Exhibit 10.3
LEASE
THIS LEASE, dated as of August 31, 1999 (as amended or
supplemented from time to time, this "LEASE"), between the MCI O'Fallon 1999
Trust, a Delaware business trust (the "LESSOR"), as lessor, and MasterCard
International Incorporated, a non-stock membership corporation organized under
the laws of the State of Delaware (the "LESSEE"), as lessee;
W I T N E S S E T H:
WHEREAS, the Missouri Development Finance Board, a body
corporate and politic organized and existing under the laws of the State of
Missouri (the "BOARD") is the fee owner of a parcel of land in the City of
O'Fallon, Missouri on which it has been proposed to develop, construct and equip
an approximately 414,000 square foot office space, an approximately 114,000
square foot data and energy center providing and utilizing reliable, redundant
energy and communication sources and parking for approximately 1,751 cars,
constituting, together with the Land and the other Improvements, the Facility
(as hereinafter defined), whereupon the ownership thereof will vest in the
Board;
WHEREAS, the Board has issued its Industrial Development
Revenue Bonds (Winghaven/MasterCard Project) Series 1999A, in the aggregate
principal amount of $154,000,000, due September 1, 2009 (the "SERIES A BONDS"),
and will, upon issuance of the Series B Notes (referred to below) and subject to
certain conditions, issue its Industrial Development Revenue Bonds
(Winghaven/MasterCard Project) Series 1999B, in aggregate principal amount equal
to the aggregate principal amount of the Series B Notes (as defined below) and
the additional Investor Contribution (as provided in the Participation
Agreement) due September 1, 2009 (the "SERIES B BONDS") (collectively, the
"BONDS"), for such purposes and will deposit the proceeds thereof in the Escrow
Account for disbursement and application pursuant thereto;
WHEREAS, the Board has entered into the Bond Lease dated of
even date herewith (as amended or supplemented from time to time, the "BOND
LEASE"), with the O'Fallon Public Facilities Authority, a non-profit corporation
organized under the laws of the State of Missouri (the "BOND SUBLESSOR"), under
which a leasehold estate in the Facility will vest in the Bond Sublessor;
WHEREAS, the Bond Sublessor has made available for the
development and construction of the Facility approximately $3.7 million and will
deposit it in the Escrow Account for disbursement and application pursuant
thereto;
WHEREAS, concurrently with the execution and delivery of the
Bond Lease, the Bond Sublessor and the Lessor have entered into the Bond
Sublease dated as of even date herewith (as amended or supplemented from time to
time, the "BOND SUBLEASE"), under which the Lessor, using funds on deposit in
the Escrow Account, will cause the Facility to be developed and constructed,
whereupon a leasehold estate therein will, pursuant to the Bond Sublease, vest
in the Lessor;
WHEREAS, the Lessor desires to sublease the Facility to the
Lessee and the Lessee desires to sublease the Facility from the Lessor, for the
rentals and upon the terms and conditions hereinafter set forth;
WHEREAS, concurrently with the execution and delivery of this
Lease, the Lessor shall issue and sell to several financial institutions (the
"PURCHASERS"), and the Purchasers shall purchase, pursuant to the Series A Note
Purchase Agreement, dated as of even date herewith, $149,380,000 aggregate
principal amount of the Lessor's 7.36% Series A Senior Secured Notes due
September 1, 2009 (the "SERIES A NOTES", such term to include any such Notes
issued in substitution or replacement therefor);
WHEREAS, the proceeds of the Series A Notes and the Investor
Contribution will be used by the Lessor to acquire the Series A Bonds issued by
the Board, and the purchase price for the Series A Bonds, together with
approximately $3,700,000 deposited by the Bond Sublessor to fund capitalized
interest on the Series A Bonds during the Construction Period, will be deposited
in the Escrow Account, as described above;
WHEREAS, in the event that additional financing is needed to
complete the Facility, the Lessor may, upon request of the Lessee, issue its
Series B Senior Secured Notes due September 1, 2009 (the "SERIES B NOTES", such
term to include any such Notes issued in substitution or replacement therefor
pursuant to the Indenture, and together with the Series A Notes, the "NOTES") in
an aggregate principal amount not to exceed $5,000,000;
WHEREAS, the proceeds of the Series B Notes, if and when
issued (together with additional Investor Contribution, as described in Section
2.1 of the Participation Agreement), will be used by the Lessor to acquire the
Series B Bonds then issued by the Board, and the purchase price for the Series B
Bonds will be deposited in the Escrow Account, as described above;
WHEREAS, the Basic Rent hereunder shall be sufficient to pay
interest on the Bonds, which will be used to pay interest on the Notes and the
Investor Yield, and the Supplemental Rent hereunder shall be sufficient to pay
all other amounts with respect to the Notes, the Investor Contribution and the
Bonds;
NOW, THEREFORE, in consideration of the premises and the
mutual representations, covenants and agreements herein contained, the Lessor
and the Lessee do hereby represent, covenant and agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS OF WORDS AND TERMS. For purposes of
this Lease, capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to them in Annex A attached hereto and incorporated
herein by reference. The rules of usage set forth in such Annex A shall apply
hereto.
"FULL INSURABLE VALUE" means the actual replacement cost of
the Facility exclusive of the cost of land, excavations, footings and
foundation, as determined in accordance with SECTION 6.1(a) hereof.
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"OBLIGATIONS" means, without limitation, all Basic Rent and
Supplemental Rent and all fees, claims, demands, payments, damages, liabilities,
penalties, assessments and the like of or imposed upon the Lessee or its
directors, trustees, officers, agents, employees, representatives, advisors or
assigns, whether under this Lease or any of the other Operative Agreements or
elsewhere and whether arising out of or based upon a claim of tort, contract,
misrepresentation, or any other or additional legal theory whatsoever.
"TAX FORBEARANCE AGREEMENT" means a Tax Forbearance Agreement,
Deed of Trust and Security Agreement, dated as of August 31, 1999, among the
Board, the Lessee, the City of O'Fallon, Missouri, the Wentzville R-IV School
District of St. Charles County, Missouri and the mortgagee trustee named
therein, as amended or supplemented from time to time.
SECTION 1.2 CONFLICT IN INTERPRETATION BETWEEN LEASE AND
OPERATIVE AGREEMENTS. To the extent that the provisions of this Lease shall
conflict with the provisions of (i) the Participation Agreement, the terms and
provisions of the Participation Agreement shall control or (ii) any other
Operative Agreement, the provisions of this Lease shall control.
ARTICLE II
REPRESENTATIONS
SECTION 2.1 REPRESENTATIONS BY THE LESSOR. The Lessor makes
the following representations:
(a) The Lessor is a business trust duly formed and validly
existing under the laws of the State of Delaware, is not required by the law of
the State of Missouri to qualify or register as a foreign business trust and has
taken all actions necessary for the transaction of business in the State of
Missouri. The Lessor has lawful power and authority to enter into the
transactions contemplated by this Lease and to carry out its obligations
hereunder. By proper action of its governing body, the Lessor has been duly
authorized to execute and deliver this Lease, acting by and through its duly
authorized officers.
