HomeMy WebLinkAboutORD.2934.09-04-2001BILL NO. � U0 I - l
ORDINANCE NO.
AN ORDINANCE APPROVING THE DELIVERY OF $2,665,000
PRINCIPAL AMOUNT OF CERTIFICATES OF
PARTICIPATION (CITY OF CAPE GIRARDEAU, MISSOURI,
AIRPORT FACILITIES PROJECT), SERIES 2001A, AND
$150,000 PRINCIPAL AMOUNT OF TAXABLE CERTIFICATES
OF PARTICIPATION (CITY OF CAPE GIRARDEAU,
MISSOURI, AIRPORT FACILITIES PROJECT), SERIES 2001B,
FOR THE PURPOSE OF PROVIDING FUNDS TO PAY THE
COSTS OF A PROJECT FOR RENAISSANCE AIRCRAFT LLC;
AUTHORIZING AND APPROVING CERTAIN DOCUMENTS IN
CONNECTION WITH THE DELIVERY OF THE
CERTIFICATES; AND AUTHORIZING CERTAIN OTHER
ACTIONS IN CONNECTION WITH THE DELIVERY OF THE
CERTIFICATES.
WHEREAS, the City Council finds and determines that it is advantageous and in the best
interests of the City of Cape Girardeau, Missouri (the "City") that the City enter into certain transactions
with UMB Bank, N.A., as trustee (the "Trustee") relating to the delivery of $2,665,000 principal amount
of Certificates of Participation (City of Cape Girardeau, Missouri, Airport Facilities Project), Series
2001A (the "Series 2001A Certificates") and $150,000 principal amount of Taxable Certificates of
Participation (City of Cape Girardeau, Missouri, Airport Facilities Project), Series 2001B (the "Series
2001B Certificates" and, collectively with the Series 2001A Certificates, the "Certificates"), for the
purpose of paying the costs of (1) acquiring and constructing on certain property owned by the City,
located at the Cape Girardeau Municipal Airport (the "Project Site"), an approximately 60,000 square foot
aircraft manufacturing facility and, if sufficient funds are available therefor, an approximately 2,000
square foot office building (collectively, the "Facility"), (2) acquiring and installing certain fixtures and
equipment for the Facility (the "Equipment"), (3) constructing certain road improvements, parking for
administrative offices and employee parking (the "Infrastructure Improvements") and (4) extending water
(including drinking and fire suppression) and sewer lines to the Project Site as needed to service the
Facility, including hook-up (the "Utility Improvements") (the acquisition, construction and installation of
the Facility, the Equipment, the Infrastructure Improvements and the Utility Improvements being
collectively referred to herein as the "Project"); and
WHEREAS, the proceeds of the Certificates will also be used to (1) fund debt service reserve
funds for the Certificates, (2) pay the interest distributable with respect to the Certificates on and before
April 1, 2004, and (3) pay the costs of issuing the Certificates; and
WHEREAS, in connection with the delivery of the Certificates, the City Council finds it
necessary to authorize the execution of. (1) a Ground Lease dated as of September 1, 2001 (the "Ground
Lease"), between the City and the Trustee, pursuant to which the City will lease the Project Site to the
Trustee for rent including the deposit of the funds specified therein to pay the costs of the Project; and (2)
a Lease/Purchase Agreement dated as of September 1, 2001 (the "Lease"), pursuant to which the Trustee
will lease the Project Site together with that portion of the Project to be located thereon (collectively
referred to as the "Leased Property") back to the City on an annually renewable basis, and the City will
make rental payments to the Trustee that will be sufficient, during any term of the Lease, to pay the
principal of, premium, if any, and interest distributable with respect to the Certificates as the same
become due; and
WHEREAS, concurrently with the execution of the Ground Lease and the Lease, the City
Council finds it desirable to authorize the execution of a Sublease Agreement dated as of September 1,
2001 (the "Sublease"), between the City and the Company, pursuant to which the City will sublease the
Leased Property to the Company for an initial term ending April 2, 2021 (being the day following the
final maturity of the Certificates), subject to renewal as described in the Sublease; and
WHEREAS, pursuant to the Sublease, the Company will make rental payments for the use of the
Facility and the Equipment that will be sufficient to pay the principal of, premium, if any, and interest
distributable with respect to the Certificates as the same become due, and will make additional rental
payments for the lease of the Project Site, as described in the Sublease; and
WHEREAS, in order to provide additional security for the payment of Base Rentals under the
Lease, concurrently with the execution of the Sublease, the City Council finds it in the best interests of the
City to authorize the execution of an Assignment of Sublease Agreement dated as of September 1, 2001
(the "Assignment of Sublease"), pursuant to which the City will assign all its rights under the Sublease to
the Trustee (other than certain Reserved Rights described therein);
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF CAPE
GIRARDEAU, MISSOURI, AS FOLLOWS:
Section 1. Incorporation of the Preambles. The preambles to this Ordinance are hereby
approved and incorporated herein as though set forth in full at this point.
Section 2. Approval of Delivery of the Certificates. The City Council hereby approves the
delivery of the Certificates described in the preambles to this Ordinance and representing the interests of
the Owners thereof in the right to receive Base Rentals payable by the City pursuant to the Lease. The
Lease is being executed and the Certificates are being delivered for the purpose of (1) paying the costs of
the Project, (2) funding debt service reserve funds for the Certificates, (3) paying the interest distributable
with respect to the Certificates on and before April 1, 2004, and (4) paying the costs of issuing the
Certificates.
The Certificates shall be dated September 1, 2001 and shall be in such denominations, mature in
such amounts, bear interest at such rates, be subject to prepayment prior to the stated payment dates
thereof, have such other terms and provisions, and be executed and delivered in such manner subject to
such provisions, covenants and agreements, as are set forth in the Indenture.
Section 3. Sale of the Certificates. The Series 2001A Certificates shall be sold to U.S. Bancorp
Piper Jaffray Inc. (the "Underwriter") at a purchase price equal to $2,626,620.70 (representing the
principal amount of the Series 2001A Certificates, plus an original issue premium of $1,595.70, less an
underwriting discount of $39,975.00), plus accrued interest from the date thereof to the date of delivery of
the Series 2001A Certificates. The Series 2001B Certificates shall be sold to the Underwriter at a
purchase price equal to $146,878.50 (representing the principal amount of the Series 2001B Certificates
$150,000.00, less an original issue discount of $871.50, less an underwriting discount of $2,250.00), plus
accrued interest from the date thereof to the date of delivery of the Series 2001A Certificates.
Delivery of the Certificates shall be made to the respective Purchaser thereof as soon as
practicable after the adoption of this Ordinance, upon payment therefor in accordance with the terms of
sale.
Section 4. Limited Obligations. The Certificates and the interest thereon shall be limited
obligations, payable solely out of the rents, revenues and receipts received by the Trustee from the City
-2-
pursuant to the Lease. The City will pledge to the payment of the Certificates all payments received by
the City under the Sublease. Neither the Lease nor the Certificates shall constitute a debt or liability of
the City or of the State of Missouri or of any political subdivision thereof, and neither the Lease nor the
Certificates shall constitute an indebtedness within the meaning of any constitutional, statutory or charter
debt limitation or restriction.
Section 5. Authorization of Documents. The City is hereby authorized to enter into the
following documents, in substantially the forms presented to and reviewed by the City Council at this
meeting and attached to this Ordinance (copies of which documents shall be filed in the records of the
City), with such changes therein as shall be approved by the officers of the City executing such
documents, such officers' signatures thereon being conclusive evidence of their approval thereof:
(a) Ground Lease (attached hereto as Exhibit A).
(b) Lease (attached hereto as Exhibit B).
(c) Sublease (attached hereto as Exhibit Q.
(d) Assignment of Sublease (attached hereto as Exhibit D).
(e) Tax Compliance Agreement dated as of the date of delivery of the Certificates,
among the City, the Company and the Trustee (attached hereto as Exhibit E).
Section 6. Approval of Indenture. The City hereby approves the Declaration and Indenture of
Trust dated as of September 1, 2001 (the "Indenture"), executed by the Trustee (attached hereto as
Exhibit F), in substantially the form approved by the City Council at this meeting.
Section 7. Execution of Documents. The City is hereby authorized to enter into and the Mayor
is hereby authorized and directed to execute and deliver, on behalf of the City, the Ground Lease, the
Lease, the Sublease, the Assignment of Lease, the Tax Compliance Agreement and such other documents,
certificates and instruments as may be necessary or desirable to carry out and comply with the intent of
this Ordinance.
Section 8. Preliminary Official Statement and Official Statement. The City Council
hereby ratifies and approves the Preliminary Official Statement in the form attached hereto as Exhibit G,
and the final Official Statement is hereby authorized and approved by supplementing, amending and
completing the Preliminary Official Statement, with such changes and additions thereto as are necessary
to conform to and describe the transaction. The Mayor is hereby authorized to execute the Official
Statement as so supplemented, amended and completed. The City Council consents to the use and public
distribution by the Underwriter of the final Official Statement in connection with the offering for sale of
the Series 2001A Certificates and the limited offering and placement of the Series 2001B Certificates.
Section 9. Further Authority. The officers, agents and employees of the City, including the
Mayor and City Clerk, are authorized and directed to execute all documents and take such actions as they
may deem necessary or advisable in Ordinance to carry out and perform the purposes of this Ordinance,
and to carry out, comply with and perform the duties of the City with respect to the Ground Lease, the
Lease, the Sublease, the Assignment of Sublease and the Tax Compliance Agreement, to make
alterations, changes or additions in the foregoing agreements, statements, instruments and other
documents herein approved, authorized and confirmed which they may approve, and the execution or
taking of such action shall be conclusive evidence of such necessity or advisability.
-3-
Section 10. Effective Date. This Ordinance shall become effective 10 days after its final
passage by the City Council.
PASSED by the City Council of the City of Cape Girardeau, Missouri, this 4th day of September,
2001.
Richard L. Eggiman, Mayor Pro Tem
(SEAL)
ATTEST'.
-4-
EXHIBIT A
GROUND LEASE
[On file with the City Clerk]
EXHIBIT B
LEASE/PURCHASE AGREEMENT
[On file with the City Clerk]
EXHIBIT C
SUBLEASE AGREEMENT
[On file with the City Clerk]
EXHIBIT D
ASSIGNMENT OF SUBLEASE AGREEMENT
[On file with the City Clerk]
EXHIBIT E
TAX COMPLIANCE AGREEMENT
[On file with the City Clerk]
.1.
APPENDIX F
DECLARATION AND INDENTURE OF TRUST
[On file with the City Clerk]
APPENDIX G
PRELIMINARY OFFICIAL STATEMENT
[On file with the City Clerk]
.# . w
GROUND LEASE
between the
CITY OF CAPE GIRARDEAU, MISSOURI,
as Lessor
and
UMB BANK, N.A.,
as Trustee and Lessee
Dated as of September 1, 2001
VOL 0575PAGE 5.20
Section 1.
Section 2.
Section 3.
Section 4.
Section 5.
Section 6.
Section 7.
Section 8.
Section 9.
Section 10.
Section 11.
Section 12.
Section 13.
Section 14.
Section 15.
Section 16.
Section 17.
Section 18.
Section 19.
Section 20.
Section 21.
Section 22.
Section 23.
Section 24.
TABLE OF CONTENTS
PAGE
r 4
Representationsby the City......................................................................................... .2
Lease.................................................................................................................................... 3
Term....................................................................................................................................3
Rental..................................................................................................................................3
Assignmentsand Subleases.................................................................................................3
Termination.........................................................................................................................3
Default.................................................................................................................................4
QuietEnjoyment..................................................................................................................4
NoMerger...........................................................................................................................4
Taxes and Assessments........................................................................
Covenants Regarding Environmental Matters ......................................
Waiver of Personal Liability................................................................
Eminent Domain; Title Insurance........................................................
Leaseback to the City ...................................
.........................4
.........................4
.........................4
.........................4
................................................................5
PartialInvalidity................................................................................................................5
Notices.................................................................................................................... 5
..........
Definitions.........................................................................................................................5
SectionHeadings...............................................................................................................5
Amendments, Changes and Modifications........................................................................5
ApplicableLaw.................................................................................................................5
Execution...........................................................................................................................5
Successors.........................................................................................................................5
CompleteAgreement................................................................................................. .5
Indemnification of the Trustee..........................................................................................6
Signaturesand Seals............................................................................................................6
Exhibit A - Legal Description of the Project Site
(1) VOL 05 1 PAGE 521
.P . a
GROUND LEASE
THIS GROUND LEASE (the "Ground Lease"), dated as of September. 1, 2001, by and between
the CITY OF CAPE GIRARDEAU, MISSOURI (the "City"), as lessor, and UMB BANK, N.A., a
national banking association duly organized and existing and authorized to conduct its operations under
the laws of the United States of America (together with its successors, the "Trustee"), as trustee and
lessee:
RECITALS
1. The City is a home rule charter city and political subdivision duly organized and existing
under the laws of the State of Missouri with full lawful power and authority to enter into this Ground
Lease.
2. The Trustee is a national banking association duly organized and existing and authorized
to conduct its operations under the laws of the United States of America with full lawful power and
authority to enter into this Ground Lease.
3. The City owns fee simple title to the real estate located at the Cape Girardeau Regional
Airport (the "Airport") described on Exhibit A attached hereto, together with any improvements located
or to be located thereon (the "Project Site").
4. The City desires to lease the Project Site to the Trustee for the rental payments and upon
the terms and conditions herein set forth in order to provide funds to pay the costs of (1) acquiring and
constructing on the Project Site an approximately 60,000 square foot aircraft manufacturing facility and,
if sufficient funds are available therefor, an approximately 2,000 square foot addition thereto for office
space (the "Facility"), (2) acquiring and installing certain furniture, fixtures and equipment for the Facility
(the 'Equipment"), (3) constructing certain road improvements, parking for administrative offices and
employee parking (the "Infrastructure Improvements") and (4) extending water (including drinking and
fire suppression) and sewer lines to the Project Site as needed to service the Facility, including hook-up
(the "Utility Improvements"). The acquisition, construction and installation of the Facility, the
Equipment, the Infrastructure Improvements and the Utility Improvements are collectively referred to as
the "Project".
5. The Trustee proposes to lease the Project Site and that portion of the Project that will be
located thereon (collectively, the "Leased Property") back to the City pursuant to a Lease/Purchase
Agreement of even date herewith (the "Lease") and to execute a Declaration and Indenture of Trust of
even date herewith (the "Indenture"), under which the Trustee will deliver Certificates of Participation
(City of Cape Girardeau, Missouri, Airport Facilities Project), Series 2001A (the "Series 2001A
Certificates") to provide funds to (1) pay a portion of the costs of the Project, (2) fund a debt service
reserve fund for the Series 2001A Certificates, (3) pay the interest portion of Base Rentals payable under
the Lease with respect to the Series 2001A Certificates on and before April 1, 2004, and (4) pay a portion
of the costs of issuing the Series 2001A Certificates. The Trustee will also deliver, pursuant to the
Indenture, Taxable Certificates of Participation (City of Cape Girardeau, Missouri, Airport Facilities
Project), Series 2001B (the "Series 2001B Certificates" and, together with the Series 2001A Certificates,
the "Series 2001 Certificates") to provide funds to (1) pay a portion of the costs of the Project, (2) fund a
debt service reserve fund for the Series 2001B Certificates, (3) pay the interest portion of Base Rentals
payable under the Lease with respect to the Series 2001B Certificates on and before April 1, 2004, and (4)
pay costs of issuing the Series 2001 Certificates that are not otherwise paid from the proceeds of the
Series 2001A Certificates.
VOL 0575PAGE 522
6. The acquisition, construction, installation and financing of the Project as provided in the
Indenture, the Lease and this Ground Lease is necessary and desirable for and beneficial to the residents
of the City and serves a public municipal purpose, in that it will (a) provide employment opportunities for
residents; (b) facilitate development at the Cape Girardeau Regional Airport; (c) provide an incentive for
businesses to locate within the City by ensuring the long-term viability of the Cape Girardeau Regional
Airport, thereby increasing the value of property within the City and enhancing the tax base of the City;
and (d) promote the public purpose of general economic welfare.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and
agreements herein set forth, the City and the Trustee do hereby covenant and agree as follows:
Section 1. Representations by the City. The City represents, warrants and covenants as
follows:
(a) The lease of the Project Site to the Trustee and the lease of the Project Site by the
Trustee back to the City, as provided in the Lease, is necessary, desirable and in the public
interest and the City hereby declares its current need for the Project;
(b) The City has the power and authority to enter into the transactions contemplated
by this Ground Lease and the Lease and to carry out its obligations hereunder and thereunder, and
has been duly authorized to execute and deliver this Ground Lease and the Lease and by proper
action has duly authorized the execution and delivery of this Ground Lease and the Lease;
(c) Neither the execution and delivery of this Ground Lease nor the Lease, nor the
fulfillment of or compliance with the terms and conditions hereof or thereof, nor the
consummation of the transactions contemplated hereby or thereby, conflicts with or results in a
breach of the terms, conditions or provisions of any restriction or any agreement or instrument to
which the City is now a party or by which the City or the Project Site is bound;
(d) The City has good and merchantable fee title to the Project Site;
(e) All taxes, assessments or impositions of any kind with respect to the Project Site,
except current taxes, if any, have been paid in full;
(f) The City has not made, done, executed or suffered, and warrants that it will not
make, do, execute or suffer, any act or thing whereby the City's interests in any property now or
hereafter included in the Project Site will be or may be impaired, changed or encumbered in any
manner whatsoever except as permitted by this Ground Lease and the Lease; and
(g) There is no proceeding pending or, to the City's knowledge, threatened in any
court or before any governmental authority or arbitration board or tribunal relating to the Project
Site or challenging the validity of the proceedings of the City authorizing this Ground Lease and
the Lease or the power or authority of the City to enter into the Lease or this Ground Lease or the
validity or enforceability of the Lease or this Ground Lease or which, if adversely determined,
would adversely affect the transactions contemplated by the Lease or this Ground Lease of the
interest of the City under the Lease or this Ground Lease.
-2- VOL 0575PAGE 523
Section 2. Lease. The City hereby leases to the Trustee, and the Trustee hereby rents and leases
from the City, the Project Site on the terms and conditions hereinafter set forth, subject to the restrictions
set forth in that certain Quit -Claim Deed from the Reconstruction Finance Corporation to the City, dated
August 26, 1947 and recorded in Book 145 at Page 402 of the real estate records of Scott County,
Missouri.
Section 3. Term. The term of this Ground Lease will commence as of the date of the delivery
hereof, and will end on April 1, 2041, unless such term is sooner terminated as hereinafter provided.
Section 4. Rental. As and for rental hereunder and in consideration for the leasing of the Project
Site to the Trustee, the Trustee will enter into the Lease and the Indenture and, following receipt of the net
proceeds of the sale of the Series 2001 Certificates, deposit the amounts required as provided in
Section 4.02 of the Indenture.
Section 5. Assignments and Subleases.
(a) The Trustee may assign this Ground Lease and its rights hereunder or lease the Project
Site without the written consent of the City (i) if the Lease is terminated for any reason, or (ii) if an Event
of Default under the Lease has occurred, so long as the Project Site is used for aviation -related purposes
only.
(b) Notwithstanding the foregoing, the City, at its sole discretion, reserves the right to further
develop or improve the aircraft operating area of the Airport as it sees fit and to take any action it
considers necessary to protect the aerial approaches of the Airport against obstructions, together with the
right to prevent the Company or the Trustee, or any assignee thereof, from erecting or permitting to be
erected any building or other structure, other than the Project, on the Project Site which would limit the
usefulness of the Airport or constitute a hazard to aircraft in accordance with the air rights provisions of
the Federal Aviation Administration for federally funded airports.
(c) No portion of the Project Site may be released by the Trustee nor encumbered by the
Trustee or the City, except as permitted by the terms hereof and of the Lease.
Section 6. Termination.
(a) This Ground Lease will terminate upon the completion of the term set forth in Section 3
hereof. - However, if the City pays the Option Price or pays all of the Base Rentals and Supplemental Rent
provided for in Article III of the Lease and exercises its option to purchase the Trustee's interest in the
Project Site pursuant to Article XII of the Lease, then this Ground Lease will be considered assigned to
the City and terminated through merger of the leasehold interest hereunder with the fee interest of the
City if the City is the owner of the fee interest.
(b) If an Event of Default (which includes any grace period contained in the Lease) or an
Event of Nonappropriation under the Lease occurs, the Trustee will have the right to possession of the
Project Site for the remainder of the term of this Ground Lease and will have the right to sublease the
Project Site or sell its interest in the Project Site and this Ground Lease upon whatever terms and
conditions it deems prudent, so long as the Project Site is used for aviation purposes only. Upon any
termination of the Lease, the City will have no further responsibility or liability to the Trustee under the
Lease with respect to the Project Site except as provided in the Lease and this Ground Lease.
_3_ VOL 05'75 -)MU 524
Section 7. Default. Notwithstanding any default by the Trustee hereunder, the City may not
exclude the Trustee from the Project Site or take possession of the Project Site (other than pursuant to the
Lease) or terminate this Ground Lease prior to the expiration of its term as set forth in Section 3 hereof.
However, if, upon the exercise of the option to purchase the Trustee's interest in the Project Site granted
to the City in Article XII of the Lease and after the payment of the Option Price specified therein and
other sums payable under the Lease, the Trustee fails to convey its interest in the Project Site to the City
pursuant to said option, then the City will have the right to terminate this Ground Lease, such termination
to be effective 30 days after delivery of written notice of such termination to the Trustee. In the event of
any default by the Trustee hereunder, the City may maintain an action for damages or, if permitted in
equity, for specific performance. In no event will the Trustee be liable for consequential or punitive
damages.
Section 8. Quiet Enjoyment. At all times during the term of this Ground Lease, the Trustee will
peaceably and quietly have, hold and enjoy all of the Project Site, subject to the rights of the City under
the Lease.
Section 9. No Merger. No union of the interests of the City and the Trustee herein will result in
a merger of this Ground Lease and the title to the Project Site, except as described in Section 6 hereof.
Section 10. Taxes and Assessments. So long as the Lease is in effect the City covenants and
agrees to pay or reimburse the Trustee for the payment of any and all assessments, charges or taxes of any
kind or character levied or assessed upon or against the Project Site.
Section 11. Covenants Regarding Environmental Matters. The City hereby covenants that it
has carried and agrees to continue to carry on the business and operations at the Project Site in a manner
that complies in all respects, and will remain in compliance, with all applicable federal, state, county,
regional or local laws, statutes, rules, orders, regulations or ordinances, concerning public health, safety,
hazardous substances or the environment. In addition, the provisions of Section 10.03 of the Lease are
incorporated herein by reference as though set forth in full at this place.
Section 12. Waiver of Personal Liability.
(a) All obligations or liabilities under this Ground Lease on the part of the Trustee are solely
obligations or liabilities of the Trustee in its capacity as a corporate trustee of the Trust Estate, and, to the
extent permitted by law, the City hereby releases each and every director, officer, agent, attorney or
employee of the Trustee of and from any personal or individual liability under this Ground Lease. No
director, officer, agent, attorney or employee of the Trustee will at any time or under any circumstances
be individually or personally liable under this Ground Lease for anything done or omitted to be done by
the Trustee hereunder.
(b) All obligations or liabilities under this Ground Lease on the part of the City are solely
obligations or liabilities of the City as a political subdivision of the State of Missouri, and, to the extent
permitted by law, the Trustee hereby releases each and every official, member, employee or agent of the
City of and from any personal or individual liability under this Ground Lease. No official, member,
employee or agent of the City will at any time or under any circumstances be individually or personally
liable under this Ground Lease for anything done or omitted to be done by the City hereunder.
Section 13. Eminent Domain; Title Insurance. If the whole or any part of the Project Site is
taken by eminent domain proceedings, the interest of the Trustee is required to be recognized. The
proceeds of said condemnation will be applied as provided in Article VIII of the Lease. The City hereby
assigns to the Trustee its interest in any condemnation award or title insurance proceeds respecting the
VOL 05 (5nGE 525
Project Site to the extent necessary to provide for the payment of the Certificates and to discharge the
Indenture in accordance with Article VIII thereof. Any proceeds from said title insurance will be
deposited with the Trustee and used to pay principal of and interest on the Certificates and to discharge
the Indenture to the extent required and, thereafter, any excess will be paid to the City.
Section 14. Leaseback to the City. Contemporaneously herewith, the Trustee and the City will
execute the Lease whereby the Trustee subleases back to the City and the City subleases from the Trustee
the Project Site, including all improvements constructed or installed on the Project Site, including that
portion of the Project to be located thereon, all in accordance therewith. The Lease includes in
Article XII thereof the option -of the City, upon payment of the specified purchase price, to purchase the
Trustee's interest in the Leased Property.
Section 15. Partial Invalidity. If any one or more of the terms, provisions, covenants or
conditions of this Ground Lease is to any extent declared invalid, unenforceable, void or voidable for any
reason whatsoever by a court of competent jurisdiction, the finding or order or decree of which becomes
final, none of the remaining terms, provisions, covenants and conditions of this Ground Lease will be
affected thereby, and each provision of this Ground Lease will be valid and enforceable to the fullest
extent permitted by law.
Section 16. Notices. All written notices to be given under this Ground Lease will be given by
mail to the party entitled thereto as set forth in the Indenture.
Section 17. Definitions. In addition to words and terms defined elsewhere in this Ground Lease,
capitalized words and terms used in this Ground Lease have the meanings given to such words and terms
in Section 1.01 of the Indenture.
Section 18. Section Headings. All section headings contained herein are for convenience of
reference only and are not intended to define or limit the scope of any provision of this Ground Lease.
Section 19. Amendments, Changes and Modifications. This Ground Lease may be amended
only in the manner provided in Article VI of the Indenture. Any waiver of any provision of this Ground
Lease or any right or remedy hereunder must be affirmatively and expressly made in writing and may not
be implied from inaction, course of dealing or otherwise.
Section 20. Applicable Law. This Ground Lease will be governed by and construed in
accordance with the laws of the State of Missouri.
Section 21. Execution. This Ground Lease may be executed in any number of counterparts,
each of which is deemed to be an original but all together constitute but one and the same Ground Lease.
It is also agreed that separate counterparts of this Ground Lease may be executed by the Trustee and the
City all with the same force and effect as though the same counterpart had been executed by both the
Trustee and the City.
Section 22. Successors. This Ground Lease will be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
Section 23. Complete Agreement. This written agreement is a final expression of the
agreement between the parties hereto and such agreement may not be contradicted by evidence of any
prior oral agreement or of a contemporaneous oral agreement between the parties hereto. No unwritten
oral agreement between the parties exists.
-5- VOL 05 15PAGE 526
Section 24. Indemnification of the Trustee. The City shall, to the extent permitted by law and
subject to the availability of appropriations of funds to it therefor and other money legally available for
the purpose, indemnify and hold harmless the Trustee and its employees, directors, shareholders, agents
and attorneys from and against any and all claims, damages, losses, liabilities, costs or expenses
whatsoever in connection with this Ground Lease, the Lease or the Indenture, which the Trustee may
incur (or which may be claimed against the Trustee by any person or entity whatsoever) and which are not
caused by the negligence or willful misconduct of the Trustee. The obligations under this Section shall
survive any termination of this Ground Lease.
IN WITNESS WHEREOF, the Trustee and the City have caused this Ground Lease to be signed
by their respective officers hereunto duly authorized, all as of the day and year first above written.
[SEAL]
ATTEST:
Name:.:: a* L. 000ad
Title: 'City Clerk
CITY OF CAPE GIRARDEAU, MISSOURI,
as Lessor
By:
Name: Richard L. Eggiman
Title: Mayor Pro Tem
-6 VOL 05 15PAGE 527
[SEAL]
ATTEST:
i
Name: Sandra L Battas
Title: Asst. Secretary
UMB BANK, N.A.,
as Trustee and Lessee
BY Z�� ,,—
Name: Victor Zarrilli
Title: Vice President
-7- VOL 0575PAGE 528
ACKNOWLEDGMENT
STATE OF MISSOURI )
SS.
COUNTY OF CAPE GIRARDEAU )
On this 4th day of September, 2001, before me, the undersigned, a Notary Public in and for said
State, appeared RICHARD L. EGGIMAN to me personally known, who, being by me duly sworn, did
say that they he is the Mayor Pro Tem of the CITY OF CAPE GIRARDEAU, MISSOURI, a political
subdivision of the State of Missouri, and that the seal affixed to the foregoing instrument is the seal of
said City, and that said instrument was signed and sealed in behalf of said City by authority of its
governing body, and said official acknowledged said instrument to be executed for the purposes therein
stated and as the free act and deed of said City.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal the day and
year last above written.
MARK D. GRIMM
z
St. Louis County
My Commission Expires
kqW s, ion
My commission expires: August 8, 2003.
Notary Public - State of Missouri
Commissioned in St. Louis County
VOL QO7JPAGE 529
STATE OF MISSOURI
SS.
CITY OF ST. LOUIS
On this Z 'A- day of September, 2001, before me, the undersigned, a Notary Public in and for
said State, appeared Vid-rJi-_ to me personally known, who, being by me duly
sworn, did say that (s)he is a icrI_);f UMB BANK, N.A., a national banking association,
and that the seal affixed to the foregoing instrument is the corporate seal of said association, and that said
instrument was signed and sealed in behalf of said association by authority of its Board of Directors, and
said officer acknowledged said instrument to be executed for the purposes therein stated and as the free
act and deed of said association.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal the day and
year last above written.
M DEBORAH KING
"} +iOrf/kRY PUBLIC STATE OF MISSOURI
ST. LOUIS COUNTY
1F�Irnipiss�IIiiIsSION EXP. JULY 6,2004
Notary Public - State of Missouri
Commissioned in s; / out �, County
-9- VOL 05 1 e"1PAGE 530
EXHIBIT A
LEGAL DESCRIPTION OF THE PROJECT SITE
The following described real estate situated in Scott County, State of Missouri, together with all
improvements now or hereafter situated thereon:
A tract of land situated in the Northwest Quarter (NW1/4) of Section Thirty -Six (36),
Township Thirty (30) North, Range Thirteen (13) East, Scott County, Missouri, described
as follows- Commence at the found concrete monument at the Southeast corner of Section
35, Township 30 North, Range 13 East; thence North 01 degrees 23 minutes 56 seconds
West a distance of 3121.80 feet to the southwest building corner of the Main Terminal
Building with said coordinates North 508573.092, East 1092440.325; South 00 degrees 00
minutes 00 seconds East a distance of 235.41 feet to a point; thence North 90 degrees 00
minutes 00 seconds East a distance of 1060.34 feet to a point; thence North 00 degrees 00
minutes 00 seconds East a distance of 50.00 feet to a point; thence North 89 degrees 38
minutes 13 seconds East a distance of 120.25 feet to the point of beginning; thence North
00 degrees 21 minutes 13 seconds West a distance of 334.00 feet to a point; thence North
89 degrees 38 minutes 47 seconds East a distance of 334.68 feet to a point; thence South
44 degrees 33 minutes 51 seconds East a distance of 29.15 feet to a point; thence South 00
degrees 21 minutes 13 seconds East a distance of 313.11 feet to a point; thence South 89
degrees 38 minutes 47 seconds West a distance of 3 65. 00 feet to the point of beginning.
COMPUTER INDEXED
Filed for Record
9.145
SEP 18 2001
Scott County Recorder
Benton, Mo
STATE
,C'F rno Count
sak 56
I here
was Iy
and tit
Book
Y tett y._ .. t, irmtrument
D t =aNhe date
�a 4i.fecorded in
s f .
Recorder
of Deeds
A-1 VOL 0575PAGi 531
LEASE/PURCHASE AGREEMENT
between
UMB BANK, N.A.,
as Trustee and Lessor
and the
CITY OF CAPE GIRARDEAU, MISSOURI,
as Lessee
Dated as of September 1, 2001
TABLE OF CONTENTS
Page
Parties.............................................................................................................................................1
Recitals.............................................................................................................................................1
ARTICLE I
DEFINITIONS
Section1.01. Definitions......................................................................................................................2
Section 1.02. Rules of Construction.....................................................................................................2
ARTICLE H
DEMISE OF THE LEASED PROPERTY; LEASE TERM
Section 2.01. Demise of the Leased Property .......................................................................................2
Section 2.02. Commencement of the Term of the Lease.....................................................................3
Section 2.03. Expiration or Termination of the Term of the Lease......................................................4
Section 2.04. Effect on the City of Expiration or Termination of the Term of the Lease ....................4
ARTICLE III
AMOUNTS PAYABLE
Section3.01. Amounts Payable............................................................................................................4
Section3.02. Consideration..................................................................................................................6
Section 3.03. Covenant to Request Appropriations..............................................................................6
Section 3.04. Limitations on Liability..................................................................................................7
Section 3.05. Unconditional Obligation...............................................................................................8
Section3.06. Payment..........................................................................................................................8
Section 3.07. Credit on Base Rentals...................................................................................................9
Section 3.08. Applications of Base Rentals and Option Price..............................................................9
Section 3.09. Nonappropriation ................. ................9
...........................................................................
