, or for the collection of any insurance monies that may be due in the event of, any
loss or damage, and that they will execute and deliver to such other parties such instruments as may be
required to facilitate the recovery of any insurance monies.
(e) The Company agrees to give prompt written notice to the City, the Trustee and any
Financing Party with respect to all fires and any other casualties occurring in, on, at or about the Project
Site causing (in the Company’s opinion) damage of more than $1,000,000.
(f) If the Company determines that repairing, restoring or replacing the Project Equipment is
not practicable or desirable, or if the Company does not have the right under the Security Agreement or any
Financing Document to use any Net Proceeds for repair, restoration or replacement of the Project
Equipment, any Net Proceeds of casualty insurance required by Article VII received with respect to such
damage or loss shall, after payment of all Additional Rent then due and payable, be paid into the Bond Fund
and 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, all subject to the rights of any Financing Party under the Financing
Documents (if any). The Company agrees to be reasonable in exercising its judgment pursuant to this
subsection (f). Alternatively, if the Company is the sole owner of the Bonds and it has determined that
repairing, restoring or replacing the Project Equipment is not practicable or desirable, it may tender Bonds
to the Trustee for cancellation in a principal amount equal to the Net Proceeds of the casualty insurance and
retain such proceeds for its own account.
(g) The Company shall not, by reason of its inability to use all or any part of the Project
Equipment during any period in which the Project Equipment is damaged or destroyed or is being repaired,
restored or replaced, nor by reason of the payment of the costs of such repairing, rebuilding, restoring or
replacing, be entitled to any reimbursement from the City, the Trustee or the Owners or to any abatement
or diminution of the rentals payable by the Company under this Lease or of any other obligations of the
Company under this Lease except as expressly provided in this Section.
(h) The rights of the City and the Trustee in and to any Net Proceeds are and will at all times
be subject to the rights of any Financing Party with respect to such Net Proceeds.
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(i) Nothing herein shall be deemed to authorize the Company to allow an unsafe, dangerous,
unhealthy or injurious condition to exist on the Project Site or any portion thereof, in violation of any
applicable laws, codes and ordinances due to a fire or other casualty.
Section 9.2. Condemnation.
(a) If during the Lease Term, title to, or the temporary use of, all or any part of the Project
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, the
Trustee and any Financing Party under any Financing Document (if any) in writing as to the nature and
extent of such condemnation or loss of title and whether it is practicable and desirable to acquire 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 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 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 any Financing Party under any Financing Document.
(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 or
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 proceeding 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
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proceedings (or threats thereof) shall before 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 paragraph, the Financing Parties, if any, shall be deemed a
pledgee 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 (or their respective employees’ and
agents’) willful misconduct. This provision shall survive termination of this Lease, the satisfaction and
discharge of the Indenture, and the resignation or removal of the Trustee.
Section 10.2. Surrender of Possession. Upon accrual of the City’s right of re-entry to the extent
provided in Section 12.2(a)(2) hereof, the Company shall peacefully surrender possession of the Project
Equipment to the City in good condition and repair, ordinary wear and tear excepted; provided, however,
the Company may within 90 days (or such later date as the City may agree to) after the termination of this
Lease remove from the Project Site any machinery and equipment owned by the Company and not
constituting part of the Project Equipment. 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, and during said 90-day (or extended)
period the Company shall bear the sole responsibility for and bear the sole risk of loss of said machinery
and equipment owned by the Company and not constituting part of the Project Equipment. All machinery
and equipment owned by the Company and which are not so removed from the Project Site before the
expiration of said period shall be the separate and absolute property of the City. Notwithstanding the
foregoing, if the Company has paid all obligations due and owing under the Indenture (or such obligations
have been canceled), this Lease and the Performance Agreement, the City shall convey the Project
Equipment in accordance with Section 11.2 hereof.
Section 10.3. Right of Access to the Project Equipment. The City may conduct such periodic
inspections of the Project Equipment as may be generally provided in the City’s municipal code. In
addition, the Company agrees that the City and the Trustee and their duly authorized agents may, at
reasonable times during normal business hours and, except in the event of emergencies, upon not less than
five Business Days’ prior notice, subject to the Company’s usual business, proprietary, safety,
confidentiality and security requirements, enter upon the Project Site (a) to examine and inspect the Project
Equipment without interference or prejudice to the Company’s operations, (b) to monitor the purchase and
installation of the Project Equipment provided for in Section 4.2 hereof as may be reasonably necessary,
(c) to examine all files, records, books and other materials in the Company’s possession pertaining to the
purchase, installation or maintenance of the Project Equipment, or (d) upon either (i) the occurrence and
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continuance of an Event of Default or (ii) the Company’s failure to purchase the Project Equipment at the
end of the Lease Term, to exhibit the Project Equipment to prospective purchasers, lessees or trustees.
Section 10.4. Security Agreements and Financing Arrangements.
(a) Subject to Sections 10.4(c) and (d) below, if no Event of Default under this Lease has
occurred and is continuing, the City agrees that it will execute and deliver and will cause and direct the
Trustee in writing to execute and deliver any instrument necessary or appropriate to confirm and grant,
release or terminate any sublease, license, or any similar agreement or other arrangement, upon receipt by
the City and the Trustee of: (1) a copy of the instrument of grant, release or termination or of the agreement
or other arrangement, (2) a written application signed by an Authorized Company Representative
requesting such instrument, and (3) a certificate executed by an Authorized Company Representative
stating that such grant, release or termination is not detrimental to the proper conduct of the business of the
Company, will not impair the effective use or interfere with the efficient and economical operation of the
Project Equipment, will not materially adversely affect the security intended to be given by or under the
Indenture or the Performance Agreement, and will be a Permitted Encumbrance, and that the Company will
defend, indemnify and save and hold harmless the City from and against all claims, demands, costs,
liabilities, damages or expenses, including attorneys’ fees, arising from the execution and delivery of any
instrument, agreement or arrangement pursuant to this Section. If no Event of Default has occurred and is
continuing beyond any applicable grace period, any payments or other consideration received by the
Company for any such grant or with respect to or under any such agreement or other arrangement shall be
and remain the property of the Company; but, subject to Sections 10.4(b) and (c), upon (A) termination of
this Lease for any reason other than the redemption of the Bonds and/or the purchase of the Project
Equipment by the Company or (B) the occurrence and continuance of an Event of Default by the Company,
all rights then existing of the Company with respect to or under such grant shall inure to the benefit of and
be exercisable by the City and the Trustee.
(b) The City acknowledges and agrees that the Company may finance and refinance its rights
and interests in the Project Equipment, this Lease and the leasehold estate created hereby and, in connection
therewith, the Company may execute Financing Documents with one or more Financing Parties.
Notwithstanding anything contained to the contrary in this Lease, the Company may, at any time and from
time to time, with prior notice to but without the consent of the City (1) execute one or more Financing
Documents upon the terms contained in this Section 10.4 and (2) sublease or assign this Lease, the leasehold
estate, any sublease and rights in connection therewith, and/or grant liens or security interests therein, to
any Financing Party. Any further sublease or assignment by any Financing Party shall be subj ect to the
provisions of Section 13.1 hereof.
(c) Upon notice by the Company to the City in writing that the Company has executed one or
more Financing Documents under which it has granted rights in this Lease to a Financing Party, which
includes the name and address of such Financing Party, then the following provisions shall apply in respect
of each such Financing Party and any Financing Party existing as of the date of the execution and delivery
hereof:
(1) there shall be no merger of this Lease or of the leasehold estate created hereby with
legal title to the Project Equipment, notwithstanding that this Lease or said leasehold estate and
said legal title shall be owned by the same Person or Persons, without the prior written consent of
each such Financing Party;
(2) the City shall serve upon each such Financing Party (at the address, if any,
provided to the City) a copy of each notice of the occurrence of an Event of Default and each notice
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of termination given to the Company under this Lease, at the same time as such notice is served
upon the Company. No such notice to the Company shall be effective unless a copy thereof is thus
served upon each Financing Party;
(3) each such Financing Party shall have the same period of time which the Company
has, after the service of any required notice upon it, within which to remedy or cause to be remedied
any payment default under this Lease which is the basis of the notice plus 30 days, and the City
shall accept performance by any Financing Party as timely performance by the Company;
(4) the City may exercise any of its rights or remedies with respect to any Event of
Default by the Company, subject to the rights of any Financing Party under this Section 10.4(c) as
to such Event of Default;
(5) upon the occurrence and continuance of an Event of Default by the Company under
this Lease, other than a default in the payment of money, the City shall take no action to effect a
termination of this Lease by service of a notice or otherwise, without first giving notice thereof to
each such Financing Party and permitting each such Financing Party (or its designee, nominee,
assignee or transferee) a reasonable time within which to remedy such default in the case of an
Event of Default which is susceptible of being cured (provided that the period to remedy such Event
of Default shall continue beyond any period set forth in this Lease to effect said cure so long as the
Financing Party (or its designee, nominee, assignee or transferee) is diligently prosecuting such
cure); provided that the Financing Party (or its designee, nominee, assignee or transferee) shall pay
or cause to be paid to the City and the Trustee all expenses, including reasonable attorneys’ fees,
court costs and disbursements incurred by the City or the Trustee in connection with any such
default;
(6) each Financing Party (and its designees, nominees, assignees or transferees) may
enter the Project Site and possess and use the Project Equipment at such reasonable times and
manner as are necessary or desirable to effectuate the remedies and enforce its respective rights
under its respective Financing Documents;
(7) except for terminations of this Lease expressly authorized herein, this Lease may
not be modified, amended, canceled or surrendered by agreement between the City and the
Company without the prior written consent of each such Financing Party; and
(8) upon the occurrence and continuance of an Event of Default, each Financing Party
may, on behalf of the Company and without the consent of the Company, but only after having first
caused the redemption of the Bonds, exercise on behalf of the Company the right to purchase the
Project Equipment pursuant to Section 11.1 hereof, upon compliance with the provisions of that
Section. The Company agrees that the City will have no liability for taking direction from any
Financing Party in connection with a conveyance of the Project Equipment back to the Company
pursuant to Article XI hereof.
(d) In connection with the execution of one or more Financing Documents, upon the request
of the Company, the City agrees to execute such documents as shall be reasonably requested by a Financing
Party and which are usual and customary in connection with the closing of the financing or refinancing
pursuant to the Financing Documents. The Company agrees to reimburse the City for any and all costs and
expenses incurred by the City pursuant to this Section, including reasonable attorneys’ fees and expenses,
in complying with such request.
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(e) The Company’s obligations under any Financing Document relating to the Project
Equipment entered into after the date of execution of this Lease, except for any loans or security agreements
or other Financing Documents related to the Project Equipment that the Company now or hereafter has in
place with any Financing Party, shall be subordinate to the Company’s obligations under this Lease.
(f) Notwithstanding the foregoing, the City may agree to other provisions and documents
requested by the Company or any Financing Party not contemplated by this Section 10.4, subject to approval
by the City Council.