(b) The Lessor shall have no authority to operate the Facility
as a business or in any other manner except as the sublessee thereof in
accordance with the Bond Sublease and as lessor thereof in accordance with this
Lease.
(c) The Lessor hereby assigns to the Lessee (subject, however,
to the Indenture) any and all representations and warranties made to or assigned
to the Lessor under the Bond Sublease, including the representations and
warranties made by McEagle Development, L.L.C., Novus Property Holdings, L.L.C.
and Novus Campus, L.L.C.
SECTION 2.2 REPRESENTATIONS BY THE LESSEE. The Lessee makes
the following representations:
(a) The Lessee is a non-stock membership corporation organized
and existing and in good standing under the laws of the State of Delaware and is
in good standing and duly authorized and qualified to do business in the State
of Missouri.
(b) The Lessee has lawful power and authority to enter into
the Operative Agreements to which the Lessee is a party and to carry out its
obligations thereunder. By proper
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action of its board of directors, the Lessee has been duly authorized to execute
and deliver each of the Operative Agreements, acting by and through its duly
authorized officers.
(c) The execution and delivery of the Operative Agreements to
which the Lessee is a party, the consummation of the transactions contemplated
thereby, and the performance of or compliance with the terms and conditions of
the Operative Agreements to which the Lessee is a party will not conflict with
or result in a breach of any of the terms, conditions or provisions of, or
constitute a default under, any mortgage, deed of trust, lease or any other
agreement or instrument to which the Lessee is a party or by which it or any of
its property is bound, or the Lessee's organizational documents, or any order,
rule or regulation applicable to the Lessee or any of its property of any court
or governmental body, or constitute a default under any of the foregoing, or
result in the creation or imposition of any lien, charge or encumbrance (other
than Permitted Liens) of any nature whatsoever upon any of the property or
assets of the Lessee under the terms of any instrument or agreement to which the
Lessee is a party.
(d) The estimated costs of the development and construction of
the Facility have been determined in accordance with sound engineering and
generally accepted accounting principles, and the Facility Costs are reasonably
expected to equal the Projected Completion Value.
(e) The Facility will comply in all material respects with all
Facility Requirements, including applicable building and zoning, health,
environmental and safety ordinances and laws and all other applicable laws,
rules and regulations, as currently existing and in effect on the Completion
Date.
ARTICLE III
GRANTING PROVISIONS
SECTION 3.1 GRANTING OF LEASEHOLD ESTATE; THE FACILITY;
CERTAIN MACHINERY AND EQUIPMENT.
(a) The Lessor hereby rents, leases and lets the Facility to
the Lessee, and the Lessee hereby rents, leases and hires the Facility from the
Lessor, subject to Permitted Liens, for the rentals and upon and subject to the
terms and conditions herein contained.
(b) The Land and all Improvements located thereon at the
execution hereof, all work and materials on the Improvements as such work
progresses, and all additions or enlargements thereto or thereof, the Facility
as fully completed, anything under this Lease which becomes, is deemed to be, or
constitutes a part of the Facility, and the Facility as repaired, rebuilt,
rearranged, restored or replaced by the Lessee under the provisions of this
Lease, except as otherwise specifically provided herein, shall immediately when
erected or installed be vested in the Board and become part of the leasehold
estate under the Lease, subject only to Permitted Liens.
(c) Any item of machinery or equipment the entire purchase
price of which is paid for by the Lessee with the Lessee's own funds, and no
part of the purchase price of which is paid for from funds deposited in the
Escrow Account, shall be the sole property of the Lessee and shall not be
subject to this Lease, unless such item shall become a part of the Improvements
as a matter of law or shall be necessary for the normal use and operation of the
Facility.
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(d) This Lease shall be and is hereby made subject and
subordinate to the Lien of the Indenture and of the Security Documents.
SECTION 3.2 LEASE TERM.
(a) This Lease shall become effective upon the Closing Date,
and subject to sooner termination pursuant to the provisions of this Lease,
shall be leased for the Term.
(b) Thereafter, if this Lease has not been earlier terminated,
the Lessee shall have the option to extend the Term of this Lease for one
ten-year term, upon the same terms and conditions herein contained, except that
(i) the rentals shall be $100 for each year or part thereof that the Lessee
leases the Facility pursuant to its exercise of this extension option and (ii)
the provisions of the second paragraph of SECTION 9.5 shall be of no further
force and effect during such extended term; provided that no such extension
shall be made unless all Indebtedness under the Notes and all amounts owing in
respect of the Certificates have been indefeasibly paid in full on or prior to
the Maturity Date.
SECTION 3.3 POSSESSION AND USE OF THE FACILITY.
(a) The Lessor covenants and agrees that as long as no Lease
Event of Default shall have occurred and be continuing, the Lessee shall have
sole and exclusive possession of the Facility (subject to Permitted Liens and
the rights of access pursuant to SECTION 9.3 hereof) and shall and may peaceably
and quietly have, hold and enjoy the Facility during the Term. The Lessor
covenants and agrees that it will not take any action, other than those
expressly permitted pursuant to ARTICLE XI of this Lease, to prevent the Lessee
from having quiet and peaceable possession and enjoyment of the Facility during
the Term and will, at the reasonable request and expense of the Lessee,
cooperate with the Lessee in order that the Lessee may have quiet and peaceable
possession and enjoyment of the Facility.
(b) Subject to the provisions of this Section, the Lessee
shall have the right to use the Facility for any lawful purpose allowed by Legal
Requirements. The Lessee 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 Facility or to any adjoining public ways, as to the
manner of use or the condition of the Facility or of adjoining public ways. The
Lessee shall also comply with the requirements, rules and regulations of all
insurers under the policies carried under the provisions of ARTICLE VI hereof.
The Lessee 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 Lessee to comply with the provisions of this Section. Notwithstanding any
provision contained in this Section, however, the Lessee shall have the right,
at its own cost and expense, and subject to compliance with the provisions of
the Operative Agreements, to contest or review by legal or other appropriate
procedures the validity, legality or applicability of any such governmental
statute, law, ordinance, order, judgment, decree, regulation, direction or
requirement, or any such requirement, rule or regulation of an insurer, and
during such contest or review the Lessee may refrain from complying therewith.
(c) Notwithstanding anything herein to the contrary, the
Facility shall be developed and constructed in a manner consistent with the
Facility Agency Agreement and, after the Completion Date, shall be used as a
global technology and operations center and for general office space and for no
other use that could impair the value, utility or remaining useful life of
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the Facility, as compared to such use. The Lessee shall pay, or cause to be
paid, all charges and costs required in connection with the use of the Facility.