Section 3.10. Advances by the Trustee................................................................................................9
ARTICLE IV
DELIVERY OF SERIES 2001 CERTIFICATES; USE OF PROCEEDS;
TAX COVENANTS
Section 4.01. Delivery of Series 2001 Certificates.............................................................................10
Section 4.02. Acquisition, Construction and Installation of the Project.............................................10
Section 4.03. Deficiency of Project Fund...........................................................................................10
Section4.04. Tax Covenants..............................................................................................................10
(i)
ARTICLE V
MAINTENANCE AND OPERATION
Section 5.01. Maintenance and Operation..........................................................................................11
Section 5.02. Care of the Leased Property .........................................................................................11
ARTICLE VI
INSURANCE AND TAXES
Section 6.01. Property and Casualty Insurance..................................................................................1 l
Section 6.02. Public Liability Insurance.............................................................................................12
Section 6.03. Workers' Compensation Insurance...............................................................................13
Section 6.04. Blanket Insurance Policies...........................................................................................13
Section6.05. Title Insurance..............................................................................................................13
Section6.06. Taxes............................................................................................................................13
ARTICLE VII
ALTERATIONS, ADDITIONS AND IMPROVEMENTS
Section 7.01. Alterations, Additions and Improvements to the Leased Property ...............................14
Section 7.02. Title to Alterations, Additions and Improvements.......................................................14
Section 7.03. City's or Company's Equipment...................................................................................14
ARTICLE VIII
DAMAGE, DESTRUCTION AND CONDEMNATION
Section 8.01. Damage, Destruction and Condemnation.....................................................................15
Section 8.02. Condemnation or Deficiency of Title...........................................................................16
ARTICLE IX
ASSIGNMENTS
Section 9.01. Limitations on Assignment and Subleasing by City....................................................16
ARTICLE X
REPRESENTATIONS, COVENANTS AND WARRANTIES
Section 10.01. Representations, Covenants and Warranties of the City............................................16
Section 10.02. Representations, Covenants and Warranties of the Trustee.......................................18
Section 10.03. City's Covenants Relating to Compliance with Environmental Laws........................18
Section 10.04. Continuing Disclosure................................................................................................20
ARTICLE XI
AMENDMENTS
Section 11.01. Amendments, Changes and Modifications.................................................................21
ARTICLE XII
LESSEE'S OPTION TO PURCHASE THE LESSOR'S
INTEREST IN THE LEASED PROPERTY
Section 12.01. Option to Purchase the Trustee's Interest in the Leased Property ..............................21
Section12.02. Vesting of Title...........................................................................................................21
Section12.03. Partial Prepayments....................................................................................................21
Section 12.04. Relative Position of Option and Indenture.................................................................22
Section 12.05. Obligation of the City to Accept Conveyance of Trustee's Interest
inLeased Property .................................................................................................22
Section 12.06. No Obligation to Purchase..........................................................................................22
ARTICLE XIII
RIGHT OF ENTRY; LIENS; QUIET ENJOYMENT
Section13.01. Right of Entry .............................................................................................................22
Section13.02. Liens...........................................................................................................................22
Section 13.03. Covenant of Quiet Enjoyment....................................................................................23
ARTICLE XIV
EVENTS OF DEFAULT; REMEDIES
Section 14.01. Events of Default Defined..........................................................................................23
Section 14.02. Remedies on Default..................................................................................................24
Section 14.03. Remedies Cumulative.................................................................................................25
Section14.04. Waiver........................................................................................................................25
Section14.05.. Curing City's Breach..................................................................................................25
F4 I V, 4 M s _ .r11
MISCELLANEOUS
Section15.01. Notices........................................................................................................................25
Section 15.02. Filing Continuation Statements..................................................................................25
Section 15.03. Waiver of Personal Liability......................................................................................25
Section15.04. Governing Law...........................................................................................................26
Section 15.05. Execution in Counterparts..........................................................................................26
Section15.06. Severability.................................................................................................................26
Section 15.07. Successors and Assigns; Third Party Beneficiaries....................................................26
Section 15.08. Captions and Headings...............................................................................................26
Section15.09. Net Lease....................................................................................................................26
Section15.10. Indemnification..........................................................................................................27
Section 15.11. Consent Not to be Unreasonably Withheld................................................................27
Section15.12. No Merger..................................................................................................................27
Signaturesand Seals............................................................................................................................28
Exhibit A - Legal Description of the Project Site
Exhibit B - The Equipment
Schedule 1 - Base Rental Payment Schedule
Schedule 2 - Option Price Schedule
LEASE/PURCHASE AGREEMENT
THIS LEASE/PURCHASE AGREEMENT (the "Lease") dated as of September 1, 2001, by
and between UMB BANK, N.A., a national banking association duly organized and existing and
authorized to conduct its operations under the laws of the United States of America (the "Trustee"), as
trustee and lessor, and the CITY OF CAPE GIItARDEAU, MISSOURI, a home rule charter city and
political subdivision of the State of Missouri (the "City"), as lessee.
RECITALS:
1. The City owns certain real estate located at the Cape Girardeau Regional Airport, as
legally described in Exhibit A hereto (the "Project Site").
2. The City concurrently herewith is conveying a leasehold interest in the Project Site to the
Trustee pursuant to a Ground Lease dated as of September 1, 2001 (the "Ground Lease"), for the rental
payments and upon the terms and conditions therein set forth in order to provide funds to pay the costs of
(1) acquiring and constructing on the Project Site an approximately 60,000 square foot aircraft
manufacturing facility and, if sufficient funds are available therefor, an approximately 2,000 square foot
addition thereto for office space (collectively, the "Facility"), (2) acquiring and installing certain fixtures
and equipment for the Facility, as described on Exhibit B attached hereto (the "Equipment"), (3)
constructing certain road improvements, parking for administrative offices and employee parking (the
"Infrastructure Improvements") and (4) extending water (including drinking and fire suppression) and
sewer lines to the Project Site as needed to service the Facility, including hook-up (the "Utility
Improvements"). The acquisition, construction and installation of the Facility, the Equipment, the
Infrastructure Improvements and the Utility Improvements are collectively referred to as the "Project".
3. The Trustee is willing to lease the Project Site and that portion of the Project that will be
located thereon (collectively, the "Leased Property") back to the City, and the City desires to lease the
Leased Property from the Trustee, upon the terms and conditions and for the purposes set forth herein.
4. The Trustee concurrently herewith has executed a Declaration and Indenture of Trust of
even date herewith (the "Indenture") pursuant to which the Trustee will deliver Certificates of
Participation (City of Cape Girardeau, Missouri, Airport Facilities Project), Series 2001A (the
"Series 2001A Certificates") to provide funds to (1) pay a portion of the costs of the Project, (2) fund a
debt service reserve fund for the Series 2001A Certificates, (3) pay the interest portion of Base Rentals
payable under the Lease with respect to the Series 2001A Certificates on and before April 1, 2004, and (4)
pay a portion of the costs of issuing the Series 2001A Certificates. The Trustee will also deliver, pursuant
to the Indenture, Taxable Certificates of Participation (City of Cape Girardeau, Missouri, Airport
Facilities Project), Series 2001B (the "Series 2001B Certificates" and, together with the Series 2001A
Certificates, the "Series 2001 Certificates") to provide funds to (1) pay a portion of the costs of the
Project, (2) fund a debt service reserve fund for the Series 2001B Certificates, (3) pay the interest portion
of Base Rentals payable under the Lease with respect to the Series 2001B Certificates on and before
April 1, 2004, and (4) pay costs of issuing the Series 2001 Certificates that are not otherwise paid from
the proceeds of the Series 2001A Certificates. Pursuant to the Indenture, the Trustee will grant, assign
and hold in trust all of its right, title and interest in and to this Lease (including its right to receive Base
Rentals and certain other payments as provided herein) for the benefit and security of the Owners of the
Certificates as provided in the Indenture.
5. Concurrently herewith, the City has entered into a Sublease of even date herewith (the
"Sublease") with Renaissance Aircraft LLC (the "Company"), pursuant to which the City will sublease
the Leased Property to the Company and the Company will make sublease payments ("Sublease Rentals")
to the City, which will be sufficient, during any term of the Sublease, to pay the Base Rentals and other
payments required to be paid by the City hereunder. The City has assigned all its rights under the
Sublease (except the Reserved Rights, as defined in the Indenture) to the Trustee.
NOW, THEREFORE, in consideration of the mutual promises and agreements herein contained,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto covenant and agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. In addition to any words and terms defined elsewhere in this Lease,
capitalized words and terms used in this Lease have the meanings given to such words and terms in
Section 1.01 of the Indenture.
Section 1.02. Rules of Construction.
(a) Words of the masculine gender will 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 include the
plural and vice versa, and words importing persons include firms, associations and corporations,
including public bodies, 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 will 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 Lease to designated "Articles," "Sections" and other subdivisions
are, unless otherwise specified, to the designated Articles, Sections and subdivisions of this instrument as
originally executed. The words "herein," "hereof," "hereunder" and other words of similar import refer to
this Lease asa 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 will 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.
ARTICLE H
DEMISE OF THE LEASED PROPERTY; LEASE TERM
Section 2.01. Demise of the Leased Property. In connection with the delivery of the
Certificates, the City has conveyed a leasehold interest in the Leased Property to the Trustee pursuant to
the Ground Lease. The Trustee hereby rents, leases and demises to the City, and the City hereby leases
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from the Trustee, the Leased Property, subject to Permitted Encumbrances, on the terms and conditions
and for the purposes herein set forth, together with all easements, rights and appurtenances in connection
therewith or thereto belonging, to have and to hold for the term of the Lease.
Section 2.02. Commencement of the Term of the Lease.
(a) The initial term of this Lease will commence as of September 1, 2001, and expire at
midnight on June 30, 2002 (the "Initial Term"), subject to the City's option to extend the term of this
Lease for 18 consecutive one-year renewal terms commencing July 1, 2002, and a final renewal term
commencing July 1, 2020 and ending April 2, 2021 (herein referred to individually as a "Renewal Term"
and collectively as the "Renewal Terms"). The terms and conditions of this Lease during any Renewal
Term shall be the same as the terms and conditions during the Initial Term, except that the Base Rentals
and the Option Price will be as specified in Schedule 1 and Schedule 2 attached hereto, respectively, for
each Renewal Term. Each option shall be exercised by the appropriation by the City Council of the City,
in accordance with applicable law, of sufficient money (after taking into account any money legally
available for such purpose) specifically designated for the payment of Base Rentals required hereunder
and adequate money to pay the reasonably estimated Supplemental Rent (calculated as provided in
Section 3.01(b)) for the next succeeding Renewal Term as provided herein. Such appropriation shall
automatically extend the term of this Lease for the succeeding Renewal Term without any further action
required by any officers or officials of the City.
(b) Pursuant to the Assignment of Sublease, the City has assigned to the Trustee all its rights
under the Sublease (except the Reserved Rights). This Lease shall be deemed to be automatically renewed and
no further act of the City Council shall be required for such renewal if the Sublease Rentals and such other
payments received by the Trustee, on the City's behalf, together with moneys on deposit in the Reserve Funds,
are sufficient for the payment of Base Rentals and reasonably estimated Supplemental Rent to become due
during the next succeeding Renewal Term.
(c) If the Sublease Rentals and other payments received by the Trustee, on the City's behalf,
together with moneys on deposit in the Reserve Funds, are insufficient for the payment of Base Rentals
and reasonably estimated Supplemental Rent to become due during the next succeeding Renewal Term,
the City agrees that its financial officer will include in the budget proposals submitted to the City Council
of the City, in each year during the Term of this Lease, a request or requests for an appropriation, from
other available funds of the City, equal to the Base Rentals and reasonably estimated Supplemental Rent
to become due during the next succeeding Renewal Term. It is the intention of the City, however, that the
decision to appropriate the Base Rentals and reasonably estimated Supplemental Rent from other
available funds of the City shall be made solely by the City Council of the City, and not by any officer or
official of the City.
(d) Notwithstanding the foregoing or any other provision of this Lease, during the term
of the Sublease and so long as the Company is in possession of the Leased Property, any
appropriation of Base Rentals and reasonably estimated Supplemental Rent pursuant to this Lease
shall be made solely from Sublease Rentals and other payments received by the City under the
Sublease, unless an Opinion of Counsel is provided to the Trustee to the effect that the validity and
enforceability of this Lease will not be affected by the appropriation of Base Rentals and
Supplemental Rent from other available funds of the City while the Company remains in possession
of the Leased Property. If such an Opinion of Counsel cannot be obtained, the City and the Trustee
shall immediately exercise all available remedies under the Sublease, including removing the Company
from possession of the Leased Property.
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(e) If, by the date on which the City is required by law to have adopted a budget for the
current Fiscal Year, (i) the Company is in default under the Sublease, (ii) sufficient funds are not
appropriated by the City Council for the payment of the Base Rentals and the reasonably estimated
Supplemental Rent during such Fiscal Year, and (iii) funds are not otherwise legally available for such
purpose, the City shall vacate the Leased Property as of the expiration of the Initial Term or Renewal
Term for which funds have been appropriated.
Section 2.03. Expiration or Termination of the Term of the Lease. The Term of this Lease
will expire or terminate, as appropriate, as to the City's right of possession of the Leased Property as
described in Section 2.04, upon the first to occur of any of the following events:
(a) the expiration of the Initial Term or any Renewal Term for which there occurs an
Event of Nonappropriation (which is not thereafter waived by the Trustee as herein provided);
(b) on the Prepayment Date on which the City has purchased the Trustee's interest in
the Leased Property pursuant to Section 12.01;
(c) an Event of Default and a termination of the Term of this Lease as to the
possessory interest of the City as herein provided; or
(d) April 2, 2021, which date constitutes the day following the last Payment Date of
the final scheduled Renewal Term of this Lease, or such later date as all Payments required
hereunder are paid.
Section 2.04. Effect on the City of Expiration or Termination of the Term of the Lease. The
expiration or termination of the Term of this Lease as to the City's right of possession of the Leased
Property pursuant to Section 2.03 will terminate all obligations of the City hereunder (except to the extent
that the City incurred any obligation to pay Payments from money previously appropriated and available
for such purpose and, to the extent permitted by law, the City's indemnity obligations pursuant to
Section 15.11) and will terminate the City's rights of use and occupancy of the Leased Property;
provided, however, that all other terms of this Lease, including the continuation of the City's purchase
right under Section 12.01 and all obligations of the Trustee with respect to the Owners of the Certificates
and the receipt and disbursement of funds will be continuing until the lien of the Indenture is discharged
or foreclosed, as provided in the Indenture. The termination or expiration of the Term of this Lease as to
the City's right of possession pursuant to Section 2.03, of itself, will not discharge the lien of the
Indenture.
ARTICLE III
AMOUNTS PAYABLE
Section 3.01. Amounts Payable. The City shall pay the Base Rentals and the Supplemental
Rent (but will not be entitled to prepay or cause to be prepaid any such Base Rentals or Supplemental
Rent, except as otherwise expressly provided in the Indenture or in Sections 3.01(c), 8.01(c) and 12.01, in
which event such money shall be applied to the prepayment of the Certificates in accordance with
Sections 3.02 of the Indenture) in the amounts, at the times, and in the manner set forth herein, said
amounts constituting in the aggregate the total of the annual Payments which are payable under this
Lease, as follows:
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(a) Base Rentals. The City agrees, either from (i) the proceeds of the Certificates, or
(ii) Sublease Rentals and other payments received by the City under the Sublease or (iii) subject to
Section 3.04 (including the receipt of an appropriation by the City Council), other money legally
available for such purpose, to pay to the Trustee as provided in Section 3.06 during the Initial
Term and each Renewal Term:
(i) Base Rentals representing a Principal Component payable in annual
installments on April 1 for each Renewal Term of this Lease as indicated in the Base
Rental Payment Schedule attached as Schedule 1 hereto, commencing on April 1, 2005,
and
(ii) Base Rentals representing an Interest Component payable on each
April 1 and October 1 for the Term of this Lease as indicated in the Base Rental Payment
Schedule attached as Schedule 1 hereto, commencing on April 1, 2002.
The Base Rentals are to be recalculated by the Trustee and the City understands that the Base
Rental Payment Schedule attached as Schedule 1 hereto shall be revised from time to time in the
event of a partial prepayment of Certificates (other than mandatory prepayments, if any, pursuant
to Section 3.02 of the Indenture) or the issuance of Additional Certificates pursuant to
Section 2.09 of the Indenture. To provide for the timely payment of Base Rentals, the City
covenants and agrees to pay to the Trustee for deposit in the Certificate Payment Fund on the
15th day of the month preceding each Payment Date the amount of the Base Rental due on such
Payment Date. The Trustee shall notify the City of the amount of such payment not later than 30
days prior to each Payment Date; provided, however, that failure of the Trustee to give such
notice will not relieve the City of its obligation to pay Base Rentals or to make deposits to the
Certificate Payment Fund as described herein.
(b) Supplemental Rent. In addition to the Base Rentals hereinabove set forth, and as
part of the total Payments during each Renewal Term for the Term of the Lease, the City shall
pay, or cause to be paid, on a timely basis, to the parties entitled thereto, an amount or amounts
(the "Supplemental Rent") for the Renewal Term to which the following items apply or relate,
equivalent to the sum of the following:
(i) the reasonable fees, expenses and charges of the Trustee, any paying
agent and any registrar appointed under the Indenture with respect to the Certificates for
acting as trustee, paying agent and registrar as provided in the Indenture, including but
not limited to those payable pursuant to Section 9.06 of the Indenture;
(ii) the reasonable fees and charges of the Trustee for extraordinary services
rendered by it and extraordinary expenses incurred by it as Trustee under the Indenture;
(iii) all expenses incurred in connection with the enforcement of any rights
under this Lease, the Ground Lease or the Indenture by the Trustee or the Owners of the
Certificates;
(iv) the costs of maintenance, operation and repair of the Leased Property and
utility charges as required under Article V;
(v) the costs of casualty insurance required under Article VI and workers'
compensation self-insurance;
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(vi) the costs of taxes and governmental charges and assessments as required
under Section 6.07;
(vii) if the amount on deposit in either of the Reserve Funds is less than the
Reserve Requirement applicable to such Fund, to the Trustee for deposit in such Reserve
Fund an amount necessary to restore that Reserve Fund to the applicable Reserve
Requirement before the last day of the then current Fiscal Year;
(viii) all amounts required to be rebated to the United States of America as set
forth in the Indenture or the Tax Compliance Agreement;
(ix) all other payments of whatever nature that the City has agreed to pay or
assume under the provisions of this Lease.
(c) Prepayment of Base Rentals. If the City is not in default in making Payments
under Section 3.01, the Trustee, at the written direction of the City, at any time when the
aggregate money in the Certificate Payment Fund or the Prepayment Fund is sufficient for such
purposes, shall (i) if the Outstanding Certificates are then prepayable under Article III of the
Indenture, take all steps that may be necessary under the applicable prepayment provisions of the
Indenture to effect the prepayment of all or such part of the then Outstanding Certificates as may
be specified by the City, on such Prepayment Date as may be specified by the City, (ii) cause
money in the Certificate Payment Fund or such part thereof as the City directs to be applied by
the Trustee for the purchase of Certificates, to the extent practical, in the open market for the
purpose of cancellation at prices not exceeding the principal amount thereof plus accrued interest
thereon to the date of delivery for cancellation, or (iii) a combination of (i) and (ii) as provided in
such direction.
Section 3.02. Consideration.
(a) The payments of Base Rentals and Supplemental Rent hereunder for each Renewal Term
during the Term of the Lease will constitute the total Payments which are payable for each Renewal Term
and shall be paid by the City in consideration of the right to use and occupy the Leased Property.
(b) The City has determined that the Base Rentals hereunder during the Initial Term and any
Renewal Term represent the fair value of the use of the Leased Property, and that the Option Price as
provided in Schedule 2 represents the fair purchase price of the Trustee's interest in the Leased Property.
The City hereby determines that the Base Rentals do not exceed a reasonable amount so as to place the
City -under an economic compulsion to renew this Lease or to exercise its option to purchase the Trustee's
interest in the Leased Property hereunder. In making such determinations the City has given
consideration to the costs of the Leased Property, the uses and purposes for which the Leased Property
will be employed, the benefit to the City by reason of the use and occupancy of the Leased Property
pursuant to the terms and provisions of this Lease and the Sublease and the City's option to purchase the
Trustee's interest in the Leased Property. The City hereby declares that the period during which the City
has an option to purchase the Trustee's interest in the Leased Property (i.e., the maximum term of this
Lease including all Renewal Terms) does not exceed the useful life of the Leased Property.
Section 3.03. Covenant to Request Appropriations. Subject to Section 3.04, to the extent that
an appropriation is required to renew the term of this Lease pursuant to Section 2.02, the City covenants
and agrees that its responsible financial officer will include in the budget proposals submitted to the City
Council, in each year during the Term of this Lease, a request or requests for an appropriation equal to the
Base Rentals and reasonably estimated Supplemental Rent to become due during the next succeeding
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Renewal Term. It is the intention of the City that the decision to appropriate the Base Rentals and
reasonably estimated Supplemental Rent pursuant to this Lease shall be made solely by the City Council,
and not by any officer or official of the City. The City presently expects to, in each Fiscal Year of the
City during the Term of this Lease, appropriate funds for the Base Rentals and the reasonably estimated
Supplemental Rent so that the Base Rentals and Supplemental Rent to be paid during the succeeding
Fiscal Year will be available for such purposes.
Section 3.04. Limitations on Liability.
(a) Notwithstanding any provision or covenant contained in this Lease, the Indenture or the
Certificates, if the term of this Lease is not automatically renewed as set forth in Section 2.02(b) hereof,
the City is not obligated to renew this Lease beyond the Initial Term or any Renewal Term, nor is the City
Council obligated to budget or appropriate money (other than Sublease Rentals and other payments
received by the City under the Sublease) to pay Base Rentals or Supplemental Rent beyond the end of the
Initial Term or any Renewal Term in effect at a given time. The City will be under no obligation to levy
any taxes in order to raise revenues to pay Base Rentals or Supplemental Rent, except to the extent
required during the Initial Term or any Renewal Term for which the City is obligated. In no event will
the City be obligated to levy any tax in excess of the maximum levy permitted by law.
(b) Notwithstanding any provision or covenant of this Lease, during the term of the
Sublease and so long as the Company is in possession of the Leased Property, any appropriation of
Base Rentals and reasonably estimated Supplemental Rent pursuant to this Lease shall be made
solely from Sublease Rentals and other payments received by the City under the Sublease, unless an
Opinion of Counsel is provided to the Trustee to the effect that the validity and enforceability of
this Lease will not be affected by the appropriation of Base Rentals and Supplemental Rent from
other available funds of the City while the Company remains in possession of the Leased Property.
(c) If the City fails to make any portion of the Payments which are due hereunder, the City
will immediately quit and vacate the Leased Property, and the Payments (except for Payments which have
been appropriated and are then available for such purpose) shall thereupon cease. If the City fails to pay
any portion of the required Payments and then fails to immediately quit and vacate the Leased Property,
the Trustee in accordance with the Indenture may immediately bring legal action to evict the City from
the Leased Property (and the City shall, to the extent permitted by law, pay as damages for its failure to
quit and vacate the Leased Property upon termination of the then current term of the Lease in violation of
the terms hereof an amount equal to the Base Rentals otherwise payable during such term prorated on a
daily basis).and commence proceedings to foreclose the lien of the Indenture. No judgment may be
entered against the City for failure to make any Payments, or to pay the Option Price hereunder, except to
the extent that the City has theretofore incurred liability to make any such Payments through its actual use
and occupancy of the Leased Property, or through its exercise of an option that renews this Lease for an
additional Renewal Term for which money has been appropriated, or is otherwise obligated to make such
Payments from the Net Proceeds of insurance or condemnation pursuant to Section 8.01.
(d) Except for the City's pledge of Sublease Rentals and other payments received by the City
under the Sublease:
(i) the Payments constitute current expenses of the City;
(ii) the City's obligations hereunder are from year to year only and do not constitute
an indebtedness, liability or a mandatory payment obligation of the City in any ensuing Fiscal
Year beyond the then current Fiscal Year of the City;
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(iii) neither the execution, delivery and performance of the Lease nor the execution
and delivery of the Certificates directly or indirectly obligates the City to make any payments
hereunder beyond those appropriated for the City's then current Fiscal Year; and
(iv) No provision of this Lease may be construed to pledge or to create a lien on any
class or source of the City's money.
Nothing herein will be construed to limit the rights of the Owners of the Certificates or the
Trustee to receive any amounts which may be realized from the Trust Estate pursuant to the Indenture.
The City will be under no obligation whatsoever to exercise its option to purchase the Trustee's interest in
the Leased Property. No provision hereof will be construed or interpreted as creating a general obligation
or other indebtedness of the City within the meaning of any constitutional,. statutory or charter debt
limitation.
(e) No obligation assumed by or imposed upon the Trustee hereunder will require the
performance of any act by the Trustee except to the extent, if any, that the cost and expense of such
performance may be provided for from the proceeds of the sale of the Certificates or from the proceeds of
any Additional Certificates or paid by the City hereunder as Supplemental Rent. Failure of the Trustee to
perform any such act will not entitle the City to terminate this Lease.
Section 3.05. Unconditional Obligation. It is understood and agreed that:
(a) The obligations of the City under this Lease to make Payments during the Initial Term or
any Renewal Term on or before the date the same become due, and to perform all of its other obligations,
covenants and agreements hereunder will, subject to the provision of subsection (b) hereof, be absolute
and unconditional, without notice or demand, and without abatement, deduction, set-off, counterclaim,
recoupment or defense whatsoever, whether now existing or hereafter arising, and notwithstanding any
damage to, loss, theft or destruction of the Leased Property or any part thereof; any failure of
consideration, the taking by eminent domain of title to or of the right of temporary use of all or any part of
the Leased Property, legal curtailment of the City's use thereof, the eviction or constructive eviction of the
City, 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 Trustee's legal organization or status, or any default of the
Trustee hereunder, and regardless of the invalidity of any action of the Trustee, and regardless of the
invalidity of any portion of this Lease.
(b) Nothing in this Lease will be construed to release the Trustee from the performance of
any agreement on its part herein contained or as a waiver by the City of any rights or claims which the
City may have against the Trustee under this Lease or otherwise. Any recovery upon such rights and
claims shall be had from the Trustee separately, it being the intent of this Lease that the City shall be
unconditionally and absolutely obligated to perform fully all of its obligations, agreements and covenants
under this Lease (including the obligation to make Payments) for the benefit of the Owners of the
Certificates, but only during the Initial Term or a given Renewal Term. The City may, however, at its
own cost and expense and in its own name or in the name of the Trustee, prosecute or defend any action
or proceeding or take any other action involving third persons which the City deems reasonably necessary
in order to secure or protect its right of possession, occupancy and use hereunder, and in such event the
Trustee hereby agrees to cooperate fully with the City and to take all action necessary to effect the
substitution of the City for the Trustee in any such action or proceeding if the City so requests.
Section 3.06. Payment. Each Base Rental payment shall be paid in lawful money of the United
States of America, on the Payment Date on which it is due. To provide for the timely payment of Base
Rentals, the City covenants and agrees to pay to the Trustee at its principal corporate trust office in
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Kansas City, Missouri, for deposit in the Certificate Payment Fund on the 15th day of the month
preceding each Payment Date, the amount of the Base Rental due on such Payment Date. Each
Supplemental Rent payment shall be paid when due in lawful money of the United States of America, at
the appropriate office as designated by the respective payees entitled to receive such Supplemental Rent.
Section 3.07. Credit on Base Rentals. There shall be credited against Base Rentals any amount
held in the Certificate Payment Fund on each Payment Date, including the portions of the proceeds of the
sale of the Certificates which are deposited in the Certificate Payment Fund as accrued interest, and
amounts transferred to the Certificate Payment Fund from the Capitalized Interest Fund to pay the Interest
Component that is payable on and before April 1, 2004.
Section 3.08. Applications of Base Rentals and Option Price. All Base Rentals and, if paid,
the Option Price shall be paid to the Trustee for application in accordance with the Indenture.
Section 3.09. Nonappropriation.
(a) If, by the date on which the City is required by law to have adopted a budget for the next
Fiscal Year, (i) the Company is in default under the Sublease, (ii) the City Council has not appropriated
sufficient funds for the payment of the Base Rentals and the reasonably estimated Supplemental Rent
during such Fiscal Year, and (iii) funds are not otherwise legally available for such purpose, an Event of
Nonappropriation will be deemed to have occurred. The Trustee may waive any Event of
Nonappropriation which is cured by the City within a reasonable time if, in the Trustee's judgment, such
waiver is in the best interests of the Owners of the Certificates.
(b) If an Event of Nonappropriation occurs, the City will not be obligated to pay the Base
Rentals or Supplemental Rent provided for herein which accrue after the last day of the Initial Term or the
then current Renewal Term, except for the City's obligation to make Payments which are payable prior to
the termination of this Lease; provided, however, that, subject to the limitations of Section 3.04, the City
will continue to be liable for the Base Rentals and Supplemental Rent allocable to any period during
which the City continues to occupy the Leased Property. The Trustee will, upon the occurrence of any
Event of Nonappropriation, have all rights and remedies to take possession of the Leased Property as
trustee for the benefit of the Owners of the Certificates and will be further entitled to all money then on
hand in all funds and accounts created under the Indenture. All property, funds and rights acquired by the
Trustee upon the termination of this Lease or the City's possessory interests hereunder by reason of an
Event of Nonappropriation shall be held by the Trustee under the Indenture for the benefit of the Owners
of the Certificates as set forth in the Indenture until the Certificates are paid in full.
(c) The parties hereto agree that, upon the occurrence of an Event of Nonappropriation
(which is not waived), the City shall immediately quit and vacate the Leased Property upon termination of
the term of the Lease for which funds have been appropriated.
Section 3.10. Advances by the Trustee. If the City fails to pay any Supplemental Rent required
by this Lease, the Trustee may (but will be under no obligation to) pay such Supplemental Rent, which
Supplemental Rent will constitute additional Base Rentals hereunder and are to be reimbursed by the City
to the Trustee, upon demand therefor, together with interest thereon at the prime or base rate of the
Trustee plus 2% per annum, subject to the availability of sufficient legally available funds for such
purpose.
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ARTICLE IV
DELIVERY OF SERIES 2001 CERTIFICATES; USE OF PROCEEDS;
TAX COVENANTS
Section 4.01. Delivery of Series 2001 Certificates. The Trustee shall cause the Series 2001
Certificates to be executed and delivered pursuant to the Indenture and shall cause the proceeds from the
sale thereof to be applied as provided in the Indenture for the purpose of providing funds to (a) pay the
Project Costs, (b) fund debt service reserve funds for the Series 2001 Certificates, (c) pay the Interest
Component that will be payable on and before April 1, 2004 and (d) pay all costs and expenses incidental
to the delivery of the Series 2001 Certificates.
Section 4.02. Acquisition, Construction and Installation of the Project.
(a) The City will cause the Project to be acquired, constructed and installed in accordance
with the Construction Contracts and the Plans and Specifications. Minor changes may be made in and to
the Construction Contracts and the Plans and Specifications incorporated therein, but major changes may
only be made with the approval of the Trustee, which consent shall not be unreasonably withheld. The
City agrees that it will use its best efforts to cause the Project to be completed as soon as practicable with
all reasonable dispatch, and in any event not later than October 1, 2004. The City agrees that the
aforesaid construction and installation will, with such changes and additions as may be made hereunder,
result in Leased Property suitable for use by the Company pursuant to the terms of the Sublease.
(b) The City shall have and keep on file and available for inspection by the Trustee copies of
the Plans and Specifications, the Construction Contracts, all policies of insurance with respect to the
Project required by this Lease and all other documents executed by or furnished to the City in connection
with the acquisition and construction of the Project, throughout the Lease Term, or as soon after the
commencement of the Lease Term as such documents become available to the City. Neither such
documents nor any change or amendment thereto may (i) cause the Project to be used for any purpose
prohibited hereby or by the Constitution and laws of the State; (ii) result in a material reduction in the
value of the Project; or (iii) adversely affect the ability of the City to meet its obligations hereunder.