Section 10.5. Indemnification of City and Trustee. The Company shall defend, indemnify and
save and hold harmless the City and the Trustee and their governing body members, officers, agents and
employees from and against all claims, demands, costs, liabilities, damages or expenses, including
attorneys’ fees, by or on behalf of any Person, firm or corporation arising from the issuance of the Bonds
and the execution of the Performance Agreement, this Lease (or any instrument requested by the Company
pursuant to Section 10.4 hereof), the Indenture, or any other document entered into in connection with the
Bonds and from the conduct or management of, or from any work or thing done on the Project Equipment
during the Lease Term, and against and from all claims, demands, costs, liabilities, damages or expenses,
including attorneys’ fees, arising during the Lease Term from (a) any condition of the Project Equipment,
(b) 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, (c) any contract entered into in connection
with the purchase and installation of the Project Equipment (including mechanics’ liens), (d) any act of
negligence of the Company or of any of its agents, contractors, servants, employees or licensees, (e) unless
the Company has been released from liability pursuant to Section 13.1, any act of negligence of any
assignee or sublessee of the Company, or of any agents, contractors, servants, employees or licensees of
any assignee or sublessee of the Company, (f) obtaining any applicable state and local sales and use tax
exemptions for materials or goods that become part of the Project Equipment, and (g) any violation of
Section 107.170 of the Revised Statutes of Missouri; provided, however, the indemnification contained in
this Section 10.5(a)-(e) shall not extend to (i) the City to the extent that such claims, demands, costs,
liabilities, damages or expenses, including attorneys’ fees, are the result of malfeasance in office or willful
or wanton neglect of duty by the City or any of its officers and employees, whether elective or appointive,
or (ii) the Trustee to the extent that such claims, demands, costs, liabilities, damages or expenses, including
attorneys’ fees, are the result of gross negligence or willful misconduct of the Trustee. Upon written notice
from the City or the Trustee of any such claim or demand, the Company shall defend them or either of them
in any such action or proceeding; provided, that the City shall cooperate with the Company and provide
reasonable assistance in such defense. All costs related to the defense of the City or the Trustee shall be
paid by the Company. This Section 10.5 shall survive any termination of the Performance Agreement and
this Lease or the satisfaction and discharge of the Indenture.
Section 10.6. Depreciation and Other Tax Benefits. The City and the Company hereby
acknowledge and agree that:
(a) this Lease is intended to be and shall be treated as a “financing lease” for federal
income tax purposes;
(b) solely for federal income tax purposes, the Company shall be treated as the owner
of the Project Equipment and, as such, shall be entitled to claim all depreciation and amortization
deductions and other tax benefits attributable to the ownership of the Project Equipment;
(c) each party shall report and file all federal income tax returns consistent with the
intended tax treatment; and
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(d) the City will fully cooperate with the Company in any effort by the Company to
avail itself of any such depreciation, amortization deductions and other tax benefits.
Section 10.7. Company to Maintain its 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 in good standing, 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 Person or permit one or more other Persons to consolidate
with or merge into it, or may sell or otherwise transfer to another Person all or substantially all of its assets
as an entirety and thereafter dissolve or convert into a different type of legal entity, if the surviving, resulting
or transferee Person (a) expressly assumes in writing all of the obligations of the Company contained in
this Lease and (i) has a long-term debt rating or is controlled by or under common control with an entity
with a long-term debt rating in any of the top three long-term debt rating categories by any nationally
recognized rating service or (ii) is controlled by, under common control with or controls the Company, or
(b) is otherwise approved by the City Council. This Section does not limit the Company’s transfer rights
under Section 13.1 hereof.
Section 10.8. Security Interests. The City and the Company hereby authorize the Trustee to
file all appropriate financing and continuation statements as may be required under the Uniform
Commercial Code in order to fully preserve and protect the security of the Owners and the rights of the
Trustee under the Indenture. Upon the written instructions of the Owners or pledgees of 100% of the Bonds
then-Outstanding, the Trustee shall file all continuation instruments the Owners deem necessary to be filed
and shall continue or cause to be continued such instruments for so long as the Bonds are Outstanding. The
City and the Company shall cooperate with the Trustee in this regard by providing such information as the
Trustee may require to file or renew such statements. The Trustee shall maintain a file showing a description
of all Project Equipment, said file to be compiled from the information and certificates furnished to the
Trustee pursuant to Section 4.2, Section 4.4 and Section 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, upon payment
in full or redemption of the Outstanding Bonds to be redeemed or provision for their payment or redemption
having been made pursuant to Article XIII of the Indenture. To exercise such option, the Company shall
(a) give written notice to the City and 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,
(b) provide evidence of payment of all uncontested personal property taxes with respect to the Project
Equipment, if any, and (c) 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
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the Trustee on or before the 29th day and by taking such action as may be required to cure the default that
led to the giving of the Remedies Notice. The purchase price payable by the Company in the event of its
exercise of the option granted in this Section shall be the sum of the following:
(1) an amount of money which, when added to the amount then on deposit in the Bond
Fund, will be sufficient to redeem all or a portion of the then-Outstanding Bonds on the earliest
redemption date next succeeding the closing date, including, without limitation, principal and
interest to accrue to said redemption date and redemption expense, or the Company, as sole Owner
of the Bonds, can tender the Outstanding principal amount of the Bonds for cancellation with
instructions that such tender is in lieu of payment of the amount sufficient to redeem the then-
Outstanding Bonds as provided in Section 11.5 hereof; plus
(2) an amount of money equal to the Trustee’s and the Paying Agent’s agreed to and
reasonable fees, charges and expenses under the Indenture accrued and to accrue until such
redemption of the Bonds; plus
(3) 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; plus
(4) 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
(5) the sum of $10.00.
Section 11.2. Conveyance of the Project Equipment. At the closing of the purchase of the
Project Equipment pursuant to this Article, the City will upon receipt of the purchase price deliver to the
Company the following:
(a) 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 st atements 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: (i) those liens and
encumbrances, if any, to which title to the Project Equipment was subject when conveyed to the
City; (ii) those liens and encumbrances created by the Company or to the creation or suffering of
which the Company consented; (iii) those liens and encumbrances resulting from the failure of the
Company to perform or observe any of the agreements on its part contained in this Lease;
(iv) Permitted Encumbrances other than the Indenture and this Lease; and (v) if the Project
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 option 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 option
will not result in nonfulfillment of any condition to the exercise of any such option (including the payment
of all amounts specified in Section 11.1 hereof) and further provided that the option herein granted shall
terminate upon the termination of this Lease.
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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, (b) payment of the sum of the items set forth in Section
11.1 hereof, (c) payment of all personal property taxes due with respect to the Project Equipment, and (d)
the final payment due under the Performance Agreement. The amount of the purchase price under this
Section shall be an amount sufficient to redeem all of the then-Outstanding Bonds, 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 accrued interest and the reasonable fees and expenses of the City and the Trustee.
Section 11.5. Right to Set-Off. At its option, to be exercised at least five days before the date
of closing of any purchase under this Article XI, 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. The Company may set-off any payment obligation under
this Article XI by tendering a corresponding amount of the Bonds to the Trustee for cancellation.
ARTICLE XII
DEFAULTS AND REMEDIES
Section 12.1. Events of Default.
(a) If any one or more of the following events occurs and is continuing, it is hereby defined as
and declared to be and to constitute an “Event of Default” under this Lease:
(1) default in the due and punctual payment of Basic Rent or Additional Rent within
10 days after written notice thereof from the City to the Company and any Financing Party; or
(2) 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 continues for 60 days after the City or the Trustee has given the Company and any Financing
Party written notice specifying such default (or such longer period as is reasonably required to cure
such default, provided that (i) the Company or any Financing Party, as applicable, has commenced
such cure within said 60-day period, and (ii) the Company or any Financing Party, as applicable,
diligently prosecutes such cure to completion); or
(3) the Company: (i) admits in writing its inability to pay its debts as they become
due; or (ii) files a petition in bankruptcy or for reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under the 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 (iii) makes an assignment for the benefit of
creditors; or (iv) consents to the appointment of a trustee, receiver or liquidator for all or a
substantial portion of its property or fails to have the appointment of any trustee, receiver or
liquidator made without the Company’s consent or acquiescence, vacated or set aside; or (v) is
finally adjudicated as bankrupt or insolvent under any federal or state law; or (vi) is subject to any
proceeding, or suffers the entry of a final and non-appealable court order, under any federal or state
law appointing a trustee, receiver or liquidator for all or a substantial part of its property or ordering
-25-
the winding-up or liquidation of its affairs, or approving a petition filed against it under the United
States Bankruptcy Code, as now or in the future amended, which proceeding or order, if not
consented to by it, is not dismissed, vacated, denied, set aside or stayed within 90 days after the
day of commencement or entry; or (vii) suffers a writ or warrant of attachment or any similar
process to be issued by any court against all or any substantial portion of its property, and such writ
or warrant of attachment or any similar process is not contested, stayed or released within 60 days
after the final entry or levy or after any contest is finally adjudicated or any stay is vacated or set
aside; or
(4) an Event of Default on the part of the Company under the Performance Agreement,
as defined in Section 6.1 thereof.
(b) The Trustee shall give each Financing Party notice of the occurrence of any Event of
Default of which the Trustee has notice pursuant to the terms of the Indenture. Any Financing Party may,
at its election, but shall have no obligation to, cure such Event of Default.
Section 12.2. Remedies on Default.
(a) If any Event of Default referred to in Section 12.1 has occurred and continues beyond the
period provided to cure, then the City may at the City’s election (subject, however, to any restrictions
against acceleration of the maturity of the Bonds or termination of this Lease in the Indenture), then or at
any time thereafter, and while such default continues, take any one or more of the following actions, in
addition to the remedies provided in Section 12.5:
(1) cause all amounts payable with respect to the Bonds for the remainder of the term
of this Lease to become due and payable, as provided in the Indenture; or
(2) give the Company written notice of intention to terminate this Lease on a date
specified therein, which date shall not be earlier than 60 days after such notice is given, and if all
defaults have not then been cured, on the date so specified, the Owners shall tender or be deemed
to have tendered the Outstanding principal amount of the Bonds for cancellation with instructions
that such tender is in lieu of payment in accordance with Section 11.5, the Company’s rights to
possession of the Project Equipment shall cease (subject to the Financing Documents of any
Financing Party) and this Lease shall thereupon be terminated, and the City may re-enter and take
possession of the Project Equipment, or the City may convey the Project Equipment to the
Company and bring an action against the Company for the purchase price of the Project Equipment
(subject to the Financing Documents of any Financing Party) under Section 11.1; provided,
however, 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. The Company’s right to cause the conveyance of the Project Equipment in
accordance with Section 11.2 shall survive the expiration or termination of this Lease.
(b) If the City defaults on any of its obligations under this Lease, the Company’s sole remedy
for such default shall be to sue for specific performance of this Lease.
Section 12.3. Survival of Obligations. The Company covenants and agrees with the City and
the Owners that its obligations under this Lease shall survive the cancellation and termination of this Lease,
for any cause, and that the Company shall continue to pay the Basic Rent and Additional Rent (to the extent
the Bonds remain Outstanding) and perform all other obligations provided for in this Lease, all at the time
or times provided in this Lease; provided, however, that upon (a) the payment of all Basic Rent and
-26-
Additional Rent required under Article V hereof, (b) the satisfaction and discharge of the Indenture under
Section 1301 thereof, and (c) the Company’s exercise of the purchase option contained in Article XI hereof,
the Company’s obligations under this Lease shall thereupon cease and terminate in full, except that the
indemnification contained in Article X and the obligations with respect to compensation of the City and
the Trustee shall not so terminate.
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 to do so) upon the
continuance of such failure on the Company’s part for 60 days after written notice of such failure is given
to the Company by the City or the Trustee, and without waiving or releasing the Company from any
obligation hereunder, as an additional but not exclusive remedy, make any such payment or perform any
such obligation, and all reasonable sums so paid by the City or the Trustee and all necessary incidental
reasonable 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 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 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 or elsewhere in
this Lease to the contrary, however, the Company’s option to purchase the Project Equipment as provided
in Article XI hereof 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 hereof. The parties agree that no provision of
this Lease shall be construed to allow the City to require the Company to acquire or install the Project
Equipment.