The Lessee shall not commit or permit any waste of, or nuisance on, the Facility
or any part thereof.
SECTION 3.4 TITLE. The Facility is leased to the Lessee
without any representation or warranty, express or implied, by the Lessor
(without limiting the representations and warranties assigned to the Lessee
pursuant to SECTION 2.1(C) hereof) and subject to the rights of parties in
possession, the existing state of title (including the Permitted Exceptions) and
all applicable Legal Requirements. The Lessee shall in no event have any
recourse against the Lessor for any defect in title to the Facility, including
any failure of the Facility to be developed or constructed, in whole or in part,
as contemplated hereby.
SECTION 3.5 OWNERSHIP OF THE FACILITY.
(a) The Lessor and the Lessee intend that (i) for financial
accounting purposes with respect to the Lessee (A) this Lease will be treated as
an "operating lease" pursuant to Statement of Financial Accounting Standards
(SFAS) No. 13, as amended, (B) the Lessor will be treated as the sublessor of
the Facility and (C) the Lessee will be treated as the sublessee of the
Facility, but (ii) for federal, state and local income tax and all other tax
purposes the Lessee will be entitled to depreciate the Improvements.
Nevertheless, the Lessee agrees that none of the Board, the Bond Sublessor, the
Lessor, the Investor, the Trust Company, the Bond Trustee, the Indenture
Trustee, or any Noteholder has provided or will provide tax, accounting or legal
advice to the Lessee regarding this Lease, the other Operative Agreements or the
transactions contemplated hereby and thereby or has made any representations or
warranties concerning the tax, accounting or legal characteristics of the
Operative Agreements, and that the Lessee has obtained and relied upon such tax,
accounting and legal advice concerning the Operative Agreements as it deems
appropriate.
(b) The Lessor and the Lessee further intend and agree that in
the event of any insolvency or receivership proceedings or a petition under the
United States bankruptcy laws or any other applicable insolvency laws or statute
of the United States of America or any State or Commonwealth thereof affecting
the Lessee or the Lessor, the transactions evidenced by this Lease shall be
regarded as secured loans made by an unrelated third party lender to the Lessee.
SECTION 3.6 TERMINATION.
(a) If the Lessor or the Lessee shall have received notice of
a Total Condemnation or a Total Loss, then the Lessee shall be obligated, within
thirty (30) days after the Lessee receives notice thereof, to deliver a written
notice in the form described in SECTION 3.6(c) (a "TERMINATION NOTICE") of the
termination of this Lease.
(b) If either: (i) a Condemnation occurs, and the Lessee shall
have delivered to the Lessor an Officer's Certificate that such Condemnation is
a Total Condemnation; or (ii) a Casualty occurs, and the Lessee shall have
delivered to the Lessor an Officer's Certificate that such Casualty is a Total
Loss then, the Lessee shall, simultaneously with the delivery of the Officer's
Certificate pursuant to the preceding clause (i) or (ii) deliver a Termination
Notice.
(c) A Termination Notice shall contain: (i) notice of
termination of this Lease on a date no later than the next Payment Date
occurring after such Termination Notice (the "TERMINATION DATE"); (ii) a binding
and irrevocable agreement of the Lessee to pay the
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Termination Value and purchase the interests of the Board, the Bond Sublessor
and the Lessor in the Facility and the Lessor's interest in the Bonds on such
Termination Date and (iii) the Officer's Certificate described in SECTION
3.6(b).
(d) On the Termination Date, the Lessee shall pay to the
Lessor, without duplication, the Termination Value (which amount shall be
sufficient to satisfy all indebtedness under the Bonds owing by the Board to the
Lessor, as the owner of the Bonds, and shall be applied by the Lessor to (i) the
aggregate Outstanding principal amount of the Senior Secured Notes, accrued and
unpaid interest on the Senior Secured Notes, any applicable Make Whole Premium
and all other amounts owing to the Indenture Trustee and/or to the Noteholders
plus (ii) the aggregate outstanding amount of the Investor Contribution, all
accrued and unpaid amounts on the account of the Investor Yield, any applicable
Investor Premium and all other amounts owing to the Investor under the Operative
Agreements), plus all amounts owing in respect of Rent (including Supplemental
Rent) theretofore accruing (which shall be applied to all amounts due and owing
by the Lessor under the Operative Agreements), and the Lessor shall convey, upon
indefeasible payment in full of all Indebtedness under the Senior Secured Notes
and all indebtedness under the Bonds, all of the Lessor's interest in the
Facility, and shall cause the Board and the Bond Sublessor to convey all of
their interests in the Facility, to the Lessee (or the Lessee's designee) all in
accordance with SECTION 3.6(e).
(e) In connection with any termination of this Lease pursuant
to this SECTION 3.6 or the Lessee's exercise of its Purchase Option or Maturity
Date Purchase Option, upon the date on which this Lease is to terminate or upon
the Expiration Date, and upon tender by the Lessee of the amounts set forth in
SECTION 3.6(d), 10.1 OR 10.2, as applicable.
(i) The Lessor shall execute and deliver, and shall cause the
Board and the Bond Sublessor to execute and deliver, to the Lessee (or to the
Lessee's designee) at the Lessee's cost and expense an assignment of the
Lessor's, the Board's and the Bond Sublessor's entire interest in the Facility
(which shall include an assignment of all of the Lessor's right, title and
interest in any Net Proceeds not previously received by the Lessor), in each
case in recordable form and otherwise in conformity with local custom and free
and clear of the Lien of the applicable Leasehold Deed of Trust; and
(ii) The Facility shall be conveyed to the Lessee "AS IS" in
all respects.
SECTION 3.7 RETURN. Subject to ARTICLE X, the Lessee shall,
upon the expiration or earlier termination of the Term, vacate, surrender and
transfer the Facility to the Lessor, at the Lessee's expense, free and clear of
all Liens other than Permitted Liens and Lessor Liens, in good condition,
ordinary wear and tear excepted, and in compliance with all Legal Requirements
and the other requirements of this Lease (and in any event without (x) any
asbestos installed or maintained in any part of the Facility, (y) any
polychlorinated biphenyls in, on or used, stored or located at the Facility, and
(z) any other Hazardous Substances, in each case in violation of any
Environmental Laws) the Lessee shall cooperate with any purchaser of the
Facility from the Lessor or the Indenture Trustee in order to facilitate the
ownership and operation by such purchaser of the Facility after such expiration
or earlier termination of the Term including providing all book reports and
records regarding the maintenance repair and ownership of the Facility and all
data and technical information relating thereto granting or assigning all
licenses necessary for the operation and maintenance of the Facility (to the
extent assignable) and cooperating in seeking and obtaining all necessary
licenses permits and approvals of Governmental Authorities The Lessee shall have
also paid the total cost for the completion of all
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Modifications commenced prior to such expiration or earlier termination of the
Term. The obligation of the Lessee under this SECTION 3.7 shall survive the
expiration or termination of this Lease.