Section 4.03. Deficiency of Project Fund. If the money in the Project Fund is insufficient to
pay fully all Project Costs which are to be paid from each such account and to complete fully the Project
lien free, the City shall pay, but only from legally available funds, the full amount of any such deficiency
by making payments directly to the contractors for the Project and to the suppliers of materials and
services as the same become due; provided that the City's obligation to pay any such deficiency will be
limited to its current budgeted appropriations for the Project, and the City will have no obligation to
appropriate additional funds therefor.
Section 4.04. Tag Covenants.
(a) The City covenants and agrees that it will not take any action, or fail to take any action, if
any such action or failure to take action would adversely affect the exclusion from gross income of the
interest on the Series 2001A Certificates under Section 103 of the Code. The City covenants and agrees
that it will use the proceeds of the Series 2001A Certificates as soon as practicable and with all reasonable
dispatch for the purpose for which the Series 2001A Certificates are issued as hereinbefore set forth, and
that it will not directly or indirectly use or permit the use of any proceeds of the Series 2001A Certificates
or any other funds of the City, or take or omit to take any action that would cause the Series 2001A
Certificates to be "arbitrage bonds" within the meaning of Section 148(a) of the Code. To that end, the
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City will comply with all requirements of Section 148 of the Code to the extent applicable to the
Series 2001A Certificates. In the event that at anytime the City is of the opinion that for purposes of this
Section it is necessary to restrict or limit the yield on the investment of any moneys held by the Trustee
under the Indenture, the City shall cause the Trustee to take such action as may be necessary.
(b) Without limiting the generality of the foregoing, the City agrees that there shall be paid
from time to time all amounts required to be rebated to the United States pursuant to Section 148(f) of the
Code and any temporary, proposed or final Treasury Regulations as may be applicable to the
Series 2001A Certificates from time to time. This covenant shall survive payment in full or defeasance of
the Series 2001A Certificates. The City specifically covenants to pay or cause to be paid to the United
States, at the times and in the amounts required, the Rebate Amounts as described in the Tax Compliance
Agreement.
ARTICLE V
MAINTENANCE AND OPERATION
Section 5.01. Maintenance and Operation. The City shall maintain, manage and operate, or
cause to be maintained, managed and operated, the Leased Property and all improvements thereon in
good order, condition and repair, ordinary wear and tear excepted. The City shall provide or cause to be
provided all security service, custodial service, janitor service, power, gas, telephone, light, heating, water
and all other public utility services.
Section 5.02. Care of the Leased Property. The City shall take good care of the Leased
Property, fixtures and appurtenances, and suffer no waste or injury thereto, ordinary wear and tear
excepted. The City will repair all damage to the Leased Property, its fixtures and appurtenances due to
any act or omission or cause whatsoever. The Trustee is not obligated to make any repairs, alterations,
additions or improvements in or to any portion of the Leased Property, or in or to the fixtures or
appurtenances thereof.
ARTICLE VI
INSURANCE AND TAXES
Section 6.01. Property and Casualty Insurance.
(a) Upon execution of the Construction Contracts, the City shall obtain and maintain or cause
to be obtained and maintained (at no cost or expense to the Trustee) in full force and effect until the
Completion Date, a policy or policies of Builder's Risk -Completed Value Form Insurance insuring the
Facility against fire, lightning and all other risks covered by the extended coverage endorsement then in
use in the State to the Full Insurable Value of the Facility (subject to reasonable loss deductible clauses
not to exceed $25,000).
(b) On and after the Completion Date, the City shall obtain and maintain or cause to be
obtained and maintained (at no cost or expense to the Trustee) throughout the Initial Term and any
Renewal Term, a policy or policies of insurance to keep the Leased Property constantly insured against
loss or damage by fire, lightning and all other risks covered by the extended coverage insurance
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endorsement then in use in the State in an amount equal to the Full Insurable Value thereof (subject to
reasonable loss deductible clauses not to exceed $25,000).
(c) The Full Insurable Value of the Leased Property shall be determined from time to time at
the request of the Trustee (but not more frequently than once in every three years) by an architect,
contractor, appraiser, appraisal company or one of the insurers, to be selected, subject to the approval of
the Trustee, and paid by or on behalf of the City.
(d) The insurance required pursuant to this Section shall be maintained at the City's sole cost
and expense, and shall be maintained with a generally recognized responsible insurance company or
companies authorized to do business in the State as may be selected by or on behalf of the City. Copies
of the insurance policies required under this Section, or originals or certificates thereof, each bearing
notations evidencing payment of the premiums or other evidence of such payment, shall be delivered by
or on behalf of the City to the Trustee promptly upon purchase or renewal, and in any event within 30
days thereof.
(e) All such policies of insurance pursuant to this Section, and all renewals thereof, shall
name the Trustee as an additional loss payee, shall contain a provision that such insurance may not be
cancelled by the issuer thereof without at least 30 days' advance written notice to the Trustee, shall waive
any co-insurance penalty, shall be payable up to the required policy dollar limit for damage to the Leased
Property without any contingency on the degree or extent of damage sustained at other property of the
City.
(f) In the event of loss or damage to the Leased Property, the Net Proceeds of casualty
insurance carried pursuant to this Section shall be paid to the Trustee and shall be applied as provided in
Section 8.01.
Section 6.02. Public Liability Insurance.
(a) The City shall maintain or cause to be maintained at all rimes during the Initial Term and
any Renewal Term general accident and public liability insurance (including but not limited to coverage
for all losses whatsoever arising from the ownership, maintenance, operation or use of any automobile,
truck or other motor vehicle) related to the operation, management and maintenance of its property, under
which the Trustee shall be named as an additional insured, properly protecting and indemnifying the City
and the Trustee, in an amount not less than $2,000,000 for all claims arising out of a single occurrence,
with not less than $300,000 for any one person in a single accident or occurrence (with a deductible of not
more than $25,000). The policies of said insurance shall contain a provision that such insurance may not
be cancelled by the issuer thereof without at least 30 days' advance written notice to the City and the
Trustee.
(b) The insurance required pursuant to this Section shall be maintained at the City's sole cost
and expense, and shall be maintained with a generally recognized responsible insurance company or
companies authorized to do business in the State as may be selected by or on behalf of the City. Copies
of the insurance policies required under this Section, or originals or certificates thereof, each bearing
notations evidencing payment of the premiums or other evidence of such payment, shall be delivered by
or on behalf of the City to the Trustee promptly upon purchase or renewal, and in any event within 30
days thereof.
(c) In the event of a public liability occurrence, the Net Proceeds of liability insurance
carried pursuant to this Section shall be applied toward the extinguishment or satisfaction of the liability
with respect to which such proceeds have been paid.
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Section 6.03. Workers' Compensation Insurance. The City agrees throughout the Initial Term
and any Renewal Term to maintain or cause to be maintained the Workers' Compensation coverage
required by the laws of the State.
Section 6.04. Blanket Insurance Policies. Any of the insurance requirements set forth in this
Article may be satisfied through blanket policies of insurance or self-insurance, provided that the City
complies or causes to be complied with each and all of the requirements and specifications of this Article
respecting insurance.
Section 6.05. Failure to Insure. Unless the City provides evidence of the insurance coverage
required under this Article VI, the Trustee may (but shall not be obligated to) purchase insurance at the
City's expense to protect its interests in the Leased Property. This insurance may, but need not, protect the
City's interests. The coverage that the Trustee purchases may not pay any claim that the City makes or
any claim that is made against the City in connection with the Leased Property. The City may later cancel
any insurance purchased by the Trustee, but only after providing evidence to the Trustee that the City has
obtained insurance as required in this Article VI. If the Trustee purchases insurance for the Leased
Property, the City shall promptly reimburse the Trustee for the costs of that insurance as Supplemental
Rent as provided in Section 3.01(b) together with interest equal to the prime or base rate of the Trustee
plus 2% per annum. The costs of the insurance that the Trustee obtains may be more than the cost of
insurance the City may be able to obtain on its own.
Section 6.06. Title Insurance. Prior to or simultaneously with the delivery of the Series 2001
Certificates, the City shall obtain an ALTA form leasehold owner's policy of title insurance insuring the
Leased Property in an amount equal to the principal amount of the Series 2001 Certificates, less the
amounts deposited in the Series 2001A Reserve Fund and the Series 2001B Reserve Fund, issued by a
company authorized to issue such policy in the State of Missouri and acceptable to the Underwriter. The
Net Proceeds with respect to such policy shall be applied in accordance with the provisions of
Article VIII.
Section 6.07. Taxes.
(a) The City shall promptly pay and discharge or cause to be paid and discharged, as the
same become due, all taxes and assessments, general and special, and other governmental charges of any
kind whatsoever that may be lawfully taxed, charged, levied, assessed or imposed upon or against or be
payable for or in respect of the Leased 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 City or the Company, or the income therefrom or Sublease Rentals and
other amounts payable under the Sublease, including any new taxes and assessments not of the kind
enumerated above to the extent that the same are lawfully made, levied or assessed in lieu of or in
addition to taxes or assessments now customarily levied against real or personal property, and further
including all utility charges, assessments and other general governmental charges and impositions
whatsoever, foreseen or unforeseen, which if not paid when due would impair the security of the
Certificates or encumber the title to the Leased Property.
(b) The City shall have the right, in its own name or in the Company's name, to contest the
validity or amount of any tax, assessment or other governmental charge which the City 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 contested tax, assessment or other governmental charge becomes delinquent if and
provided that the City (1) before instituting any such contest, gives the Trustee written notice of the City's
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intention to do so, (2) diligently prosecutes any such contest, (3) at all times effectively stays or prevents
any official or judicial sale therefor, under execution or otherwise, (4) promptly pays any final judgment
enforcing the tax, assessment or other governmental charge so contested, and (5) thereafter promptly
procures record release or satisfaction thereof. The Trustee agrees to cooperate with the City in
connection with any and all administrative or judicial proceedings related to any tax, assessment or other
governmental charge. The City shall hold the Trustee harmless from any costs and expenses the Trustee
may incur in relation to any of the above.
ARTICLE VII
ALTERATIONS, ADDITIONS AND IMPROVEMENTS
Section 7.01. Alterations, Additions and Improvements to the Leased Property. The City
will have the right during the term of the Lease to make or cause to be made any alterations, additions or
improvements of any kind, structural or otherwise, as it deems necessary or desirable, on or to the Leased
Property, to attach fixtures, structures or signs, and to affix any personal property to the improvements on
the Leased Property; provided, however, that no such alteration, addition or improvement may reduce or
otherwise adversely affect the value of the Leased Property or the fair rental value thereof or materially
alter or change the character or use of the Leased Property or impair the excludability from gross income
for Federal income tax purposes of the Interest Component of the Base Rentals represented by the
Series 2001A Certificates.
Section 7.02. Title to Alterations, Additions and Improvements. Except as provided in
Section 7.03, all alterations, additions and improvements to the Leased Property will constitute a part of
the Leased Property for all purposes of this Lease and will be subject hereto and to the Indenture.
Section 7.03. City's or Company's Equipment.
(a) All of the City's or the Company's equipment and other personal property installed or
placed by either of them in or on the Leased Property which is not a fixture under applicable law or which
is not paid for with the proceeds of the sale of the Certificates will remain the sole property of such party
in which the Trustee will have no interest, and may be modified or removed at any time by such party and
will not be considered part of the Leased Property and subject to the lien of the Indenture. The City shall
repair or cause to be repaired any damage caused by such removal.
(b) If after the occurrence of an Event of Nonappropriation or an Event of Default, the City
moves out or is dispossessed and fails to remove any property of the City or the Company at the time of
such moving out or dispossession, then the Trustee may either regard such property as abandoned by the
City and the Company, in which case such property will become the property of the Trustee subject to the
Indenture, or may demand that the City remove or cause to be removed such property from the Leased
Property. In the event of failure of the City to comply with said demand, the Trustee may remove, sell or
destroy such property.
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ARTICLE VIII
DAMAGE, DESTRUCTION AND CONDEMNATION
Section 8.01. Damage, Destruction and Condemnation.
(a) If during the Initial Term or any Renewal Term, the Leased Property is damaged or
destroyed, in whole or in part, by fire or other casualty, or all or any portion of the Leased Property is taken
through condemnation proceedings, to such extent that the claim for loss (including any deductible amount
pertaining thereto) resulting from such damage, destruction or taking is greater than $50,000, the City shall
promptly notify the Trustee in writing as to the nature and extent of such damage or loss and whether it is
practicable and desirable to rebuild, repair, restore or replace such damage or loss.
(b) If the City determines that such rebuilding, repairing, restoring or replacing is practicable
and desirable, the City shall proceed promptly with and complete with reasonable dispatch such rebuilding,
repairing, restoring or replacing of the property damaged or destroyed so as to place the Leased Property in
substantially the same condition as existed prior to the event causing such damage or destruction or prior to
the condemnation proceeding, with such changes, alterations and modifications (including the substitution
and addition of other property) as may be desired by the City and as will not impair the utility of the Leased
Property. The City and the Trustee will cause the Net Proceeds of any insurance claim, title insurance or
other award from a challenge or threat of legal or equitable action related to the title or use of the Leased
Property to be applied to the prompt repair, restoration, modification or improvement of the Leased
Property. If the Net Proceeds received with respect to any such damage or loss to the Leased Property, or
condemnation proceeding, exceed $50,000, such Net Proceeds shall be paid to the Trustee and shall be
deposited into the Insurance Fund to be established with and held by the Trustee and shall be used and
applied for the purpose of paying the cost of such rebuilding, repairing, restoring or replacing such damage
or loss. Any amount of such Net Proceeds remaining after completion of such rebuilding, repairing,
restoring or replacing (whether held by the Trustee or the City) shall be deposited. into the Certificate
Payment Fund, which completion shall be evidenced by a certificate reasonably satisfactory to the Trustee
signed by an Authorized City Representative and filed with the Trustee. If said Net Proceeds are not
sufficient to pay in full the costs of such replacement, repair, rebuilding or restoration, the City shall
nonetheless complete the work thereof and shall pay that portion of the costs thereof in excess of the amount
of said Net Proceeds.
(c) If the City determines that rebuilding, repairing, restoring or replacing the Leased Property
is not practicable and desirable, then, in lieu of rebuilding, repairing, restoring or replacing the Leased
Property, the City shall promptly purchase the Leased Property by paying the Option Price to the Trustee
and any Net Proceeds received with respect to any such damage or loss to the Leased Property, or
condemnation of the Leased Property, shall be applied to such payment. Any balance of the Net Proceeds
remaining after paying the Option Price shall belong to the City. The City agrees that any acquisition of the
Leased Property or rights to its use by the City shall be pursuant to and in accordance with this Lease,
including payment of Base Rentals and the applicable Option Price.
(d) The City shall not, by reason of its inability to use all or any part of the Leased Property
during any period in which the Leased Property is damaged or destroyed, or is being repaired, rebuilt,
restored or replaced, or by reason of the payment of the costs of such rebuilding, repairing, restoring or
replacing, be entitled to any reimbursement from the Trustee or the Registered Owners of the Certificates, or
any abatement or diminution of the rentals payable by the City under this Lease or of any other obligations
of the City under this Lease except as expressly provided in this Section.
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Section 8.02. Condemnation or Deficiency of Title.
(a) To the extent permitted by law, the City agrees that any acquisition of the Leased
Property or rights to its use by the City (whether pursuant to the exercise of its eminent domain
powers or otherwise) shall be pursuant to and in accordance with this Lease, including payment of
Base Rentals and the applicable Option Price. This paragraph shall survive the termination of this
Lease for any reason.
(b) The City shall cooperate fully with the Trustee in the handling and conduct of any
prospective or pending condemnation proceedings with respect to the Leased Property or any part thereof,
and shall, to the extent the City may lawfully do so, permit the Trustee 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 Leased Property or any part
thereof without the written consent of the Trustee.
ARTICLE IX
ASSIGNMENTS
Section 9.01. Limitations on Assignment and Subleasing by City.
(a) The Trustee acknowledges that the City has subleased its right, title and interest in the
Leased Property to the Company pursuant to the Sublease. Pursuant to the Assignment of Sublease, the
City has assigned to the Trustee all its rights under the Sublease (except for the Reserved Rights). Other
than pursuant to the Sublease, none of the City's right, title and interest in, to and under the Ground Lease
or this Lease may be assigned by the City for any reason.
ARTICLE X
REPRESENTATIONS, COVENANTS AND WARRANTIES
Section 10.01. Representations, Covenants and Warranties of the City. The City hereby
represents, covenants and warrants for the benefit of the Trustee as follows:
(a) The City has the power and authority to enter into the transactions contemplated
by this Lease and the other documents contemplated hereby to which it is a party and to carry out
its obligations hereunder and thereunder. The City has been duly authorized to execute and
deliver this Lease and such other documents and agrees that it will do or cause to be done all
things necessary to preserve and keep this Lease (to the extent herein provided and subject to the
limitations expressed herein, including but not limited to the limitations provided in Section 3.04)
in full force and effect.
(b) The City is not subject to any legal or contractual limitation or provision of any
nature whatsoever which in any way limits, restricts or prevents the City from entering into this
Lease and the other documents contemplated hereby to which it is a party or performing any of its
obligations hereunder and thereunder.
(c) There is no action, suit, proceeding, inquiry or investigation, at law or in equity,
before or by any court, public board or body, known to be pending or threatened against or
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affecting the City, nor to the best knowledge of the City is there any basis therefor, wherein an
unfavorable decision, ruling or finding would materially adversely affect the transactions
contemplated by this Lease or any other agreement or instrument to which the City is a party and
which is used or contemplated for use in the consummation of the transactions contemplated by
this Lease. All authorizations, consents and approvals of governmental bodies or agencies
required in connection with the execution and delivery by the City of this Lease or any such other
agreement or instruments in connection with the carrying out by the City of its obligations
hereunder or thereunder have been obtained.
(d) The entering into and performance of this Lease or any other document or
agreement contemplated hereby to which the City is or is to be a party will not violate any
judgment, order, law or regulation applicable to the City or result in any breach of, or constitute a
default under, or result in the creation of any lien, charge, security interest or other encumbrance
upon any asset of the City or on the Leased Property except as herein or in the Indenture
provided.
(e) All requirements have been met and procedures have occurred in order to ensure
the enforceability of this Lease.
(f) The City will comply with all applicable laws, rules, regulations, orders,
directions and requirements of all governmental departments, bodies, bureaus, agencies and
officers.
(g) Until the payment in full of the Certificates, the City will from time to time,
record, register and file all such notices, statements and other documents and take such other
steps, including without limitation the amendment to any of the Lease, the Indenture and any
other documents related to the Certificates and any instruments perfecting interests thereunder, as
may be necessary or advisable to render fully valid and enforceable under all legal requirements
the rights, liens and priorities of the Trustee with respect to all security from time to time
furnished under this Lease or intended to be so furnished and to preserve the excludability from
gross income for Federal income tax purposes of the interest on the Series 2001A Certificates, in
each case in such form and at such times as are satisfactory to the City and the Trustee.
(h) Until the payment in full of the Certificates, the City agrees not to create, incur,
assume or permit to exist any mortgage, deed of trust, security interest (whether possessory or
non -possessory) or other encumbrance of any kind (including without limitation the charge upon
property purchased under conditional sale or other title retention agreement) in excess of
$10,000.00 upon or on the Leased Property, other than (A) liens for taxes not delinquent or being
contested as permitted hereunder, (B) liens in connection with workers' compensation,
unemployment insurance or social security obligations; (C) mechanics', workmens',
materiahnens', landlords', carriers' or other like liens arising in the ordinary and normal course of
business with respect to obligations which are not due or which are being contested hereunder,
(D) liens in favor of the Trustee arising out of the transactions contemplated hereby; and (E) in
connection with the issuance of Additional Certificates.
(i) The City hereby agrees to comply with and punctually perform all of its
obligations under the Ground Lease, including all obligations imposed by law.
6) The legal description of the Project Site attached as Exhibit A to this Lease
encompasses all the real property upon which the Facility will be situated.
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Section 10.02. Representations, Covenants and Warranties of the Trustee. The Trustee
represents, covenants and warrants for the benefit of the City and the Owners of the Certificates as
follows:
(a) The Trustee has the power and authority to enter into the transactions
contemplated by this Lease and to carry out its obligations hereunder. The Trustee has been duly
authorized to execute and deliver this Lease.
(b) The Trustee is not subject to any legal or contractual limitation or provision of
any nature whatsoever which in any way limits, restricts or prevents the Trustee from entering
into this Lease or performing any of its obligations hereunder, except to the extent that such
performance may be limited by bankruptcy, insolvency, reorganization or other laws affecting
creditors' rights generally.
(c) There is no action, suit, proceeding, inquiry or investigation, at law or in equity,
before or by any court, public board or body, known to be pending or threatened against or
affecting the Trustee, nor to the best knowledge of the Trustee is there any basis therefor, wherein
an unfavorable decision, ruling or finding would materially adversely affect the transactions
contemplated by this Lease or any other agreement or instrument to which the Trustee is a party
and which is used or contemplated for use in the consummation of the transactions contemplated
by this Lease. All authorizations, consents and approvals of governmental bodies or agencies
required in connection with the execution and delivery by the Trustee of this Lease or in
connection with the carrying out by the Trustee of its obligations under this Lease have been
obtained.
(d) The Trustee will not pledge the Base Rentals, the Option Price, or any of its other
rights hereunder and will not sell, assign, mortgage or encumber the Leased Property, except as
provided herein and under the Indenture. All property and money received by the Trustee from
the City hereunder and under the Indenture for the Owner or Owners of the Certificates will be
applied for the benefit of such Owner or Owners.
Section 10.03. City's Covenants Relating to Compliance with Environmental Laws.
(a) The City hereby covenants and agrees to cant' on the business and operations at the
Leased Property in a manner that complies in all respects, and will remain in compliance, with all
applicable Federal, state, regional, county or local laws, statutes, rules, regulations, orders or ordinances,
concerning public health, safety, hazardous substances or the environment. The City covenants,
represents and warrants to the Trustee and its successors and assigns that, to the best of its knowledge,
during the time the City has owned the Leased Property, the Leased Property has complied with and will
comply with, and the City is not in violation of and will not violate, in connection with the ownership,
use, maintenance or operation of the Leased Property and the conduct of the business related thereto, any
applicable "Environmental Law," as hereinafter defined, relating to "Hazardous Materials," as hereinafter
defined. The term "Environmental Laws" means all Federal, state and local environmental, land use,
zoning, health, chemical use, safety and sanitation laws, statutes, ordinances and codes relating to the
protection of the environment or governing the use, storage, treatment, generation, transportation,
processing, handling, production or disposal of Hazardous Materials and the rules, regulations, policies,
guidelines, interpretations, decisions, orders and directives of Federal, state and local governmental
agencies and authorities with respect thereto, including without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601,
et seq.), the Hazardous Materials Transportation Act, as amended (49 U.S.C. Section 1801, et seq.), the
Resource Conservation and Recovery Act, as amended (42 U.S.C. Sections 6901, et seq.), the Toxic
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Substances Control Act, as amended (15 U.S.C. Sections 2601, et seq.), the Clean Air Act, the Federal
Water Pollution Control Act of 1972, and the Superfund Amendments and Reauthorization Act of 1986.
The term "Hazardous Materials" means any flammable explosives, radon, radioactive materials, asbestos,
urea formaldehyde foam insulation, polychlorinated biphenyls, petroleum, petroleum-based products,
methane, hazardous materials, hazardous wastes, hazardous or toxic substances or related materials as set
forth in any Environmental Law or other materials which may or could pose a hazard to the health and
safety of the occupants of the Leased Property or the occupants and/or owners of property near the Leased
Property. Without limiting the generality of the foregoing, the City hereby covenants and agrees as set
forth in paragraphs (b) through (e) below.
(b) The City, its agents, employees and independent contractors shall not cause or permit the
Leased Property or any part thereof to be used to generate, manufacture, refine, transport, treat, store,
handle, dispose, transfer, produce or process Hazardous Materials, except in compliance with all Federal,
state and local laws or regulations, nor shall the City, its agents, employees and independent contractors
cause or permit, as a result of any intentional or unintentional act or omission on the part of the City, its
agents, employees and independent contractors, a release of Hazardous Materials onto the Leased
Property.
(c) The City shall (i) conduct and complete all investigations, studies, sampling and testing,
and all remedial, removal and other actions necessary to clean up and remove all Hazardous Materials,
on, from or affecting the Leased Property (A) in accordance with all applicable Environmental Laws, (B)
to the satisfaction of the City and (C) in accordance with the orders and directives of all Federal, state and
local governmental authorities.
(d) The City agrees to defend, indemnify and hold harmless the Trustee and its employees,
officers, directors, shareholders, agents and attorneys from and against any claims, demands, penalties,
fines, liabilities, settlements, damages, costs or expenses of whatever kind or nature, known or unknown,
contingent or otherwise, arising out of, or in any way related to, (i) the presence, disposal, release or
threatened release of any Hazardous Materials which are on, from, or affecting the soil, water, vegetation,
buildings, personal property, persons, animals or otherwise; (ii) any personal injury (including wrongful
death) or property damage (real or personal) arising out of or related to such Hazardous Materials; or (iii)
any violation of laws, orders, regulations, requirements or demands of government authorities, which are
based upon or in any way related to such Hazardous Materials including, without limitation, attorney and
consultant fees, investigation and laboratory fees, court costs and litigation expenses. The amount of all
such indemnified loss, damage, expense or cost, shall bear interest thereon at the prime or base rate of the
Trustee plus. 2% per annum, and shall become immediately due and payable in full on demand of the
Trustee. The City shall be notified in writing of any event requiring indemnification hereunder and the
City shall have the right to defend the Trustee with counsel approved by the Trustee.
(e) In the event that the Trustee elects to control, operate, sell or otherwise claim property
rights in the Leased Property upon the occurrence of an Event of Default, the City shall deliver the Leased
Property free of any and all Hazardous Materials so that the conditions of the Leased Property conform
with all applicable Environmental Laws. Prior to any such delivery of the Leased Property, the City shall
pay the Trustee, from its own funds, any amounts then required to be paid under subsection (d) above.
(f) The City further represents and warrants as follows:
(i) there are no existing or pending statutes, orders, standards, rules or regulations
relating to environmental matters requiring any remedial actions or other work, repairs,
construction or capital expenditures with respect to the Leased Property, nor has the City received
any notice of any of the same;
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(ii) to the best of its knowledge, no Hazardous Materials have been or will be
released into the environment, or have been spilled, discharged, or disposed of at, on or near the
Leased Property except as previously disclosed in writing to the Trustee by or on behalf of the
City, nor has or will the Leased Property be used at any time by any person as a landfill or a
disposal facility for Hazardous Materials;
(iii) to the best of its knowledge, there are no electrical transformers or other
equipment containing dielectric fluid containing polychlorinated biphenyls located in, on or under
the Leased Property, nor is there any friable asbestos contained in, on or under the Leased
Property, nor will the City permit the installation of the same;
(iv) to the best of its knowledge, there are no locations off the Leased Property where
Hazardous Materials generated by or on the Leased Property have been treated, stored, deposited
or disposed of;
(v) the City, its agents, employees and independent contractors will remove any
underground storage tanks located on the Leased Property;
(vi) no notices of any violation of any of the matters referred to in the foregoing
sections relating to the Leased Property or their use have been received by the City and there are
no writs, injunctions, decrees, orders or judgments outstanding, and no lawsuits, claims,
proceedings or investigations pending or threatened, relating to the ownership, use, maintenance
or operation of the Leased Property, nor is there any basis for any such lawsuit, claim, proceeding
or investigation being instituted or filed; and
(vii) the Leased Property is not listed in the United States Environmental Protection
Agency's National Priorities List of Hazardous Waste Sites nor any other log, list, schedule,
inventory or record of Hazardous Materials or Hazardous Waste Sites whether maintained by the
United States, or any state or local governmental unit. All such statements regarding future acts
to be performed or refrained from will be deemed covenants to be complied with by the City
without limitation based upon knowledge or inquiry.
(g) With the exception of the representations and warranties in paragraph (f) above regarding
the non -receipt of notice by the City [subparagraph (f) (i) above], the absence of notices of violations
[subparagraph (f) (vi) above] and the non-inclusion of the Leased Property on the various lists described
in subparagraph (f) (vii) above, all statements by the City as set forth in this Section 10.03 as to past or
existing facts shall be deemed representations and warranties made to the best of the City's knowledge
after having made due inquiry. All other statements of past or present facts shall be deemed
representations and warranties by the City without limitation based upon actual knowledge or inquiry.
All such statements regarding future acts to be performed or refrained from shall be deemed covenants to
be complied with by the City without limitation based upon knowledge or inquiry.
(h) The covenants, representations, warranties and indemnities in this Section 10.03 (i) shall
survive any termination of this Lease due to an Event of Nonappropriation or other event prior to payment
in full of the Certificates and (ii) shall be deemed continuing covenants, representations, warranties and
indemnities running with the land for the benefit of the Trustee, and its successors and assigns.
Section 10.04. Continuing Disclosure. The City hereby covenants and agrees that it will
comply with and carry out all of the provisions of the Continuing Disclosure Agreement among the City,
the Company and the dissemination agent named therein, dated the date of issuance and delivery of the
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Series 2001 Certificates, as originally executed and as it may be amended from time to time in accordance
with the terms thereof. Upon failure of the City or the Company to comply with the Continuing
Disclosure Agreement, any Registered Owner may take such actions as may be necessary and
appropriate, including seeking mandate or specific performance by court order, to cause the City and the
Company to comply with their obligations thereunder.
ARTICLE M
AMENDMENTS
Section 11.01. Amendments, Changes and Modifications. This Lease may be amended,
changed or modified only in the manner provided in Article VI of the Indenture.
ARTICLE XIII
LESSEE'S OPTION TO PURCHASE THE LESSOR'S
INTEREST IN THE LEASED PROPERTY
Section 12.01. Option to Purchase the Trustee's Interest in the Leased Property. The City
may purchase the Trustee's interest in the Leased Property subject to the terms hereof on any Prepayment
Date on which not less than all the outstanding Principal Component of Base Rentals may be prepaid in
accordance with Section 3.02 of the Indenture, by delivering written notice to the Trustee not less than 60
days prior to the Prepayment Date on which the option is to be exercised (or such later date as may be
acceptable to the Trustee). The purchase price to be paid by the City to exercise the option provided
herein shall be an amount equal to (a) the Option Price applicable on such Prepayment Date as indicated
on the Option Price Schedule attached hereto as Schedule 2, plus interest, premium, if any, and fees, costs
and expenses (including fees, costs and expenses of the Trustee and its counsel) which must be paid to
prepay the then Outstanding Certificates, less all amounts in reserves held by the Trustee under the
Indenture which may be applied to the prepayment of such Outstanding Certificates and such other
expenses, (b) all costs of transferring the Trustee's interest in the Leased Property to the City and (c) all
other reasonable costs and expenses incidental thereto. Nothing herein may be construed to create any
obligation of the City to purchase the Trustee's interest in the Leased Property.
Section 12.02. Vesting of Title.
(a) Title to the Leased Property will be held in the name of the City, subject to the Ground
Lease, this Lease and the Indenture.
(b) The Trustee's interest in the Leased Property shall be transferred to the City (i) on the
Prepayment Date on which the City has indicated pursuant to Section 12.01 its intention to purchase the
Leased Property, provided the City pays to the Trustee the amounts required to be paid pursuant to
Section 12.01 on or before such date; (ii) on April 2, 2021, after payment of all Base Rentals for all
Renewal Terms and all then accrued Supplemental Rent; or (iii) when the lien of the Indenture has been
discharged in accordance with the terms thereof, other than by foreclosure of such lien.
Section 12.03. Partial Prepayments.
(a) The City may prepay Base Rentals in part on each Prepayment Date by delivering written
notice to the Trustee not less than 45 days prior to each Prepayment Date indicating the City's intention to
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prepay Base Rentals and the amount of the prepayment. The City may exercise the option provided
herein by paying to the Trustee not less than 45 days (or such lesser time as the Trustee may approve)
prior to the Prepayment Date an amount equal to the Prepayment Price set forth in Section 3.02(b) of the
Indenture.
(b) The Principal Component of Base Rentals prepaid pursuant to this Section shall be in
integral multiples of $5,000 and shall be credited in the order of stated Payment Dates determined by the
City. Upon any partial prepayment, (i) the amount of each Interest Component of Base Rentals coming
due thereafter shall be reduced by the amount of such Interest Component attributable to the prepaid
Principal Component determined by applying the annual interest rate corresponding to the prepaid
Principal Component as shown on Schedule 1 hereto, and (ii) the Option Price shall be reduced by the
amount of any Principal Component of Base Rentals so prepaid.
Section 12.04. Relative Position of Option and Indenture. The option granted to the City in
this Article will remain prior and superior to the Indenture and may be exercised whether or not the City
is in default under this Lease, provided that such default will not result in nonfulfillment of any condition
to the exercise of any such option and further provided that all options herein granted will terminate 90
days following the termination of this Lease.