Section 12.6. Waiver of Breach. No waiver of any breach of any covenant or agreement herein
contained shall operate as a waiver of any subsequent breach of the same covenant or agreement or as a
waiver of any breach of any other covenant or agreement, and in case of a breach by the Company of any
covenant, agreement or undertaking by the Company, the City may nevertheless accept from the Company
any payment or payments hereunder without in any way waiving the City’s right to exercise any of its rights
and remedies provided for herein with respect to any such default or defaults of the Company which were
in existence at the time such payment or payments were accepted by the City.
Section 12.7. Trustee’s Exercise of the City’s Remedies. Whenever any Event of Default has
occurred and is continuing, the Trustee may, but except as otherwise provided in the Indenture shall not be
obligated 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.
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ARTICLE XIII
ASSIGNMENT AND SUBLEASE
Section 13.1. Assignment; Sublease.
(a) The Company may sublease, assign, transfer, encumber or dispose of this Lease or any
interest herein or part hereof for any lawful purpose under the Act, and sublease, license or otherwise grant
rights to use the Project Equipment upon providing written notice to the City. Except as otherwise provided
in this Section or in Section 10.4 hereof, the Company must obtain the City’s prior written consent to any
such disposition, unless such disposition is (1) to an entity controlled by or under common control with or
controlling the Company, (2) to an entity into which the Company is being merged or consolidated, or (3)
an assignment to any Financing Party.
(b) With respect to any assignment, the Company shall comply with the following conditions:
(1) the Company shall notify the City and the Trustee of the assignment in writing;
(2) such assignment shall be in writing, duly executed and acknowledged by the
assignor and in proper form for recording;
(3) such assignment shall include the entire then unexpired term of this Lease; and
(4) a duplicate original of such assignment shall be delivered to the City and the
Trustee within 10 days after the execution thereof, together with an assumption agreement, duly
executed and acknowledged by the assignee and in proper form for recording, if appropriate, 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.
(c) Any assignee of all the rights of the Company 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 to which
the Company is a party. Upon such assignment of all the rights of the Company and agreement by the
assignee to be bound by the terms of this Lease, the Performance Agreement and any other documents
related to the issuance of the Bonds to which the Company is a party, the Company shall be released from
and have no further obligations under this Lease, the Performance Agreement or any other documents
related to the issuance of the Bonds.
Section 13.2. Assignment of Revenues by City. The City shall pledge and assign any rents,
revenues and receipts receivable under this Lease to the Trustee pursuant to the Indenture as security for
payment of the principal of, interest and premium, if any, on the Bonds, and the Company hereby consents
to such pledge and assignment.
Section 13.3. Restrictions on Sale or Encumbrance of Project Equipment by City. During
the Lease Term, the City agrees that, except to secure the Bonds to be issued pursuant to the Indenture and
except to enforce its rights under Section 12.2 hereof, it will not sell, assign, encumber, mortgage, transfer
or convey the Project Equipment or any interest therein.
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ARTICLE XIV
AMENDMENTS, CHANGES AND MODIFICATIONS
Section 14.1. Amendments, Changes and Modifications. Except as otherwise provided in this
Lease or in the Indenture, subsequent to the issuance of the Bonds and before the payment in full of the
Bonds (or provision for the payment thereof having been made in accordance with the provisions of the
Indenture), this Lease may not be effectively amended, changed, modified, altered or terminated without
the prior written consent of the Trustee, given in accordance with the provisions of the Indenture, which
consent, however, shall not be unreasonably withheld, and the written consent of all of the Owners and any
Financing Party.
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.1. Notices. All notices, certificates or other communications required or desired to
be given hereunder shall be in writing and shall be deemed duly given when (a) mailed by registered or
certified mail, postage prepaid, or (b) sent by overnight delivery or other delivery service which requires
written acknowledgment of receipt by the addressee, addressed as follows:
(1) To the City:
City of Jefferson, Missouri
320 East McCarty Street
Jefferson City, Missouri 65101
Attention: City Administrator and City Attorney
with a copy to:
Gilmore & Bell, P.C.
2405 Grand Boulevard, Suite 1100
Kansas City, Missouri 64108
ATTN: Haden Crumpton, Esq.
(2) To the Trustee:
UMB Bank, N.A.
928 Grand Boulevard
Kansas City, Missouri 64106
Attention: Corporate Trust Department
(3) To the Company:
Unilever Manufacturing (US), Inc.
2900 West Truman Boulevard
Jefferson City, Missouri 65109
ATTN: Michael Whelan, Director of Operations
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with copies to:
Unilever United States, Inc.
700 Sylvan Avenue
Englewood Cliffs, New Jersey 07632
ATTN: General Counsel
Lathrop GPM LLP
2345 Grand Boulevard, Suite 2200
Kansas City, Missouri 64108
ATTN: Catherine Logan, Esq.
All notices given by certified or registered mail as aforesaid shall be deemed fully given as of the
date they are so mailed, provided, however, that notice to the Trustee shall be effective only upon receipt.
A duplicate copy of each notice, certificate or other communication given hereunder by either the City or
the Company to the other shall also be given to the Trustee. The City, the Company and the Trustee may
from time to time designate, by notice given hereunder to the others of such parties, such other addresses
to which subsequent notices, certificates or other communications shall be sent.
Section 15.2. City Shall Not Unreasonably Withhold Consents and Approvals. Wherever in
this Lease it is provided that the City shall, may or must give its approval or consent, or execute
supplemental agreements or schedules, the City shall not unreasonably, arbitrarily or unnecessarily
withhold or refuse to give such approvals or consents or refuse to execute such supplemental agreements
or schedules; provided, however, that nothing in this Lease shall be interpreted to affect the City’s rights to
approve or deny any additional project or matter unrelated to the Project Equipment, and the Project
Equipment remains subject to zoning, building permit or other regulatory approvals by the City.
Section 15.3. Net Lease. The parties hereto agree (a) that this Lease shall be deemed and
construed to be a net lease, (b) that the payments of Basic Rent are designed to provide the City and the
Trustee funds adequate in amount to pay all principal of and interest accruing on the Bonds as the same
becomes due and payable, (c) that to the extent that the payments of Basic Rent are not sufficient to provide
the City and the Trustee with funds sufficient for the purposes aforesaid, the Company shall be obligated to
pay, and it does hereby covenant and agree to pay, upon demand therefor, as Additional Rent, such further
sums of money, in cash, as may from time to time be required for such purposes, and (d) that if after the
principal of and interest on the Bonds and all costs incident to the payment of the Bonds (including the fees
and expenses of the City and the Trustee) have been paid in full the Trustee or the City holds unexpended
funds received in accordance with the terms hereof, such unexpended funds shall, after payment therefrom
of all sums then due and owing by the Company under the terms of this Lease, and except as otherwise
provided in this Lease and the Indenture, become the absolute property of and be paid over forthwith to the
Company.
Section 15.4. Limitation on Liability of City. No provision, covenant or agreement contained
in this Lease, the Indenture or the Bonds, or any obligation herein or therein imposed upon the City, or the
breach thereof, shall constitute or give rise to or impose upon the City a pecuniary liability or a charge upon
the general credit or taxing powers of the City or the State of Missouri.
Section 15.5. Governing Law. This Lease shall be construed in accordance with and governed
by the laws of the State of Missouri.
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Section 15.6. Binding Effect . This Lease shall be binding upon and shall inure to the benefit
of the City and the Company and their respective successors and assigns.
Section 15.7. Severability. If for any reason any provision of this Lease shall be determined to
be invalid or unenforceable, the validity and enforceability of the other provisions hereof shall not be
affected thereby.
Section 15.8. Execution in Counterparts. This Lease may be executed in several counterparts,
each of which shall be deemed to be an original and all of which shall constitute but one and the same
instrument.
Section 15.9. Electronic Transaction. The parties agree that the transaction described herein
may be conducted and related documents may be sent, received or stored by electronic means. Copies,
telecopies, facsimiles, electronic files and other reproductions of original executed documents shall be
deemed to be authentic and valid counterparts of such original documents for all purposes, including the
filing of any claim, action or suit in the appropriate court of law.
Section 15.10. City Consents and Approvals. Pursuant to the Ordinance, the Mayor or Mayor
Pro-Tem and the City Administrator are authorized to execute all documents on behalf of the City (including
documents pertaining to the transfer of property or the financing or refinancing of the Project Equipment
by the Company, and such licenses and similar documents as may be requested by the Company) as may
be required to carry out and comply with the intent of the Ordinance, the Indenture and this Lease. The
Mayor or Mayor Pro-Tem and the City Administrator are also authorized, unless expressly prohibited
herein, to grant on behalf of the City such consents, estoppels and waivers relating to the Bonds, the
Indenture, this Lease or the Performance Agreement as may be requested during the term hereof; provided,
such consents, estoppels and/or waivers shall not increase the principal amount of the Bonds, increase the
term of this Lease or adversely affect the tax exemption as provided for herein, waive an Event of Default,
or materially change the nature of the transaction unless approved by the City Council.
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.
[Remainder of Page Intentionally Left Blank]
Personal Property Lease Agreement
City of Jefferson, Missouri
Taxable Industrial Development Revenue Bonds
(Unilever – Personal Property Project)
Series 2024B
S-1
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed in their
respective names by their duly authorized signatories, all as of the date first above written.
CITY OF JEFFERSON, MISSOURI
By:
Name: Ron L. Fitzwater
Title: Mayor
[SEAL]
ATTEST:
By:
Name: Emily Donaldson
Title: City Clerk
Personal Property Lease Agreement
City of Jefferson, Missouri
Taxable Industrial Development Revenue Bonds
(Unilever – Personal Property Project)
Series 2024B
S-2
UNILEVER MANUFACTURING (US), INC.,
a Delaware corporation
By:
Name: Natalia Cavaliere
Title: Vice President & Assistant Secretary
A-1
EXHIBIT A
PROJECT EQUIPMENT
The Project Equipment consists of all items of machinery, equipment and other personal property
acquired on or before the Completion Date for installation in the Project Improvements located on the
Project Site pursuant to Article IV of this Lease and paid for in whole from proceeds of the Bonds.
B-1
EXHIBIT B
FORM OF REQUISITION CERTIFICATE
Requisition No. _____
Date: _______________
REQUISITION CERTIFICATE
TO: UMB BANK, N.A., AS TRUSTEE UNDER A PERSONAL PROPERTY TRUST
INDENTURE DATED AS OF APRIL 1, 2024, BETWEEN THE CITY OF JEFFERSON,
MISSOURI, AND THE TRUSTEE, AND A PERSONAL PROPERTY LEASE
AGREEMENT DATED AS OF APRIL 1, 2024, BETWEEN THE CITY OF JEFFERSON,
MISSOURI, AND UNILEVER MANUFACTURING (US), INC.
The undersigned Authorized Company Representative hereby states and certifies that:
1. A total of $__________ is requested to pay for Project Costs relating to the acquisition and
installation of the Project Equipment. The total amount of this requisition and all prior requisitions for
Project Costs is as follows:
Date of Project Costs
Amount Submitted in
this Requisition
Requisitions Submitted to Date
(Including this Requisition)
2. A total of $__________ has been requested to pay for all Project Costs to date, including
the Project Costs listed above, which total amount is less than $50,000,000.
3 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.
4. 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 is the Bill of Sale transferring said Project Equipment to the City.
5. Each of the items for which payment is requested are or were desirable 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, 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.