SECTION 3.8 ENVIRONMENTAL INSPECTION UPON SURRENDER OF THE
FACILITY. Upon surrender of possession of the Facility, or not more than one
hundred twenty (120) days nor less than thirty (30) days prior to the Expiration
Date (unless the Lessee has previously irrevocably exercised the Purchase
Option), the Lessee shall, at its sole cost and expense, provide to the Lessor,
the Board and the Bond Sublessor a report by an environmental consultant
selected by the Lessee and reasonably satisfactory to the Lessor, the Board and
the Bond Sublessor certifying that Hazardous Substances have not at any time
during the Term been generated, used, treated or stored on, transported to or
from, released at, on or from or deposited at or on the Facility, and no portion
of the Facility has been used for such purposes, in each case other than (i) as
necessary to use, operate, maintain, repair and restore the Facility and (ii) in
full compliance with all Environmental Laws. If such is not the case, the report
shall set forth a remedial response plan relating to the Facility (which
remedial response plan, if required by any Environmental Law or Governmental
Authority, shall be approved by the appropriate Governmental Authority). Such
remedial response plan shall include, but shall not be limited to, plans for
full response, remediation, removal, or other corrective action, and the
protection, or mitigative action associated with the protection, of natural
resources including wildlife, aquatic species, and vegetation associated with
the Facility, as required by all applicable Environmental Laws.
ARTICLE IV
RENT PROVISIONS
SECTION 4.1 BASIC RENT. The Lessee covenants and agrees to pay
the Basic Rent to the Lessor in immediately available funds during the Term, on
or before 11:00 A.M., New York City time, commencing on the earlier to occur of
(i) the first Payment Date after the Outside Completion Date and (ii) the first
Payment Date after the Completion Date, and on each Payment Date occurring
thereafter and on any date when this Lease shall terminate. Basic Rent shall be
due and payable in lawful money of the United States and shall be paid by wire
transfer of immediately available funds on the due date therefor to such account
or accounts at such bank or banks or to such other Person or in such other
manner as the Lessor shall from time to time direct. Neither the Lessee's
inability or failure to take possession of all, or any portion, of the Facility
when delivered by the Lessor, nor the Lessor's inability or failure to deliver
all or any portion of the Facility to the Lessee, whether or not attributable to
any act or omission of the Lessee or any act or omission of the Lessor, or for
any other reason whatsoever, shall delay or otherwise affect the Lessee's
obligation to commence paying Basic Rent on the first Payment Date specified
above, in accordance with the terms of this Lease. Basic Rent and Supplemental
Rent shall be paid absolutely net to the Lessor, so that this Lease shall yield
to the Lessor the full amount thereof, without setoff, deduction or reduction.
SECTION 4.2 SUPPLEMENTAL RENT. The Lessee shall pay as
Supplemental Rent the following amounts, as and when the same become due:
(a) all reasonable fees, charges and expenses, including agent
and counsel fees, of (i) the Bond Trustee incurred under the Bond
Indenture, (ii) the Indenture Trustee
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incurred under the Indenture, (iii) the Escrow Agent incurred under the
Escrow Agreement and (iv) the Lessor under the Trust Agreement;
(b) all costs incident to (i) the payment of the principal of
and interest on the Bonds as the same become due and payable, including
all costs and expenses in connection with the call, redemption and
payment of all outstanding Bonds, (ii) the payment of the principal of,
premium and interest on the Notes as the same become due and payable,
including all costs and expenses in connection with the call,
redemption and payment of all Outstanding Notes and (iii) the payment
of the Investor Contribution, Investor Premium and Investor Yield as
the same become due and payable, including all costs and expenses in
connection with the call, redemption and payment of all Certificates;
(c) all expenses incurred in connection with the enforcement
of any rights under (i) the Bond Documents by the Lessor, the Investor,
the Bond Sublessor, the Board, the Bond Trustee, or the owners of the
Bonds or (ii) the Indenture or the Security Documents, by or on behalf
of the Indenture Trustee or the Noteholders;
(d) an amount sufficient to reimburse (i) the Board and the
Bond Sublessor for all expenses reasonably incurred thereby in
connection with the performance of their respective obligations under
the Bond Documents and (ii) the Indenture Trustee for all expenses
reasonably incurred by the Indenture Trustee in connection with the
performance of its obligations under the Indenture or the Security
Documents;
(e) all other payments of whatever nature which the Lessee has
agreed to pay or assume under the provisions of this Lease, including
any payment of Supplemental Rent equal to the Termination Value or the
Maximum Residual Guarantee Amount; and
(f) the cost of obtaining an owner's policy of title insurance
regarding the Land and the recording and filing fees in connection with
the conveyances contemplated by the Donation Agreement between
Contributing Associates, L.L.C. and The Small Business Synergy
Corporation and the Donation Agreement between The Small Business
Synergy Corporation and the Board.
The Lessee shall pay to the Lessor or the Person entitled thereto any and all
Supplemental Rent promptly as the same shall become due and payable, and if the
Lessee fails to pay any Supplemental Rent, the Lessor shall have all rights,
powers and remedies provided for herein or by law or equity or otherwise in the
case of nonpayment of Basic Rent. The Lessee shall pay to the Lessor as
Supplemental Rent, among other things, on demand, to the extent permitted by
applicable Legal Requirements interest, and the Investor Yield at the applicable
Overdue Rate on any installment of Basic Rent not paid when due for the period
for which the same shall be overdue and on any payment of Supplemental Rent not
paid when due or demanded by the Lessor for the period from the due date or the
date of any such demand, as the case may be, until the same shall be paid. The
expiration or other termination of the Lessee's obligations to pay Basic Rent
hereunder shall not limit or modify the obligations of the Lessee with respect
to Supplemental Rent Unless expressly provided otherwise in this Lease in the
event of any failure on the part of the Lessee to pay and discharge any
Supplemental Rent as and when due, the Lessee shall also promptly pay and
discharge any fine, penalty, interest or cost which may be assessed or added for
nonpayment or late payment of such Supplemental Rent all of which shall also
constitute Supplemental Rent.
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SECTION 4.3 OBLIGATIONS OF THE LESSEE ABSOLUTE AND
UNCONDITIONAL.