Section 12.05. Obligation of the City to Accept Conveyance of Trustee's Interest in Leased
Property. The City hereby agrees to accept conveyance of, and the Trustee hereby agrees to convey to
the City, all of the Trustee's right, title and interest in and to the Leased Property at the expiration of the
Term of the Lease following full payment of the Certificates or provision for payment thereof having
been made in accordance with the provisions of the Indenture. Upon conveyance of the Trustee's interest
in the Leased Property to the City, there shall be cancelled all encumbrances on the Leased Property,
except for encumbrances which will not significantly interfere with the City's enjoyment of the Leased
Property.
Section 12.06. No Obligation to Purchase. The City will be under no obligation whatsoever to
exercise its option to purchase the Trustee's interest in the Leased Property.
ARTICLE XM
RIGHT OF ENTRY; LIENS; QUIET ENJOYMENT
Section 13.01. Right of Entry. The Trustee and its designated representatives will retain the
right to enter upon the Leased Property during reasonable business hours (and in emergencies at all times)
(a) to inspect the same, (b) for any purpose connected with the Trustee's rights or obligations under this
Lease, or (c) for all other lawful purposes.
Section 13.02. Liens. The City shall pay or cause to be paid, when due, all sums of money that
may become due for, or purporting to be for, any labor, services, materials, supplies or equipment alleged
to have been furnished or to be furnished to or for, in, upon or about the Leased Property, and shall cause
each such lien to be fully discharged and released; provided, however, that if the City desires to contest
any such lien, this may be done, and if such lien is reduced to final judgment and such judgment or such
process as may be issued for the enforcement thereof is not promptly stayed, or if so stayed and said stay
thereafter expires, then the City shall forthwith pay and discharge the judgment.
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Section 13.03. Covenant of Quiet Enjoyment.
(a) The Trustee covenants and agrees that, as long as the City is not in default under this
Lease, the City will have the sole and exclusive possession of the Leased Property (subject to Permitted
Encumbrances) and will and may peaceably and quietly have, hold and enjoy the Leased Property during
the Term of the Lease. The Trustee covenants and agrees that it will not take any action, other than
pursuant to Article XIV, to prevent the City from having quiet and peaceable possession and enjoyment
of the Leased Property during the Term of the Lease and will, at the request and expense of the City,
cooperate with the City in order that the City may have quiet and peaceable possession and enjoyment of
the Leased Property and will defend the City's enjoyment and possession thereof against all parties.
(b) Subject to the provisions of this Section, the City will have the right to use the Leased
Property for any lawful purpose. The City shall comply 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 Leased Property or to any
adjoining public ways, as to the manner of use or the condition of the Leased Property or of adjoining
public ways. The City 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 City to comply with the provisions of
this Section. Notwithstanding any provision contained in this Section, however, the City will have the
right, at its own cost and expense, to contest or review by legal or other appropriate 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 City may refrain from complying therewith
if the City furnishes on request of the Trustee, at the City's expense, indemnity satisfactory to the Trustee.
ARTICLE XIV
EVENTS OF DEFAULT; REMEDIES
Section 14.01. Events of Default Defined. Any of the following will be an "Event of Default"
under this Lease:
(a) Failure by the City to pay any Base Rentals required to be paid under
Section 3.01(x) for a period of 10 days after such Base Rentals are due and payable; or
(b) Failure by the City to pay or cause to be paid any Supplemental Rent during the
term of this Lease for a period of 60 days after written notice specifying such failure and
requesting that it be remedied is received by the City from the Trustee; or
(c) Failure by the City to vacate and surrender possession of the Leased Property at
the expiration of the Initial Term or any Renewal Term during which an Event of
Nonappropriation occurs; or
(d) Failure by the City to observe and perform any covenant, condition or agreement
herein on its part to be observed or performed, other than as referred to in Sections 14.01(x),
14.01(b) or 14.01(c), for a period of 60 days after written notice, specifying such failure and
requesting that it be remedied, has been given to the City by the Trustee, unless the Trustee
agrees in writing to an extension of such time prior to its expiration; provided, however, that if
the failure stated in the notice cannot be corrected within the applicable period and if corrective
action is instituted by the City within the applicable period and diligently pursued until the default
is corrected such failure will not be an Event of Default; or
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(e) Any representation or warranty (i) made by the City pursuant to Sections 10.01
and 10.03 or (ii) contained in any certificate delivered in connection with this Lease proves to
have been false or misleading in any material respect when made; or
(f) The entry of a final nonappealable order or decree in any court of competent
jurisdiction enjoining or restraining the construction or development of the Leased Property or
enjoining, restraining or prohibiting the City from consummating the transactions contemplated
by this Lease.
The foregoing provisions of this Section 14.01 are subject to the following limitations: (i) the
obligations of the City to make payments of the Base Rentals and the Supplemental Rent will be subject
to the provisions of Article III with respect to an Event of Nonappropriation; and (ii) if, by reason of
Force Majeure (as such term is hereinafter defined), the City is unable in whole or in part to cant' out any
agreement on its part herein contained, other than the obligations of the City contained in Article III, the
City may not be deemed in default during the continuance of such inability. The settlement of strikes,
lockouts and other disturbances will be entirely within the discretion of the City, and the City will not be
required to make settlement of strikes, lockouts and other disturbances by acceding to the demands of the
opposing party or parties when such -course is, in the judgment of the City, unfavorable to the City. As
used herein the term "Force Majeure" means, without limitation, the following: acts of God; strikes;
lockouts or other disturbances; acts of public enemies; orders of any kind of the government of the United
States of America or the State of Missouri or any of their departments, agencies or officials, or any civil
or military authority; insun ections; riots; landslides; lightning; earthquakes; fire; storms; floods;
washouts; arrests; restraints of government and people; civil disturbances; explosions; or partial or entire
failure or unavailability of utilities.
Section 14.02. Remedies on Default.
(a) Upon the occurrence and continuance of any Event of Default, the Trustee may give
notice to the City to vacate and surrender possession of the Leased Property immediately (but in no event
earlier than the expiration of the Initial Term or the then current Renewal Term for which the City has
paid or appropriated money sufficient to make all Payments due for such Initial Term or Renewal Term,
as appropriate, in the case of an Event of Nonappropriation) and may, without any further demand or
notice, (i) terminate this Lease or the City's possessory rights hereunder (without otherwise terminating
this Lease), re-enter or assume possession of the Leased Property and eject all parties in possession
thereof therefrom, and exercise its rights under the Ground Lease to assign the Ground Lease and its
rights thereunder, or to sublease the Leased Property; or (ii) take any action at law or in equity deemed
necessary or desirable to enforce its rights with respect to the Leased Property.
(b) Upon the termination of the term of this Lease or the City's possessory interests herein by
reason of an Event of Nonappropriation or an Event of Default, all money then held in any fund or
account under the Indenture and any Net Proceeds received on such reletting or sale shall be held by the
Trustee for the benefit of the Owners of the Certificates (and applied from time to time as provided in
Section 7.05 of the Indenture). Notwithstanding anything herein to the contrary, the Trustee will be
entitled to relet the Leased Property for such period as is necessary for the Trustee to obtain sufficient
money to pay in full the Principal Component, premium, if any, and Interest Component of Base Rentals
with respect to the Certificates, and the obligations of the Trustee with respect to the Owners of the
Certificates and the receipt and disbursement of funds will be continuing until the lien of the Indenture is
discharged as provided in the Indenture except as a result of foreclosure.
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Section 14.03. Remedies Cumulative. The rights and remedies given or reserved herein to the
Trustee are and will be deemed to be cumulative. The exercise or non -exercise of any right or remedy
will not be deemed to be an election excluding the exercise or non -exercise at any other time of a
different or inconsistent right or remedy or the maintenance of any action either at law or in equity.
Section 14.04. Waiver. The delay or failure of the Trustee at any time to insist in any one or
more instances upon a strict performance of any covenant of this Lease or to exercise any right, remedy,
power or option herein granted or established by law, will not be construed as an impairment of or a
waiver or a relinquishment for the future of such covenant, right, remedy, power or option, but the same
will continue and remain in full force and effect, and if any breach occurs and afterwards be
compromised, settled or adjusted, this Lease will continue in full force and effect as if no breach had
occurred unless otherwise agreed. The receipt and acceptance by the Trustee of any Payments, in whole
or in part with knowledge of the breach of any term, covenant or condition hereof, will not be deemed a
waiver of such breach and no waiver of any provision hereof will be deemed to have been made unless
expressed in writing and signed by the Trustee.
Section 14.05. Curing City's Breach. If the City defaults in the observance or performance of
any term or covenant on the City's part to be observed or performed under or by virtue of any of the terms
of this Lease, the Trustee may (but will not be obligated to do so) immediately, or at any time thereafter
and without notice, and to the extent permitted by law, perform or cause to be performed the same for the
account of the City. Any sums paid or obligations incurred in connection therewith will be deemed to be
Supplemental Rent hereunder and shall be paid by the City to the Trustee, together with interest thereon at
the prime or base rate of the Trustee plus 2% per annum, for appropriate disbursement within 45 days of
the rendering of any bill or statement to the City therefor, provided, however, that nothing herein may be
construed to obligate the City to pay any such Supplemental Rent from any funds other than money
legally available and appropriated for such purpose.
ARTICLE XV
MISCELLANEOUS
Section 15.01. Notices. All written notices to be given under this Lease will be given by mail to
the party entitled thereto at the addresses and in the manner set forth in the Indenture.
Section 15.02. Filing Continuation Statements. The City shall, on an ongoing basis, execute
and deliver all documents and make or cause to be made all filings and recordings necessary or desirable
in order to perfect, preserve and protect the interest of the Trustee in the Leased Property, to the extent
possible under applicable law. Not earlier than 180 days nor later than 30 days prior to each fifth
anniversary of the initial delivery of the Certificates, the Trustee shall file continuations of all Uniform
Commercial Code financing statements that were initially filed to evidence any security interest
hereunder.
Section 15.03. Waiver of Personal Liability.
(a) All obligations or liabilities under this Lease on the part of the Trustee are solely
obligations or liabilities of the Trustee in its capacity as a corporate trustee of the Trust Estate hereunder,
and, to the extent permitted by law, the City hereby releases each and every director, officer, agent,
attorney or employee of the Trustee of and from any personal or individual liability under this Lease. No
director, officer, agent, attorney or employee of the Trustee will at any time or under any circumstances
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be individually or personally liable under this Lease for anything done or omitted to be done by the
Trustee hereunder.
(b) All obligations or liabilities under this Lease on the part of the City are solely obligations
or liabilities of the City as a political subdivision of the State of Missouri, and, to the extent permitted by
law, the Trustee hereby releases each and every official, employee or agent of the City of and from any
personal or individual liability under this Lease. No official, employee or agent of the City will at any
time or under any circumstances be individually or personally liable under this Lease for anything done or
omitted to be done by the City hereunder.
Section 15.04. Governing Law. This Lease is made in the State of Missouri under the
Constitution and laws of such State and is to be so construed.
Section 15.05. Execution in Counterparts. This Lease may be simultaneously executed in any
number of counterparts, each of which when so executed will be deemed to be an original, but all together
constitute but one and the same Lease. Separate counterparts of this Lease may be separately executed by
the Trustee and City, all with the same full force and effect as though the same counterpart had been
executed simultaneously by the Trustee and the City.
Section 15.06. Severability. If any one or more of the terms, provisions, promises, covenants or
conditions of this Lease, or the application thereof to any person or circumstance, is to any extent
adjudged invalid, unenforceable, void or voidable for any reason whatsoever by a court of competent
jurisdiction, each and all of the remaining terms, provisions, promises, covenants and conditions of this
Lease, and the application thereof to other persons or circumstances, will not be affected thereby and will
be valid and enforceable to the fullest extent permitted by law.
Section 15.07. Successors and Assigns; Third Party Beneficiaries.
(a) This Lease and the covenants, conditions, and agreements herein contained will be
binding upon and inure to the benefit of the successors and permitted assigns of the parties hereto.
(b) This Lease is executed in part to induce the purchase by others of the Certificates, and for
the further securing of the Certificates. Accordingly, as long as any Certificates are Outstanding, all
respective covenants and agreements of the parties herein contained are hereby declared to be for the
benefit of the Owners from time to time of the Certificates, but may be enforced by or on behalf of such
Owners only in accordance with the provisions of the Indenture. This Lease will not be deemed to create
any right in any person who is not a party (other than the successors and permitted assigns of a party) and
will not be construed in any respect to be a contract in whole or in part for the benefit of any third party
(other than the successors and permitted assigns of a party hereto), except in each case the Owners from
time to time of the Certificates and the Trustee.
Section 15.08. Captions and Headings. The captions and headings used throughout this Lease
are for convenience of reference only, and the words contained therein will not be deemed to affect the
meaning of any provision or the scope or intent of this Lease, nor in any way affect this Lease.
Section 15.09. Net Lease. This Lease will be deemed and construed to be a "net lease," and the
City hereby agrees that the Payments provided for herein will be an absolute net return to the Trustee free
and clear of any expenses, charges or setoffs whatsoever, except as otherwise specifically provided
herein.
-26-
Section 15.10. Indemnification. The City shall, to the extent permitted by law and subject to
the availability of appropriations of funds to it therefor and other money legally available for the purpose,
indemnify and hold harmless the Trustee and its employees, officers, directors, shareholders, agents and
attorneys from and against any and all claims, damages, losses, liabilities, costs or expenses whatsoever in
connection with this Lease, the Ground Lease or the Indenture, which the Trustee may incur (or which
may be claimed against the Trustee by any person or entity whatsoever) and which are not caused by the
negligence or willful misconduct of the Trustee. The obligations under this Section shall survive any
termination of this Lease.
Section 15.11. Consent Not to be Unreasonably Withheld. Whenever any party hereto is
required in this Lease to obtain the consent of any other party hereto such consent may not be
unreasonably withheld or delayed.
Section 15.12. No Merger. Neither this Lease nor the Ground Lease nor any provisions hereof
or thereof will be construed to effect a merger of the title of the City to the Leased Property under the
Ground Lease and the City's leasehold interest therein under this Lease.
[Remainder of Page Intentionally Left Blank.]
-27-
IN WITNESS WHEREOF, the Trustee and the City have caused this Lease to be signed by
their respective officers hereunto duly authorized, all as of the day and year first above written.
[SEAL]
ATTEST:
Lwc&-� C "'h
Name: Sandra L Battas
Title: Asst. Secretary
-28-
LESSOR:
UMB BANK, N.A.
By: ,e�
Name: Victor Zarrilli
Title: Vice President
(SEAL)
ATTEST:
Lfi
Q
Gayle L. nrad
City Clerk
-29-
LESSEE:
CITY OF CAPE GIRARDEAU, MISSOURI
Richard L. Eggiman, Mayor Pro Tem
E_
LEGAL DESCRIPTION OF THE PROJECT SITE
The following described real estate situated in Scott County, State of Missouri, together with all
improvements now or hereafter situated thereon:
A tract of land situated in the Northwest Quarter (NWl/4) of Section Thirty -Six (36),
Township Thirty (3'0) North, Range Thirteen (13) East, Scott County, Missouri, described
as follows: Commence at the found concrete monument at the Southeast corner ofSection
35, Township 30 North, Range 13 East; thence North 01 degrees 23 minutes 56 seconds
West a distance of 3121.80 feet to the southwest building corner of the Main Terminal
Building with said coordinates North 508573.092, East 1092440.325; South 00 degrees 00
minutes 00 seconds East a distance of 235.41 feet to a point; thence Noith 90 degrees 00
minutes 00 seconds East a distance of 1060.34 feet to a point; thence North 00 degrees 00
minutes 00 seconds East a distance of 50.00 feet to a point; thence North 89 degrees 38
minutes 13 seconds East a distance of 120.25 feet to the point of beginning; thence North
00 degrees 21 minutes 13 seconds West a distance of 334.00 feet to a point; thence North
89 degrees 38 minutes 47 seconds East a distance of 334.68 feet to a point; thence South
44 degrees 33 minutes 51 seconds East a distance of 29.15 feet to a point; thence South 00
degrees 21 minutes 13 seconds East a distance of 313.11 feet to a point; thence South 89
degrees 38 minutes 47 seconds West a distance of 365.00 That to the point of beginning.
A-1
EXHIBIT B
THE EQUIPMENT
The Equipment shall consist of the below -described items of new and used equipment, or
substitutions thereof that are approved in writing by an Authorized City Representative:
Estimated Purchase Price
Equipment New Used
Roller - 10'
$15,000
Hydraulic shear - 12'
16,000
Manual shear
$ 1,400
Hydro Press - 300 Ton
90,000
Press Brake - 12'
16,000
Band saw - 18"
2,000
Band saw - 6"
500
TIG welder
1,500
Drill Presses (4)
4,000
Lathe - 12'
4,000
Bridgeport mill
20,000
Fork lift
8,000
Die truck and table
3,000
Surface plate - 24 x 24
1,800
Sandblaster
1,200
Swaging machine
6,000
Miscellaneous
9,600
Total
$D-5"
$�6 Q
MW
SCHEDULE 1
BASE RENTAL PAYMENT SCHEDULE
Series 2001A Base Rentals
Total
Principal Interest Base Rental
Payment Date Component Component Payrnent
April 1, 2002
October 1, 2002
April 1, 2003
October 1, 2003
April 1, 2004
October 1, 2004
April 1, 2005
October 1, 2005
April 1, 2006
October 1, 2006
April 1, 2007
October 1, 2007
April 1, 2008
October 1, 2008
April 1, 2009
October 1, 2009
April 1, 2010
October 1, 2010
April 1, 2011
October 1, 2011
April 1, 2012
October 1, 2012
April 1, 2013
October 1, 2013
April 1, 2014
October 1, 2014
April 1, 2015
October 1, 2015
April 1, 2016
October 1, 2016
April 1, 2017
October 1, 2017
April 1, 2018
October 1, 2018
April 1, 2019
October 1, 2019
April 1, 2020
October 1, 2020
April 1, 2021
$45,000.00
60,000.00
70,000.00
125,000.00
130,000.00
135,000.00
140,000.00
150,000.00
160,000.00
165,000.00
175,000.00
190,000.00
200,000.00
210,000.00
225,000.00
235,000.00
250,000.00
$86,508.33
74,150.00
74,150.00
74,150.00
74,150.00
74,150.00
74,150.00
73,250.00
73,250.00
71,975.00
71,975.00
70,470.00
70,470.00
67,62625
67,62625
64,620.00
64,620.00
61,380.00
61,380.00
57,880.00
57,880.00
53,380.00
53,380.00
48,580.00
48,580.00
43,630.00
43,630.00
38,380.00
38,380.00
32,680.00
32,680.00
26,680.00
26,680.00
20,590.00
20,590.00
14,065.00
14,065.00
7,250.00
7,250.00
$86,508.33
74,150.00
74,150.00
74,150.00
74,150.00
74,150.00
119,150.00
73,250.00
133,250.00
71,975.00
141,975.00
70,470.00
195,470.00
67,62625
197,626.25
64,620.00
199,620.00
61,380.00
201,380.00
57,880.00
207,880.00
53,380.00
213,380.00
48,580.00
213,580.00
43,630.00
218,630.00
38,380.00
228,380.00
32,680.00
232,680.00
26,680.00
236,680.00
20,590.00
245,590.00
14,065.00
249,065.00
7,250.00
257,250.00
TOTAL 2,665,000.00 $2,036,280.83 $4,701,280.83
S-1-1
*Base Rentals are due on the 15th of the month prior to the Payment Dates listed.
Series 2001B Base Rentals
Total
Principal Interest
Component Component
$5,359.38
4,593.75
4,593.75
4,593.75
4,593.75
4,593.75
$45,000.00 4,593.75
3,215.63
50,000.00 3,215.63
1,684.38
55,000.00 1,684.38
$150,000.00
$42,721.90
Base Rental
Payment
$5,359.38
4,593.75
4,593.75
4,593.75
4,593.75
4,593.75
49,593.75
3,215.63
53,215.63
1,684.38
56,684.38
$192,721.90
TOTAL
BASE
RENTAL
PAYMENT
$91,867.71
78,743.75
78,743.75
78,743.75
78,743.75
78,743.75
168,743.75
76,465.63
186,465.63
73,659.38
198,659.38
70,470.00
195,470.00
67,626.25
197,626.25
64,620.00
199,620.00
61,380.00
201,380.00
57,880.00
207,880.00
53,380.00
213,380.00
48,580.00
213,580.00
43,630.00
218,630.00
38,380.00
228,380.00
32,680.00
232,680.00
26,680.00
236,680.00
20,590.00
245,590.00
14,065.00
249,065.00
7,250.00
257,250.00
$4,894,002.73
SCHEDULE 2
OPTION PRICE SCHEDULE
Prepayment Dates Option Price*
September 1, 2003 through March 31, 2005
$2,815,000
April 1, 2005 through March 31, 2006
2,725,000
April 1, 2006 through March 31, 2007
2,615,000
April 1, 2007 through March 31, 2008
2,490,000
April 1, 2008 through March 31, 2009
2,365,000
April 1, 2009 through March 31, 2010
2,235,000
April 1, 2010 through March 31, 2011
2,100,000
April 1, 2011 through March 31, 2012
1,960,000
April 1, 2012 through March 31, 2013
1,810,000
April 1, 2013 through March 31, 2014
1,650,000
April 1, 2014 through March 31, 2015
1,485,000
April 1, 2015 through March 31, 2016
1,310,000
April 1, 2016 through March 31, 2017
1,120,000
April 1, 2017 through March 31, 2018
920,000
April 1, 2018 through March 31, 2019
710,000
April 1, 2019 through March 31, 2020
485,000
April 1, 2020 through March 31, 2021
250,000
April 1, 2021
* Excludes Base Rental otherwise due on a principal payment date and other amounts payable pursuant to
Section 12.01 of this Lease.
5-2-1
MEMORANDUM OF LEASE/PURCHASE AGREEMENT
THIS MEMORANDUM OF LEASE/PURCHASE AGREEMENT, gives notice of, ratifies
and confirms the Lease/Purchase Agreement dated as of September 1, 2001 (the "Lease"), between UMB
BANK, N.A., a national banking association (the "Trustee") as lessor, and the CITY OF CAPE
GIRARDEAU, MISSOURI, a home rule charter city and political subdivision of the State of Missouri
(the "City"), as lessee.
RECITALS:
1. The City owns certain real estate located at the Cape Girardeau Regional Airport, as
legally described in Exhibit A hereto (the "Project Site").
2. The City concurrently herewith is conveying a leasehold interest in the Project Site to the
Trustee pursuant to a Ground Lease dated as of September 1, 2001 (the "Ground Lease"), for the rental
payments and upon the terms and conditions therein set forth in order to provide funds to pay the costs of
(1) acquiring and constructing on the Project Site an approximately 60,000 square foot aircraft
manufacturing facility and, if sufficient funds are available therefor, an approximately 2,000 square foot
addition thereto for office space (collectively, the "Facility"), (2) acquiring and installing certain fixtures
and equipment for the Facility, as described on Exhibit B attached hereto (the "Equipment"), (3)
constructing certain road improvements, parking for -administrative offices and employee parking (the
"Infrastructure Improvements") and (4) extending water (including drinking and fire suppression) and
sewer lines to the Project Site as needed to service the Facility, including hook-up (the "Utility
Improvements"). The acquisition, construction and installation of the Facility, the Equipment, the
Infrastructure Improvements and the Utility Improvements are collectively referred to as the "Project".
3. The Trustee is willing to lease the Project Site and that portion of the Project that will be
located thereon (collectively, the "Leased Property") back to the City, and the City desires to lease the
Leased Property from the Trustee, upon the terms and conditions and for the purposes set forth herein.
4. The Trustee concurrently herewith has executed a Declaration and Indenture of Trust of
even date herewith (the "Indenture") pursuant to which the Trustee will deliver Certificates of
Participation (City of Cape Girardeau, Missouri, Airport Facilities Project), Series 2001A (the
"Series 2001A Certificates") to provide funds to (1) pay a portion of the costs of the Project, (2) fund a
debt service reserve fund for the Series 2001A Certificates, (3) pay the interest portion of Base Rentals
payable under the Lease with respect to the Series 2001A Certificates on and before April 1, 2004, and
(4) pay a portion of the costs of issuing the Series 2001A Certificates. The Trustee will also deliver,
pursuant to the Indenture, Taxable Certificates of Participation (City of Cape Girardeau, Missouri,
Airport Facilities Project), Series 2001B (the "Series 2001B Certificates" and, together with the Series
2001A Certificates, the "Series 2001 Certificates") to provide funds to (1) pay a portion of the costs of
the Project, (2) fund a debt service reserve fund for the Series 2001B Certificates, (3) pay the interest
portion of Base Rentals payable under the Lease with respect to the Series 2001B Certificates on and
before April 1, 2004, and (4) pay costs of issuing the Series 2001 Certificates that are not otherwise paid
from the proceeds of the Series 2001A Certificates. Pursuant to the Indenture, the Trustee will grant,
assign and hold in trust all of its right, title and interest in and to the Lease (including its right to receive
Base Rentals and certain other payments as provided herein) for the benefit and security of the Owners of
the Certificates as provided in the Indenture.
,got a0 OPAGE 532
5. Concurrently herewith, the City has entered into a Sublease of even date herewith (the
"Sublease") with Renaissance Aircraft LLC (the "Company"), pursuant to which the City will sublease
the Leased Property to the Company and the Company will make sublease payments ("Sublease
Rentals") to the City, which will be sufficient, during any term of the Sublease, to pay the Base Rentals
and other payments required to be paid by the City hereunder. The City has assigned all its rights under
the Sublease (except the Reserved Rights, as defined in the Indenture) to the Trustee.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and
agreements set forth in the Lease, the Trustee and the City do hereby give notice of, ratify, covenant and
agree as follows:
1. Lease of Leased Property. The Trustee rents, leases and lets the Leased Property to the
City, and the City rents, leases and hires the Leased Property from the Trustee, subject to Permitted
Encumbrances, for the rentals and upon and subject to the terms and conditions contained in the Lease.
2. Lease Term. The initial term of the Lease will commence as of September 1, 2001, and
expire at midnight on June 30, 2002 (the "Initial Term"), subject to the City's option to extend the term of
the Lease for 18 consecutive one-year renewal terms commencing July 1, 2002, and a final renewal term
commencing July 1, 2020 and ending April 2, 2021 (referred to individually as a "Renewal Term" and
collectively as the "Renewal Terms").
3. Termination of the Lease Term. The Lease Term will terminate, and all of the City's
right, title and interest in and to the Lease (except to the extent of any conveyance pursuant to Article
XII thereof) and its obligations thereunder shall terminate without penalty upon the earliest to occur of
any of the following events:
(a) the expiration of the Initial Term or any Renewal Term for which there occurs an
Event of Nonappropriation (which is not thereafter waived by the Trustee as provided in the
Lease);
(b) on the Optional Prepayment Date on which the City has purchased the Trustee's
interest in the Leased Property pursuant to Section 12.01 of the Lease.
(c) an Event of Default and a termination of the Term of the Lease as to the
possessory interest of the City as provided in the Lease; or
(d) April 2, 2021, which date constitutes the day following the last Certificate
Payment Date of the final scheduled Renewal Term of the Lease, or such earlier or later date as
all Payments required under the Lease are paid.
4. Rental Payments. The City agrees, subject to the availability of appropriations of funds
to it therefor and other money legally available for the purpose and subject to the use of proceeds from
the sale of the Certificates to pay Base Rentals as provided in the Lease, and otherwise subject to the
limitations of Section 3.04 of the Lease, to pay to the Trustee as provided in the Lease during the Initial
Term and each Renewal Term:
(i) Base Rentals representing a Principal Component payable in annual installments
on April 1 for each Renewal Term of the Lease as indicated in the Base Rental Payment
Schedule attached to the Lease, commencing on April 1, 2005; and
-2- VOL 0575PAGE 533
(ii) Base Rentals representing an Interest Component payable on each April 1 and
October 1 for the Term of the Lease as indicated in the Base Rental Payment Schedule attached
to the Lease, commencing on April 1, 2002.
5. Option to Purchase the Trustee's Interest in the Leased Property. The City may
purchase the Trustee's interest in the Leased Property subject to the terms hereof on any Prepayment Date
on which not less than all the outstanding Principal Component of Base Rentals may be prepaid in
accordance with Section 3.02 of the Indenture, by delivering written notice to the Trustee not less than
60 days prior to the Prepayment Date on which the option is to be exercised (or such later date as may be
acceptable to the Trustee). The purchase price to be paid by the City to exercise the option provided
herein shall be an amount equal to (a) the Option Price applicable on such Prepayment Date as indicated
on the Option Price Schedule attached to the Lease as Schedule 2, plus interest, premium, if any, and
fees, costs and expenses (including fees, costs and expenses of the Trustee and its counsel) which must
be paid to prepay the then Outstanding Certificates, less all amounts in reserves held by the Trustee under
the Indenture which may be applied to the prepayment of such Outstanding Certificates and such other
expenses, (b) all costs of transferring the Trustee's interest in the Leased Property to the City and (c) all
other reasonable costs and expenses incidental thereto. Nothing herein may be construed to create any
obligation of the City to purchase the Trustee's interest in the Leased Property.
6. Vesting of Title.
(a) Title to the Leased Property will be held in the name of the City, subject to the Base
Lease, the Lease and the Indenture.
(b) The Trustee's interest in the Leased Property shall be transferred to the City (i) on the
Optional Prepayment Date on which the City has indicated pursuant to Section 12.01 of the Lease its
intention to purchase the Leased Property, provided the City pays to the Trustee the amounts required to
be paid pursuant to Section 12.01 of the Lease on or before such date; (ii) on April 2, 2021 after payment
of all Base Rentals for all Renewal Terms and all then accrued Supplemental Rent; or (iii) when the lien
of the Indenture has been discharged in accordance with the terms of the Lease, other than by foreclosure
of such lien.
7. Definition of Terms. Capitalized terms not defined herein shall have the meanings
ascribed thereto in the Declaration and Indenture of Trust dated as of September 1, 2001 executed by the
Trustee.
[Remainder of Page Intentionally Left Blank.]
-3- VOL 05-75PAcE534
IN WITNESS WHEREOF, the parties hereto have caused this Memorandum of Lease/Purchase
Agreement to be executed in their respective corporate names and their respective corporate seals to be
hereunto affixed and attested by their duly authorized officers, all as of the date first above written.
Sandra1W.1 g
Title: Asst- Secretary
UMB BANK, N.A.
By: /��
Name: virrnr Znr ill i
Title: Vice President
-4- VOL 0575MGi 535
CITY OF CAPE GIRARDEAU, MISSOURI
Richard L. Eggiman, Mayor Pro Tem
-5- VOL 05 5PAGE 536
ACKNOWLEDGMENT
STATE OF MISSOURI
SS.
CITY OF ST. LOUIS
On this/ -V—/ -b day of September, 2001, before me, the undersigned, a Notary Public in and for
said State, appeared V j/q tO/' Z,R e, L(_ 1 -,to me personally known, who, being by me duly
sworn, did say that (s)he is a ULP/tS r6udiof UMB BANK, N.A., a national banking association,
and that the seal affixed to the foregoing instrument is the corporate seal of said association, and that said
instrument was signed and sealed in behalf of said association by authority of its Board of Directors, and
said officer acknowledged said instrument to be executed for the purposes therein stated and as the free
act and deed of said association.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal the day and
year last above written.
•,,41gt t 9r Y J13�,b'f
.,�• gyp,
M DEBORAH KING
r� •''WARY PUBLIC STATE OF ML%MRI
�EA G ,.,
ST. LOUIS COUNTY
"MY COMMISSION EXP. JULY 6,2004
Mytooftrussion expires:
/ I
Notary Public - State of Missouri
Commissioned in 5i, 40al-County
VOL 0575PAGE 53'7
ACKNOWLEDGMENT
STATE OF MISSOURI )
SS.
COUNTY OF CAPE GIRARDEAU )
On this 4th day of September, 2001, before me, the undersigned, a Notary Public in and for said
State, appeared RICHARD L. EGGIMAN to me personally known, who, being by me duly sworn, did
say that he is the Mayor Pro Tem of the City of CAPE GIRARDEAU, MISSOURI, a political
subdivision of the State of Missouri, and that the seal affixed to the foregoing instrument is the seal of
said City, and that said instrument was signed and sealed in behalf of said City by authority of its
governing body, and said official acknowledged said instrument to be executed for the purposes therein
stated and as the free act and deed of said City.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal the day and
year last above written.
K 0. GRIMM
StRLouis Courtly
My Conurwssion Eoes
(SEAL) I i A*MB
My commission expires: August 8, 2003.