B-2
6. As of this date, except for the amounts referred to above, to the best of my knowledge there
are no outstanding disputed statements for which payment is requested for labor, wages, materials, supplies
or services in connection with the purchase and 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.
7. Capitalized words and terms used in this Requisition Certificate, including schedules and
exhibits hereto, have the meanings given to such words and terms in Section 101 of the Personal Property
Trust Indenture.
8. With respect to any such requisition, the Company (i) certifies they have reviewed any wire
instructions set forth in such written disbursement direction to confirm such wire instructions are accurate,
and (ii) agrees they will not seek recourse from the Trustee as a result of losses incurred by it for making
the disbursement in accordance with the disbursement direction.
UNILEVER MANUFACTURING (US), INC.
By:
Authorized Company Representative
Approved this _____ day of ____________________, 20___.
CITY OF JEFFERSON, MISSOURI
By:
Authorized City Representative
B-3
SCHEDULE 1 TO REQUISITION CERTIFICATE
PROJECT COSTS
Payee and Address Description Amount
B-4
SCHEDULE 2 TO REQUISITION CERTIFICATE
PROJECT EQUIPMENT
Item (Description)
Serial, Identification or
Account Number
Cost
of Equipment
B-5
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, UNILEVER MANUFACTURING (US), INC., a Delaware 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 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 in the Lease Agreement dated as of April 1, 2024, between the Buyer and the Seller, subject to the
Permitted Encumbrances.
TO HAVE AND TO HOLD the same unto Buyer, its successors and assigns, subject however to
the terms of the Lease and those security interests, liens and/or encumbrances as therein set forth, including,
without limitation, the Permitted Encumbrances.
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 or implied.
IN WITNESS WHEREOF, Seller has caused this Bill of Sale to be executed in its name by its
duly authorized officer this _____ day of __________, 20___.
UNILEVER MANUFACTURING (US),
INC., a Delaware corporation
By:
Title:
Gilmore & Bell, P.C.
Draft v2 – February 27, 2024
$33,000,000
(AGGREGATE MAXIMUM PRINCIPAL AMOUNT)
CITY OF JEFFERSON, MISSOURI
TAXABLE INDUSTRIAL DEVELOPMENT REVENUE BONDS
(UNILEVER - REAL PROPERTY PROJECT)
SERIES 2024B
Dated as of April 1, 2024
REAL PROPERTY BOND PURCHASE AGREEMENT
Mayor and City Council
City of Jefferson, Missouri
320 East McCarty Street
Jefferson City, Missouri 65101
On the basis of the representations and covenants and upon the terms and conditions contained in
this Real Property Bond Purchase Agreement (this “Agreement”), Unilever Manufacturing (US), Inc., a
Delaware corporation (the “Purchaser”), offers to purchase from the City of Jefferson, Missouri (the
“City”), the above-referenced bonds (the “Bonds”), to be issued by the City under and pursuant to
Ordinance No. [____] passed by the City Council of the City on March 18, 2024 (the “Ordinance”) and a
Real Property Trust Indenture dated as of April 1, 2024 (the “Indenture”) by and between the City and
UMB Bank, N.A., as trustee (the “Trustee”). Capitalized terms not otherwise defined herein shall have
the meanings set forth in the Indenture.
SECTION 1. REPRESENTATIONS AND AGREEMENTS
(a) By the City’s acceptance hereof, the City hereby represents to the Purchaser that:
(1) The City is a home rule charter city duly organized and validly existing under the
laws of the State of Missouri. The City is authorized pursuant to the Constitution, the laws of the
State of Missouri, the City Charter and the ordinances and resolutions of the City, and all necessary
action has been taken to authorize, issue and deliver the Bonds and to consummate all transactions
contemplated by the Ordinance, this Agreement, the Indenture, the Real Property Lease Agreement
dated as of April 1, 2024 (the “Lease”) by and between the City and the Purchaser, the Performance
Agreement dated as of April 1, 2024 (the “Performance Agreement”) by and between the City
and the Purchaser, and any and all other agreements relating thereto. The proceeds of the Bonds
shall be used for the purpose of acquiring and constructing the Project Improvements on the Project
Site (collectively, the “Real Property”) and paying the costs incurred in connection with the
issuance of the Bonds.
(2) There is no controversy, suit or other proceeding of any kind pending and served
or, to the City’s knowledge, threatened wherein or whereby any question is raised or may be raised,
questioning, disputing or affecting in any way the legal organization of the City or its boundaries,
or the right or title of any of its officers to their respective offices, or the legality of any official act
leading up to the issuance of the Bonds, or the constitutionality or validity of the obligations
-2-
represented by the Bonds, or the validity of the Bonds, the Ordinance, the Lease, the Indenture, the
Performance Agreement or this Agreement.
(b) The Purchaser represents as follows:
(1) Organization. The Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and is in good standing and authorized to
do business in the State of Missouri.
(2) No Conflict or Breach. The execution, delivery and performance of this
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) Document Legal, Valid and Binding. When executed and delivered by the
Purchaser, this 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.
(4) Purchaser’s Certificates. Any certificate signed by an authorized officer or agent
of the Purchaser and delivered to the City shall be deemed a representation and warranty by the
Purchaser to the City as to the statements made therein.
SECTION 2. PURCHASE, SALE AND DELIVERY OF THE BONDS
(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 set forth herein and in the Indenture,
the Purchaser agrees to purchase from the City and the City agrees to sell to the Purchaser the Bonds on the
terms and conditions set forth herein.
(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), which amount shall
be applied as provided in the Indenture and the Lease. From time to time after the Closing Date, the
Purchaser shall make additional payments with respect to the Bonds (“Additional Payments”) to the
Trustee under the Indenture, which Additional Payments shall be applied to the payment or reimbursement
of Project Costs or as provided in the Indenture and the Lease; provided that the sum of the Closing Price
and all such Additional Payments shall not, in the aggregate, exceed $33,000,000 plus the costs of issuance
of the Bonds (if such costs of issuance are not paid with Bond proceeds).
(c) As used herein, the term “Closing Date” shall mean April [___], 2024, or such other date
as shall be mutually agreed upon by the City and the Purchaser; the term “Closing Price” shall mean 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 may consist of all or a portion of the
Project Costs spent by the Purchaser from its own funds on or before the Closing Date, and, at the
Purchaser’s option, the costs of issuance of the Bonds if such costs are not paid for from Bond proceeds.
-3-
(d) The Bonds shall be issued under and secured as provided in the Ordinance, the Indenture
and the Lease authorized thereby, and the Bonds shall have the maturity, interest rate and shall be subject
to redemption as set forth therein. The delivery of the Bonds shall be made in definitive form as a fully-
registered bond in the maximum aggregate principal denomination of $33,000,000; provided, that the
principal amount of the Bonds outstanding at any time shall be that amount recorded in the records of the
Trustee, absent manifest error, and further provided that interest 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 OBLIGATIONS
The obligations hereunder shall be subject to the due performance by the parties of the obligations
and agreements to be performed hereunder on or prior to the Closing Date and to the accuracy of and
compliance with the representations contained herein, as of the date hereof and as of the Closing Date, and
are also subject to the following conditions:
(a) There shall be delivered to the Purchaser on or prior to the Closing Date a duly
certified copy of the Ordinance, the Indenture, the Lease, the Performance Agreement, this
Agreement and any other instrument contemplated thereby, and such documents shall be in full
force and effect and shall not have been modified or changed except as may have been agreed to in
writing by the Purchaser.
(b) The City shall confirm on the Closing Date by a certificate that at and as of the
Closing Date the City has taken all action necessary to issue the Bonds and that there is no
controversy, suit or other proceeding of any kind pending and served or, to its knowledge,
threatened against the City wherein any question is raised affecting in any way the legal
organization of the City, or the legality of any official act shown to have been done in the transcript
of proceedings leading up to the issuance of the Bonds, or the constitutionality or validity of the
obligations represented by the Bonds, or the validity of the Bonds or any proceedings in relation to
the issuance or sale thereof.
-4-
(c) The Purchaser shall execute a certificate, dated the Closing Date, to the effect that
(1) no litigation, proceeding or investigation is pending against the Purchaser or its affiliates or, to
the knowledge of the Purchaser, threatened which would (A) contest, affect, restrain or enjoin the
issuance, validity, execution, delivery or performance of the Bonds, or (B) in any way contest the
corporate existence or powers of the Purchaser, (2) no litigation, proceeding or investigation is
pending or, to the knowledge of the Purchaser, threatened against the Purchaser that cou ld
reasonably be expected to adversely affect its ability to perform its obligations hereunder or under
the Lease or the Performance Agreement, (3) the representations and warranties of the Purchaser
herein were and are true and correct in all material respects and not misleading as of the date made
and as of the Closing Date, and (4) such other matters as are reasonably requested by the other
parties in connection with the issuance of the Bonds.
SECTION 4. THE PURCHASER’S RIGHT TO CANCEL
The Purchaser may cancel its obligation hereunder to purchase the Bonds by notifying the City in
writing at or before the Closing Date.
SECTION 5. 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 Purchaser 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 Purchaser in connection with the issuance of the Bonds are the following: (a) the legal fees
of Gilmore & Bell, P.C., as Bond Counsel to the City, in the amount of $25,000.00 (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 (b) 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 in writing by
mailing or delivering the same as follows:
(a) To the City:
City of Jefferson, Missouri
320 East McCarty Street
Jefferson City, Missouri 65101
Attention: City Administrator and City Attorney
-5-
with a copy to:
Gilmore & Bell, P.C.
2405 Grand Boulevard, Suite 1100
Kansas City, Missouri 64108
ATTN: Haden Crumpton, Esq.
(b) To the Trustee:
UMB Bank, N.A.
928 Grand Boulevard
Kansas City, Missouri 64106
Attention: Corporate Trust Department
(c) To the Purchaser:
Unilever Manufacturing (US), Inc.
2900 West Truman Boulevard
Jefferson City, Missouri 65109
ATTN: Michael Whelan, Director of Operations
with copies to:
Unilever United States, Inc.
700 Sylvan Avenue
Englewood Cliffs, New Jersey 07632
ATTN: General Counsel
Lathrop GPM LLP
2345 Grand Boulevard, Suite 2200
Kansas City, Missouri 64108
ATTN: Catherine Logan, Esq.
SECTION 9. APPLICABLE LAW
This Agreement shall be governed by the laws of the State of Missouri.
SECTION 10. ASSIGNABILITY
This Agreement may be assigned by the Purchaser, in whole as to all or any part of the Bonds to
any Person that expressly assumes in writing all of the obligations of the Company contained in the Lease;
provided that the consent of the City for the assignment of this Agreement shall not be required if the
consent of the City is not required for such Person’s assumption of the Lease under the provisions of Article
XIII thereof. Any such assignee shall agree to be bound by the terms of this Agreement. This Agreement
may be assigned, without approval of, but with notice to the City, by the Purchaser to any lender of the
Purchaser or the Company as collateral for a loan secured by a deed of trust or mortgage of the Real
Property, and the Bonds may be pledged, without approval of the City, by the Purchaser to any lender of
the Purchaser as collateral for a loan secured by a deed of trust or mortgage of the Real Property.
-6-
SECTION 11. EXECUTION IN COUNTERPARTS
This 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. 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 13. 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 Agreement, engage in a boycott of goods or
services from (a) the State of Israel, (b) companies doing business in or with the State of Israel or authorized
by, licensed by or organized under the laws of the State of Israel or (c) persons or entities doing business
in the State of Israel.