(a) The obligations of the Lessee under this Lease to make
payments of Basic Rent and Supplemental Rent on or before the date the same
become due, and to perform all of its other Obligations, covenants and
agreements hereunder shall be absolute and unconditional, without notice or
demand, and without abatement, deduction set-off counterclaim recoupment or
defense or any right of termination or cancellation arising from any
circumstance whatsoever whether now existing or hereafter arising and
irrespective of whether the Facility shall have been started or completed The
Obligations and liabilities of the Lessee hereunder shall in no way be released,
discharged (except upon complete payment and/or performance thereof) or
otherwise affected for any reason including to the maximum extent permitted by
law (i) any defect in the condition, merchantability, design, construction,
quality or fitness for use of any portion of the Facility, or any failure of the
Facility to comply with all Legal Requirements, including any inability to
occupy or use the Facility by reason of such noncompliance (ii) any damage to
abandonment loss contamination of or Release from or destruction of or any
requisition or taking of the Facility or any part thereof, including eviction;
(iii) any restriction, prevention or curtailment of or interference with any use
of the Facility or any part thereof including eviction (iv) any defect in title
to or rights to the Facility or any Lien on such tide or rights or on the
Facility; (v) any change, waiver, extension indulgence or other action or
omission or breach in respect of any Obligation or liability of or by the Board,
Bond Sublessor, Lessor, Investor, Bond Trustee, Indenture Trustee or any
Noteholder; (vi) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceedings relating to the
Lessee, Lessor, Investor, Indenture Trustee, any Noteholder, the Board, the Bond
Sublessor, the Bond Trustee or any other Person, or any action taken with
respect to this Lease by any trustee or receiver of the Lessee, Lessor,
Investor, Indenture Trustee, any Noteholder, the Board, the Bond Sublessor, the
Bond Trustee or any other Person, or by any court, in any such proceeding; (vii)
any claim that the Lessee has or might have against any Person, including the
Lessor, Investor, Indenture Trustee, any Noteholder, the Board, the Bond
Sublessor or the Bond Trustee; (viii) any failure on the part of the Lessor to
perform or comply with any of the terms of this Lease, any other Operative
Agreement or any other agreement; (ix) any invalidity or unenforceability or
disaffirmance against or by the Lessee of this Lease or any provision hereof or
any of the other Operative Agreements or any provision of any thereof; (x) the
impossibility of performance by the Lessee, the Lessor or both; (xi) any action
by any court, administrative agency or other Governmental Authority; (xii) any
restriction, prevention or curtailment of or any interference with the
construction on or any use of the Facility or any part thereof; or (xiii) any
other occurrence whatsoever, whether similar or dissimilar to the foregoing,
whether or not the Lessee shall have notice or knowledge of any of the foregoing
and whether or not foreseeable. This Lease shall be noncancellable by the Lessee
for any reason whatsoever except as expressly provided herein, and the Lessee,
to the fullest extent permitted by Legal Requirements, waives all rights now or
hereafter conferred by statute or otherwise to quit, terminate or surrender this
Lease, or to any diminution, abatement or reduction of Rent payable by the
Lessee hereunder. If for any reason whatsoever this Lease shall be terminated in
whole or in part by operation of law or otherwise, except as otherwise expressly
provided herein, the Lessee shall, unless prohibited by Legal Requirements,
nonetheless pay to the Lessor (or, in the case of Supplemental Rent, to whomever
shall be entitled thereto) an amount equal to each Rent payment at the time and
in the manner that such payment would have become due and payable under the
terms of this Lease if it had not been terminated in whole or in part, and in
such case, so long as such payments are made and no Lease Event of Default
shall have occurred and be continuing, the Lessor will deem this Lease to have
remained in effect until the Expiration Date. Each payment of Rent made by
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the Lessee hereunder shall be final absent manifest error in the computation of
the amount thereof. The Lessee assumes the sole responsibility for the
condition, use, operation, maintenance, and management of the Facility, and the
Lessor shall have no responsibility in respect thereof and shall have no
liability for damage to the property of the Lessee or any subtenant of the
Lessee for any reason whatsoever except due to the Lessor's gross negligence or
willful misconduct.
(b) Nothing in this Lease shall be construed to release the
Lessor from the performance of any agreement on its part herein contained or as
a waiver by the Lessee of any rights or claims the Lessee may have against the
Lessor under this Lease or otherwise, but any recovery upon such rights and
claims shall be had from the Lessor separately (and not the Indenture Trustee),
it being the intent of this Lease that the Lessee shall be unconditionally and
absolutely obligated to perform filly all of its Obligations, agreements and
covenants under this Lease (including the obligation to pay Basic Rent and
Supplemental Rent) for the benefit of the Indenture Trustee, as pledgee of the
Bonds, the Noteholders and the Investor. The Lessee may, however, subject to any
provision of the Operative Agreements, at its own cost and expense and in its
own name or in the name of the Lessor, prosecute or defend any action or
proceeding or take any other action involving third persons which the Lessee
deems reasonably necessary in order to secure or protect its right of
possession, occupancy and use hereunder, and in such event the Lessor hereby
agrees to cooperate fully with the Lessee and to take all action necessary to
effect the substitution of the Lessee for the Lessor in any such action or
proceeding if the Lessee shall so request.
SECTION 4.4 PREPAYMENT. The Lessee may not at any time prepay
all or any part of the Basic Rent or of the Maximum Residual Guarantee Amount or
the Termination Value provided for hereunder except as expressly provided
herein.
SECTION 4.5 PERFORMANCE ON A NON-BUSINESS DAY. If any payment
of Rent is required to be made hereunder on a day that the interest to which
such payment relates is not payable in accordance with the Indenture, such
payment of Rent shall be payable on the day in which such interest becomes
payable pursuant thereto.
ARTICLE V
MAINTENANCE, TAXES AND UTILITIES
SECTION 5.1 MAINTENANCE AND REPAIRS.
(a) Throughout the Term the Lessee shall, at its own expense,
keep the Facility in such safe condition as may be necessary or appropriate in
light of the use and operation thereof permitted hereby, and keep the Facility
in good repair and in good operating condition, making from time to time all
necessary repairs thereto and renewals and replacements thereof. Furthermore,
the Lessee shall make all required repairs, renewals and replacements thereof as
may be required by all Legal Requirements and Insurance Requirements.
(b) The Lessee hereby agrees to accept the entire risk of, and
the responsibility (including all Costs and expenses) for compliance with any
change of law, regulation or interpretation relating to the Legal Requirements
or the Insurance Requirements and agrees that no change of law will relieve or
otherwise limit any of its obligations hereunder.
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SECTION 5.2 TAXES, ASSESSMENTS AND OTHER GOVERNMENTAL CHARGES.
(a) Subject to the provisions of SECTION 5.4 hereof, the
Lessee 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 Facility, or any part thereof
or interest therein (including the leasehold estate of the Lessee therein) or
any buildings, improvements, machinery and equipment at any time installed
thereon by the Lessee, or the income therefrom or Basic Rent, Supplemental Rent
and other amounts payable under this Lease, 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 Notes or encumber the
Lessor's title to the Facility; provided that with respect to any special
assessments or other governmental charges that are lawfully levied and assessed
which may be paid in installments, the Lessee shall be obligated to pay only
such installments thereof as become due and payable during the Term.