/'�"Q . Al �- - - --
Notary Public - State of Missouri
Commissioned in St. Louis County
VOL 057'5PA—rE 5?8
EXHIBIT A
LEGAL DESCRIPTION OF THE LEASED REAL PROPERTY
The following described real estate situated in the County of Scott, State of Missouri, together
with all improvements now or hereafter situated thereon:
A tract of land situated in the Northwest Quarter (NW1/4) of Section Thirty -Six (36),
Township Thirty (30) North, Range Thirteen (13) East, Scott County, Missouri, described
as follows: Commence at the found concrete monument at the Southeast corner of Section
35, Township 30 North, Range 13 East; thence North 01 degrees 23 minutes 56 seconds
West a distance of 3121.80 feet to the southwest building comer of the Main Terminal
Building with said coordinates North 508573.092, East 1092440.325; South 00 degrees 00
minutes 00 seconds East a distance of 235.41 feet to a point; thence North 90 degrees 00
minutes 00 seconds East a distance of 1060.34 feet to a point; thence North 00 degrees 00
minutes 00 seconds East a distance of 50.00 feet to a point; thence North 89 degrees 38
minutes 13 seconds East a distance of 120.25 feet to the point of beginning; thence North
00 degrees 21 minutes 13 seconds West a distance of 334.00 feet to a point; thence North
89 degrees 38 minutes 47 seconds East a distance of 334.68 feet to a point; thence South
44 degrees 33 minutes 51 seconds East a distance of 29.15 feet to a point; thence South 00
degrees 21 minutes 13 seconds East a distance of 313.11 feet to a point; thence South 89
degrees 38 minutes 47 seconds West a distance of 365.00 feet to the point of beginning.
A-1 VOL 005PAGE 539
EXHIBIT B
THE EQUIPMENT
The Equipment shall consist of the below -described items of new and used equipment, or
substitutions thereof that are approved in writing by an Authorized City Representative:
OOMPUTER INDEXED
Filed for Record
9 : 5o
SEP 18 2001
Scott county Recorder
Benton, MO
STATE QF. M18.9 URI
County ofScot#,
-sit`
y? I herefy= eertify that 6-1s tri
was FILb FOR. RECOI_ tti
and time hereon and <i �__ ppig�
BookOr
a�:4>
Recorder of IDe&
w
hent
date
!d in
B-1 -VOL 0575PAGE 540
Estimated Purchase Price
Equipment
New
Used
Roller - 10'
$15,000
Hydraulic shear - 12'
16,000
Manual shear
$ 1,400
Hydro Press - 300 Ton
90,000
Press Brake - 12'
16,000
Band saw - 18"
2,000
Band saw - 6"
500
TIG welder
1,500
Drill Presses (4)
4,000
Lathe - 12'
4,000
Bridgeport mill
20,000
Fork lift
8,000
Die truck and table
3,000
Surface plate - 24 x 24
1,800
Sandblaster
1,200
Swaging machine
6,000
Miscellaneous
9,600
Total
$135,400
so"
STATE QF. M18.9 URI
County ofScot#,
-sit`
y? I herefy= eertify that 6-1s tri
was FILb FOR. RECOI_ tti
and time hereon and <i �__ ppig�
BookOr
a�:4>
Recorder of IDe&
w
hent
date
!d in
B-1 -VOL 0575PAGE 540
SUBLEASE AGREEMENT
between the
CITY OF CAPE GIRARDEAU, MISSOURI,
as Lessor
and
RENAISSANCE AIRCRAFT LLC,
as Lessee
Dated as of September 1, 2001
TABLE OF CONTENTS
Page
Parties....................................................................................................................................................1
Recitals..................................................................................................................................................1
ARTICLE I
DEFINITIONS
Section1.01. Definitions......................................................................................................................2
Section1.02. Rules of Construction.....................................................................................................7
ARTICLE II
DEMISE OF THE LEASED PROPERTY; SUBLEASE TERM
Section 2.01. Demise of the Leased Property .......................................................................................7
Section 2.02. Use of the Leased Property .............................................................................................7
Section 2.03. Term of the Sublease......................................................................................................8
Section 2.04. Expiration or Termination of the Sublease Term........................................................... 8
Section 2.05. Effect on the Company of Expiration or Termination of the Sublease Term.................8
Section 2.06. Compliance With FAA Regulations...............................................................................8
ARTICLE III
AMOUNTS PAYABLE
Section3.01. Amounts Payable............................................................................................................8
Section3.02. Consideration................................................................................................................10
Section 3.03. Vacation of Leased Property Upon Event of Default...................................................10
Section 3.04. Unconditional Obligation.............................................................................................11
Section3.05. Payment........................................................................................................................1 l
Section3.06. Advances by the City...................................................................................................11
ARTICLE IV
DELIVERY OF CERTIFICATES; USE OF PROCEEDS;
TAX COVENANTS
Section 4.01. Delivery of Certificates................................................................................................11
Section 4.02. Acquisition, Construction and Equipping of the Project .............................................. 11
Section4.03. Tax Covenants..............................................................................................................12
ARTICLE V
MAINTENANCE AND OPERATION
Section 5.01. Maintenance and Operation..........................................................................................14
Section 5.02. Care of the Leased Property .........................................................................................14
(i)
ARTICLE VI
INSURANCE AND TAXES
Section 6.01. Property and Casualty Insurance ...................................
Section 6.02. Public Liability Insurance.............................................................................................16
Section 6.03. Business Interruption Insurance...................................................................................16
Section 6.04. Workers' Compensation Insurance...............................................................................16
Section 6.05. Blanket Insurance Policies...........................................................................................17
Section6.06. Failure to Insure............................................................................................................17
Section6.07. Taxes............................................................................................................................17
ARTICLE VII
ALTERATIONS, ADDITIONS AND IMPROVEMENTS
Section 7.01. Alterations, Additions and Improvements to the Leased Property ...............................18
Section 7.02. Title to Alterations, Additions and Improvements.......................................................18
Section 7.03. Company's Equipment..................................................................................................18
ARTICLE VIII
DAMAGE, DESTRUCTION AND CONDEMNATION
Section 8.01. Damage, Destruction and Condemnation .........................................:
ARTICLE IX
ASSIGNMENTS
Section 9.01. Limitations on Assignment and Subleasing by Company............................................19
Section 9.02. Assignment by City......................................................................................................20
ARTICLE X
REPRESENTATIONS, COVENANTS AND WARRANTIES
Section 10.01. Representations, Covenants and Warranties of the City............................................20
Section 10.02. Representations, Covenants and Warranties of the Company....................................22
Section 10.03. Company's Covenants Relating to Compliance with Environmental Laws ...............23
Section 10.04. Continuing Disclosure................................................................................................25
Section 10.05. Company's Financial Statements................................................................................25
ARTICLE XI
AMENDMENTS
Section 11.01. Amendments, Changes and Modifications.................................................................26
ARTICLE XII
VESTING OF TITLE; SECURITY INTEREST; COMPANY'S OPTION TO PURCHASE
THE FACILITY AND THE EQUIPMENT
Section 12.01. Option to Purchase the Facility and the Equipment...................................................26
Section 12.02. Vesting of Title; Granting of Security Interest...........................................................26
Section 12.03. Lease of Project Site After Exercise of Option to Purchase.......................................27
F411 11.4 Mei .41I
RIGHT OF ENTRY; LIENS; QUIET ENJOYMENT
Section13.01. Right of Entry .............................................................................................................27
Section13.02. Liens...........................................................................................................................27
Section 13.03. Covenant of Quiet Enjoyment....................................................................................27
ARTICLE X1V
EVENTS OF DEFAULT; REMEDIES
Section 14.01. Events of Default Defined..........................................................................................28
Section 14.02. Remedies on Default..................................................................................................29
Section 14.03. Remedies Cumulative.................................................................................................29
Section14.04. Waiver.........................................................................................................................29
Section 14.05. Curing Company's Breach..........................................................................................30
ARTICLE XV
MISCELLANEOUS
Section15.01. Notices........................................................................................................................30
Section 15.02. Filing Continuation Statements..................................................................................30
Section 15.03. Waiver of Personal Liability ......................................................................................30
Section 15.04. Rehabilitation Act Requirements...............................................................................31
Section 15.05. Non-Discrimination....................................................................................................31
Section 15.06. Observance of Statutes, Etc........................................................................................31
Section 15.07. Governing Law...........................................................................................................31
Section 15.08. Execution in Counterparts..........................................................................................31
Section15.09. Severability .................................................................................................................31
Section 15.10. Successors and Assigns; Third Party Beneficiaries....................................................32
Section 15.11. Captions and Headings...............................................................................................32
Section15.12. Net Sublease...............................................................................................................32
Section 15.13. Indemnification..........................................................................................................32
Section 15.14. Consent Not to be Unreasonably Withheld................................................................32
Section 15.15. References to Leased Property Following Expiration of Purchase Option ................32
Signaturesand Seals............................................................................................................................33
Exhibit A - Legal Description of the Project Site
Exhibit B - The Equipment
Exhibit C - Disbursement Request for Project Costs
Schedule 1 - Facility and Equipment Rental Payment Schedule
Schedule 2 - Option Price Schedule
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT (the "Sublease") dated as of September 1, 2001, by and
between the CITY OF CAPE GIRARDEAU, MISSOURI, a home rule charter city and political
subdivision of the State of Missouri (the "City") and RENAISSANCE AIRCRAFT LLC, a limited
liability company organized under the laws of the State of Delaware and duly authorized and qualified to
do business in the State of Missouri (the "Company").
RECITALS:
1. The City owns certain real estate located at the Cape Girardeau Regional Airport (the
"Airport") in the City of Cape Girardeau, Missouri, as legally described in Exhibit A hereto (the "Project
Site").
2. The City concurrently herewith is conveying a leasehold interest in the Project Site to
UMB Bank, N.A., as trustee under the Indenture referred to hereinafter (the "Trustee") pursuant to a
Ground Lease dated as of September 1, 2001 (the "Ground Lease"), for the rental payments and upon the
terms and conditions therein set forth in order to provide funds to pay the costs of (1) acquiring and
constructing on the Project Site an approximately 60,000 square foot aircraft manufacturing facility and,
if sufficient funds are available therefor, an approximately 2,000 square foot addition thereto for office
space (collectively, the "Facility"), (2) acquiring and installing certain fixtures and equipment for the
Facility, as described on Exhibit B attached hereto (the "Equipment"), (3) constructing certain road
improvements, parking for administrative offices and employee parking (the "Infrastructure
Improvements") and (4) extending water (including drinking and fire suppression) and sewer lines to the
Project Site as needed to service the Facility, including hook-up (the "Utility Improvements"). The
acquisition, construction and installation of the Facility, the Equipment, the Infrastructure Improvements
and the Utility Improvements are collectively referred to as the "Project".
3. The Trustee and the City have also entered into a Lease/Purchase Agreement of even date
herewith (the "Lease"), under which the Trustee has leased back to the City on an annually renewable
basis the Project Site and that portion of the Project that will be located thereon (collectively, the "Leased
Property"), all in consideration of Base Rentals (as defined herein) and upon the terms and conditions
therein provided.
4. The Trustee concurrently herewith has executed a Declaration and Indenture of Trust of
even date herewith (the "Indenture") pursuant to which the Trustee will deliver Certificates of
Participation (City of Cape Girardeau, Missouri, Airport Facilities Project), Series 2001A (the
"Series 2001A Certificates") to provide funds to (1) pay a portion of the costs of the Project, (2) fund a
debt service reserve fund for the Series 2001A Certificates, (3) pay the interest portion of Base Rentals
payable under the Lease with respect to the Series 2001A Certificates on and before April 1, 2004, and (4)
pay a portion of the costs of issuing the Series 2001A Certificates. The Trustee will also deliver, pursuant
to the Indenture, Taxable Certificates of Participation (City of Cape Girardeau, Missouri, Airport
Facilities Project), Series 2001B (the "Series 2001B Certificates" and, together with the Series 2001A
Certificates, the "Series 2001 Certificates") to provide funds to (1) pay a portion of the costs of the
Project, (2) fund a debt service reserve fund for the Series 2001B Certificates, (3) pay the interest portion
of Base Rentals payable under the Lease with respect to the Series 2001B Certificates on and before
April 1, 2004, and (4) pay costs of issuing the Series 2001 Certificates that are not otherwise paid from
the proceeds of the Series 2001A Certificates. Pursuant to the Indenture, the Trustee will grant, assign
and hold in trust all of its right, title and interest in and to this Lease (including its right to receive Base
Rentals and certain other payments as provided herein) for the benefit and security of the Owners of the
Certificates as provided in the Indenture.
5. The City is willing to sublease the Leased Property to the Company upon the terms and
conditions and for the purposes set forth herein.
6. Concurrently herewith, pursuant to an Assignment of Sublease dated as of September 1,
2001 (the "Assignment of Sublease"), the City will assign to the Trustee all its rights under this Sublease
other than (i) the right of the City to receive the additional rentals payable upon the sale of each aircraft
pursuant to Section 3.01(d) hereof, (ii) the right to be named as an additional insured on any liability
insurance provided for herein, and (iii) the City's rights to receive indemnification and certain fees and
expenses hereunder (the "Reserved Rights").
NOW, THEREFORE, in consideration of the mutual promises and agreements herein contained,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto covenant and agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. In addition to words and terms defined elsewhere in this Sublease, the
following words and terms used in this Sublease have the following meanings, unless some other
meaning is plainly intended:
"Additional Certificates" means any additional certificates of participation issued pursuant.to
Section 2.09 of the Indenture.
"Additional Payments" means the amount or amounts payable by the Company pursuant to
Section 3.01(b).
"Authorized City Representative" means the Mayor, the City Manager, the Finance Director or
such other person or persons at the time designated, by written certificate furnished to the Trustee, as the
person or persons authorized to act on behalf of the City. Such certificate shall contain the specimen
signature of such person or persons, shall be signed on behalf of the City by the Mayor, and may
designate an alternate or alternates.
"Authorized Company Representative" means the person or persons at the time designated, by
written certificate furnished to the City and the Trustee, as the person or persons authorized to act on
behalf of the Company. Such certificate shall contain the specimen signature of such person or persons,
shall be signed on behalf of the Company by its President or Senior Vice President, and may designate an
alternate or alternates.
"Business Day" means a day other than (a) a Saturday or Sunday, or (b) a day on which banks
located in any city in which the principal corporate trust office of the Trustee or any paying agent is
located are required or authorized by law to remain closed.
"Certificate Payment Fund" means the Certificate Payment Fund established pursuant to
Section 4.01 of the Indenture, consisting initially of the Series 2001A Account and the Series 2001B
Account.
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"Certificates" means the Series 2001 Certificates and any Additional Certificates executed and
delivered pursuant to the Indenture.
"City" means the City of Cape Girardeau, Missouri, a home rule charter city and political
subdivision existing under the laws of the State of Missouri.
"Code" means the Internal Revenue Code of 1986, as amended, and the regulations promulgated
thereunder.
"Company" means Renaissance Aircraft LLC, a limited liability company organized and
existing under the laws of the State of Delaware, and authorized and qualified to do business in the State
of Missouri.
"Completion Date" means the date of completion of the Project as that date is certified as
provided in Section 4.07 of the Indenture.
"Construction Contracts" means the construction contracts which have been or will be entered
into by the City and which will incorporate the Plans and Specifications.
"Costs of Delivery" means all items of expense directly or indirectly payable by or reimbursable
to the City and related to the authorization, execution, sale and delivery of the Certificates, including
rating agency fees, advertising and printing costs, costs of preparation and reproduction of documents,
filing and recording fees, initial fees and charges of the Trustee, legal fees of parties to the transaction,
costs of title insurance and all other initial fees and disbursements contemplated by the Lease and the
Indenture.
"Equipment" means the fixtures and equipment to be acquired and installed at the Facility, more
specifically described on Exhibit B.
"Event of Default" means an Event of Default under Section 14.01 of this Sublease.
"Facility" means an approximately 60,000 square foot aircraft manufacturing facility and, if
sufficient funds are available therefor, an approximately 2,000 square foot addition thereto for use as
office space, all to be constructed on the Project Site.
"Fiscal Year" means the fiscal year of the City, currently the twelve-month period beginning on
July 1 and ending on June 30.
"Full Insurable Value" means the actual replacement cost of the Leased Property, exclusive of
land, excavations, footings, foundations and parking lots.
"Ground Lease" means the Ground Lease dated as of September 1, 2001, between the City, as
lessor, and the Trustee, as lessee, granting the Trustee a leasehold interest in the Project Site for a term
stated therein, as said Ground Lease may be amended, extended or renewed from time to time.
"Indenture" means the Declaration and Indenture of Trust dated as of September 1, 2001,
executed by the Trustee, as the same may from time to time be amended or supplemented in accordance
with its terms.
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"Infrastructure Improvements" means the construction of parking for administrative offices
and employee parking on the Project Site, and other road improvements necessary for the Project.
"Initial Term" has the meaning specified in Section 2.03 of this Sublease.
"Insurance Fund" means the Insurance Fund established pursuant to Section 4.01 of the
Indenture.
"Lease" means the .Lease/Purchase Agreement dated as of September 1, 2001, between the
Trustee, as lessor, and the City, as lessee, and any amendments and supplements thereto.
"Leased Property" (i) prior to the Company's exercise of its option to purchase the Facility and
the Equipment pursuant to Article XI hereof, means the Project Site and that portion of the Project that
will be located thereon, and (ii) following the Company's exercise of its option to purchase the Facility
and the Equipment pursuant to Article XI hereof, means solely the Project Site and shall not include the
Facility or the Equipment.
"Maximum Construction Cost" means $1,600,000.
"Net Proceeds" means, when used with regard to any insurance or condemnation award with
respect to the Leased Property, the gross proceeds from the insurance or condemnation award less the
payment of all expenses (including attorneys' fees and expenses, Trustee's fees and any extraordinary
expenses of the Trustee) incurred in the collection of such gross proceeds.
"Notice by Mail" or "Notice" of any action or condition "by Mail" means a written notice
meeting the requirements of the Indenture mailed by first-class mail to the Owners of specified
Certificates, at the addresses shown on the Register.
"Opinion of Counsel" means a written opinion of counsel who is acceptable to the Trustee. The
counsel may be an employee of or counsel to the City or the Trustee.
"Option Price" means the price specified in Section 12.01 at which the Company may elect to
purchase from the City the City's interest in the Leased Property on the Prepayment Date.
"Outstanding" means, as of the date of determination, all Certificates previously executed and
delivered pursuant to the Indenture except (i) Certificates previously cancelled by the Trustee or
surrendered to the Trustee for cancellation, (ii) Certificates for the transfer or exchange of or in lieu of or
in substitution for which other Certificates have been executed and delivered by the Trustee pursuant to
the Indenture, (iii) Certificates whose payment or prepayment has been provided for in accordance with
Article VIII of the Indenture, and (iv) Certificates paid or deemed to be paid pursuant to Article VIII of
the Indenture.
"Owner or "Registered Owner" means the registered owner of a Certificate as shown on the
Register.
"Payments" means the total amount of the Sublease Rentals and the Additional Payments
payable during the Sublease Term.
"Permitted Encumbrances" means, as of any particular time, (i) liens for taxes and assessments
not then delinquent; (ii) the Ground Lease, the Lease, the Indenture and any financing statements naming
the City as debtor and naming the Trustee as secured party now or hereafter filed to perfect the security
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interests granted by the Indenture, the Ground Lease or the Lease; (iii) utility, access and other easements
and rights-of-way, restrictions, exceptions and encumbrances that will not materially interfere with or
materially impair the Leased Property; (iv) all interests in personalty granted by the Company pursuant to
a Loan Agreement and a Security Agreement, both dated as of July 10, 2001, between the Company and
the Missouri Department of Economic Development, as lender and secured party, which interests are
subordinated to the rights of the City and the Trustee under the Indenture pursuant to a Subordination
Agreement dated July 10, 2001; and (v) such minor defects, irregularities, encumbrances, easements,
mechanics' liens, rights-of-way and clouds on title as normally exist with respect to property similar in
character to the Leased Property and (a) as do not, in the opinion of the City certified in writing to the
Trustee, materially impair the property affected thereby for the purpose for which it was acquired or is
held by the Trustee or the City, or (b) are adequately insured against by a title insurance policy reasonably
satisfactory to the Trustee and the City.
"Plans and Specifications" means the plans and specifications prepared for and showing the
Project, as amended by the City from time to time prior to the Completion Date, the same being duly
certified by an Authorized City Representative, which plans and specifications have been approved by the
Project Architect and are on file at the principal office of the City in Cape Girardeau, Missouri and shall
be available for reasonable inspection by the Trustee and its duly appointed representatives.
"Prepayment Date" means any date on which Certificates may be prepaid pursuant to
Section 3.02 of the Indenture.
"Project" means the acquisition, construction and installation of the Facility, the Equipment, the
Infrastructure Improvements and the Utility Improvements.
"Project Architect" means, an architect who is not a full-time employee of the City or a firm of
architects, appointed by the City.
"Project Costs" means all reasonable or necessary expenses related or incidental to the
acquisition, construction, installation, furnishing and equipping of the Project, including the expenses of
surveys, legal and other special services and all other necessary and incidental expenses, including Costs
of Delivery.
"Project Fund" means the Project Fund established pursuant to Section 4.01 of the Indenture.
"Project Site" means the real estate and the existing improvements thereon, as legally described
on Schedule 1 to the Lease, which has been leased from the City to the Trustee under the Ground Lease.
"Purchase Price" means the amount designated in Section 12.01 of the Lease that the City may
pay to the Trustee to purchase the Trustee's interest in the Leased Property.
"Renewal Term" has the meaning specified in Section 2.03 of this Sublease.
"Reserve Funds" means, collectively, the Series 2001A Reserve Fund, the Series 2001B
Reserve Fund and any debt service reserve fund established with respect to any series of Additional
Certificates.
"Reserve Requirement" means (i) with respect to the Series 2001A Certificates, the sum of
$266,500, (i) with respect to the Series 2001B Certificates, the sum of $15,000, and (iii) with respect to
any series of Additional Certificates, the amount, if any, specified in the Supplemental Indenture
authorizing such series of Additional Certificates.
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"Reserved Rights" means (i) the right of the City to receive the additional rentals payable upon
the sale of each aircraft pursuant to Section 3.01(d) hereof, (ii) the right to be named as an additional
insured on any liability insurance provided for in this Sublease, and (iii) the City's rights to receive
indemnification and certain fees and expenses contained in this Sublease.
"Series 2001A Certificates" means the $2,665,000 aggregate principal amount Certificates of
Participation (City of Cape Girardeau, Missouri, Airport Facilities Project), Series 2001A, executed and
delivered pursuant to the Indenture, evidencing interests of the Owners thereof in payments to be made by
the City, as Series 2001A Base Rentals pursuant to the Lease.
"Series 2001B Certificates" means the $150,000 aggregate principal amount Taxable
Certificates of Participation (City of Cape Girardeau, Missouri, Airport Facilities Project), Series 2001B,
executed and delivered pursuant to the Indenture, evidencing interests of the Owners thereof in payments
to be made by the City, as Series 2001B Base Rentals pursuant to the Lease.
"Series 2001 Certificates" means, collectively, the Series 2001A Certificates and the
Series 2001B Certificates.
"Series 2001A Reserve Fund" means the Series 2001A Reserve Fund established pursuant to
Section 4.01 of the Indenture.
"Series 2001B Reserve Fund" means the Series 2001B Reserve Fund established pursuant to
Section 4.01 of the Indenture.
"Special Tax Counsel" means Gilmore & Bell, P.C., or any other attorney or firm of attorneys
(which is mutually acceptable to the City and the Trustee) of nationally recognized standing in matters
pertaining to the tax-exempt nature of interest on obligations issued by states and their political
subdivisions, duly admitted to the practice of law before the highest court of any state of the United States
of America.
"Sublease" means this Sublease Agreement dated as of September 1, 2001, between the City, as
sublessor, and the Company, as sublessee.
"Sublease Payment Date" means the first day of each month during the Sublease Term,
commencing on the first day of the month following the earlier of (i) 24 months following the City's
delivery of an occupancy permit for the Facility, or (ii) 30 months following the date of initial delivery of
the Series 2001 Certificates.
"Sublease Rentals" means the rental payments required to be made by the Company to the City
pursuant to Section 3.01(a) hereof.
"Sublease Term" with respect to the possessory interest of the Company means the period
commencing on September 17, 2001 (the date of delivery of the Series 2001 Certificates), and expiring at
midnight on April 2, 2021, unless earlier terminated as provided herein.
"Supplemental Indenture" means any indenture supplemental or amendatory to the Indenture
executed by the Trustee pursuant to Article VI thereof.
"Tax Compliance Agreement" means the Tax Compliance Agreement dated of even date
herewith, among the City, the Trustee, and the Company.
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"Trust Estate" means the Trust Estate described in the Granting Clauses of the Indenture.
"Trustee" means UMB Bank, N.A., whose principal corporate trust office is in Kansas City,
Missouri, and its successors.
"Trustee's Expenses" means, collectively, all out-of-pocket expenses, disbursements and
advances (including reasonable attorneys' fees and expenses) incurred by the Trustee under the Indenture
or in connection with the Certificates, the Ground Lease, the Lease and the Sublease.
Section 1.02. Rules of Construction.
(a) Words of the masculine gender will 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 include the
plural and vice versa, and words importing persons include firms, associations and corporations,
including public bodies, as well as natural persons.
(c) Wherever in this Sublease 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 will 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 Sublease to designated "Articles," "Sections" and other subdivisions
are, unless otherwise specified, to the designated Articles, Sections and subdivisions of this instrument as
originally executed. The words "herein," "hereof," "hereunder" and other words of similar import refer to
this Sublease 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 Sublease will not be
treated as a part of this Sublease 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.
ARTICLE H
DEMISE OF THE LEASED PROPERTY; SUBLEASE TERM
Section 2.01. Demise of the Leased Property. The City hereby rents, subleases and demises to
Company, and Company hereby subleases from the City, the Leased Property, subject to Permitted
Encumbrances, on the terms and conditions and for the purposes herein set forth, together with all
easements, rights and appurtenances in connection therewith or thereto belonging, to have and to hold for
the term of this Sublease, subject to the restrictions set forth in that certain Quit -Claim Deed from the
Reconstruction Finance Corporation to the City, dated August 26, 1947 and recorded in Book 145 at Page
402 of the real estate records of Scott County, Missouri.
Section 2.02. Use of the Leased Property. The Company shall use the Leased Property solely
for the purposes of manufacturing aircraft and other products related thereto.
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Section 2.03. Term of the Sublease. The term of this Sublease shall commence on the date of
delivery of the Series 2001 Certificates), and expire at midnight on April 2, 2021 (the "Sublease Term"),
unless earlier terminated as provided herein.
Section 2.04. Expiration or Termination of the Sublease Term. The Sublease Term will
expire or terminate, as appropriate, as to the Company's right of possession of the Leased Property as
described in Section 2.05 hereof, upon the first to occur of either of the following events:
(a) an Event of Default and a termination of the Sublease Term as to the possessory
interest of the Company as herein provided;
(b) the expiration or termination of the Term of the Lease; or
(c) April 2, 2021.
Section 2.05. Effect on the Company of Expiration or Termination of the Sublease Term.
The expiration or termination of the Sublease Term as to the Company's right of possession of the Leased
Property pursuant to Section 2.04(a) hereof will terminate the Company's rights of use and occupancy of
the Leased Property, but will not terminate the Company's payment obligations during the remainder of
the Sublease Term under Article III hereof.
Section 2.06. Compliance With FAA Regulations.
(a) The City, at its sole discretion, reserves the right to further develop or improve the
aircraft operating area of the Airport as it sees fit and to take any action it considers necessary to protect
the aerial approaches of the Airport against obstructions, together with the right to prevent the Company
from erecting or permitting to be erected any building or other structure, other than the Project, on the
Airport which would limit the usefulness of the Airport or constitute a hazard to aircraft in accordance
with the FAA air rights provisions for federally funded airports.
(b) This Sublease shall be subordinate to the provisions of any existing agreement between
the City and the United States of America relative to the operation or maintenance of the Airport, the
terms and execution of which have been or may be required as a condition precedent to the expenditure or
reimbursement to the City of federal funds for the development of the Airport, and shall be voidable at the
option of the City if this Sublease violates any state or federal statute or FAA regulation.
ARTICLE III
AMOUNTS PAYABLE
Section 3.01. Amounts Payable. The Company shall pay the Sublease Rentals and the
Additional Payments in the amounts, at the times, and in the manner set forth herein, said amounts
constituting in the aggregate the total of the annual Payments which are payable under this Sublease, as
follows:
(a) Sublease Rentals. The Company shall pay on each Sublease Payment Date
Sublease Rentals equal to the sum of the following:
(1) For the lease of the Facility and the Equipment, the amount indicated on
Schedule 1 hereto; plus
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(2) For the lease of the Project Site, an amount equal to 1/12 of the sum of
(a) $41,000 plus (b) 9 cents per square foot per year for that portion of the Project Site on
which the Facility is constructed plus (c) 6 cents per square foot per year for any portion
of the Project Site that is unimproved (i.e., any portion of the Project Site on which no
buildings or structures are located). Beginning five years after the commencement of the
Sublease Term and for each successive five years, the portion of the Sublease Rentals due
under (b) and (c) shall be equal to the Sublease Rentals for the preceding five-year period
(had such payments been made for a full five-year period) plus a percentage of said
preceding Sublease Rentals. The percentage referenced herein shall be the percentage
increase in the Midwest All Urban Consumer Price Index for the preceding five-year
period, not to exceed 5% per year.
The Sublease Rentals payable pursuant to subparagraph (a)(2) above are referred to as the
"Project Site Rentals." Not later than 45 days prior to the first Sublease Payment Date, an
Authorized City Representative shall provide written notice to the Company and the Trustee of
the amount and method of calculation of the monthly Project Site Rentals that will be due
hereunder. The Project Site Rentals shall be payable at the amount stated in such notice until the
Company and the Trustee receive written notice from an Authorized City Representative of a
change in the Project Site Rentals due hereunder as a result of the inflationary adjustment
described in subparagraph (a)(2) above or a change in the square footage of improved versus
unimproved portions of the Project Site.
The Sublease Rentals payable pursuant to subparagraph (a)(1) above are to be
recalculated by the Trustee, on behalf of the City, and the Company understands that the Sublease
Rental Payment Schedule attached as Schedule 1 hereto shall be revised from time to time in the
event of a partial prepayment of the Sublease Rentals or the issuance of Additional Certificates
pursuant to Section 2.09 of the Indenture. The Company covenants and agrees that it will pay in
immediately available funds to the Trustee, on the City's behalf, for deposit in the Certificate
Payment Fund on the lst day of the month the amount of the Sublease Rental due on such
Sublease Payment Date. Not later than 30 days prior to each Sublease Payment Date, the City
shall notify, or cause the Trustee to notify, the Company of the amount of the Sublease Rental
payment due, after adjusting for any credits pursuant to this Sublease; provided, however, that
failure of the City or the Trustee to give such notice will not relieve the Company of its obligation
to pay Sublease Rentals as described herein.
(b) Credits on Sublease Rentals. There shall be credited against Sublease Rentals
(1) any amount held in the Certificate Payment Fund on each Sublease Payment Date, including
the portions of the proceeds of the sale of the Certificates which are deposited in the Certificate
Payment Fund as accrued interest, and amounts transferred to the Certificate Payment Fund from
the Capitalized Interest Fund to pay the Interest Component that is payable on and before April 1,
2004, (2) any amounts held in the Series 2001B Reserve Fund on April 1, 2007, and (3) any
amounts held in the Series 2001A Reserve Fund, upon exercise by the Company of its option to
purchase the Facility and the Equipment pursuant to Section 12.01 hereof.
(c) Additional Payments. In addition to the Sublease Rentals hereinabove set forth, r
and as part of the total Payments, the Company shall pay, or cause to be paid, on a timely basis, to
the parties entitled thereto, an amount or amounts (the "Additional Payments") to which the
following items apply or relate, equivalent to the sum of the following:
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(i) the reasonable fees, expenses and charges of the Trustee, any paying
agent and any registrar appointed under the Indenture with respect to the Certificates for
acting as trustee, paying agent and registrar as provided in the Indenture, including but
not limited to those payable pursuant to Section 9.06 of the Indenture;
(ii) all expenses incurred in connection with the enforcement of any rights
under the Lease, the Ground Lease, the Indenture or this Sublease by the Trustee or the
Owners of the Certificates;
(iii) the costs of maintenance, operation and repair of the Leased Property and
utility charges as required under Article V of the Lease;
(iv) the costs of casualty insurance required under Article VI of the Lease
and workers' compensation self-insurance;
(v) the costs of taxes and governmental charges and assessments as required
under Section 6.07 of the Lease;
(vi) if the amount on deposit in either of the Reserve Funds is less than the
Reserve Requirement applicable to such Fund, to the Trustee for deposit in such Reserve
Fund an amount necessary to restore that Reserve Fund to the Reserve Requirement
applicable to that Fund before the last day of the then current Fiscal Year;
(vii) all amounts required to be rebated to the United States of America as set
forth in the Indenture or the Tax Compliance Agreement;
(viii) all other payments of whatever nature that the City has agreed to pay or
assume under the provisions of the Lease; and
(ix) all other payments of whatever nature that the Company has agreed to
pay or assume under the provisions of this Sublease.