[Remainder of Page Intentionally Left Blank]
Real Property Bond Purchase Agreement
City of Jefferson, Missouri
Taxable Industrial Development Revenue Bonds
(Unilever – Real Property Project)
Series 2024B
S-1
Very truly yours,
UNILEVER MANUFACTURING (US), INC.,
a Delaware corporation
By:
Name: Natalia Cavaliere
Title: Vice President & Assistant Secretary
DATE OF EXECUTION: April ___, 2024
Real Property Bond Purchase Agreement
City of Jefferson, Missouri
Taxable Industrial Development Revenue Bonds
(Unilever – Real Property Project)
Series 2024B
S-2
Accepted and agreed to this _____ day of April, 2024.
CITY OF JEFFERSON, MISSOURI
By:
Name: Ron L. Fitzwater
Title: Mayor
[SEAL]
ATTEST:
By:
Name: Emily Donaldson
Title: City Clerk
Gilmore & Bell, P.C.
Draft v2 – February 27, 2024
$50,000,000
(AGGREGATE MAXIMUM PRINCIPAL AMOUNT)
CITY OF JEFFERSON, MISSOURI
TAXABLE INDUSTRIAL DEVELOPMENT REVENUE BONDS
(UNILEVER - PERSONAL PROPERTY PROJECT)
SERIES 2024B
Dated as of April 1, 2024
PERSONAL PROPERTY BOND PURCHASE AGREEMENT
Mayor and City Council
City of Jefferson, Missouri
320 East McCarty Street
Jefferson City, Missouri 65101
On the basis of the representations and covenants and upon the terms and conditions contained in
this Personal Property Bond Purchase Agreement (this “Agreement”), Unilever Manufacturing (US), Inc.,
a Delaware corporation (the “Purchaser”), offers to purchase from the City of Jefferson, Missouri (the
“City”), the above-referenced bonds (the “Bonds”), to be issued by the City under and pursuant to
Ordinance No. [_____] passed by the City Council of the City on March 18, 2024 (the “Ordinance”) and
a Personal Property Trust Indenture dated as of April 1, 2024 (the “Indenture”) by and between the City
and UMB Bank, N.A., as trustee (the “Trustee”). Capitalized terms not otherwise defined herein shall
have the meanings set forth in the Indenture.
SECTION 1. REPRESENTATIONS AND AGREEMENTS
(a) By the City’s acceptance hereof, the City hereby represents to the Purchaser that:
(1) The City is a home rule charter city duly organized and validly existing under the
laws of the State of Missouri. The City is authorized pursuant to the Constitution, the laws of the
State of Missouri, the City Charter and the ordinances and resolutions of the City, and all necessary
action has been taken to authorize, issue and deliver the Bonds and to consummate all transactions
contemplated by the Ordinance, this Agreement, the Indenture, the Personal Property Lease
Agreement dated as of April 1, 2024 (the “Lease”) by and between the City and the Purchaser, the
Performance Agreement dated as of April 1, 2024 (the “Performance Agreement”) by and
between the City and the Purchaser, and any and all other agreements relating thereto. The proceeds
of the Bonds shall be used for the purpose of acquiring and installing the Project Equipment in the
Project Improvements located on the Project Site and paying the costs incurred in connection with
the issuance of the Bonds.
(2) There is no controversy, suit or other proceeding of any kind pending and served
or, to the City’s knowledge, threatened wherein or whereby any question is raised or may be raised,
questioning, disputing or affecting in any way the legal organization of the City or its boundaries,
or the right or title of any of its officers to their respective offices, or the legality of any official act
leading up to the issuance of the Bonds, or the constitutionality or validity of the obligations
-2-
represented by the Bonds, or the validity of the Bonds, the Order, the Lease, the Indenture, the
Performance Agreement or this Agreement.
(b) The Purchaser represents as follows:
(1) Organization. The Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and is in good standing and authorized to
do business in the State of Missouri.
(2) No Conflict or Breach. The execution, delivery and performance of this
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) Document Legal, Valid and Binding. When executed and delivered by the
Purchaser, this 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.
(4) Purchaser’s Certificates. Any certificate signed by an authorized officer or agent
of the Purchaser and delivered to the City shall be deemed a representation and warranty by the
Purchaser to the City as to the statements made therein.
SECTION 2. PURCHASE, SALE AND DELIVERY OF THE BONDS
(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 set forth herein and in the Indenture,
the Purchaser agrees to purchase from the City and the City agrees to sell to the Purchaser the Bonds on the
terms and conditions set forth herein.
(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), which amount shall
be applied as provided in the Indenture and the Lease. From time to time after the Closing Date, the
Purchaser shall make additional payments with respect to the Bonds (“Additional Payments”) to the
Trustee under the Indenture, which Additional Payments shall be applied to the payment or reimbursement
of Project Costs or as provided in the Indenture and the Lease; provided that the sum of the Closing Price
and all such Additional Payments shall not, in the aggregate, exceed $50,000,000 plus the costs of issuance
of the Bonds (if such costs of issuance are not paid with Bond proceeds).
(c) As used herein, the term “Closing Date” shall mean April [___], 2024, or such other date
as shall be mutually agreed upon by the City and the Purchaser; the term “Closing Price” shall mean 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 may consist of all or a portion of the
Project Costs spent by the Purchaser from its own funds on or before the Closing Date, and, at the
Purchaser’s option, the costs of issuance of the Bonds if such costs are not paid for from Bond proceeds.
-3-
(d) The Bonds shall be issued under and secured as provided in the Ordinance, the Indenture
and the Lease authorized thereby, and the Bonds shall have the maturity, interest rate and shall be subject
to redemption as set forth therein. The delivery of the Bonds shall be made in definitive form as a fully-
registered bond in the maximum aggregate principal denomination of $50,000,000; provided, that the
principal amount of the Bonds outstanding at any time shall be that amount recorded in the records of the
Trustee, absent manifest error, and further provided that interest 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 OBLIGATIONS
The obligations hereunder shall be subject to the due performance by the parties of the obligations
and agreements to be performed hereunder on or prior to the Closing Date and to the accuracy of and
compliance with the representations contained herein, as of the date hereof and as of the Closing Date, and
are also subject to the following conditions:
(a) There shall be delivered to the Purchaser on or prior to the Closing Date a duly
certified copy of the Ordinance, the Indenture, the Lease, the Performance Agreement, this
Agreement and any other instrument contemplated thereby, and such documents shall be in full
force and effect and shall not have been modified or changed except as may have been agreed to in
writing by the Purchaser.
(b) The City shall confirm on the Closing Date by a certificate that at and as of the
Closing Date the City has taken all action necessary to issue the Bonds and that there is no
controversy, suit or other proceeding of any kind pending and served or, to its knowledge,
threatened against the City wherein any question is raised affecting in any way the legal
organization of the City, or the legality of any official act shown to have been done in the transcript
of proceedings leading up to the issuance of the Bonds, or the constitutionality or validity of the
obligations represented by the Bonds, or the validity of the Bonds or any proceedings in relation to
the issuance or sale thereof.
-4-
(c) The Purchaser shall execute a certificate, dated the Closing Date, to the effect that
(1) no litigation, proceeding or investigation is pending against the Purchaser or its affiliates or, to
the knowledge of the Purchaser, threatened which would (A) contest, affect, restrain or enjoin the
issuance, validity, execution, delivery or performance of the Bonds, or (B) in any way contest the
corporate existence or powers of the Purchaser, (2) no litigation, proceeding or investigation is
pending or, to the knowledge of the Purchaser, threatened against the Purchaser that could
reasonably be expected to adversely affect its ability to perform its obligations hereunder or under
the Lease or the Performance Agreement, (3) the representations and warranties of the Purchaser
herein were and are true and correct in all material respects and not misleading as of the date made
and as of the Closing Date, and (4) such other matters as are reasonably requested by the other
parties in connection with the issuance of the Bonds.
SECTION 4. THE PURCHASER’S RIGHT TO CANCEL
The Purchaser may cancel its obligation hereunder to purchase the Bonds by notifying the City in
writing at or before the Closing Date.
SECTION 5. 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 Purchaser 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 Purchaser in connection with the issuance of the Bonds are the following: (a) the legal fees
of Gilmore & Bell, P.C., as Bond Counsel to the City, in the amount of $25,000.00 (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 (b) the Trustee’s initial acceptance fee ($750.00) and first year’s administrative fee
($1,500.00) totaling $2,250.00.
SECTION 8. NOTICE
Any notice or other communication to be given under this Agreement may be given in writing by
mailing or delivering the same as follows:
(a) To the City:
City of Jefferson, Missouri
320 East McCarty Street
Jefferson City, Missouri 65101
Attention: City Administrator and City Attorney
-5-
with a copy to:
Gilmore & Bell, P.C.
2405 Grand Boulevard, Suite 1100
Kansas City, Missouri 64108
ATTN: Haden Crumpton, Esq.
(b) To the Trustee:
UMB Bank, N.A.
928 Grand Boulevard
Kansas City, Missouri 64106
Attention: Corporate Trust Department
(c) To the Purchaser:
Unilever Manufacturing (US), Inc.
2900 West Truman Boulevard
Jefferson City, Missouri 65109
ATTN: Michael Whelan, Director of Operations
with copies to:
Unilever United States, Inc.
700 Sylvan Avenue
Englewood Cliffs, New Jersey 07632
ATTN: General Counsel
Lathrop GPM LLP
2345 Grand Boulevard, Suite 2200
Kansas City, Missouri 64108
ATTN: Catherine Logan, Esq.
SECTION 9. APPLICABLE LAW
This Agreement shall be governed by the laws of the State of Missouri.
SECTION 10. ASSIGNABILITY
This Agreement may be assigned by the Purchaser, in whole as to all or any part of the Bonds to
any Person that expressly assumes in writing all of the obligations of the Company contained in the Lease;
provided that the consent of the City for the assignment of this Agreement shall not be required if the
consent of the City is not required for such Person’s assumption of the Lease under the provisions of Article
XIII thereof. Any such assignee shall agree to be bound by the terms of this Agreement. This Agreement
may be assigned, without approval of, but with notice to the City, by the Purchaser to any lender of the
Purchaser or the Company as collateral for a loan secured by the Project Equipment, and the Bonds may be
pledged, without approval of the City, by the Purchaser to any lender of the Purchaser as collateral for a
loan secured by the Project Equipment.
-6-
SECTION 11. EXECUTION IN COUNTERPARTS
This 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. 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 13. 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 Agreement, engage in a boycott of goods or
services from (a) the State of Israel, (b) companies doing business in or with the State of Israel or authorized
by, licensed by or organized under the laws of the State of Israel or (c) persons or entities doing business
in the State of Israel.
[Remainder of Page Intentionally Left Blank]
Personal Property Bond Purchase Agreement
City of Jefferson, Missouri
Taxable Industrial Development Revenue Bonds
(Unilever – Personal Property Project)
Series 2024B
S-1
Very truly yours,
UNILEVER MANUFACTURING (US), INC.,
a Delaware corporation
By:
Name: Natalia Cavaliere
Title: Vice President & Assistant Secretary
DATE OF EXECUTION: April _____, 2024
Personal Property Bond Purchase Agreement
City of Jefferson, Missouri
Taxable Industrial Development Revenue Bonds
(Unilever – Personal Property Project)
Series 2024B
S-2
Accepted and agreed to this _____ day of April, 2024.
CITY OF JEFFERSON, MISSOURI
By:
Name: Ron L. Fitzwater
Title: Mayor
[SEAL]
ATTEST:
By:
Name: Emily Donaldson
Title: City Clerk
Gilmore & Bell, P.C.