The Lessee shall have the right, subject to the provisions of
the Operative Agreements, in its own name or in the Lessor's name, to contest
the validity or amount of any tax, assessment or other governmental charge which
the Lessee is required to bear, pay and discharge pursuant to the terms of this
Article by appropriate legal proceedings instituted at least ten (10) days
before the tax, assessment or other governmental charge complained of becomes
delinquent if and provided (1) the Lessee, before instituting any such contest,
gives the Lessor written notice of its intention so to do, (2) the Lessee
diligently prosecutes any such contest and at all times effectively stays or
prevents any official or judicial sale therefor, under execution or otherwise,
(3) any Lien resulting from such tax, assessment or other governmental charge is
bonded or provided for, and (4) the Lessee promptly pays any final judgment
enforcing the tax, assessment or other governmental charge so contested and
thereafter promptly procures and records a recordable release or satisfaction
thereof. The Lessor agrees to cooperate fully with the Lessee in connection with
any and all administrative or judicial proceedings related to any tax,
assessment or other governmental charge. The Lessee shall indemnify and hold the
Lessor whole and harmless from any costs and expenses related to any of the
above.
SECTION 5.3 UTILITIES. All utilities and utility services used
in, on or about the Facility shall be paid for by the Lessee and shall be
contracted for by the Lessee in the Lessee's own name, and the Lessee shall, at
its sole cost and expense, procure any and all permits, licenses or
authorizations necessary in connection therewith. The Lessee shall be entitled
to receive any credit or refund with respect to any utility charge paid by the
Lessee and the amount of any credit or refund received by the Lessor on account
of any utility charges paid by the Lessee, net of the costs and expenses
incurred by the Lessor in obtaining such credit or refund, shall be promptly
paid over to the Lessee. All charges for utilities imposed with respect to the
Facility for a billing period during which this Lease expires or terminates
shall be adjusted and prorated on a daily basis between the Lessor and the
Lessee, and each party shall pay or reimburse the other for each party's pro
rata share thereof.
SECTION 5.4 PAYMENTS IN LIEU OF TAXES. The Lessee agrees to
make all payments required to be made under the provisions of the Tax
Forbearance Agreement.
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ARTICLE VI
INSURANCE
SECTION 6.1 PROPERTY (HAZARD) INSURANCE.
(a) Subject to the provisions of the Operative Agreements, the
Lessee shall at all times during the Construction Period maintain at its sole
cost and expense, or cause the counterparties under the Facility Contracts to
maintain, in full force and effect, with Permitted Insurers a policy or policies
of Builder's Risk-All Risk-Completed Value Form Insurance for the Facility, with
such limits and deductibles (not exceeding $5,000) as are reasonably acceptable
to the Lessor.
Prior to or simultaneously with the expiration of said
Builder's Risk Insurance, the Lessee shall at its sole cost and expense obtain
and shall maintain throughout the Term with Permitted Insurers a policy or
policies of insurance to keep the Facility continuously insured against loss or
damage by fire, lightning and all other perils covered by the extended coverage
insurance endorsement then in use in the State of Missouri, in an amount equal
to the Full Insurable Value thereof, with such limits and deductibles as are
reasonably acceptable to the Lessor. The initial determination of Full Insurable
Value shall be made at the Completion Date by the Lessee based on an Appraisal
made in connection with such determination or, if so requested by the Indenture
Trustee, pursuant to the Appraisal Procedure, and thereafter the Full Insurable
Value of the Facility shall be determined by the Lessee or, if so requested by
the Indenture Trustee, pursuant to the Appraisal Procedure from time to time at
the written request of the Lessor or the Indenture Trustee (but not more
frequently than once in every three years) and certified by a Responsible
Officer of the Lessee. The insurance required pursuant to this Section shall be
maintained at the Lessee's sole cost and expense, shall be maintained with
generally recognized responsible insurance company or companies authorized to do
business in the State of Missouri as may be selected by the Lessee. 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 the Lessee to the Lessor and the
Indenture Trustee. All such policies of insurance pursuant to this Section, and
all renewals thereof, shall name the Board, the Bond Sublessor, the Lessor, the
Lessee, the Bond Trustee, and the Indenture Trustee as loss payees, as their
respective interests may appear, and shall contain a provision that such
insurance may not be canceled by the issuer thereof without at least thirty (30)
days' prior written notice (subject to the limitations inherent in the insurance
industry standard practice) to the Board, the Bond Sublessor, the Lessor, the
Bond Trustee, and the Indenture Trustee.
(b) Subject to the provisions of the Operative Agreements, in
the event of loss or damage to the Facility, the Net Proceeds of casualty
insurance carried pursuant to this Section shall be paid over to the Indenture
Trustee pursuant to ARTICLE VIII hereof.
SECTION 6.2 COMMERCIAL GENERAL LIABILITY (CASUALTY) INSURANCE.
(a) The Lessee shall at its sole cost and expense maintain or
cause to be maintained at all times during the Term with Permitted Insurers
commercial general liability insurance (including coverage for all losses
whatsoever arising from the ownership, maintenance, operation or use of any
automobile, truck or other motor vehicle), which shall be endorsed to name the
Board, the Bond Sublessor, the Lessor, the Lessee, the Bond Trustee, and
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the Indenture Trustee as additional insureds, properly protecting and
indemnifying them, in an amount not less than $2,000,000 for bodily injury
(including death) in any one occurrence (with excess coverage in an amount not
less than $50,000,000 and a deductible of not more than $500,000 in the
aggregate), and not less than $1,000,000 for property damage in any one
occurrence (subject to reasonable loss deductible clauses not to exceed $500,000
in the aggregate). The policies of said insurance shall contain a provision that
such insurance may not be canceled by the issuer thereof without at least thirty
(30) days' advance written notice to the Board, the Bond Sublessor, the Lessor,
the Bond Trustee, and the Indenture Trustee. Such policies or copies or
certificates thereof shall be furnished to the Lessor and the Indenture Trustee.
(b) In the event of a Casualty, the Net Proceeds of liability
insurance carried pursuant to this Section shall be applied toward the
satisfaction of the liability with respect to which such proceeds have been
paid.
SECTION 6.3 BLANKET INSURANCE POLICIES. The Lessee may satisfy
any of the insurance requirements set forth in this Article by using blanket
policies of insurance provided each and all of the requirements and
specifications of this Article respecting insurance are complied with and such
policies are otherwise reasonably acceptable to the Lessor.