(d) Additional Rent. As additional rent, the Company will pay to the City $500 for
each aircraft sold, a substantial portion of which is manufactured, remanufactured or produced at
the Project Site. If, however, the aircraft is sold within the City limits, the Company will pay all
other applicable sales taxes in lieu of the $500 payment.
Section 3.02. Consideration. The payments of Sublease Rentals and Additional Payments
hereunder will constitute the total Payments which shall be paid by the Company in consideration of the
right to use and occupy the Leased Property.
The Company has determined that the Sublease Rentals hereunder during the Initial Term
represent the fair value of the use of the Leased Property, that the Option Price as provided in Schedule 2
hereof represents the fair purchase price of the City's interest in the Project, and that the Sublease Rentals
hereunder during any Renewal Term represent the fair value of the use of the Project Site following the
Company's exercise of its right to purchase the Project.
Section 3.03. Vacation of Leased Property Upon Event of Default. The Company will
immediately quit and vacate the Leased Property upon the occurrence of an Event of Default. If the
Company fails to quit and vacate the Leased Property upon the occurrence of an Event of Default, within
the time period required by Section 14.02 hereof, the City may immediately bring legal action to evict the
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Company from the Leased Property. Neither the vacation of the Leased Property by the Company prior
to the expiration of the Initial Term or any Renewal Term nor the exercise of remedies by the City
pursuant to this Section shall limit the Company's obligations under Section 3.04 or the City's other
remedies under Section 14.02.
Section 3.04. Unconditional Obligation. It is understood and agreed that the obligations of the
Company under this Sublease to make Payments during the Initial Term or any Renewal Term on or
before the date the same become due, and to perform all of its other obligations, covenants and
agreements hereunder will, notwithstanding any termination of the Company's rights of possession of the
Leased Property as a result of an Event of Default, be absolute and unconditional, without notice or
demand, and without abatement, deduction, set-off, counterclaim, recoupment or defense whatsoever,
whether now existing or hereafter arising, and notwithstanding any damage to, loss, theft or destruction of
the Leased Property or any part thereof, any failure of consideration, the taking by eminent domain of title
to or of the right of temporary use of all or any part of the Leased 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, or
any default of the City hereunder, and regardless of the invalidity of any action of the City, and regardless
of the invalidity of any portion of this Sublease.
Section 3.05. Payment. During the Initial Term, each Sublease Rental payment shall be paid to
the Trustee for the account of the City in lawful money of the United States of America, on the Sublease
Payment Date on which it is due. Each Additional Payments payment shall be paid when due in lawful
money of the United States of America, at the appropriate office as designated by the respective payees
entitled to receive such Additional Payments.
Section 3.06. Advances by the City. If the Company fails to pay any Additional Payments
required by this Sublease, the City may (but will be under no obligation to) pay such Additional
Payments, which Additional Payments will constitute additional Sublease Rentals hereunder and are to be
reimbursed by the Company to the City upon demand therefor, together with interest thereon at the prime
or base rate of the Trustee plus 2% per annum.
ARTICLE IV
DELIVERY OF CERTIFICATES; USE OF PROCEEDS;
TAX COVENANTS
Section 4.01. Delivery of Certificates. The Trustee shall cause the Series 2001 Certificates to
be executed and delivered pursuant to the Indenture and shall cause the proceeds from the sale thereof to
be applied as provided in the Indenture for the purpose of providing funds to (a) pay the Project Costs, (b)
fund debt service reserve funds for the Series 2001 Certificates, (c) pay the Interest Component that will
be payable on and before April 1, 2004 and (d) pay costs and expenses incidental to the delivery of the
Series 2001 Certificates.
Section 4.02. Acquisition, Construction and Equipping of the Project.
(a) All contracts for the construction of the Project will be in the name of the City. Subject
to the rights of the Company as described below, the City shall be responsible for all aspects of the
construction of the Facility. The City shall deliver to the Company copies of the following documents
within two weeks after the availability thereof:
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(1) All preliminary and final Plans and Specifications for the Facility.
(2) All architect's and general contractor's contracts and final construction bid
documents for the Facility.
(3) All cost projections prepared by the Project Architect.
(b) The Company shall have the opportunity to provide comments on and shall have final
approval of the Plans and Specifications for the Facility, provided that (1) such comments and approval
are provided expediently, (2) such approval is not unreasonably withheld, and (3) such comments and
approval do not cause the final cost of the Facility to exceed $1,600,000 (the "Maximum Construction
Cost").
(c) The City will select such architectural and construction firms as may be appropriate to
design and construct the Facility.
(d) The parties currently estimate that the cost of the Facility (including all architectural
expenses and all other expenses associated therewith) will not exceed the Maximum Construction Cost.
If the Project Architect's estimated cost of the Facility exceeds the Maximum Construction Cost, the size
and amenities of the Facility will be scaled back so that the final cost does not exceed the Maximum
Construction Cost.
(e) The City agrees that it will use diligent efforts to cause the construction of the Facility to
be completed as soon as reasonably practicable.
(f) The Trustee will disburse money in the Project Fund to pay for Project Costs upon the
Trustee's receipt of a written request for payment signed by an Authorized City Representative and, when
required, by the Project Architect or an Authorized Company Representative, in accordance with
Section 4.04(b) of the Indenture. Disbursement Requests for disbursement from the Project Fund for paying
costs of acquiring and installing the Equipment shall be signed by an Authorized Company Representative and
approved by an Authorized City Representative. On or before the 10th business day following receipt by the
City of a Disbursement Request signed by an Authorized Company Representative for costs of acquiring
or installing the Equipment, the City shall either (i) notify the Company that the City's consent will not be
given to the Disbursement Request, reasonably detailing the reasons for the withholding of the City's
consent, or (ii) cause the Disbursement Request to be signed by an Authorized City Representative and
submitted to the Trustee for payment in accordance with Section 4.04(b) of the Indenture. Disbursement
Requests shall contain the statements, representations and certifications and otherwise shall be
substantially in the form attached hereto as Exhibit C and shall have attached thereto the items described
in said form.
Section 4.03. Tax Covenants. The Company and the City covenant and agree as follows:
(a) They will not take any action that would adversely affect %the exclusion from gross
income for federal income tax purposes of the Interest Component of Base Rentals (as each term is
defined under the Indenture) represented by the Series 2001A Certificates and will take whatever action is
reasonably practical after consideration of all alternatives necessary to comply with the requirements of
the Code to maintain the exclusion from gross income for federal income tax purposes of the Interest
Component of Base Rentals represented by the Series 2001A Certificates. The Company and the City
further covenant and agree that they will not use the Leased Property or suffer or permit the Leased
Property to be used in any manner or to any extent, and will take no action or refrain from taking any
action, nor, to the extent within their control, suffer or permit any action to be taken or condition to exist
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which causes or may cause the Interest Component of Base Rentals represented by the Series 2001A
Certificates to be includable in gross income for federal income tax purposes.
(b) The Company and the City covenant and agree that (1) 95% or more of the proceeds of
the Series 2001A Certificates (after adding any earnings on investments of Series 2001A Certificates
proceeds) will be used to pay those items of the Project Costs, or portions thereof, which constitute costs
of construction, purchase and installation of land or of property of a character subject to the allowance for
depreciation within the meaning of Section 144(a)(1)(A) of the Code; (2) no more than 2% of the
proceeds of the Series 2001A Certificates will be used for issuance costs within the meaning of
Section 147(g) of the Code; (3) they have and will fulfill and will cause conditions specified in
Section 144(a) of the Code and applicable regulations (including proposed and temporary regulations), to
qualify the Series 2001A Certificates as "qualified small issue bonds" thereunder; and (4) they have and
will promptly comply with, and have and will cause all other principal users of the Leased Property, if
any, to comply with, all requirements, including reporting and filing requirements, if any, established by
regulations of the Internal Revenue Service pursuant to Sections 144(a), 147 and 149 of the Code.
(c) They have not taken and will not take or permit to be taken any action which would cause
the Series 2001A Certificates to become "arbitrage bonds" within the meaning of Section 103(b)(2) and
Section 148 of the Code and the regulations (including proposed and temporary regulations) issued
thereunder.
(d) The Company will comply with the Tax Compliance Agreement to insure that all
required arbitrage rebate payments are paid to the United States.
(e) None of the proceeds of the Series 2001A Certificates will be used to provide any
facility, the primary purpose of which is retail food and beverage services, automobile sale or service or
the provision of recreation or entertainment or any golf course, country club, massage parlor, tennis club,
skating facility, racquet sports facility, hot tub facility, sun tan facility, racetrack, airplane, skybox or
other private luxury box, health club facility, gambling facility or store, the principal business of which is
the sale of alcoholic beverages for consumption off premises.
(f) The average maturity of the Series 2001A Certificates does not exceed 120% of the
average reasonably expected economic life of the facilities being financed with the proceeds of the
Series 2001A Certificates as computed in accordance with Section 147(b) of the Code.
(g) The Company and the City intend that the Company or any related person, as defined in
the Code ("Related Person"), have been and will be the sole users of the Leased Property.
(h) None of the proceeds of the Series 2001A Certificates will be used (directly or indirectly)
for the acquisition of land (or an interest therein) to be used for farming purposes within the meaning of
Section 147(c)(1)(B) of the Code; less than 25% of the proceeds of the Series 2001A Certificates will be
used (directly or indirectly) for the acquisition of land not described in Section 147(c)(1)(B) of the Code
(or an interest therein); and none of the proceeds of the Series 2001A Certificates will be used for the
acquisition of any property (or any interest therein) unless the first use of such property is pursuant to
such acquisition within the meaning of Section 147(d) of the Code.
(i) The purchase, construction and installation of the Project commenced subsequent to the
date which is 60 days prior to the date of approval of the Lease by the City Council of the City.
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0) Not less than 95% of the property comprising the Leased Property constituted,
constitutes, and will constitute at all times while the Series 2001A Certificates are outstanding, a
manufacturing facility within the meaning of Section 144(a)(12)(C) of the Code.
(k) The Company represents, covenants and agrees that the amount of all Section 144(a)(4)
expenditures (other than those to be paid or reimbursed out of Series 2001A Certificates for the benefit of
the Company), within the meaning of Section 144(a)(4) of the Code, of the Company or any Related
Person, for facilities located in the City of Cape Girardeau, Missouri, from three years prior to the date the
Series 2001A Certificates are issued to three years after the date the Series 2001A Certificates are issued,
together with all outstanding industrial development bonds will not exceed $10,000,000.
(1) The Company represents and warrants that, other than its obligations under this Sublease,
it has no outstanding industrial development revenue bonds the proceeds of which were used for facilities
located in the City of Cape Girardeau, Missouri, the principal user of which is the Company or any
Related Person.
(in) None of the proceeds of the Series 2001A Certificates will be used to provide residential
real property for family units, as provided in Section 144(a)(5) of the Code.
(n) The Company will assist the City in filing all appropriate returns, reports and attachments
to income tax returns as of now or hereafter required by the provisions of the Code, including without
limitation the Information Return for Private Activity Bond Issues (Form 8038) required under the Code.
(o) The costs of the Project financed with the proceeds of the Series 2001A Certificates were
or will be incurred subsequent to the date which is 60 days prior to the date of approval of the Lease by
the City Council of the City, for the purpose of financing the Project financed with the proceeds of the
Series 2001A Certificates. Prior to such date, neither the City, the Company nor any Related Person had
entered into any binding agreement in connection with the construction, improving, or equipping of.the
Project financed with the proceeds of the Series 2001A Certificates, or the design, engineering, or
architectural development of the Project financed with the proceeds of the Series 2001A Certificates and
no on site work had commenced in connection with the Project financed with the proceeds of the
Series 2001A Certificates and no off site fabrication of any portion of the Project financed with the
proceeds of the Series 2001A Certificates had been commenced the cost of which were to be financed by
the proceeds of such Series 2001A Certificates.
ARTICLE V
MAINTENANCE AND OPERATION
Section 5.01. Maintenance and Operation. The Company shall, at its own expense, maintain,
manage and operate, or cause to be maintained, managed and operated, the Leased Property and all
improvements thereon in good order, condition and repair, ordinary wear • and tear excepted. The
Company shall provide or cause to be provided all security service, custodial service, janitor service,
power, gas, telephone, light, heating, water and all other public utility services.
Section 5.02. Care of the Leased Property.
(a) The Company shall take good care of the Leased Property, fixtures and appurtenances,
and suffer no waste or injury thereto, ordinary wear and tear excepted. The Company will repair or cause
to be repaired all damage to the Leased Property, its fixtures and appurtenances due to any act or
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omission or cause whatsoever. The parties agree that the requirements of this Section do not preclude any
legal action by the Company against the City for damages to the Leased Property attributable to the
negligence of the City, its agents or invitees after the effective date of this Lease.
(b) There will be no allowance to the Company for diminution in or abatement of the
Payments and no liability on the part of the City by reason of inconvenience, annoyance or injury to
business arising or resulting from the City, the Company or others making repairs, alterations, additions
or improvements in or to any portion of the Leased Property, or in or to fixtures or appurtenances thereof,
and no liability upon the City or others to make any repairs, alterations, additions or improvements in or
to any portion of the Leased Property, or in or to the fixtures or appurtenances thereof. The foregoing
will not be construed to mean that the City has any such obligations.
ARTICLE VI
INSURANCE AND TAXES
Section 6.01. Property and Casualty Insurance.
(a) Upon execution of the Construction Contracts, the City will obtain and maintain or cause
to be obtained and maintained in full force and effect until the Completion Date, a policy or policies of
Builder's Risk -Completed Value Form Insurance insuring the Facility against fire, lightning and all other
risks covered by the extended coverage endorsement then in use in the State to the Full Insurable Value of
the Facility (subject to reasonable loss deductible clauses not to exceed $25,000).
(b) On and after the Completion Date, the Company shall obtain and maintain (at no cost or
expense to the City) throughout the Initial Term, a policy or policies of insurance to keep: the Leased
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 in an amount equal to the Full Insurable
Value thereof (subject to reasonable loss deductible clauses not to exceed $25,000).
(c) The Full Insurable Value of the Leased Property shall be determined from time to time at
the request of the City or the Trustee (but not more frequently than once in every three years), at the
expense of the Company, by an architect, contractor, appraiser, appraisal company or one of the insurers,
selected by the Company, subject to the approval of the Trustee.
(d) The insurance required pursuant to this paragraph (b) above shall be maintained at the
Company's sole cost and expense, and shall be maintained with a generally recognized responsible
insurance company or companies authorized to do business in the State as may be selected by or on behalf
of the Company and reasonably acceptable to the City. Copies of the insurance policies required under
this Section, or originals or certificates thereof, each bearing notations evidencing payment of the
premiums or other evidence of such payment, shall be delivered by or on behalf of the Company to the
City and the Trustee promptly upon purchase or renewal, and in any event within 30 days thereof.
(e) All such policies of insurance pursuant to this Section, and all renewals thereof, shall
name the City and the Trustee as additional loss payees. as their respective interests may appear, shall
contain a provision that such insurance may not be cancelled by the issuer thereof without at least 30
days' advance written notice to the City and the Trustee, shall waive any co-insurance penalty, shall be
payable up to the required policy dollar limit for damage to the Leased Property without any contingency
on the degree or extent of damage sustained at other property of the Company.
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(f) In the event of loss or damage to the Leased Property, the Net Proceeds of casualty
insurance carried pursuant to this Section shall be paid to the Trustee and shall be applied as provided in
Section 8.01.
Section 6.02. Public Liability Insurance.
(a) On and after the Completion Date, the Company shall obtain and maintain (at no cost or
expense to the City) at all times during the Initial Term and any Renewal Term general accident and
public liability insurance (including but not limited to coverage for all losses whatsoever arising from the
ownership, maintenance, operation or use of any automobile, truck or other motor vehicle) related to the
operation, management and maintenance of its property, 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 $2,000,000 for all claims arising out of a single occurrence, with not less than
$300,000 for any one person in a single accident or occurrence (with a deductible of not more than
$25,000). In addition, the Company shall procure hangar keepers liability insurance for aircraft in the
custody of the Company on the demised premises. The City reserves the right to change this insurance
requirement, upon 30 days written notice to the Company, to equal any new maximum tort liability level
set by the State of Missouri for political subdivisions of this state. The policies of said insurance shall
contain a provision that such insurance may not be cancelled by the issuer thereof without at least 30
days' advance written notice to the City and the Trustee.
(b) The insurance required pursuant to this Section shall be maintained at the Company's sole
cost and expense, and shall be maintained with a generally recognized responsible insurance company or
companies authorized to do business in the State as may be selected by or on behalf of the Company.
Copies of the insurance policies required under this Section, or originals or certificates thereof, each
bearing notations evidencing payment of the premiums or other evidence of such payment, shall be
delivered by or on behalf of the Company to the City and the Trustee promptly upon purchase or renewal,
and in any event within 30 days thereof.
(c) In the event of a public liability occurrence, the Net Proceeds of liability insurance
carried pursuant to this Section shall be applied toward the extinguishment or satisfaction of the liability
with respect to which such proceeds have been paid.
Section 6.03. Business Interruption Insurance.
(a) The Company shall at its sole cost and expense maintain at all times during the Initial
Term business interruption insurance, under which the City shall be named as an additional insured, in an
amount not less than $300,000. Such insurance shall be maintained with a generally recognized
responsible insurance company or companies authorized to do business in the State as may be selected by
the Company. The policies of said insurance shall contain a provision that such insurance may not be
cancelled by the issuer thereof without at least 30 days' advance written notice to the City. Such policy or
a copy or certificate thereof shall be furnished to the City and the Trustee.
(b) The Net Proceeds of insurance carried pursuant to this Section shall be applied first to the
payment of Sublease Rentals and Additional Payments that are then due and payable, and any remaining
amount shall be paid to the Company.
Section 6.04. Workers' Compensation Insurance. The Company agrees throughout the Initial
Term and any Renewal Term to maintain or cause to be maintained the Workers' Compensation coverage
required by the laws of the State.
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Section 6.05. Blanket Insurance Policies. The Company may satisfy any of the insurance
requirements set forth in this Article by using blanket policies of insurance or self-insurance, provided
that the Company complies with each and all of the requirements and specifications of this Article
respecting insurance.
Section 6.06. Failure to Insure.
(a) Notwithstanding any contrary provision herein, the Company shall not be obligated to
purchase and maintain the insurance required under this Article VI until the City issues a certificate of
occupancy for the Facility. Thereafter, the Company shall provide evidence of the insurance coverage
required hereunder within 10 days of the issuance of the certificate of occupancy.
(b) Unless the Company provides evidence of the insurance coverage required under this
Article VI, the City or the Trustee as its assignee may (but shall not be required to) purchase insurance at
the Company's expense to protect its interests in the Leased Property. This insurance may, but need not,
protect the Company's interests. The coverage that the City or the Trustee purchases may not pay any
claim that the Company makes or any claim that is made against the Company in connection with the
Leased Property. The Company may later cancel any insurance purchased by the City or the Trustee, but
only after providing evidence to the City and the Trustee that the Company has obtained insurance as
required in this Article VI. If the City or the Trustee purchases insurance for the Leased Property, the
Company shall promptly reimburse the City or the Trustee, as appropriate, for the costs of that insurance
as Supplemental Rent as provided in Section 3.01(c) together with interest equal to the prime or base rate
of the Trustee plus 2% per annum. The costs of the insurance that the City or the Trustee obtains may be
more than the cost of insurance the Company may be able to obtain on its own.
Section 6.07. Taxes.
(a) The Company shall promptly pay and discharge, as the same become due, all taxes and
assessments, general and special, and other governmental charges of any kind whatsoever that may be
lawfully taxed, charged, levied, assessed or imposed upon or against or be payable for or in respect of the
Leased Property, or any part thereof or interest therein or any buildings, improvements, machinery and
equipment at any time installed thereon by the City or the Company, or the income therefrom or Sublease
Rentals and other amounts payable under the Sublease, including any new taxes and assessments not of
the kind enumerated above to the extent that the same are lawfully made, levied or assessed in lieu of or
in addition to taxes or assessments now customarily levied against real or personal property, and further
including all utility charges, assessments and other general governmental charges and impositions
whatsoever, foreseen or unforeseen, which if not paid when due would impair the security of the
Certificates or encumber the title to the Leased Property.
(b) The Company shall have the right to contest the validity or amount of any tax, assessment
or other governmental charge which the Company is required to bear, pay and discharge pursuant to the
terms of this Article by appropriate legal proceedings instituted at least 10 days before the contested tax,
assessment or other governmental charge becomes delinquent if and provided that the Company (1)
before instituting any such contest, gives the City and the Trustee written notice of the Company's
intention to do so, (2) diligently prosecutes any such contest, (3) at all times effectively stays or prevents
any official or judicial sale therefor, under execution or otherwise, (4) promptly pays any final judgment
enforcing the tax, assessment or other governmental charge so contested, and (5) thereafter promptly
procures record release or satisfaction thereof. The City agrees to cooperate with the Company in
connection with any and all administrative or judicial proceedings related to any tax, assessment or other
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governmental charge. The Company shall hold the City harmless from any costs and expenses the City
may incur in relation to any of the above.
ARTICLE VII
ALTERATIONS, ADDITIONS AND IMPROVEMENTS
Section 7.01. Alterations, Additions and Improvements to the Leased Property. The
Company will have the right during the Sublease Term to make or cause to be made any alterations,
additions or improvements of any kind, structural or otherwise, as it deems necessary or desirable, on or
to the Leased Property, to attach fixtures, structures or signs, and to affix any personal property to the
improvements on the Leased Property; provided, however, (a) that no such alteration, addition or
improvement may be made other than in accordance with the City's general codes and ordinances, (b) that
no such alteration, addition or improvement may reduce or otherwise adversely affect the value of the
Leased Property or the fair rental value thereof or materially alter or change the character or use of the
Leased Property, and (c) that no such alteration, addition or improvement may impair the excludability
from gross income for federal income tax purposes of the Interest Component of the Base Rentals
represented by the Series 2001A Certificates.
Section 7.02. Title to Alterations, Additions and Improvements. Except as provided in
Section 7.03, all alterations, additions and improvements to the Leased Property will constitute a part of
the Leased Property for all purposes of this Sublease and will be subject hereto.
Section 7.03. Company's Equipment.
(a) All of the Company's equipment and other personal property installed or placed by it on
the Leased Property which is not a fixture under applicable law or which is not paid for with the proceeds
of the sale of the Certificates will remain the sole property of the Company in which the City will have no
interest, and may be modified or removed at any time by the Company. The Company shall repair or
cause to be repaired any damage to the Leased Property caused by such removal.
(b) If after the occurrence of an Event of Default, the Company moves out or is dispossessed
and fails to remove any of its property at the time of such moving out or dispossession, then the City may
either regard such property as abandoned by the Company, in which case such property will become the
property of the City, or may demand that the Company remove or cause to be removed such property
from the Leased Property. In the event of failure of the Company to comply with said demand, the City
may remove, sell or destroy such property.
ARTICLE VIII
DAMAGE, DESTRUCTION AND CONDEMNATION
Section 8.01. Damage, Destruction and Condemnation.
(a) If during the Initial Term the Leased Property is damaged or destroyed, in whole or in part,
by fire or other casualty, or all or any portion of the Leased Property is taken through condemnation
proceedings, to such extent that the claim for loss (including any deductible amount pertaining thereto)
resulting from such damage, destruction or taking is greater than $50,000, the Company shall promptly
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notify the City and the Trustee in writing as to the nature and extent of such damage or loss and whether it is
practicable and desirable to rebuild, repair, restore or replace such damage or loss.
(b) If the Company determines that such rebuilding, repairing, restoring or replacing is
practicable and desirable, the Company shall proceed promptly with and complete with reasonable dispatch
such rebuilding, repairing, restoring or replacing of the property damaged or destroyed so as to place the
Leased Property in substantially the same condition as existed prior to the event causing such damage or
destruction or prior to the condemnation proceeding, with such changes, alterations and modifications
(including the substitution and addition of other property) as may be desired by the Company (but only with
the prior written consent of the City) and as will not impair the utility of the Leased Property. The City and
the Company will cause the Net Proceeds of any insurance claim, title insurance or other award from a
challenge or threat of legal or equitable action related to the title or use of the Leased Property to be applied
to the prompt repair, restoration, modification or improvement of the Leased Property. If the Net Proceeds
received with respect to any such damage or loss to the Leased Property, or condemnation proceeding,
exceed $50,000, such Net Proceeds shall be paid to the Trustee and shall be deposited into the Insurance
Fund to be established with and held by the Trustee and shall be used and applied in accordance with
Section 4.09 of the Indenture for the purpose of paying the cost of such rebuilding, repairing, restoring or
replacing such damage or loss. Any amount of such Net Proceeds remaining after completion of such
rebuilding, repairing, restoring or replacing (whether held by the Trustee, the City or the Company) shall be
deposited into the Certificate Payment Fund, which completion shall be evidenced by a certificate
reasonably satisfactory to the City and the Trustee signed by an Authorized Company Representative and an
Authorized City Representative and filed with the Trustee. If said Net Proceeds are not sufficient to pay in
full the costs of such replacement, repair, rebuilding or restoration, the Company shall nonetheless complete
the work thereof and shall pay that portion of the costs thereof in excess of the amount of said Net Proceeds.
(c) If the Company determines that rebuilding, repairing, restoring or replacing the Leased
Property is not practicable and desirable, then, in lieu of rebuilding, repairing, restoring or replacing the
Leased Property, the Company shall promptly purchase the Project by paying the Option Price to the City
and any Net Proceeds received with respect to any such damage or loss to the Leased Property, or
condemnation of the Leased Property, shall be applied to such payment. Any balance of the Net Proceeds
remaining after paying the Option Price shall belong to the Company. The Company agrees that any
acquisition of the Project or rights to its use by the Company shall be pursuant to and in accordance with this
Sublease, including payment of Sublease Rentals and the applicable Option Price.
(d) The Company shall not, by reason of its inability to use all or any part of the Leased
Property during any period in which the Leased Property is damaged or destroyed, or is being repaired,
rebuilt, restored or replaced, or by reason of the payment of the costs of such rebuilding, repairing, restoring
or replacing, be entitled to any reimbursement from the City, or any abatement or diminution of the rentals
payable by the Company under this Sublease or of any other obligations of the Company under this
Sublease except as expressly provided in this Section.
ARTICLE IX
ASSIGNMENTS
Section 9.01. Limitations on Assignment and Subleasing by Company. None of the
Company's right, title and interest in, to and under this Sublease may be assigned by the Company for any
reason without the City's consent.
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Section 9.02. Assignment by City. The Company acknowledges and agrees that, concurrently
with the execution of this Sublease, pursuant to an Assignment of Sublease Agreement dated as of
September 1, 2001, the City will assign its rights under this Sublease during the Initial Term hereof to the
Trustee, for the benefit of the Owners of the Certificates.
ARTICLE X
REPRESENTATIONS, COVENANTS AND WARRANTIES
Section 10.01. Representations, Covenants and Warranties of the City. The City hereby
represents, covenants and warrants to the Company as follows:
(a) The City has the power and authority to enter into the transactions contemplated
by this Sublease and the other documents contemplated hereby to which it is a party and to carry
out its obligations hereunder and thereunder. The City has been duly authorized to execute and
deliver this Sublease and such other documents and agrees that it will do or cause to be done all
things necessary to preserve and keep this Sublease (to the extent herein provided and subject to
the limitations expressed herein) in full force and effect.
(b) The City is not subject to any legal or contractual limitation or provision of any
nature whatsoever which in any way limits, restricts or prevents the City from entering into this
Sublease and the other documents contemplated hereby to which it is a party or performing any of
its obligations hereunder and thereunder.
(c) There is no action, suit, proceeding, inquiry or investigation, at law or in equity,
before or by any court, public board or body, known to be pending or threatened against or
affecting the City, nor to the best knowledge of the City is there any basis therefor, wherein an
unfavorable decision, ruling or finding would materially adversely affect the transactions
contemplated by this Sublease or any other agreement or instrument to which the City is a party
and which is used or contemplated for use in the consummation of the transactions contemplated
by this Sublease. All authorizations, consents and approvals of governmental bodies or agencies
required in connection with the execution and delivery by the City of this Sublease or any such
other agreement or instruments in connection with the carrying out by the City of its obligations
hereunder or thereunder have been obtained.
(d) The entering into and performance of this Sublease or any other document or
agreement contemplated hereby to which the City is or is to be a party will not violate any
judgment, order, law or regulation applicable to the City or result in any breach of, or constitute a
default under, or result in the creation of any lien, charge, security interest or other encumbrance
upon any asset of the City or on the Leased Property except as herein or in the Indenture
provided.
(e) All requirements have been met and procedures have occurred in order to ensure
the enforceability of this Sublease.
(f) The City will comply with all applicable laws, rules, regulations, orders,
directions and requirements of all governmental departments, bodies, bureaus, agencies and
officers.
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(g) Until the payment in full of the Certificates, the City agrees not to create, incur,
assume or permit to exist any mortgage, deed of trust, security interest (whether possessory or
non -possessory) or other encumbrance of any kind (including without limitation the charge upon
property purchased under conditional sale or other title retention agreement) in excess of
$10,000.00 upon or on the Leased Property, other than (A) liens for taxes not delinquent or being
contested as permitted hereunder; (B) liens in connection with workers' compensation,
unemployment insurance or social security obligations; (C) mechanics', workmens',
materialmens', landlords', carriers' or other like liens arising in the ordinary and normal course of
business with respect to obligations which are not due or which are being contested hereunder;
(D) liens in favor of the Trustee arising out of the transactions contemplated hereby; and (E) in
connection with the issuance of Additional Certificates.
(h) The City hereby agrees to comply with and punctually perform all of its
obligations under the Ground Lease and the Lease, including all obligations imposed by law.
(i) The legal description of the Leased Property attached as Exhibit A to this
Sublease encompasses all the real property upon which the Facility and the Equipment will be
situated.
0) There are no existing or pending statutes, orders, standards, rules or regulations
relating to environmental matters requiring any remedial actions or other work, repairs,
construction or capital expenditures with respect to the Leased Property, nor has the City received
any notice of any of the same.
(k) No Hazardous Materials (as defined in Section 10.03) have been released into
the environment, or have been spilled, discharged, or disposed of at, on or near the Leased
Property except as previously disclosed in writing to the Company, nor has the Leased Property
been used at any time by any person as a landfill or a disposal facility for Hazardous Materials.
(1) There are no electrical transformers or other equipment containing dielectric fluid
containing polychlorinated biphenyls located in, on or under the Leased Property, nor is there any
friable asbestos contained in, on or under the Leased Property.
(m) There are no locations off the Leased Property where Hazardous Materials
generated by or on the Leased Property have been treated, stored, deposited or disposed of.
(n) No notices of any violation of any of the matters referred to in the foregoing
sections relating to the Leased Property or their use have been received by the City and there are
no writs, injunctions, decrees, orders or judgments outstanding, and no lawsuits, claims,
proceedings or investigations pending or threatened, relating to the ownership, use, maintenance
or operation of the Leased Property, nor is there any basis for any such lawsuit, claim, proceeding
or investigation being instituted or filed.
(o) The Leased Property is not listed in the United States Environmental Protection
Agency's National Priorities List of Hazardous Waste Sites nor any other log, list, schedule,
inventory or record of Hazardous Materials or Hazardous Waste Sites whether maintained by the
United States, or any state or local governmental unit.
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Section 10.02. Representations, Covenants and Warranties of the Company. The Company
represents, covenants and warrants for the benefit of the City and the Trustee as follows:
(a) The Company is a limited liability company organized under the laws of the
State of Delaware. The Company is not in violation of any provision of its Certificate of
Formation or Operating Agreement, together with any amendments or supplements thereto. The
Company is duly authorized to do business in the State and has lawful power and authority to
enter into this Sublease and the transactions contemplated hereby and the other documents
contemplated hereby to which it is a party, and to carry out its obligations hereunder and
thereunder. The Company has been duly authorized to execute and deliver this Sublease and such
other documents and agrees that it will do or cause to be done all things necessary to preserve and
keep this Sublease (to the extent herein provided and subject to the limitations expressed herein)
in full force and effect.