Draft v2 – February 27, 2024
________________________________
PERFORMANCE AGREEMENT
Dated as of April 1, 2024
________________________________
BETWEEN
CITY OF JEFFERSON, MISSOURI,
AND
UNILEVER MANUFACTURING (US), INC.
Relating to:
$33,000,000
(Aggregate Maximum Principal Amount)
City of Jefferson, Missouri
Taxable Industrial Development Revenue Bonds
(Unilever – Real Property Project)
Series 2024B
$50,000,000
(Aggregate Maximum Principal Amount)
City of Jefferson, Missouri
Taxable Industrial Development Revenue Bonds
(Unilever – Personal Property Project)
Series 2024B
Prepared By:
Gilmore & Bell, P.C.
Kansas City, Missouri
PERFORMANCE AGREEMENT
THIS PERFORMANCE AGREEMENT, dated as of April 1, 2024 (“Agreement”) from time to
time amended and supplemented in accordance with the provisions hereof, is between the CITY OF
JEFFERSON, MISSOURI, a home rule charter city and political subdivision organized and existing under
the laws of the State of Missouri (the “City”), and UNILEVER MANUFACTURING (US), INC., a
Delaware corporation (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 (collectively, the “Act”) and the City Charter to purchase, construct, extend, improve and equip
certain projects (as defined in the Act), to issue industrial development revenue bonds for the purpose of
providing funds to pay the costs of such projects and to lease or otherwise dispose of such projects to private
persons or corporations for manufacturing, commercial, research and development, office industry,
warehousing and industrial development purposes upon such terms and conditions as the City deems
advisable.
2. In accordance with Section 100.059.1 of the Act, the City Council of the City gave notice
to the affected taxing jurisdictions regarding the City’s intent to approve the issuance of two separate series
of industrial development revenue bonds under the Act in order to finance the c osts of an industrial
development project (the “Project”) for the benefit of the Company consisting of (a) renovating and
modifying an approximately 110,000 square foot portion of the Company’s existing approximately 447,814
square foot main building in order to incorporate automated operations for the production of a new product
line (the approximately 110,000 square foot portion of the main building that is being renovated and
modified as part of the Project is referred to as the “Project Improvements”), which is situated on an
approximately 2.54 acre portion of the real estate site where the Company’s other existing facilities are
located at 2900 West Truman Boulevard in the City (as legally described and depicted on Exhibit A hereto,
the “Project Site”) and (b) acquiring and installing certain equipment and other personal property within
the Project Improvements (the “Project Equipment”).
3. Following notice to the affected taxing jurisdictions in accordance with Section 100.059.1
of the Act, the City Council of the City passed Ordinance No. [___________] on March 18, 2024 (the
“Ordinance”), (a) approving a plan for the Project and (b) authorizing the issuance of (i) the City’s Taxable
Industrial Development Revenue Bonds (Unilever - Real Property Project), Series 2024B, in the maximum
principal amount of $33,000,000 (the “Real Property Bonds”), for the purpose of paying the costs of the
Project Improvements on the Project Site (the Project Site and the Project Improvements being collectively
referred to herein as the “Real Property”), and (ii) the City’s Taxable Industrial Development Revenue
Bonds (Unilever - Personal Property Project), Series 2024B, in the maximum principal amount of
$50,000,000 (the “Personal Property Bonds” and, together with the Real Property Bonds, the “Bonds”),
for the purpose of paying the costs of acquiring and installing the Project Equipment within the Project
Improvements.
4. Pursuant to the Ordinance, the City is authorized to execute and deliver (a) the Real
Property Trust Indenture dated as of April 1, 2024 (the “Real Property Indenture”), between the City and
UMB Bank, N.A., as bond trustee (the “Trustee”), for the purpose of issuing and securing the Real Property
Bonds, (b) the Personal Property Trust Indenture dated as of April 1, 2024 (the “Personal Property
Indenture” and, together with the Real Property Indenture, the “Indentures”), between the City and the
Trustee for the purpose of issuing and securing the Personal Property Bonds, (c) the Real Property Lease
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Agreement dated as of April 1, 2024 (the “Real Property Lease”), between the City, as lessor, and the
Company, as lessee, under which the City will lease the Real Property 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 Real Property Bonds, (d) the Personal Property Lease Agreement dated as of April 1, 2024 (the
“Personal Property Lease” and, together with the Real Property Lease, the “Leases”) between the City,
as lessor, and the Company, as lessee, under which the City 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 Personal Property Bonds, and (e) this Agreement, between the City and
the Company for the purpose of setting forth the terms and conditions of the exemption of the Real Property
and Project Equipment from ad valorem real and personal property taxes and certain payments in lieu of
taxes to be made by the Company with respect to the Real Property and Project Equipment.
5. Pursuant to the foregoing, the City desires to enter into this Agreement with the Company
in consideration of the Company’s desire to cause the acquisition, construction and improvement of the
Real Property and acquisition and installation of the Project Equipment as more fully described in the
respective Leases, upon the terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual representations, covenants
and agreements herein contained, the City and the Company hereby represent, covenant and agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions of Words and Terms. In addition to the capitalized words and terms
defined elsewhere in this Agreement and the capitalized words and terms defined in Section 101 of the
Indentures and Section 1.1 of the Leases, 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 Job 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 April 1, 2024, 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 Company’s facilities located at 2900 West Truman Boulevard in the
City 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.
“City” means City of Jefferson, Missouri.
“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.
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“Job” means a full-time equivalent position with the Company that is filled by a worker who is
employed at the Company’s facilities located at 2900 West Truman Boulevard in the City, 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 Job PILOT Payments as described in Section 3.3 hereof.
“Project Equipment” means all items of machinery, equipment and other personal property
installed at the Project Site, acquired pursuant to Article IV of the Personal Property Lease and paid for in
whole from proceeds of the Personal Property Bonds.
“Project Improvements” means the renovation and modification of an approximately 110,000
square foot portion of the Company’s existing approximately 447,814 square foot main building to
incorporate automated operations for the production of a new product line , which Project Improvements
are located on and encompass the Project Site, pursuant to Article IV of the Real Property Lease and paid
for in whole from the proceeds of Real Property Bonds and all additions, alterations, modifications and
improvements thereof made pursuant to the Real Property Lease.
“Project Site” means the real estate legally described and depicted in Exhibit A hereto.
“Test Date” means October 31 of each year, beginning on October 31, 2026, 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 Real
Property Bonds and the Personal Property 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 Indentures). In
connection with the issuance of the Real Property Bonds, the City will acquire fee title to the Real Property
from the Company. In connection with the issuance of the Personal Property Bonds, the City will acquire
legal title to the Project Equipment from the Company as it is transferred to the City via a bill of sale
pursuant to the Personal Property Lease.
ARTICLE III
PROPERTY TAX EXEMPTION;
PAYMENTS IN LIEU OF TAXES
Section 3.1. Property Tax Exemption.
(a) On the date of issuance of the Real Property Bonds (April [__], 2024), the Company will
convey fee title to the Real Property to the City, and the City expects said Real Property to be exempt from
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ad valorem real property taxes as a result of the City’s ownership thereof so long as the City owns title to
said Real Property.
(b) On the date of issuance of the Personal Property Bonds (April [__], 2024), the Company
will transfer legal title of any Project Equipment previously acquired and installed on the Project Site to the
City via a bill of sale, and the City will acquire legal title to additional Project Equipment from the Company
as it is transferred to the City via a bill of sale in accordance with the Personal Property Lease. The City
expects the Project Equipment to be exempt from ad valorem personal property taxes from and after January
1 of the year following the year the City acquires title to said Project Equipment from the Company in
accordance with the Personal Property Lease and will continue so long as the City owns title to said Project
Equipment.
(c) Notwithstanding any other provision of this Agreement to the contrary, the last year of such
real and personal property tax exemption period shall be 2035. The Company covenants and agrees that,
during each year the Real Property and Project Equipment is exempt from ad valorem real and personal
property taxes by reason of the City owning title to the Real Property and Project Equipment, the Company
will make annual Base PILOT Payments in such amounts as described in Section 3.2 of this Agreement
relating to the respective Real Property and Project Equipment. Each Base PILOT Payment required to be
paid under Section 3.2 of this Agreement, together with any Additional Job 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 real and personal property tax abatement provided by this
Agreement shall only apply to the Real Property financed with proceeds of the Real Property Bonds and
the Project Equipment financed with the proceeds of the Personal Property Bonds and shall not apply to
any real or personal property not financed with proceeds of the Bonds.
Section 3.2. Payments in Lieu of Taxes.
(a) Real Property:
(1) On the date of issuance of the Real Property Bonds, the Company will convey fee
title to the Real Property (i.e. the Project Site and the Project Improvements to be constructed
thereon) to the City. The Company expects the construction of the Project Improvements to be
completed on or before December 31, 2025, and no later than the Completion Date as provided in
in Section 4.5 of the Real Property Lease. The Company covenants and agrees to 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 calendar year prior to and in which the Completion Date occurs, equal to 100% of the ad
valorem real property taxes that would otherwise be due in such calendar year or years on the Real
Property, but for the City’s ownership thereof.
(2) Beginning the first calendar year after the calendar year in which the Completion
Date occurs, the Company will receive 75% real property tax abatement on the Real Property for a
period of 10 years (for example, if the Completion Date occurs in calendar year 2025, the abatement
period is calendar years 2026 through 2035, inclusive). In each year of the 10-year real property
tax abatement period for the Real Property (for example, years 2026 through 2035, inclusive), the
Company covenants and agrees to make a Base PILOT Payment to the City (or to the County if so
directed by the City) on or before December 31 in each of said years in an amount equal to 25% of
the real property taxes that would otherwise be due on the Real Property, but for the City’s
ownership of said Real Property.
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(b) Project Equipment:
(1) The Company expects to acquire and deliver portions of the Project Equipment to
the Project Site during calendar years ending December 31, 2024 and 2025, but no later than the
Completion Date as provided in Section 4.5 of the Personal Property Lease, and to transfer title to
(i) the portion of said Project Equipment acquired and delivered to the Project Site in calendar year
2024 to the City on or prior to December 31, 2024, and (ii) the portion of said Project Equipment
acquired and delivered to the Project Site in calendar year 2025 to the City on or prior to December
31, 2025, in accordance with the Personal Property Lease. The anticipated acquisition cost of the
Project Equipment expected to be acquired and delivered to the Project Site in calendar years 2024
and 2025 is reflected in the table below:
Year Project Equipment Acquired
and Delivered to Project Site
Anticipated Acquisition Cost of
Project Equipment
2024 $20,100,000
2025 6,700,000
(2) Beginning the first calendar year after the calendar year in which the applicable
portion of the Project Equipment is acquired and delivered to the Project Site, the Company will
receive 75% personal property tax abatement on said portion of the Project Equipment for a period
of 10 years (for example, with respect to the portion of the Project Equipment expected to be
acquired and delivered to the Project Site in calendar year 2024, the abatement period will be years
2025 through 2034, inclusive, and, with respect to the portion of the Project Equipment expected
to be acquired and delivered to the Project Site in calendar year 2025, the abatement period will be
years 2026 through 2035, inclusive). In each year of 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 2024 and 2025, the Company covenants and agrees to make a
Base PILOT Payment to the City (or to the County if so directed by the City) on or before December
31 in each of said years, as follows:
(i) For Project Equipment Acquired and Delivered in 2024:
(A) in each of said years 2025 through 2034, inclusive, the Company
will make a Base PILOT Payment equal to 25% 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
(B) in year 2035, inclusive, the Company will make a Base PILOT
Payment 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.