ARTICLE VII
ALTERATION OF THE FACILITY
SECTION 7.1 ADDITIONS, MODIFICATIONS AND IMPROVEMENTS OF THE
FACILITY. So long as no Lease Event of Default has occurred and is continuing
and subject to the other provisions of this Article VII, the Lessee, at its sole
cost and expense, may at any time and from time to time make alterations,
renovations, improvements and additions to the Facility or any part thereof
(collectively, "MODIFICATIONS"); provided that: (i) except for any Modification
required to be made pursuant to a Legal Requirement or an Insurance Requirement,
no Modification shall impair the value, utility or remaining useful life of the
Facility from that which existed immediately prior to such Modification; (ii)
the Modification shall be performed expeditiously and in a good and work unalike
manner; (iii) the Lessee shall comply in all material respects with all Legal
Requirements (including all Environmental Laws) and Insurance Requirements
applicable to the Modification, including the obtaining of all permits and
certificates of occupancy, and the structural integrity of the Facility shall
not be adversely affected; (iv) the Lessee shall maintain or cause to be
maintained builders' risk-all risk insurance at all times when a Modification is
in progress; (v) subject to the terms of SECTION 3.3(b) relating to permitted
contests, the Lessee shall pay all costs and expenses and discharge any Liens
arising with respect to the Modification; (vi) such Modifications shall comply
with SECTIONS 3.5 and 5.1 and shall not change the primary character of the
Facility; and (vii) no improvements shall be demolished, except to the extent
such demolition, together with such replacement thereof or other Modification,
does not materially impair the value, utility or useful life of the Facility.
All Modifications (other than those that may be readily removed without
impairing the value, utility or remaining useful life of the Facility) shall
remain part of the realty and shall be subject to this Lease, and title thereto
shall immediately vest in the Lessor; provided, however, that additions to
machinery and equipment installed in the Facility by the Lessee not purchased or
acquired from funds deposited in the Escrow Account and not constituting
repairs, renewals or replacements of Equipment under SECTION 7.2 hereof shall
remain the property of the Lessee and may be removed
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by the Lessee prior to the Expiration Date, subject to any provisions in the
Operative Agreements.
SECTION 7.2 REMOVAL OF EQUIPMENT. The Lessee shall have the
right, subject to any provisions in the Operative Agreements, provided no Lease
Event of Default has occurred and is continuing, to remove from the Facility and
(on behalf of the Lessor) sell, exchange or otherwise dispose of, without
responsibility or accountability to the Board, the Bond Sublessor, the Lessor,
the Bond Trustee, or the Indenture Trustee with respect thereto, any items of
machinery and equipment which constitute a part of the Equipment and which have
become inadequate, obsolete, worn out, unsuitable, undesirable or unnecessary or
which, in the sound discretion of the Lessee, are otherwise no longer useful to
the Lessee in its operations conducted on or in the Facility; provided that the
Lessee shall promptly replace all such Equipment so removed, except for any such
Equipment so removed having a fair market value of not more than $100,000 in any
one case and not more than $500,000 in the aggregate in any calendar year, with
machinery and equipment of the same or a different kind but with a value equal
to or greater than the fair market value of the Equipment (original cost of such
machinery or equipment less depreciation at rates calculated in accordance with
generally accepted accounting principles) so removed, and such machinery and
equipment shall be deemed a part of the Equipment, and (b) within thirty (30)
days after any such replacement, deliver to the Lessor and the Indenture Trustee
a certificate signed by the Lessee (1) setting forth a complete description,
including make, model and serial numbers, if any, of the machinery and equipment
which the Lessee has acquired to replace the Equipment so removed by the Lessee,
(2) stating the cost thereof, and (3) stating that the machinery and equipment
described in said certificate are fully paid for and have been installed on the
Facility.
The Lessor shall amend, and provide to the Indenture Trustee a
copy of, the list of Equipment maintained by it pursuant to SECTION 9.8 hereof
upon receipt of such certificate. All machinery and equipment which replaces
Equipment removed from the Facility by the Lessee pursuant to this Section shall
become and be deemed a part of the Facility.
In all cases, the Lessee shall pay all the costs and expenses
of any such removal and shall immediately repair at its expense all damage to
the Facility caused thereby. The Lessee's rights under this Section to remove
from the Facility machinery and equipment constituting a part of the Equipment
is intended only to permit the Lessee to maintain an efficient operation by the
removal of machinery and equipment which is no longer suitable to the Lessee's
use of the Facility for any of the reasons set forth in this Section, and such
right is not to be construed to permit a removal under any other circumstances
and specifically is not to be construed to permit the Lessee to make a wholesale
removal of the Equipment.
SECTION 7.3 ADDITIONAL IMPROVEMENTS. So long as no Lease Event
of Default has occurred and is continuing and subject to the other provisions of
this ARTICLE VII, the Lessee shall have and is hereby given the right, at its
sole cost and expense, subject to any provisions in the Operative Agreements, to
construct on portions of the Land not theretofore occupied by buildings or
improvements such additional buildings and improvements as the Lessee from time
to time may deem necessary or desirable for its business purposes. All
additional buildings and improvements constructed on the Land by the Lessee
pursuant to the authority of this Section shall become a part of the Facility.
The Lessee covenants and agrees to make any repairs and restorations required to
be made to the Facility because of the construction of, addition to, alteration
or removal of such additional buildings or improvements.
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SECTION 7.4 PERMITS AND AUTHORIZATIONS. The Lessee shall not
do or permit others under its control to do any work on the Facility related to
any repair, rebuilding, restoration, replacement, modification or addition to
the Facility, or any part thereof, unless all requisite municipal and other
governmental permits and authorizations shall have been first procured. All such
work shall be done in a good and workmanlike mariner and in compliance with all
applicable building, zoning and other laws, ordinances, governmental regulations
and requirements and in accordance with the requirements, rules and regulations
of all insurers under the policies required to be carried under the provisions
of ARTICLE VI hereof.
SECTION 7.5 MECHANICS' LIENS.
(a) Neither the Lessor nor the Lessee shall do or suffer
anything to be done whereby the Facility, or any part thereof, may be encumbered
by any mechanics' or other similar Lien. Whenever and as often as any mechanics'
or other similar Lien is filed against the Facility, or any part thereof,
purporting to be for or on account of any labor done or materials or services
furnished in connection with any work in or about the Facility, the Lessee shall
comply with the provisions of the Operative Agreements and shall discharge the
same of record within sixty (60) days after the Lessee receives notice of the
filing thereof. Notice is hereby given that the Lessor shall not be liable for
any labor or materials furnished the Lessee or anyone claiming by, through or
under the Lessee, and that no mechanics' or other similar Lien for any such
labor, services or materials shall attach to or affect the reversionary or other
estate of the Board, the Bond Sublessor, or the Lessor in and to the Facility or
any part thereof.