(b) The Company is not subject to any legal or contractual limitation or provision of
any nature whatsoever which in any way limits, restricts or prevents the Company from entering
into this Sublease and the other documents contemplated hereby to which it is a party or
performing any of its obligations hereunder and thereunder.
(c) There is no action, suit, proceeding, inquiry or investigation, at law or in equity,
before or by any court, public board or body, known to be pending or threatened against or
affecting the Company, nor to the best knowledge of the Company is there any basis therefor,
wherein an unfavorable decision, ruling or finding would materially adversely affect the
transactions contemplated by this Sublease or any other agreement or instrument to which the
Company is a party and which is used or contemplated for use in the consummation of the
transactions contemplated by this Sublease. All authorizations, consents and approvals of
governmental bodies or agencies required in connection with the execution and delivery by the
Company of this Sublease or any such other agreement or instruments in connection with the
carrying out by the Company of its obligations hereunder or thereunder have been obtained.
(d) The entering into and performance of this Sublease or any other document or
agreement contemplated hereby to which the Company is or is to be a party will not violate any
provision of its Certificate of Formation or Operating Agreement, together with any amendments
or supplements thereto, or any judgment, order, law or regulation applicable to the Company or
result in any breach of, or constitute a default under, or result in the creation of any lien, charge,
security interest or other encumbrance upon any asset of the Company or on the Leased Property
except as herein provided.
(e) All requirements have been met and procedures have occurred in order to ensure
the enforceability of this Sublease.
(f) The Company will comply with all applicable laws, rules, regulations, orders,
directions and requirements of all governmental departments, bodies, bureaus, agencies and
officers, and will at all times maintain current licenses required for its operation of the Leased
Property.
(g) Until the payment in full of the Certificates, the Company will from time to time,
record, register and file all such notices, statements and other documents and take such other
steps, including without limitation the amendment to any of the Sublease and any other
documents related to the Certificates and any instruments perfecting interests thereunder, as may
be necessary or advisable to render fully valid and enforceable under all legal requirements the
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rights, liens and priorities of the Trustee and the City with respect to all security from time to time
furnished under this Sublease or intended to be so furnished and to preserve the excludability
from gross income for federal income tax purposes of the interest on the Series 2001A
Certificates, in each case in such form and at such times as are satisfactory to the City and the
Trustee.
(h) Until the payment in full of the Certificates, the Company agrees not to create,
incur, assume or permit to exist any mortgage, deed of trust, security interest (whether possessory
or non -possessory) or other encumbrance of any kind (including without limitation the charge
upon property purchased under conditional sale or other title retention agreement) in excess of
$10,000.00 upon or on the Leased Property, other than (A) liens for taxes not delinquent or being
contested as permitted hereunder; (B) liens in connection with workers' compensation,
unemployment insurance or social security obligations; (C) mechanics', workmens',
materialmens', landlords', carriers' or other like liens arising in the ordinary and normal course of
business with respect to obligations which are not due or which are being contested hereunder,
(D) liens in favor of the Trustee and the City arising out of the transactions contemplated hereby;
and (E) in connection with the issuance of Additional Certificates.
(i) The legal description of the Leased Property attached as Exhibit A to this
Sublease encompasses all the real property upon which the Facility and the Equipment will be
situated.
Section 10.03. Company's Covenants Relating to Compliance with Environmental Laws.
(a) The Company hereby covenants and agrees to carry on the business and operations at the
Leased Property in a manner that complies in all respects, and will remain in compliance, with all
applicable federal, state, regional, county or local laws, statutes, rules, orders, regulations or ordinances,
concerning public health, safety, hazardous substances or the environment. The Company covenants,
represents and warrants to the Trustee, the City and their successors and assigns that the Leased Property
will comply with, and the Company will not violate, in connection with the ownership, use, maintenance
or operation of the Leased Property and the conduct of the business related thereto, any applicable
"Environmental Law," as hereinafter defined, relating to "Hazardous Materials," as hereinafter defined.
The term "Environmental Laws" means all federal, state and local environmental, land use, zoning,
health, chemical use, safety and sanitation laws, statutes, ordinances and codes relating to the protection
of the environment or governing the use, storage, treatment, generation, transportation, processing,
handling, production or disposal of Hazardous Materials and the rules, regulations, policies, guidelines,
interpretations, decisions, orders and directives of federal, state and local governmental agencies and
authorities with respect thereto, including without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601, et seq.), the
Hazardous Materials Transportation Act, as amended (49 U.S.C. Section 1801, et seq.), the Resource
Conservation and Recovery Act, as amended (42 U.S.C. Sections 6901, et seq.), the Toxic Substances
Control Act, as amended (15 U.S.C. Sections 2601, et seq.), the Clean Air Act, the Federal Water
Pollution Control Act of 1972, and the Superfund Amendments and Reauthorization Act of 1986. The
term "Hazardous Materials" means any flammable explosives, radon, radioactive materials, asbestos, urea
formaldehyde foam insulation, polychlorinated biphenyls, petroleum, petroleum-based products, methane,
hazardous materials, hazardous wastes, hazardous or toxic substances or related materials as set forth in
any Environmental Law or other materials which may or could pose a hazard to the health and safety of
the occupants of the Leased Property or the occupants and/or owners of property near the Leased
Property. Without limiting the generality of the foregoing:
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(b) The Company, its agents, employees and independent contractors shall not cause or
permit the Leased Property or any part thereof to be used to generate, manufacture, refine, transport, treat,
store, handle, dispose, transfer, produce or process Hazardous Materials, except in compliance with all
federal, state and local laws or regulations, nor shall the Company, its agents, employees and independent
contractors cause or permit, as a result of any intentional or unintentional act or omission on the part of
the Company, its agents, employees and independent contractors, a release of Hazardous Materials onto
the Leased Property.
(c) The Company shall (i) conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions necessary to clean up and remove all Hazardous
Materials, on, from or affecting the Leased Property after the effective date of this Lease (A) in
accordance with all applicable Environmental Laws, (B) to the satisfaction of the City and (C) in
accordance with the orders and directives of all federal, state and local governmental authorities.
(d) The Company agrees to defend, indemnify and hold harmless the City and the Trustee
and their employees, officers, directors, shareholders, agents and attorneys from and against any claims,
demands, penalties, fines, liabilities, settlements, damages, costs or expenses of whatever kind or nature,
known or unknown, contingent or otherwise, arising out of, or in any way related to, (i) the presence,
disposal, release or threatened release of any Hazardous Materials which are on, from, or affecting the
soil, water, vegetation, buildings, personal property, persons, animals or otherwise after the effective date
of this Lease; (ii) any personal injury (including wrongful death) or property damage (real or personal)
arising out of or related to such Hazardous Materials after the effective date of this Lease; or (iii) any
violation of laws, orders, regulations, requirements or demands of government authorities, which are
based upon or in any way related to such Hazardous Materials occurring after the effective date of this
Lease, including, without limitation, attorney and consultant fees, investigation and laboratory fees, court
costs and litigation expenses. The amount of all such indemnified loss, damage, expense or cost, shall
bear interest thereon at the prime or base rate of the Trustee or its parent plus 2%, and shall become
immediately due and payable in full on demand of the City or the Trustee, as the case may be. The
Company shall be notified in writing of any event requiring indemnification hereunder and the Company
shall have the right to defend the City and the Trustee with counsel approved by each of them.
(e) In the event that the City or the Trustee elects to control, operate, sell or otherwise claim
property rights in the Leased Property upon the occurrence of an Event of Default, the Company shall
deliver the Leased Property free of any and all Hazardous Materials so that the condition of the Leased
Property conforms with all applicable Environmental Laws. Prior to any such delivery of the Leased
Property, the Company shall pay the City or the Trustee, as the case may be, from its own funds, any
amounts then required to be paid under subsection (d) above.
(f) The Company further represents and warrants as follows:
(i) it is not aware of any existing or pending statutes, orders, standards, rules or
regulations relating to environmental matters requiring any remedial actions or other work,
repairs, construction or capital expenditures with respect to the Leased Property, nor has the
Company received any notice of any of the same;
(ii) no Hazardous Materials will be released into the environment, nor will the
Leased Property be used at any time by any person as a landfill or a disposal facility for
Hazardous Materials;
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(iii) it is not aware of any electrical transformers or other equipment containing
dielectric fluid containing polychlorinated biphenyls located in, on or under the Leased Property,
nor is there any friable asbestos contained in, on or under the Leased Property, nor will the
Company permit the installation of the same;
(iv) it is not aware of any locations off the Leased Property where Hazardous
Materials generated by or on the Leased Property have been treated, stored, deposited or disposed
of;
(v) no notices of any violation of any of the matters referred to in the foregoing
sections relating to the Leased Property or their use have been received by the Company and to
the Company's knowledge there are no writs, injunctions, decrees, orders or judgments
outstanding, and no lawsuits, claims, proceedings or investigations pending or threatened, relating
to the ownership, use, maintenance or operation of the Leased Property, nor to the Company's
knowledge is there any basis for any such lawsuit, claim, proceeding or investigation being
instituted or filed; and
(vi) to the Company's knowledge the Leased Property is not listed in the United
States Environmental Protection Agency's National Priorities List of Hazardous Waste Sites nor
any other log, list, schedule, inventory or record of Hazardous Materials or Hazardous Waste
Sites whether maintained by the United States, or any state or local governmental unit. All such
statements regarding future acts to be performed or refrained from will be deemed covenants to
be complied with by the Company without limitation based upon knowledge or inquiry.
(g) All statements by the Company as set forth in this Section 10.03 as to existing facts shall
be deemed representations and warranties made to the best of the Company's knowledge, based upon
representations of the City. All such statements regarding future acts to be performed or refrained from
shall be deemed covenants to be complied with by the Company without limitation based upon
knowledge or inquiry.
(h) The covenants, representations, warranties and indemnities in this Section 10.03 (i) shall
survive any termination of this Sublease and (ii) shall be deemed continuing covenants, representations,
warranties and indemnities running with the land for the benefit of the City and the Trustee, and their
successors and assigns including any purchaser at a foreclosure sale, any transferee of the title of the City
or the Trustee or any subsequent purchaser at a foreclosure sale, and any subsequent owner of the Leased
Property claiming through or under the title of the City or the Trustee.
Section 10.04. Continuing Disclosure. The Company hereby covenants and agrees that it will
comply with and carry out all of the provisions of the Continuing Disclosure Agreement among the City,
the Company and the dissemination agent named therein, dated the date of issuance and delivery of the
Series 2001 Certificates, as originally executed and as it may be amended from time to time in accordance
with the terms thereof. Upon failure of the City or the Company to comply with the Continuing
Disclosure Agreement, any Registered Owner may take such actions as may be necessary and
appropriate, including seeking mandate or specific performance by court order, to cause the City and the
Company to comply with their obligations thereunder.
Section 10.05. Company's Financial Statements. During the Sublease Term, the Company
shall deliver to the City, as soon as available each year, a copy of the Company's annual financial
statements, which shall include a statement of income and expense and a balance sheet for the Company's
preceding fiscal year prepared in conformity with generally accepted accounting principles.
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ARTICLE XI
AMENDMENTS
Section 11.01. Amendments, Changes and Modifications. This Sublease may be amended,
changed or modified only in the manner provided in Article VI of the Indenture.
ARTICLE XII
VESTING OF TITLE; SECURITY INTEREST; COMPANY'S OPTION TO PURCHASE
THE FACILITY AND THE EQUIPMENT
Section 12.01. Option to Purchase the Facility and the Equipment. The Company may
purchase the Facility and the Equipment subject to the terms hereof on any Prepayment Date on which
not less than all the outstanding Principal Component of Base Rentals may be prepaid in accordance with
Section 3.02 of the Indenture, by delivering written notice to the City not less than 90 days prior to the
Prepayment Date on which the option is to be exercised (or such later date as may be acceptable to the
City). The purchase price to be paid by the Company to exercise the option provided herein shall be an
amount equal to (a) the Option Price applicable on such Prepayment Date as indicated on the Option Price
Schedule attached hereto as Schedule 2, plus fees, costs and expenses (including fees, costs and expenses
of the Trustee) which must be paid to prepay the then Outstanding Certificates, less all amounts held in
the Reserve Funds held by the Trustee under the Indenture which may be applied to the Prepayment of
such Outstanding Certificates and such other expenses, (b) all costs of transferring the Facility and the
Equipment to the Company and (c) all other reasonable costs and expenses incidental thereto. Nothing
herein may be construed to create any obligation of the Company to purchase the Facility and the
Equipment.
Section 12.02. Vesting of Title; Granting of Security Interest.
(a) Title to the Leased Property will be held in the name of the Company, subject to the
Ground Lease, the Lease, this Sublease and the Indenture. Title to any portion of the Leased Property that
constitutes personal property shall vest in the Company subject to City's rights under this Sublease;
provided that title thereto shall thereafter immediately and without any action by the Company vest in the
City and the Company shall immediately surrender possession thereof to City upon (i) any termination of
this Sublease without the Company exercising its option to purchase pursuant to Section 12.01 or (ii) the
occurrence of an Event of Default. It is the intent of the parties hereto that any transfer of title to the City
pursuant to this Section shall occur automatically without the necessity of any deed, bill of sale, certificate
of title or other instrument of conveyance. Nevertheless, the Company shall execute and deliver any such
instruments as the City may request to evidence such transfer.
(b) To secure the payment of all of the Company's obligations under this Sublease, the
Company hereby grants and the City hereby retains a security interest in that portion of the Leased
Property consisting of personal property or fixtures and on all additions, attachments, accessions thereto,
substitutions therefor and on any proceeds therefrom. The Company hereby authorizes the filing of
financing statements under the Uniform Commercial Code in connection with any security interest
granted hereunder. The Company shall execute all additional documents, including affidavits, notices and
similar instruments that are necessary or appropriate to establish and maintain such security interest.
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(c) The Facility and the Equipment shall be transferred to the Company (i) on the
Prepayment Date on which the Company has indicated pursuant to Section 12.01 hereof its intention to
purchase the Facility and the Equipment, provided the Company pays to the City the amounts required to
be paid pursuant to Section 12.01 hereof at least 15 days before such date; or (ii) on April 1, 2021, after
payment of all Sublease Rentals and all then accrued Additional Payments.
Section 12.03. Lease of Project Site After Exercise of Option to Purchase. The City and the
Company agree that, upon the exercise by the Company of its purchase option under Section 12.01
hereof, the parties will enter into a new lease agreement under which the City will lease the Project Site to
the Company, and the Company will lease the Project Site from the City, for a term of 10 years, subject to
annual renewal thereafter, in consideration of the Company's payment to the City of rent equal to $41,000
per year plus:
(i) With respect to any improved portion of the Project Site, rent calculated at (A) 9
cents per square foot, as increased by the Midwest All Urban Consumer Price Index for each year
between the initial date of delivery of the Series 2001 Certificates and the exercise of the
purchase option, plus (B) such rate as increased by the Midwest All Urban Consumer Price Index
for each year that the lease is in effect, and
(ii) With respect to any unimproved portion of the Project Site (i.e., those portions of
the Project Site on which no buildings or structures are located), rent calculated at (A) 6 cents per
square foot, as increased by the Midwest All Urban Consumer Price Index for each year between
the initial date of delivery of the Series 2001 Certificates and the exercise of the purchase option,
plus (B) such rate as increased by the Midwest All Urban Consumer Price Index for each year
that the lease is in effect.
ARTICLE XIII
RIGHT OF ENTRY; LIENS; QUIET ENJOYMENT
Section 13.01. Right of Entry. The City and the Trustee and their designated representatives
have the right to enter upon the Leased Property during reasonable business hours (and in emergencies at
all times) (a) to inspect the same, (b) for any purpose connected with the City's and the Trustee's rights or
obligations under this Sublease, or (c) for all other lawful purposes.
Section 13.02. Liens. The Company shall pay or cause to be paid, when due, all sums of money
that may become due for, or purporting to be for, any labor, services, materials, supplies or equipment
alleged to have been furnished or to be furnished to or for, in, upon or about the Leased Property and
which may be secured by any mechanics', materialmens' or other lien, other than Permitted
Encumbrances, against the Leased Property, or the City's interest therein, and shall cause each such lien to
be fully discharged and released; provided, however, that if the Company desires to contest any such lien,
this may be done, and if such lien is reduced to final judgment and such judgment or such process as may
be issued for the enforcement thereof is not promptly stayed, or if so stayed and said stay thereafter
expires, then the Company shall forthwith pay and discharge the judgment.
Section 13.03. Covenant of Quiet Enjoyment.
(a) The City covenants and agrees that, as long as the Company is not in default under this
Sublease, the Company will have the sole and exclusive possession of the Leased Property (subject to
Permitted Encumbrances) and will and may peaceably and quietly have, hold and enjoy the Leased
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Property during the Sublease Term; provided, however, that the City retains the right to grant utility,
access and other easements and rights-of-way, restrictions, exceptions and encumbrances that will not
materially interfere with or materially impair the intended use of the Leased Property. The City
covenants and agrees that it will not take any action, other than pursuant to Article XIV hereof, to prevent
the Company from having quiet and peaceable possession and enjoyment of the Leased Property during
the Sublease Term and will, at the request and expense of the Company, cooperate with the Company in
order that the Company may have quiet and peaceable possession and enjoyment of the Leased Property
and will defend the Company's enjoyment and possession thereof against all parties.
(b) Subject to the provisions of this Section, the Company will have the right to use the
Leased Property for any lawful purpose. The Company shall comply 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 Leased Property or to any
adjoining public ways, as to the manner of use or the condition of the Leased Property or of adjoining
public ways. The Company shall also comply with the mandatory requirements, rules and regulations of
all insurers under the policies required to be carried by the provisions of Article VI 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 will have the
right, at its own cost and expense, to contest or review by legal or other appropriate 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 if the Company furnishes on request of the City or the Trustee, at the Company's expense,
indemnity reasonably satisfactory to the City and the Trustee.
ARTICLE XIV
EVENTS OF DEFAULT; REMEDIES
Section 14.01. Events of Default Defined. Any of the following will be an "Event of Default"
under this Sublease:
(a) Failure by the Company to pay any Sublease Rentals required to be paid under
Section 3.01(a) hereof for a period of 10 days after such Sublease Rentals are due and payable; or
(b) Failure by the Company to pay or cause to be paid any Additional Payments
required to be paid hereunder for a period of 30 days after written notice specifying such failure
and requesting that it be remedied is received by the Company from the City or the Trustee; or
(c) Failure by the Company to observe and perform any covenant, condition or
agreement herein on its part to be observed or performed, other than as referred to in
Sections 14.01(a) or 14.01(b) hereof, for a period of 60 days after written notice, specifying such
failure and requesting that it be remedied, has been given to the Company by the City, unless the
City agrees in writing to an extension of such time prior to its expiration; provided, however, that
if the failure stated in the notice cannot be corrected within the applicable period and if corrective
action is instituted by the Company within the applicable period and diligently pursued until the
default is corrected such failure will not be an Event of Default; or
(d) Any representation or warranty (i) made by the Company pursuant to
Sections 10.02 and 10.03 hereof or (ii) contained in any certificate or document delivered in
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connection with this Sublease proves to have been false or misleading in any material respect
when made; or
(e) The entry of a final nonappealable order or decree in any court of competent
jurisdiction enjoining, restraining or prohibiting the Company from consummating the
transactions contemplated by this Sublease; or
(f) The Company makes a general assignment for the benefit of creditors, or files a
voluntary petition or has filed against it an involuntary petition in bankruptcy, provided such
petition, whether voluntary or involuntary, is not dismissed within 60 days after the institution
thereof.
The foregoing provisions of this Section 14.01 are subject to the limitation that if, by reason of
Force Majeure (as such term is hereinafter defined), the Company is unable in whole or in part to carry
out any agreement on its part herein contained, other than the obligations of the Company contained in
Article III hereof, the Company may not be deemed in default during the continuance of such inability.
The settlement of strikes, lockouts and other disturbances will be entirely within the discretion of the
Company, and the Company will not be required to make settlement of strikes, lockouts and other
disturbances by acceding to the demands of the opposing party or parties when such course is, in the
judgment of the Company, unfavorable to the Company. As used herein the term "Force Majeure"
means, without limitation, the following: acts of God; strikes; lockouts or other disturbances; acts of
public enemies; orders of any kind of the government of the United States of America or the State of
Missouri or any of their departments, agencies or officials, or any civil or military authority;
insurrections; riots; landslides; lightning; earthquakes; fire; storms; floods; washouts; arrests; restraints of
government and people; civil disturbances; explosions; or partial or entire failure or unavailability of
utilities.
Section 14.02. Remedies on Default. Upon the occurrence and continuance of any Event of
Default, the City may give written notice to the Company to vacate the Leased Property immediately and
the Company hereby covenants and agrees that it will so vacate the Leased Property not later than 30 days
after receipt of the City's notice, and the City may, without any further demand or notice, (i) terminate this
Sublease or the Company's possessory rights hereunder (without otherwise terminating this Sublease), re-
enter the Leased Property and eject all parties in possession thereof therefrom, and rent the Leased
Property or, at its option, sell the Leased Property; or (ii) take any action at law or in equity deemed
necessary or desirable to enforce its rights under this Sublease.
Section 14.03. Remedies Cumulative. The rights and remedies given or reserved herein to the
City are and will be deemed to be cumulative. The exercise or non -exercise of any right or remedy will
not be deemed to be an election excluding the exercise or non -exercise at any other time of a different or
inconsistent right or remedy or the maintenance of any action either at law or in equity.
Section 14.04. Waiver. The delay or failure of the City at any time to insist in any one or more
instances upon a strict performance of any covenant of this Sublease or to exercise any right, remedy,
power or option herein granted or established by law, will not be construed as an impairment of or a
waiver or a relinquishment for the future of such covenant, right, remedy, power or option, but the same
will continue and remain in full force and effect, and if any breach occurs and afterwards be
compromised, settled or adjusted, this Sublease will continue in full force and effect as if no breach had
occurred unless otherwise agreed. The receipt and acceptance by the City of any Payments, in whole or
in part with knowledge of the breach of any term, covenant or condition hereof, will not be deemed a
waiver of such breach and no waiver of any provision hereof will be deemed to have been made unless
expressed in writing and signed by the City.
-29-
Section 14.05. Curing Company's Breach. If the Company defaults in the observance or
performance of any term or covenant on the Company's part to be observed or performed under or by
virtue of any of the terms of this Sublease, the City may (but will not be obligated to do so) immediately,
or at any time thereafter and without notice, and to the extent permitted by law, perform or cause to be
performed the same for the account of the Company. Any sums paid or obligations incurred in
connection therewith will be deemed to be Additional Payments hereunder and shall be paid by the
Company to the City for appropriate disbursement within 45 days of the rendering of any bill or statement
to the Company therefor.
ARTICLE XV
MISCELLANEOUS
Section 15.01. Notices. All notices, statements, demands, requests, consents, approvals,
authorizations, offers, agreements, appointments or designations hereunder by one party to another party
shall be in writing and shall be sufficiently given and served upon the other party, if sent by United States
registered or certified mail, return receipt requested, postage prepaid and addressed as follows; provided
that notice to the Trustee will be effective only upon receipt:
Section 15.03. Waiver of Personal Liability. All obligations or liabilities under this Sublease
on the part of the City are solely obligations or liabilities of the City as a political subdivision, and, to the
extent permitted by law, the Company hereby releases each and every official, employee or agent of the
City of and from any personal or individual liability under this Sublease. No official, employee or agent
of the City will at any time or under any circumstances be individually or personally liable under this
Sublease for anything done or omitted to be done by the City hereunder.
-30-
Section 15.04. Rehabilitation Act Requirements. The Company shall operate and maintain the
Leased Property in accordance with the requirements of Section 504 of the Rehabilitation Act of 1973 (29
U.S.C. 794) and will assure that no qualified handicapped person shall, solely by reason of his or her
handicap, be excluded from participation in, be denied the benefits of, or otherwise be subject to
discrimination, including discrimination in employment under any program or activity that receives funds
or benefits from a federal grant. The Company further assures that it shall comply with the requirements
imposed by or pursuant to 49 C.F.R., Part 27.
Section 15.05. Non -Discrimination.
(a) The Company shall not, on the grounds of race, color, creed or national origin,
discriminate or permit discrimination against any person or group of persons in any manner prohibited by
Title VI of the Civil Rights Act of 1964, and Part 21 of the Regulations of the Office of the Secretary of
Transportation in the use of the Leased Property. The City reserves the right to take such action as the
United States Government may direct to enforce this covenant.
(b) The Company assures that it will undertake an affirmative action program as required by
14 CFR Part 152, Subpart E, to insure that no person shall on the grounds of race, creed, color, national
origin, or sex be excluded from participating in any employment activities covered by 14 CFR Part 152,
Subpart E. The Company assures that no person shall be excluded on these grounds from participating in
or receiving the services or benefits of any program or activity covered by this subpart. The Company
assures that it will require that its covered suborganizations provide assurances to the Company that they
similarly will undertake affirmative action programs and that they will require assurances from their
suborganizations, as required by 14 CFR Part 152, Subpart E., to the same effect.
It is understood and agreed that nothing herein contained shall be construed to grant or authorize
the granting of an exclusive right within the meaning of Section 308 of the Federal Aviation Act of 1958.
The Company agrees to furnish service on a fair, equal and not unjustly discriminatory basis to all
users thereof, and to charge fair, reasonable and not unjustly discriminatory prices for each unit or
service; PROVIDED, that the Company may make reasonable and nondiscriminatory discounts, rebates,
or other similar types of price reductions to volume purchasers.
Section 15.06. Observance of Statutes, Etc.. The demise of the Leased Property is condition
upon the right to use the public airport facilities in common with others authorized to do so; provided,
however, that the Company shall observe and comply with any and all requirements of the constituted
public authorities and with federal, state or local statutes, ordinances or regulations in effect at the time of
this Sublease or as may hereafter be promulgated.
Section 15.07. Governing Law. This Sublease is delivered in the State of Missouri under the
Constitution and laws of such State and is to be so construed.
Section 15.08. Execution in Counterparts. This Sublease may be simultaneously executed in
any number of counterparts, each of which when so executed will be deemed to be an original, but all
together constitute but one and the same Sublease. Separate counterparts of this Sublease may be
separately executed by the City and the Company, all with the same full force and effect as though the
same counterpart had been executed simultaneously by the City and the Company.
Section 15.09. Severability. If any one or more of the terms, provisions, promises, covenants or
conditions of this Sublease, or the application thereof to any person or circumstance, is to any extent be
adjudged invalid, unenforceable, void or voidable for any reason whatsoever by a court of competent
-31-
jurisdiction, each and all of the remaining terms, provisions, promises, covenants and conditions of this
Sublease, and the application thereof to other persons or circumstances, will not be affected thereby and
will be valid and enforceable to the fullest extent permitted by law.
Section 15.10. Successors and Assigns; Third Party Beneficiaries.
(a) This Sublease and the covenants, conditions, and agreements herein contained will be
binding upon and inure to the benefit of the successors and permitted assigns of the parties hereto.
(b) This Sublease will not be deemed to create any right in any person who is not a party
(other than the successors and permitted assigns of a party) and will not be construed in any respect to be
a contract in whole or in part for the benefit of any third party (other than the successors and permitted
assigns of a party hereto), except in each case the Owners from time to time of the Certificates and the
Trustee.
Section 15.11. Captions and Headings. The captions and headings used throughout this
Sublease are for convenience of reference only, and the words contained therein will not be deemed to
affect the meaning of any provision or the scope or intent of this Sublease, nor in any way affect this
Sublease.
Section 15.12. Net Sublease. This Sublease will be deemed and construed to be a "net lease,"
and the Company hereby agrees that the Payments provided for herein will be an absolute net return to the
City free and clear of any expenses, charges or setoffs whatsoever, except as otherwise specifically
provided herein.
Section 15.13. Indemnification. The Company agrees to indemnify, defend and hold harmless
the City and the Trustee and their employees, officers, directors, shareholders, agents and attorneys from
all claims, actions, suits, and demands because of bodily injury, including death, and because of damages
to property or losses which may arise out of or result from Company's operations or use of the demised
premises whether such operations or use are by the Company, its agents, employee or anyone directly or
indirectly employed by Company.
Section 15.14. Consent Not to be Unreasonably Withheld. Whenever any party hereto is
required in this Sublease to obtain the consent of any other party hereto such consent may not be
unreasonably withheld or delayed.
Section 15.15. References to Leased Property Following Expiration of Purchase Option.
Following the Company's exercise of its option to purchase the Facility and the Equipment pursuant to
Article XI hereof, all references to "Leased Property" shall mean solely the Project Site and shall not
include the Facility or the Equipment.
[Remainder of Page Intentionally Left Blank.]
-32-
IN WITNESS WHEREOF, the City and the Company have caused this Sublease to be signed
by their respective officers hereunto duly authorized, all as of the day and year first above written.
(SEAL)
ATTEST:
Gayle L onrad
Deputy City Clerk
(SEAL)
A
TTVA �z 455��--
Name: Curt A.H Axchke, Jr.
Title: Secreta
-33-
LESSOR:
CITY OF CAPE GIRARDEAU, MISSOURI
Richard L. Eggiman
Mayor Pro Tem
LESSEE:
AIRCRAFT LLC
Name: John Dearden
Title: President
L
ACKNOWLEDGMENT
STATE OF MISSOURI )
SS.
COUNTY OF CAPE GIRARDEAU )
On this 4th day of September, 2001, before me, the undersigned, a Notary Public in and for said
State, appeared RICHARD L. EGGIMAN to me personally known, who, being by me duly sworn, did
say that they he is the Mayor Piro Tern of the CITY OF CAPE GIRARDEAU, MISSOURI, a political
subdivision of the State of Missouri, and that the seal affixed to the foregoing instrument is the seal of
said City, and that said instrument was signed and sealed in behalf of said City by authority of its
governing body, and said official acknowledged said instrument to be executed for the purposes therein
stated and as the free act and deed of said City.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal the day and
year last above written.
MARK u. GRID M
;": 'r iuy ortraiwl �pirr3 ,1
(SEAT) '�� ° _ ✓_ �t e, 2ov3 ^� �
My commission expires: August 8, 2003.
-34-
p�L L,1=
Notary Public - State of Missouri
Commissioned in St. Louis County
STATE OF MISSOURI )
COUNTY OF CAPE GIRARDEAU )
SS.
On this 4th day of September, 2001, before me, the undersigned, a Notary Public in and for said
State, appeared JOHN DEARDEN, to me personally known, who, being by me duly sworn, did say that
he is the President of RENAISSANCE AIRCRAFT LLC, a limited liability company, and that the seal
affixed to the foregoing instrument is the corporate seal of said company, and that said instrument was
signed and sealed in behalf of said company by authority of its Board of Directors, and said officer
acknowledged said instrument to be executed for the purposes therein stated and as the free act and deed
of said company.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal the day and
year last above written.
-35-
Notary Public - State of Missouri
Commissioned in St. Louis County
01
a. gmar
MARK D. GRIMM
SL LOUIS (OUntY
(SEAL)
'�
My commission Fvires
August 8, 2003
rl
My commission expires:
August 8, 2003.
-35-
Notary Public - State of Missouri
Commissioned in St. Louis County
EXHIBIT A
LEGAL DESCRIPTION OF THE PROJECT SITE
The following described real estate situated in the County of Scott, State of Missouri, together
with all improvements now or hereafter situated thereon:
A tract of land situated in the Northwest Quarter (NW l /4) of Section Thirty -Six (36),
Township Thirty (30) North, Range Thirteen (13) East, Scott County, Missouri, described
as follows- Commence at the found concrete monument at the Southeast corner of Section
35, Township 30 North, Range 13 East; thence North 01 degrees 23 minutes 56 seconds
West a distance of 3121.80 feet to the southwest building corner of the Main Terminal
Building with said coordinates North 508573.092, East 1092440.325, South 00 degrees 00
minutes 00 seconds East a distance of 235.41 feet to a point; thence North 90 degrees 00
minutes 00 seconds East a distance of 1060.34 feet to a point; thence North 00 degrees 00
minutes 00 seconds East a distance of 50.00 feet to a point; thence North 89 degrees 38
minutes 13 seconds East a distance of 120.25 feet to the point of beginning; thence North
00 degrees 21 minutes 13 seconds West a distance of 334.00 feet to a point; thence North
89 degrees 38 minutes 47 seconds East a distance of 334.68 feet to a point; thence South
44 degrees 33 minutes 51 seconds East a distance of 29.15 feet to a point; thence South 00
degrees 21 minutes 13 seconds East a distance of 313.11 feet to a point; thence South 89
degrees 38 minutes 47 seconds West a distance of 365.00 feet to the point of beginning -
A -1
EXHIBIT B
THE EQUIPMENT
The Equipment shall consist of the below -described items of new and used equipment, or
substitutions thereof that are approved in writing by an Authorized City Representative:
IM
Estimated Purchase Price
Equipment
New
Used
Roller - 10'
$15,000
Hydraulic shear - 12'
16,000
Manual shear
$ 1,400
Hydro Press - 300 Ton
90,000
Press Brake - 12'
16,000
Band saw - 18"
2,000
Band saw - 6"
500
TIG welder
1,500
Drill Presses (4)
4,000
Lathe - 12'
4,000
Bridgeport mill
20,000
Fork lift
8,000
Die truck and table
3,000
Surface plate - 24 x 24
1,800
Sandblaster
1,200
Swaging machine
6,000
Miscellaneous
9,600
Total $13
$64.600
IM
Request No.