(ii) For Project Equipment Acquired and Delivered in 2025:
(A) in each of said years 2026 through 2035, inclusive, the Company
will make a Base PILOT Payment equal to 25% of the personal property
taxes that would otherwise be due on that portion of the Project
Equipment, but for the City’s ownership thereof.
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(c) Pursuant to Section 11.4 of the Real Property Lease, the Company shall exercise its option
to purchase the Real Property from the City no later than December 31 of the tenth year after the calendar
year in which the Completion Date occurs (for example, if the Completion Date occurs in calendar year
2025, no later than December 31, 2035). If title to the Real Property is not conveyed by the City to the
Company before January 1 of the eleventh year after the Completion Date (for example, by January 1,
2036), then on or before December 31 of the eleventh year after the Completion Date (for example
December 31, 2036), and each year thereafter until title to the Real Property 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 real property taxes that would otherwise be due on the Real Property, but for the City’s
ownership thereof.
(d) Pursuant to Section 11.4 of the Personal Property Lease, the Company shall exercise its
option to purchase the Project Equipment from the City no later than December 31 of the tenth year after
the calendar year in which the Completion Date occurs (for example, if the Completion Date occurs in
calendar year 2025, no later than December 31, 2035). If title to the Project Equipment is not conveyed by
the City to Company before January 1 of the eleventh year after the Completion Date (for example, by
January 1, 2036), then on or before December 31 of the eleventh year after the Completion Date (for
example December 31, 2036) and 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 parties expect the County Assessor to annually determine an assessed valuation with
respect to the Real Property and 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 if title to the Real
Property and the Project Equipment were in the name of the Company and not the City. 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 property declarations are required by law to be made, a report that includes the
following information:
(1) a list of 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;
(2) a list of all improvements to the Real Property made by the Company during the
calendar year; and
(3) such other information as the County Assessor may reasonably require to complete
the assessment of the Real Property and the Project Equipment, as applicable.
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 Personal Property Lease and shall be of
sufficient specificity so as to enable the County Assessor and other appropriate City 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 Real Property and the Project Equipment in writing.
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Section 3.3. Adjustment of Payments In Lieu of Taxes for Failure to Maintain Jobs.
(a) As of the date of this Agreement, the City and Company agree that the Company currently
maintains 491 Jobs at the Company’s facilities located at 2900 West Truman Boulevard in the City, and the
Company covenants and agrees to maintain at least 90% (or 441) of said Jobs at the Company’s facilities
located at 2900 West Truman Boulevard in the City for so long as the property tax abatement described in
this Agreement is in effect. The Company will calculate the total number of Jobs maintained at the
Company’s facilities located at 2900 West Truman Boulevard in the City as of October 31 each year (each
a “Test Date”), commencing with October 31, 2026, and ending with October 31, 2035, as follows:
• The total number of Jobs at the Company’s facilities located at 2900 West Truman
Boulevard in the City 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 eac h
Test Date (i.e., 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 441 Jobs at the Company’s facilities located at
2900 West Truman Boulevard in the City as of a particular Test Date (i.e., October 31, 2026 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 Job 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 (or the County if so
directed by 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 Job PILOT Payment will be in an amount
equal to the formula percentage calculated below (the “Jobs PILOT %”) multiplied by the amount of ad
valorem real and personal property taxes which would have been due on the Real Property and Project
Equipment, respectively, had the Real Property and the Project Equipment not been exempt from such real
and personal property taxes due to the City’s ownership thereof:
When the Percentage of the Base PILOT is 25%:
Jobs PILOT % = .75 - (.75 X Actual Number of Jobs
441 )
Jobs PILOT % x B = Additional Job PILOT Payment
B = 100% of ad valorem real and personal property taxes that would have otherwise been required
to be paid by the Company with respect to the Real Property and Project Equipment, but for
the City’s ownership of such Real Property and Project Equipment
(c) The Company shall annually file with the City and an officer of 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, 2026, 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
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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 Job 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 Job 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 real and personal property taxes that would have
otherwise been payable on the Real Property or the Project Equipment, as applicable, 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 3.6 hereof, among the taxing
jurisdictions in proportion to the amount of real and personal property taxes which would have been paid
in each year had the Project not been exempt from ad valorem real and personal property taxation pursuant
to this Agreement and the City’s ownership of the Real Property and Project Equipment, respectively.
Section 3.5. Obligation of City to Effect Property Tax Abatement. The City shall, at the
Company’s request and at the expense of the Company, take all actions, subject only to limitations imposed
by applicable law, to obtain and/or maintain in effect the exemption referred to in Section 3.1 above,
including any filing required with any governmental authorities; provided, however, the City shall not be
liable for any failure of any other governmental taxing authority to recognize the exemption provided
herein, and the City shall not be required to file litigation to effect the exemption. The City covenants that
it will not voluntarily take any action intended to cause or induce the levy or assessment of ad valorem
taxes on the Real Property and 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 Real Property or 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 15th of each year,
and the Company will reimburse the City for its costs on or before December 31st of each year continuing
until December 31st of the year in which this Agreement expires or is terminated.
Section 3.7. Other Property Taxes In Connection with the Project. The property tax
exemption provided by the City’s ownership of the Real Property and the Project Equipment is expected to
apply to all interests in such Real Property and Project Equipment during the period it is owned by the City.
If any ad valorem property taxes are levied by or on behalf of any taxing jurisdiction against any interest in
the Real Property or the Project Equipment during the period the City owns the Real Property or the Project
Equipment (including, without limitation, any ad valorem taxes levied against the Company’s rights in the
respective Real Property Lease and Personal Property Lease), the amount of ad valorem tax payments
related to such levy or levies that are paid by the Company and received by the City shall be credited against
and reduce the amount of the applicable PILOT Payment that the Company is obligated to pay pursuant to
this Agreement. The Company shall be responsible for any taxes related to any interest in the Real Property
and the Project Equipment that the Company owns in its own name or granted to the Company other than
pursuant to the respective Real Property Lease or Personal Property Lease.
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Section 3.8. Sales Tax Exemption.
(a) The City will provide a project exemption certificate to the Company, its contractors and
subcontractors to purchase and pay for, exempt from sales or use tax, certain construction materials to be
incorporated into or used up in the Project Improvements, pursuant to a Missouri Department of Revenue
Project Exemption Certificate, Form 5060. The Company agrees to make, and to cause its contractors and
subcontractors to make, such purchases in compliance with the provisions of Section 144.062 of the Revised
Statutes of Missouri. Such construction materials may only include tangible personal property and
materials that can only be used for the Project Improvements and that are actually used up or consumed in
completing the Project Improvements. Except as provided in the prior sentences, the acquisition and
completion of the Project Improvements shall not be exempt from any sales or use taxes imposed by any
governmental authority by virtue of the City’s ownership of the Real Property, and neither the City nor the
Company will request any such exemption. Nothing herein shall limit the Company’s right to any
exemption of sales or use taxes not resulting from the City’s ownership of the Real Property.
(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 the Missouri Department of Revenue 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 certificate to or at the request of the Company or its affiliates. There shall be no r eduction in
PILOT Payments for any sales or use taxes paid by the Company in connection with the Project
Improvements or Project Equipment.
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 real and personal property taxes on the Real Property
or 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 during the term of this Agreement (unless the Real Property or the Project Equipment has been
subject to a casualty and the Company is rebuilding or repairing the damaged component of the Real
Property or the Project Equipment) the Company completely vacates, abandons or ceases operations at the
Project Site and the Company fails to exercise its option to purchase the Real Property and Project
Equipment under the respective Real Property Lease and Personal Property Lease 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) equal to 100% of the ad valorem real and personal property
taxes, respectively, that would otherwise be due on the Real Property and the Project Equipment, as
applicable, but for the City’s ownership thereof. 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 in which the Real Property and/or the Project Equipment is, on
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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 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 Real Property or 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 Company’s interests in the Real Property and Project Equipment if
such Real Property and Project Equipment was not owned by the City.
ARTICLE IV
COVENANTS, REPRESENTATIONS AND AGREEMENTS
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 five Business Days’ advance
notice and to the Company’s usual business proprietary, safety, confidentiality and security requirements,
to enter upon the Project Site to examine and inspect the Real Property and 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
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, including environmental laws,
subject to all applicable rights of the Company to contest the same, as applicable.
Section 4.3. Purchase, Construction, Improvement, Installation and Operation. The
Project is and will be purchased, constructed, improved, installed and operated in a manner that is consistent
with the description of the Project contained in this Agreement and in the respective Leases. In the event
the Project purchased, constructed, improved and installed is materially inconsistent with the description of
the Project contained herein and in the respective Leases, 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, as applicable,
during the term of the respective Leases, and against and from all claims, demands, costs, liabilities,
damages or expenses, including reasonable attorneys’ fees, arising during the term of the respective Leases
from any event described in Section 10.5 of the respective Leases and Section 10.9 of the Real Property
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.
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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 respective Real Property Lease and Personal
Property 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
Leases following any applicable notice and grace period provided therein;
(c) the Company shall fail to perform any of their 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 initiate 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 (a) the pro rata amount payable pursuant to Section 3.3 hereof
from January 1 of the year in question through the effective date of termination, plus (b) the pro rata amount
of ad valorem real and personal property taxes that would be due for the remaining portion of the year
assuming the Project 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.
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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 property
taxes from the date such payment was first due.
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 spe cific performance to enforce such
payments.
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 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 Leases; 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 Leases 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 real and 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; Effect of Invalidity. If for any reason any provision of this
Agreement is determined to be invalid or unenforceable, such invalid or unenforceable term will be deemed
severed from this Agreement and the validity and enforceability of the other provisions hereof shall not be
affected thereby. If this Agreement, or any portion hereof, or any agreements related hereto, are determined
to be invalid, the City may not recover or recapture any taxes subject to abatement as provided herein or
benefits accruing to the Company prior to such determination if the Company has paid taxes in an amount
at least equal to the PILOT Payments due under this Agreement.
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 Leases 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 Leases, the Indentures 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 and supersede all
prior agreements, representations, negotiations and understandings, both written and oral, between the City
and the Company with respect to the subject matter hereof. This Agreement shall not be modified except
by written agreement signed on behalf of the City and the Company 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 Indentures and/or Indentures.
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 on or before November 15 of each year during the term of this Agreement, beginning November
15, 2024, and also upon execution of this Agreement.
Section 8.9. 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.
Section 8.10. Complete Agreement. The Company and the City understand that oral or
unexecuted agreements or commitments to loan money, extend credit or to forbear from enforcing
repayment of a debt including promises to extend or renew such debt are not enforceable. To protect the
Company and the City from misunderstanding or disappointment, any agreements the Company and the
City reach covering such matters are contained in this Agreement and in the Leases, 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 Leases.
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Section 8.11. Date of Performance Agreement. The dating of this Agreement as of April 1,
2024, 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.]
Performance Agreement
City of Jefferson, Missouri
Taxable Industrial Development Revenue Bonds
(Unilever – Real Property Project)
Series 2024B
Taxable Industrial Development Revenue Bonds
(Unilever – Personal Property Project)
Series 2024B
S-1
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.