EXHIBIT C
DISBURSEMENT REQUEST
FOR PROJECT COSTS
WRITTEN REQUEST FOR DISBURSEMENT FROM
THE PROJECT FUND
Date:
$2,665,000
CERTIFICATES OF PARTICIPATION
(CITY OF CAPE GIRARDEAU, MISSOURI, AIRPORT FACILITIES PROJECT)
SERIES 2001A
and
$150,000
TAXABLE CERTIFICATES OF PARTICIPATION
(CITY OF CAPE GIRARDEAU, MISSOURI, AIRPORT FACILITIES PROJECT)
SERIES 2001B
To: UMB BANK, N.A., as Trustee
6 South Broadway, Suite 435
St. Louis, Missouri 63102
Attn: Corporate Trust Department
Pursuant to Section 4.04 of the Declaration and Indenture of Trust dated as of September 1, 2001
(the "Indenture"), the undersigned hereby requests payment from the Project Fund in accordance with this
request, and hereby certifies as follows:
All capitalized terms used in this request have the meanings specified in the Indenture.
Set forth on Attachment I hereto are the addresses of said persons, firms or corporations, the
total amounts to be paid, a description of the costs for which each obligation requested to be paid
hereby was incurred, and an indication of whether the amounts are to be paid from the Series
2001A Account or the Series 2001B Account of the Project Fund.
Said Project Costs have been made or incurred by the City and have been paid by the City, if
payment to the City is requested, or, if payment to the City is not requested, are presently due to
the persons to whom payment is requested.
4. Said Project Costs are valid Project Costs under the Indenture and proper charges against the
Project Fund. No part thereof has been, is being or will be made the basis for the withdrawal of
any money in any previous, pending or subsequent request filed with the Trustee pursuant to the
Indenture.
5. There has not been filed with or served upon the City any notice of any lien, right to a lien or
attachment upon or claim affecting the right of any person, firm or corporation to receive
payment of the respective amounts stated in said certificate which has not been released or will
not be released simultaneously with the payment of such obligation.
6. No event exists that constitutes, or with the giving of notice of the passage of time or both would
constitute, an Event of Lease Default.
7. Invoices, statements, vouchers or bills for the amounts requested for all services or materials
furnished by contractors, except as to any retainage, related to amounts specified in this certificate
are attached hereto.
Lien waivers for all services or materials included in amounts requested by previous
Disbursement Requests, except as to any retainage, have been obtained and are on file with the
City.
Check one, if applicable:
❑ This Written Request is for payment of Project Costs for Infrastructure Improvements or Utility
Improvements; therefore, only the signature of an Authorized City Representative is required.
❑ This Written Request is for payment of acquisition and installation of Equipment; therefore only
the signatures of an Authorized City Representative and an Authorized Company Representative are
required.
CITY OF CAPE GIRARDEAU, MISSOURI
Authorized City Representative
RENAISSANCE AIRCRAFT LLC
Authorized Company Representative
The undersigned Project Architect hereby states and certifies that:
(a) the undersigned has read this Requisition;
(b) the work for which payment is now or has heretofore been requested (insofar as such
payments relate to the construction portions of the Project for which we are responsible under the
Standard Form of Agreement between Owner and Architect dated _, 20 , between the
undersigned Project Architect and the City of Cape Girardeau, Missouri) has progressed to the point
C-2
indicated and, to the best of the undersigned's knowledge, information and belief, the quality of said work
is in accordance with the construction documents relating to the Project; and
(c) to the best of the undersigned's knowledge, information and belief, the amount necessary
to complete the construction of the Project in accordance with the construction contracts relating to the
Project now in effect and our estimate of the cost of work, if any, not under contract, all substantially in
accordance with the current construction documents relating to the Project approved by us, is
approximately $
Part or all of this Disbursement Request is for equipment acquisition costs or other costs which
are not within the costs of the Project for which we are responsible under our contract with the City of
Cape Girardeau, and with respect to such portion, our statement is limited to the matters set forth in
paragraphs (a) and (b) above. YES NO
as Project Architect
By:
Title:
C-3
ATTACHMENT I
TO WRITTEN REQUEST FOR DISBURSEMENT FROM
THE PROJECT FUND
$2,665,000
CERTIFICATES OF PARTICIPATION
(CITY OF CAPE GIRARDEAU, MISSOURI, AIRPORT FACILITIES PROJECT)
SERIES 2001A
and
$150,000
TAXABLE CERTIFICATES OF PARTICIPATION
(CITY OF CAPE GIRARDEAU, MISSOURI, AIRPORT FACILITIES PROJECT)
SERIES 2001B
SCHEDULE OF PAYMENTS REQUESTED
Indicate
Type of
Payee and Address Amount Description Project Cost'
Indicate
Account
(2001 A or
200113)
From Which
Payment is
to be Made (2)
Type of Project Costs must be shown as one of the following: Facility, New Equipment, Used
Equipment, Infrastructure or Utility.
c2� Subject to the limitations of Section 4.04(c) of the Indenture.
C-4
SCHEDULE 1
FACILITY AND EQUIPMENT RENTAL PAYMENT SCHEDULE
Sublease Payment Dates(')
April 1, 2004 through March 1, 2005
April 1, 2005 through March 1, 2006
April 1, 2006 through March 1, 2007
April 1, 2007 through March 1, 2008
April 1, 2008 through March 1, 2009
April 1, 2009 through March 1, 2010
April 1, 2010 through March 1, 2011
April 1, 2011 through March 1, 2012
April 1, 2012 through March 1, 2013
April 1, 2013 through March 1, 2014
April 1, 2014 through March 1, 2015
April 1, 2015 through March 1, 2016
April 1, 2016 through March 1, 2017
April 1, 2017 through March 1, 2018
April 1, 2018 through March 1, 2019
April 1, 2019 through March 1, 2020
April 1, 2020 through March 1, 2021
Total Monthly Facility and
Equipment Rental PayiDen
$193,308
206,508
213,960
265,944
265,260
264,240
262,764
265,764
266,760
262,164
262,260
266,760
265,368
263,364
266,184
263,136
264,504
(1) Sublease Payments are due on the 1st day of each month.
S-1-1
SCHEDULE 2
OPTION PRICE SCHEDULE
Prepayment Period Option Price*
September 1, 2003 through March 31, 2005
$2,815,000
April 1, 2005 through March 31, 2006
2,725,000
April 1, 2006 through March 31, 2007
2,615,000
April 1, 2007 through March 31, 2008
2,490,000
April 1, 2008 through March 31, 2009
2,365,000
April 1, 2009 through March 31, 2010
2,235,000
April 1, 2010 through March 31, 2011
2,100,000
April 1, 2011 through March 31, 2012
1,960,000
April 1, 2012 through March 31, 2013
1,810,000
April 1, 2013 through March 31, 2014
1,650,000
April 1, 2014 through March 31, 2015
1,485,000
April 1, 2015 through March 31, 2016
1,310,000
April 1, 2016 through March 31, 2017
1,120,000
April 1, 2017 through March 31, 2018
920,000
April 1, 2018 through March 31, 2019
710,000
April 1, 2019 through March 31, 2020
485,000
April 1, 2020 through March 31, 2021
250,000
April 1, 2021
1
Excludes Sublease Rentals otherwise due prior to the prepayment date during the Prepayment
Period stated, and other amounts payable pursuant to Section 12.01 of this Sublease.
S-2-1
MEMORANDUM OF SUBLEASE AGREEMENT
THIS MEMORANDUM OF SUBLEASE AGREEMENT, gives notice of, ratifies and
confirms the Sublease Agreement dated as of September 1, 2001 (the "Lease"), between CITY OF
CAPE GIRARDEAU, MISSOURI, a home rule charter city and political subdivision of the State of
Missouri (the "City") and RENAISSANCE AIRCRAFT LLC, a limited liability company organized
under the laws of the State of Delaware and duly authorized and qualified to do business in the State of
Missouri (the "Company").
RECITALS:
1. The City owns certain real estate located at the Cape Girardeau Regional Airport (the
"Airport") in the City of Cape Girardeau, Missouri, as legally described in Exhibit A hereto (the "Project
Site").
2. The City concurrently herewith is conveying a leasehold interest in the Project Site to
UMB Bank, N.A., as trustee under the Indenture referred to hereinafter (the "Trustee") pursuant to a
Ground Lease dated as of September 1, 2001 (the "Ground Lease"), for the rental payments and upon the
terms and conditions therein set forth in order to provide funds to pay the costs of (1) acquiring and
constructing on the Project Site an approximately 60,000 square foot aircraft manufacturing facility and,
if sufficient funds are available therefor, an approximately 2,000 square foot addition thereto for office
space (collectively, the "Facility"), (2) acquiring and installing certain fixtures and equipment for the
Facility, as described on Exhibit B attached hereto (the "Equipment"), (3) constructing certain road
improvements, parking for administrative offices and employee parking (the "Infrastructure
Improvements") and (4) extending water (including drinking and fire suppression) and sewer lines to the
Project Site as needed to service the Facility, including hook-up (the "Utility Improvements"). The
acquisition, construction and installation of the Facility, the Equipment, the Infrastructure Improvements
and the Utility Improvements are collectively referred to as the "Project".
3. The Trustee and the City have also entered into a Lease/Purchase Agreement of even
date herewith (the "Lease"), under which the Trustee has leased back to the City on an annually
renewable basis the Project Site and that portion of the Project that will be located thereon (collectively,
the "Leased Property"), all in consideration of Base Rentals (as defined herein) and upon the terms and
conditions therein provided.
4. The Trustee concurrently herewith has executed a Declaration and Indenture of Trust of
even date herewith (the "Indenture") pursuant to which the Trustee will deliver Certificates of
Participation (City of Cape Girardeau, Missouri, Airport Facilities Project), Series 2001A (the
"Series 2001A Certificates") to provide funds to (1) pay a portion of the costs of the Project, (2) fund a
debt service reserve fund for the Series 2001A Certificates, (3) pay the interest portion of Base Rentals
payable under the Lease with respect to the Series 2001A Certificates on and before April 1, 2004, and
(4) pay a portion of the costs of issuing the Series 2001A Certificates. The Trustee will also deliver,
pursuant to the Indenture, Taxable Certificates of Participation (City of Cape Girardeau, Missouri,
Airport Facilities Project), Series 2001B (the "Series 2001B Certificates" and, together with the Series
2001A Certificates, the "Series 2001 Certificates") to provide funds to (1) pay a portion of the costs of
the Project, (2) fund a debt service reserve fund for the Series 2001B Certificates, (3) pay the interest
portion of Base Rentals payable under the Lease with respect to the Series 2001B Certificates on and
before April 1, 2004, and (4) pay costs of issuing the Series 2001 Certificates that are not otherwise paid
VOL 05 15PAH 541
from the proceeds of the Series 2001A Certificates. Pursuant to the Indenture, the Trustee will grant,
assign and hold in trust all of its right, title and interest in and to the Sublease (including its right to
receive Base Rentals and certain other payments as provided herein) for the benefit and security of the
Owners of the Certificates as provided in the Indenture.
5. The City is willing to sublease the Leased Property to the Company upon the terms and
conditions and for the purposes set forth herein.
6. Concurrently herewith, pursuant to an Assignment of Sublease dated as of September 1,
2001 (the "Assignment of Sublease"), the City will assign to the Trustee all its rights under the Sublease
other than (i) the right of the City to receive the additional rentals payable upon the sale of each aircraft
pursuant to Section 3.01(d) hereof, (ii) the right to be named as an additional insured on any liability
insurance provided for herein, and (iii) the City's rights to receive indemnification and certain fees and
expenses hereunder (the "Reserved Rights").
NOW, THEREFORE, in consideration of the premises and the mutual covenants and
agreements set forth in the Lease, the Trustee and the City do hereby give notice of, ratify, covenant and
agree as follows:
1. Lease of Leased Property. The City hereby rents, subleases and demises to Company,
and Company hereby subleases from the City, the Leased Property, subject to Permitted Encumbrances,
on the terms and conditions and for the purposes herein set forth, together with all easements, rights and
appurtenances in connection therewith or thereto belonging, to have and to hold for the term of the
Sublease, subject to the restrictions set forth in that certain Quit -Claim Deed from the Reconstruction
Finance Corporation to the City, dated August 26, 1947 and recorded in Book 145 at Page 402 of the real
estate records of Scott County, Missouri.
2. Use of the Leased Property. The Company shall use the Leased Property solely for the
purposes of manufacturing aircraft and other products related thereto.
3. Term of the Sublease. The term of the Sublease shall commence on the date of delivery of
the Series 2001 Certificates), and expire at midnight on April 2, 2021 (the "Sublease Term"), unless
earlier terminated as provided herein.
4. Expiration or Termination of the Sublease Term. The Sublease Term will expire or
terminate, as appropriate, as to the Company's right of possession of the Leased Property, upon the first
to occur of either of the following events:
(a) an Event of Default and a termination of the Sublease Term as to the possessory
interest of the Company as herein provided;
(b) the expiration or termination of the Term of the Lease; or
(c) April 2, 2021.
5. Definition of Terms. Capitalized terms not defined herein shall have the meanings
ascribed thereto in the Sublease.
-2-
-VOL 0575rAG� 54")
IN WITNESS WHEREOF, the parties hereto have caused this Memorandum of Sublease
Agreement to be executed in their respective corporate names and their respective corporate seals to be
hereunto affixed and attested by their duly authorized officers, all as of the date first above written.
(SEAL)
ATTEST:
6-vuac
Gayle 0 Conrad
Deputy City, Clerk
(SEAL)
ATTES
Name: Curt A.H. Jes ke, Jr.
Title: Secretary
LESSOR:
CITY OF CAPE GIRARDEAU, MISSOURI
Richard L. Eggiman, Mayor Pro Tem
LESSEE:
AIRCRAFT LLC
-3- VOL 0'j 5PAGi 543
STATE OF MISSOURI
SS.
COUNTY OF CAPE GIRARDEAU
On this 4th day of September, 2001, before me, the undersigned, a Notary Public in and for said
State, appeared JOHN DEARDEN, to me personally known, who, being by me duly sworn, did say that
he is the President of RENAISSANCE AIRCRAFT LLC, a limited liability company, and that the seal
affixed to the foregoing instrument is the corporate seal of said company, and that said instrument was
signed and sealed in behalf of said company by authority of its Board of Directors, and said officer
acknowledged said instrument to be executed for the purposes therein stated and as the free act and deed
of said company.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal the day and
year last above written.
)A"4 6• —
Notary Public - State of Missouri
Commissioned in St. Louis County
MARK D. GRIMM
F-re,
SL LouisCounty
My Commission Expires(SEAL)August 8, 2003
My commission expires: August 8, 2003.
4- VOL 0575-PAGE544
ACKNOWLEDGMENT
STATE OF MISSOURI )
SS.
COUNTY OF CAPE GIRARDEAU )
On this 4th day of September, 2001, before me, the undersigned, a Notary Public in and for said
State, appeared RICHARD L. EGGIMAN to me personally known, who, being by me duly sworn, did
say that they he is the Mayor Pro Tem of the CITY OF CAPE GIRARDEAU, MISSOURI, a political
subdivision of the State of Missouri, and that the seal affixed to the foregoing instrument is the seal of
said City, and that said instrument was signed and sealed in behalf of said City by authority of its
governing body, and said official acknowledged said instrument to be executed for the purposes therein
stated and as the free act and deed of said City.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal the day and
year last above written.
MARK D. GRIMM
0-7
St Louis County
My Commission Expires
(SEAL) a Zoos
My commission expires: August 8, 2003.
Notary Public - State of Missouri
Commissioned in St. Louis County
-S-
VOL Ut57JPAGE 545
EXHIBIT A
LEGAL DESCRIPTION OF THE PROJECT SITE
The following described real estate situated in the County of Scott, State of Missouri, together
with all improvements now or hereafter situated thereon:
A tract of land situated in the Northwest Quarter (NW1/4) of Section Thirty -Six (36),
Township Thirty (30) North, Range Thirteen (13) East, Scott County, Missouri, described
as follows: Commence at the found concrete monument at the Southeast corner of Section
35, Township 30 North, Range 13 East; thence North 01 degrees 23 minutes 56 seconds
West a distance of 3121.80 feet to the southwest building corner of the Main Terminal
Building with said coordinates North 508573.092, East 1092440.325; South 00 degrees 00
minutes 00 seconds East a distance of 235.41 feet to a point; thence Noith 90 degrees 00
minutes 00 seconds East a distance of 1060.34 feet to a point; thence North 00 degrees 00
minutes 00 seconds East a distance of 50.00 feet to a point; thence North 89 degrees 38
minutes 13 seconds East a distance of 120.25 feet to the point of beginning; thence North
00 degrees 21 minutes 13 seconds West a distance of 334.00 feet to a point; thence North
89 degrees 38 minutes 47 seconds East a distance of 334.68 feet to a point; thence South
44 degrees 33 minutes 51 seconds East a distance of 29.15 feet to a point; thence South00
degrees 21 minutes 13 seconds East a distance of 313.11 feet to a point; thence South 89
degrees 38 minutes 47 seconds West a distance of 365.00 feet to the point of beginning.
A-1 VOL 0575PAH 546
EXHIBIT B
THE EQUIPMENT
The Equipment shall consist of the below -described items of new and used equipment, or
substitutions thereof that are approved in writing by an Authorized City Representative:
COMPUTER INDEXED
Filed for Record
i q :55
1 SEP 18 2001
Scott County Recorder
Denton, MO
STATE OF MISSOURIs
County of, Scott,
s�►
sok I hereby certify that_ this instrument
y was FILED FO CORD,. &J,. -the date
and time =s g�wwrpqn and i rd ed in
Bookl _.'' .... .
s:' y
g
T8M R. DIRNBERG
Recorder of Deeds
B-1 VOL 0S75)-PAHF 54
Estimated Purchase Price
Equipment
New
Used
Roller - 10'
$15,000
Hydraulic shear - 12'
16,000
Manual shear
$ 1,400
Hydro Press - 300 Ton
90,000
Press Brake - 12'
16,000
Band saw - 18"
2,000
Band saw - 6"
500
TIG welder
1,500
Drill Presses (4)
4,000
Lathe - 12'
4,000
Bridgeport mill
20,000
Fork lift
8,000
Die truck and table
3,000
Surface plate - 24 x 24
1,800
Sandblaster
1,200
Swaging machine
6,000
Miscellaneous
9,600
Total $135 400
$64.600
COMPUTER INDEXED
Filed for Record
i q :55
1 SEP 18 2001
Scott County Recorder
Denton, MO
STATE OF MISSOURIs
County of, Scott,
s�►
sok I hereby certify that_ this instrument
y was FILED FO CORD,. &J,. -the date
and time =s g�wwrpqn and i rd ed in
Bookl _.'' .... .
s:' y
g
T8M R. DIRNBERG
Recorder of Deeds
B-1 VOL 0S75)-PAHF 54
ASSIGNMENT OF SUBLEASE
THIS ASSIGNMENT is made as of September 1, 2001 by the CITY OF CAPE
GIRARDEAU, MISSOURI, a home rule charter city and political subdivision of the State of Missouri
(hereinafter called "Assignor"), in favor of UMB BANK, N.A., national banking association organized
under the laws of the United States of America, as trustee (the "Trustee") under a Declaration of Trust dated
as of September 1, 2001 (the "Declaration").
1. Assignor, for good and valuable consideration, the receipt of which is hereby
acknowledged, does hereby absolutely and unconditionally grant, bargain, sell, transfer, assign, convey,
set over and deliver unto the Trustee all right, title and interest of Assignor (expecting only the Reserved
Rights, as hereinafter defined), in, to and under that certain Sublease Agreement dated as of September 1,
2001 between Assignor and Renaissance Aircraft LLC (the "Company"), and all amendments, extensions
and renewals thereof (collectively the "Sublease"), relating to the facilities which are or will be are
situated at the City of Cape Girardeau, Missouri and located at the Cape Girardeau Municipal Airport on
the real estate described in Exhibit A attached hereto and incorporated herein (the "Project Site"), all
rents, income and profits which may now or hereafter be or become due or owing under the Sublease, or
on account of the use of the Project Site, any award hereafter made in any bankruptcy, insolvency or
reorganization proceeding in any state or federal court involving the Company as the tenant of the
Sublease, and any and all payments made by the Company in lieu of rent.
2. This Assignment is made for the purpose of securing:
(a) The payment of all sums becoming due and payable by the Assignor to the
Trustee pursuant to a Lease/Purchase Agreement dated as of September 1, 2001 (the
"Lease/Purchase Agreement"); and
(b) The performance and discharge of each and every term, covenant and condition
contained in the Lease/Purchase Agreement.
3. Assignor represents, warrants, covenants and agrees with the Trustee as follows:
(a) The sole ownership of the entire lessor's interest in the Sublease is or shall be vested in
Assignor, and Assignor has not, and shall not, perform any acts or execute any other instruments which
might prevent the Trustee from fully exercising its rights under any of the terms, covenants and
conditions of this Assignment.
(b) The Sublease is and shall be valid and enforceable in accordance with its terms and has
not been altered, modified, amended, terminated, canceled, renewed or surrendered nor have any of the
terms and conditions thereof been waived in any manner whatsoever except as disclosed in writing to the
Trustee.
(c) Assignor shall not alter the term of the Sublease or the amount of rent payable thereunder
without the Trustee's prior written consent. In addition, Assignor shall not materially alter any of the
other terms of the Sublease without the Trustee's prior written consent.
(d) There are no defaults now existing under the Sublease, and there exists no state of facts
which, with the giving of notice or lapse of time or both, would constitute a default under the Sublease.
VOL U575PAGE 548
(e) Assignor shall give prompt notice to the Trustee of any notice received by Assignor
claiming that a default has occurred under the Sublease on the part of Assignor, together with a complete
copy of any such notice.
(f) The Sublease shall remain in full force and effect irrespective of any merger of the
interest of Assignor and the Company under the Sublease.
(g) Assignor will not permit the Sublease to become subordinate to any lien.
(h) Assignor shall not permit or consent to the assignment by any tenant of its rights under its
Lease without the prior written consent of the Trustee. Without limitation of the foregoing, Assignor
shall not permit or consent to the filing of any encumbrance against the tenant's interest under the
Sublease, including, without limitation, any leasehold mortgage.
(i) Assignor has delivered to Assignee a true, correct and complete copy of the Sublease and
all amendments and modifications thereto.
0) Assignor agrees to promptly perform and comply with the terms and provisions in the
Sublease.
4. The parties agree that this Assignment is an absolute, present assignment from Assignor
to the Trustee, effective immediately, and is not merely an assignment for security purposes.
5. Assignor hereby irrevocably appoints the Trustee its true and lawful attorney with power
of substitution and with full power for the Trustee in its own name and capacity or in the name and
capacity of Assignor, to demand, collect and receive any and all rents, income and profits accruing from
the Project Site, either in its own name or in the name of Assignor. Such appointment is coupled with an
interest and is irrevocable. Assignor also hereby irrevocably appoints the Trustee as its true and lawful
attorney, from and after delivery of a written notice to Assignor that an Event of Default or an Event of
Nonappropriation (as defined in the Lease/Purchase Agreement) has occurred (which notice is hereafter
called a "Notice"), to appear in any state or federal bankruptcy, insolvency or reorganization proceeding
in any state or federal court involving the Company as the tenant of the Sublease. The Company is
hereby expressly authorized and directed to pay any and all amounts due Assignor pursuant to the
Sublease (other than payments under Section 3.01(d) of the Sublease) to the Trustee or such nominee as
the Trustee may designate in writing delivered to and received by the Company, and the Company is
expressly relieved of any and all duty, liability or obligation to Assignor in respect of all payments so
made.
6. From and after delivery of a Notice, the Trustee is hereby vested with full power to use
all measures, legal and equitable, deemed by it to be necessary or proper to enforce this Assignment and
to collect the rents, income and profits assigned hereunder, including the right of the Trustee or its
designee to enter upon the Project Site, or any part thereof, and take possession of all or any part of the
Project Site. Assignor hereby grants full power and authority to the Trustee to exercise all rights,
privileges and powers herein granted at any and all times after delivery of a Notice, with full power to use
and apply all of the rents and other income herein assigned to the payment of the costs of managing and
operating the Project Site and to any indebtedness or liabilities of Assignor to the Trustee, including, but
not limited to, the payment of taxes, special assessments, insurance premiums, damage claims, the costs
of maintaining, repairing, rebuilding and restoring the improvements on the Project Site or of making the
same rentable, reasonable attorneys' fees and expenses incurred in connection with the enforcement of
this Assignment, and to the payment of Payments due from Assignor to the Trustee pursuant to the
Lease/Purchase Agreement, all in such order as the Trustee may determine. The Trustee shall be under
-2-VOL 0575PAGE 549
no obligation to exercise or prosecute any of the rights or claims assigned to it hereunder or to perform or
carry out any of the obligations of the lessor under the Sublease and does not assume any of the liabilities
in connection with or arising or growing out of the covenants and agreements of Assignor in the Sublease.
It is further understood that this Assignment shall not operate to place responsibility for the control, care,
management or repair of the Project Site, or parts thereof, upon the Trustee, nor shall it operate to make
the Trustee liable for the performance of any of the terms and conditions of the Sublease or for any waste
of the Project Site or for any dangerous or defective condition of the Project Site or for any negligence in
the management, upkeep, repair or control of the Project Site resulting in loss or injury or death to any
lessee, licensee, employee or stranger.
7. The rights and remedies of the Trustee under this Assignment are cumulative and are not
in lieu of, but are in addition to, any other rights or remedies which the Trustee shall have under the
Lease/Purchase Agreement, the Declaration or at law or in equity.
8. If any term of this Assignment, or the application thereof to any person or circumstances,
shall, to any extent, be invalid or unenforceable, the remainder of this Assignment, or the application of
such term to persons or circumstances other than those as to which it is invalid or unenforceable, shall not
be affected thereby, and each term of this Assignment shall be valid and enforceable to the fullest extent
permitted by law.
9. Any and all notices, elections, demands or requests permitted or required to be made
under this Assignment, including, without limitation, a Notice, shall be in writing, signed by the party
giving such notice, election, demand or request and shall be delivered personally or sent by registered,
certified or regular United States mail, postage prepaid, or by Federal Express or similar service for
overnight, priority delivery, to the other party at the address set forth above or to such other party and at
such other address within the United States of America as any party may designate as provided herein.
The date of receipt of such notice, election, demand or request shall be the earliest of (i) the date of actual
receipt, (ii) three days after the date of mailing by registered, certified or regular mail, (iii) one day after
the date of mailing by Express Mail or the delivery (for redelivery) to Federal Express or another similar
service requiring a receipt or (iv) the date of personal delivery (or refusal upon presentation for delivery).
10. The terms "Assignor" and "Trustee" shall be construed to include the legal
representatives, successors and assigns thereof. The gender and number used in this Assignment are used
as a reference term only and shall apply with the same effect whether the parties are of the masculine or
feminine gender, corporate or other form, and the singular shall likewise include the plural.
11. This Assignment may not be amended, modified or changed nor shall any waiver of any
provision hereof be effective, except only by an instrument in writing and signed by the party against
whom enforcement of any waiver, amendment, change, modification or discharge is sought.
12. Notwithstanding anything contained herein to the contrary, in no event shall this
Assignment be deemed to reduce the Payments payable by the Authority under the Lease/Purchase
Agreement by an amount in excess of the actual amount of cash received by the Trustee under the
Sublease, whether before, during or after the occurrence of an Event of Default or an Event of
Nonappropriation, and Assignor acknowledges that in no event shall the amount of the Payments be
reduced by the value from time to time of the rents, income and profits of or from the Project Site. In
addition, the Trustee reserves the right, at any time, whether before or after the occurrence of an Event of
Default or an Event of Nonappropriation, to recharacterize this Assignment as merely constituting
security for the indebtedness of Assignor to the Trustee, which recharacterization shall be made by
written notice delivered to Assignor.
3 VOL 0575PAGE 550
13. Under this Assignment, the Assignor reserves to itself (i) the right to receive the
additional rentals payable upon the sale of each aircraft pursuant to Section 3.01(d) of the Sublease, (ii)
the right to remain as a named insured on any liability insurance provided for in the Sublease and (iii) its
rights to receive indemnification and certain fees and expenses contained in the Sublease (collectively, the
"Reserved Rights").
14. This Assignment shall be governed by and construed in accordance with the laws of the
State of Missouri.
[Remainder of Page Intentionally Left Blank.]
VOL 05 7Z5 PAGE 551
IN WITNESS WHEREOF, the City has caused this Assignment of Sublease to be signed by
their respective officers hereunto duly authorized, all as of the day and year first above written.
(SEAL)
ATTEST:
BayleConrad
City Clerk
ASSIGNOR:
CITY OF CAPE GIRARDEAU, MISSOURI
Richard L. Eggiman ,
Mayor Pro Tem
-5-VOL 05,75-5 PAGE 552
ACKNOWLEDGMENT
STATE OF MISSOURI )
SS.
COUNTY OF CAPE GIRARDEAU )
On this 4th day of September, 2001, before me, the undersigned, a Notary Public in and for said
State, appeared RICHARD L. EGGIMAN to me personally known, who, being by me duly sworn, did
say that they he is the Mayor Pro Tem of the CITY OF CAPE GIRARDEAU, MISSOURI, a political
subdivision of the State of Missouri, and that the seal affixed to the foregoing instrument is the seal of
said City, and that said instrument was signed and sealed in behalf of said City by authority of its
governing body, and said official acknowledged said instrument to be executed for the purposes therein
stated and as the free act and deed of said City.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal the day and
year last above written.
MARK D. GRIMM
wwn ,t St Louis County
My Convnwion EVires
(SEAL) 8,2003
My commission expires: August 8, 2003.
Notary Public - State of Missouri
Commissioned in St. Louis County
-6 VOL 0575PAGE 553
CONSENT AND ACKNOWLEDGMENT
The undersigned hereby acknowledges and consents to the terms of this Assignment of Sublease.
Dated this/ day of September, 2001.
RENAISSANCE AIRCRAFT LLC
Von O5- 75PAGE 554
EXHIBIT A
LEGAL DESCRIPTION OF THE PROJECT SITE
A tract of land situated in the Northwest Quarter (NWI/4) of Section Thirty -Six (36),
Township Thirty (30) North, Range Thirteen (13) East, Scott County, Missouri, described
as follows: Commence at the found concrete monument at the Southeast corner of Section
35, Township 30 North, Range 13 East; thence North 01 degrees 23 minutes 56 seconds
West a distance of 3121.80 feet to the southwest building corner of the Main Terminal
Building with said coordinates North 508573.092, East 1092440.325, South 00 degrees 00
minutes 00 seconds East a distance of 235.41 feet to a point; thence North 90 degrees 00
minutes 00 seconds East a distance of 1060.34 feet to a point; thence North 00 degrees 00
minutes 00 seconds East a distance of 50.00 feet to a point; thence North 89 degrees 38
minutes 13 seconds East a distance of 120.25 feet to the point of beginning; thence North
00 degrees 21 minutes 13 seconds West a distance of 334.00 feet to a point; thence North
89 degrees 38 minutes 47 seconds East a distance of 334.68 feet to a point; thence South
44 degrees 33 minutes 51 seconds East a distance of 29.15 feet to a point; thence South 00
degrees 21 minutes 13 seconds East a distance of 313.11 feet to a point; thence South 89
degrees 38 minutes 47 seconds West a distance of 365.00 feet to the point of beginning.
COMPUTER INDEXED
Filed for Record
IU:0(D
SEP 18 2001
Scott County Recorder
penton, MO
STATE OF MISSOURI ss
County of Scott, _ -
~y'
y�l I hereby certify that this instrument
was FILED -FOR RECORD at Ahe date
and time sh'own�hereon and'is- re -corded in
Book .. �.7 P ..... .
r v
TQM R ;DIRNBE
Recorder of Deeds
VOL 0575PA'� 555