CITY OF JEFFERSON, MISSOURI
By: ___________________________________
Name: Ron L. Fitzwater
Title: Mayor
[SEAL]
ATTEST:
By: ___________________________________
Name: Emily Donaldson
Title: City Clerk
Performance Agreement
City of Jefferson, Missouri
Taxable Industrial Development Revenue Bonds
(Unilever – Real Property Project)
Series 2024B
Taxable Industrial Development Revenue Bonds
(Unilever – Personal Property Project)
Series 2024B
S-2
UNILEVER MANUFACTURING (US), INC., a
Delaware corporation
By:
Name: Natalia Cavaliere
Title: Vice President & Assistant Secretary
Performance Agreement
City of Jefferson, Missouri
Taxable Industrial Development Revenue Bonds
(Unilever – Real Property Project)
Series 2024B
Taxable Industrial Development Revenue Bonds
(Unilever – Personal Property Project)
Series 2024B
S-3
ACKNOWLEDGMENT AND AGREEMENT
The County Assessor of Cole County, Missouri, acknowledges receipt of this Agreement and
agrees to perform the duties imposed on the County Assessor by Article III of this Agreement.
OFFICE OF COLE COUNTY, MISSOURI
ASSESSOR
By:
Name: Christopher Estes
Title: County Assessor
Exhibit A - 1
EXHIBIT A
DESCRIPTION OF THE PROJECT SITE
The land situated in the County of Cole, State of Missouri, and legally described under the caption
“Legal Description of Project Site” below and further depicted by the shaded area illustrated under
“Aerial View of Project Site” below:
Legal Description of Project Site
Aerial View of Project Site
[Insert shaded aerial google earth picture of Project Site]
Exhibit B - 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@jcrep.org
A. COMPANY INFORMATION (UNILEVER MANUFACTURING (US), INC.)
Name: ___________________________________________________________________
Address: ________________________________________________________________
City: _________________________ State: _____________ Zip Code: ________________
Contact: ___________________________________ Telephone: ____________________
Title: _______________________________________ Email: _________________________
[Remainder of this page intentionally left blank.]
Exhibit B - 2
B. EMPLOYMENT INFORMATION.
The number of total “Jobs” maintained by the Company at the Company’s facilities located at
2900 West Truman Boulevard in the City on the last day of each of the immediately preceding 12 months
ending on October 31, 20__ (the October 31st 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 April 1, 2024, 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”
Total Jobs
November
December
January
February
March
April
May
June
July
August
September
October
12-Month Average of Jobs:(1)
____________
(1) This 12-month average of the actual number of “Jobs” should be equal to or greater than 441 because the
Company is required to maintain at least 441 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 - 3
C. CERTIFICATION.
The undersigned hereby represents and certifies that, to the best knowledge and belief of the
undersigned, this Annual Compliance Report contains no information or data, contained herein or in the
exhibits or attachments, that is false or incorrect in any material respect.
Dated this ___ day of ________, _______.
Signature:
Name:
Title:
Gilmore & Bell, P.C.
Draft v1 – February 12, 2024
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(The above space is reserved for Recorder's Certification.)
TITLE OF DOCUMENT: SPECIAL WARRANTY DEED
DATE OF DOCUMENT: April [___], 2024
GRANTOR: CITY OF JEFFERSON, MISSOURI
GRANTOR’S MAILING ADDRESS: 320 East McCarty Street
Jefferson City, Missouri 65101
GRANTEE: UNILEVER MANUFACTURING (US), INC.
GRANTEE’S MAILING ADDRESS: 2900 West Truman Boulevard
Jefferson City, Missouri 65109
RETURN DOCUMENTS TO: Haden Crumpton, Esq.
Gilmore & Bell, P.C.
2405 Grand Boulevard, Suite 1100
Kansas City, Missouri 64108
LEGAL DESCRIPTION: See Exhibit A
REFERENCE BOOK & PAGE: N/A
SPECIAL WARRANTY DEED
THIS SPECIAL WARRANTY DEED is made as of April [___], 2024, from the CITY OF
JEFFERSON, MISSOURI, a home rule charter city organized and existing under the laws of the State of
Missouri (the “Grantor”), to UNILEVER MANUFACTURING (US), INC., a Delaware corporation
(the “Grantee”).
WITNESSETH, THAT THE GRANTOR, in consideration of the sum of One Dollar ($1.00) and
other valuable considerations to it paid by the Grantee (the receipt of which is hereby acknowledged) does
by these presents, SELL and CONVEY unto the Grantee, its successors and assigns, the lots, tracts or
parcels of land described in EXHIBIT A attached hereto (the “Property”).
TO HAVE AND TO HOLD, the premises aforesaid, with all and singular the rights, privileges,
appurtenances and immunities thereto belonging or in any way appertaining unto the Grantee and unto its
successors and assigns forever; the Grantor hereby covenanting that said premises are free and clear from
any encumbrance done or suffered by it; and that it will warrant and defend the title to said premises unto
the Grantee and unto the Grantee’s successors and assigns forever, against the lawful claims and demands
of all persons claiming under it but none other, subject to 2024 taxes and general and special assessments
(if any), any and all recorded easements, reservations, restrictions, encroachments and encumbrances,
matters which would be shown by an accurate survey, underground and overhead cables, lines and utility
services, and all existing zoning ordinances, laws, codes, statutes and subdivision regulations and other
governmental laws, rules, codes, statutes and regulations limiting or restricting the use to which the Property
may be put.
IN WITNESS WHEREOF, the Grantor and the Grantee have executed this Special Warranty
Deed as of the day and year above written.
[Remainder of this page intentionally left blank.]
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“GRANTOR”
CITY OF JEFFERSON, MISSOURI
By:
[SEAL] Name: Ron L. Fitzwater
Title: Mayor
ATTEST:
By:
Name: Emily Donaldson
Title: City Clerk
ACKNOWLEDGMENT
STATE OF MISSOURI )
) SS.
COUNTY OF COLE )
On this _____ day of March, 2024, before me, the undersigned, a Notary Public in and for said
State, personally appeared RON L. FITZWATER, to me personally known, who, being by me duly sworn,
did say that he is the Mayor of the CITY OF JEFFERSON, MISSOURI, and that the seal affixed to the
foregoing instrument is the corporate seal of said City, and that said instrument was signed and sealed by
authority of its City Council, and said officer acknowledged said instrument to be executed for the purposes
therein stated and as the free act and deed of said City.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal in the
County and State aforesaid on the day and year first above written.
Printed Name:
Notary Public in and for said State
My Commission Expires:
PLEASE AFFIX SEAL FIRMLY AND CLEARLY IN THIS BOX
-3-
“GRANTEE”
UNILEVER MANUFACTURING (US), INC., a
Delaware corporation
By:
Name: Natalia Cavaliere
Title: Vice President & Assistant Secretary
ACKNOWLEDGMENT
STATE OF NEW JERSEY )
) SS.
COUNTY OF UNION )
On this _____ day of _________________, 2024, before me, the undersigned, a Notary Public in
and for said State, personally appeared NATALIA CAVALIERE to me personally known, who, being by
me duly sworn, did say that she is the Vice President and Assistant Secretary of UNILEVER
MANUFACTURING (US), INC., a Delaware corporation, and that said instrument was signed on behalf
of said corporation by authority of its governing body, and said officer acknowledged said instrument to be
executed for the purposes therein stated and as the free act and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal in the
County and State aforesaid on the day and year first above written.
Printed Name:
Notary Public in and for said State
My Commission Expires:
PLEASE AFFIX SEAL FIRMLY AND CLEARLY IN THIS BOX
A-1
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
Gilmore & Bell, P.C.
Draft v1 – February 12, 2024
-------------------------------------------------------------------------------------------------------------------------------
(The above space is reserved for Recorder's Certification.)
TITLE OF DOCUMENT: SPECIAL WARRANTY DEED
DATE OF DOCUMENT: April [___], 2024
GRANTOR: UNILEVER MANUFACTURING (US), INC.
GRANTOR’S MAILING ADDRESS: 2900 West Truman Boulevard
Jefferson City, Missouri 65101
GRANTEE: CITY OF JEFFERSON, MISSOURI
GRANTEE’S MAILING ADDRESS: 320 East McCarty Street
Jefferson City, Missouri 65101
RETURN DOCUMENTS TO: Haden Crumpton, Esq.
Gilmore & Bell, P.C.
2405 Grand Boulevard, Suite 1100
Kansas City, Missouri 64108
LEGAL DESCRIPTION: See Exhibit A
REFERENCE BOOK & PAGE: N/A
SPECIAL WARRANTY DEED
THIS SPECIAL WARRANTY DEED is made as of April [___], 2024, from UNILEVER
MANUFACTURING (US), INC., a Delaware corporation (the “Grantor”), to the CITY OF
JEFFERSON, MISSOURI, a home rule charter city organized and existing under the laws of the State of
Missouri (the “Grantee”).
WITNESSETH, THAT THE GRANTOR, in consideration of the sum of One Dollar ($1.00) and
other valuable considerations to it paid by the Grantee (the receipt of which is hereby acknowledged) does
by these presents, SELL and CONVEY unto the Grantee, its successors and assigns, the lots, tracts or
parcels of land described in EXHIBIT A attached hereto.
TO HAVE AND TO HOLD, the premises aforesaid, with all and singular the rights, privileges,
appurtenances and immunities thereto belonging or in any way appertaining unto the Grantee and unto its
successors and assigns forever; the Grantor hereby covenanting that said premises are free and clear from
any encumbrance done or suffered by it; and that it will warrant and defend the title to said premises unto
the Grantee and unto the Grantee’s successors and assigns forever, against the lawful claims and demands
of all persons claiming under it but none other, subject to the Permitted Encumbrances as defined in the
Trust Indenture dated as of April 1, 2024, between the Grantee and UMB Bank, N.A., as trustee.
IN WITNESS WHEREOF, the Grantor and the Grantee have executed this Special Warranty
Deed as of the day and year above written.
[Remainder of this page intentionally left blank.]
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“GRANTOR”
UNILEVER MANUFACTURING (US), INC.,
a Delaware corporation
By:
Name: Natalia Cavaliere
Title: Vice President & Assistant Secretary
ACKNOWLEDGMENT
STATE OF NEW JERSEY )
) SS.
COUNTY OF UNION )
On this _____ day of _________________, 2024, before me, the undersigned, a Notary Public in
and for said State, personally appeared NATALIA CAVALIERE to me personally known, who, being by
me duly sworn, did say that she is the Vice President and Assistant Secretary of UNILEVER
MANUFACTURING (US), INC., a Delaware corporation, and that said instrument was signed on behalf
of said corporation by authority of its governing body, and said officer acknowledged said instrument to be
executed for the purposes therein stated and as the free act and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal in the
County and State aforesaid on the day and year first above written.
Name:
Notary Public in and for said State
My Commission Expires:
PLEASE AFFIX SEAL FIRMLY AND CLEARLY IN THIS BOX
-3-
“GRANTEE”
CITY OF JEFFERSON, MISSOURI
By:
[SEAL] Name: Ron L. Fitzwater
Title: Mayor
ATTEST:
By:
Name: Emily Donaldson
Title: City Clerk
ACKNOWLEDGMENT
STATE OF MISSOURI )
) SS.
COUNTY OF COLE )
On this _____ day of March, 2024, before me, the undersigned, a Notary Public in and for said
State, personally appeared RON L. FITZWATER, to me personally known, who, being by me duly sworn,
did say that he is the Mayor of the CITY OF JEFFERSON, MISSOURI, and that the seal affixed to the
foregoing instrument is the corporate seal of said City, and that said instrument was signed and sealed by
authority of its City Council, and said officer acknowledged said instrument to be executed for the purposes
therein stated and as the free act and deed of said City.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal in the
County and State aforesaid on the day and year first above written.
Printed Name:
Notary Public in and for said State
My Commission Expires:
PLEASE AFFIX SEAL FIRMLY AND CLEARLY IN THIS BOX
A-1
EXHIBIT A
LEGAL DESCRIPTION OF THE LAND