(b) Notwithstanding paragraph (a) above, the Lessee shall have
the right, subject to the provisions of the Operative Agreements to contest any
such mechanics' or other similar Lien if within said 60-day period stated above
it notifies the Board, the Bond Sublessor, the Lessor, the Bond Trustee, and the
Indenture Trustee in writing of its intention so to do, and provided the Lessee
diligently prosecutes such contest, at all times effectively stays or prevents
any official or judicial sale of the Facility, or any part thereof or interest
therein, under execution or otherwise, and pays or otherwise satisfies any final
judgment enforcing such contested Lien claim and thereafter promptly procures
record release or satisfaction thereof. The Lessee shall indemnify and hold the
Board, the Bond Sublessor, the Lessor, the Bond Trustee, and the Indenture
Trustee whole and harmless from any loss, costs or expenses they may incur
related to any such contest. The Lessor shall cooperate fully with the Lessee in
any such contest.
SECTION 7.6 EXPANSION.
(a) Should the Lessee, during the Term of this Lease, desire
to construct additional buildings or improvements on the Land pursuant to
SECTION 7.3 or make any alterations or additions to the Facility pursuant to
this ARTICLE VII (in each case, an "EXPANSION"), the Lessee may, prior to the
commencement of construction of such Expansion, offer by written notice to the
Lessor, the Board, the Bond Sublessor, the Bond Trustee and the Indenture
Trustee (a "PAYMENT OFFER") the opportunity for the Lessor to pay the costs (the
"EXPANSION COST") thereof, setting forth in such offer in reasonable detail a
professional, good faith estimate (based on an Appraisal made in connection
therewith) of the costs of equipment, materials, labor and services, including
architecture and engineering fees, financing fees, legal fees, survey, title
insurance and other normal and customary development, construction and financing
costs.
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(b) Should the Lessor elect to accept the Payment Offer, which
acceptance shall be at the Lessor's sole option and shall, subject to paragraph
(c) below, if made, be made in writing within sixty (60) days after receipt by
the Lessor of such offer, the Lessor and the Lessee shall enter into good faith
negotiations regarding the execution and delivery of a written amendment to this
Lease providing for the following:
(i) payment by the Lessor to the Lessee of the Expansion Cost
within one hundred twenty (120) days after the date of the Lessor's
acceptance of such Payment Offer, or in installment payments as agreed,
or on the date of completion of the Expansion, whichever shall be the
later;
(ii) an increase in the annual Basic Rent at such imputed rate
of interest and upon such other terms as shall be agreed upon between
the Lessor and the Lessee, but which shall be no less favorable than
the prevailing interest rate and terms for first unsecured loans in a
principal amount equal to the Expansion Cost for borrowers with credit
ratings equivalent to that of the Lessee's at that time;
(iii) an increase in the Basic Rent to provide a rate of
return on the Investor Contribution not less than the then prevailing
market rate and an increase in the Termination Value and the Residual
Guaranteed Maximum Amount; and
(iv) such other changes and amendments to the Bond Lease, the
Bond Sublease, this Lease, the Guarantee, the Residual Value Policy and
the other Operative Agreements as may be necessary or appropriate in
view of such payment of the Expansion Cost by the Lessor.
The Lessee shall pay all costs and expenses incurred by the Lessor, the Board,
the Bond Sublessor, the Bond Trustee, the Indenture Trustee and the Noteholders
in connection with any such modification to this Lease and the other Operative
Agreements and such financing, including closing costs, brokerage fees, taxes,
recording charges and attorneys' fees and expenses.
(c) To the extent that the terms of the Security Documents or
any other Lien encumbering the Facility shall require the consent of the holder
or holders of any Lien on any of the Facility (the Secured Parties") to the
addition or construction of any Expansion or to the financing thereof by the
Lessor, the rights and obligations of the Lessor and the Lessee hereunder are
expressly conditioned upon the Lessee's obtaining, prior to the commencement of
any construction the Secured Parties written consent to such construction and to
such financing which consent may be withheld at the Secured Parties' sole
discretion.
(d) If the Lessor accepts the Payment Offer it may finance the
Expansion only by (i) issuance (in accordance with SECTION 2.1(d) of the
Indenture) and sale (subject to the right of first offer set forth in ARTICLE 11
of the Series A Note Purchase Agreement or any comparable provision in the
Series B Note Purchase Agreement) of Expansion Notes in the aggregate principal
amount not to exceed 97% of the Expansion Cost and (ii) receipt of additional
Investor Contribution in the amount not less than 3% of the Expansion Cost.
(e) Should any Payment Offer not be accepted by the Lessor
within said sixty (60) day period or should the Lessor and the Lessee be unable
in good faith to agree upon the terms of the modification of this Lease and the
other Operative Agreements, the Lessee shall,
- 17 -
subject to the provisions of this Lease, have the right to construct the
Expansion at the Lessee's sole cost and expense; provided that the Lessor shall
not reject the Payment Offer solely by reason of the Investor's inability or
unwillingness to provide the additional Investor Contribution referred to in the
foregoing clause (d) but shall (provided that all other conditions of this
Section have been satisfied) in such case allow the Lessee to secure the
additional Investor Contribution from other investors (complying with the
requirements of SECTION 10.1 of the Participation Agreement) that will upon
making of such additional Investor Contribution, become beneficiaries of the
Lessor, on parity with the Investor under the Operative Agreements. In any
event, the Expansion shall be the property of the Lessor and part of the
Facility subject to this Lease and the Lien of the Security Documents.
(f) Notwithstanding anything else in this SECTION 7.6 the
Lessor may prohibit in its sole discretion, any Expansion that could reasonably
be expected to cause a Material Adverse Effect.
SECTION 7.7 IMPROVEMENTS. If the Lessor determines that
additional financing is needed to complete the Facility by the Outside
Completion Date, the Lessor may, upon request of the Lessee, issue Lessor's
Series B Notes pursuant to the Indenture and in compliance with the other
Operative Agreements, in an aggregate principal amount not to exceed $5,000.000.
ARTICLE VIII
DAMAGE, DESTRUCTION AND CONDEMNATION
SECTION 8.1 DAMAGE OR DESTRUCTION.
(a) If the Facility shall be damaged or destroyed by fire or
any other Casualty (other than any such Casualty constituting a Total Loss with
respect to which the Lessee has delivered a Termination Notice pursuant to
SECTION 3.6), whether or not covered by insurance, subject to the provisions of
the Operative Agreements, the Lessee as promptly as practicable shall either
repair restore replace or rebuild the same as nearly as may be practicable to
its condition and character immediately prior to such damage or destruction, and
so that upon completion of such repairs, restoration, replacement or rebuilding
such Facility shall be of a value not less than the value thereof immediately
prior to the occurrence of such damage or destruction or, at the Lessee's
option, shall construct upon the Land new buildings and improvements thereafter
together with all new machinery, equipment and fixtures which are either to be
attached to or are to be used in connection with the operation or maintenance
thereof, provided that (i) the value thereof shall not be less than the value of
such destroyed or damaged Improvements and/or Equipment immediately prior to the
occurrence of such damage or destruction and (ii) the nature of such new
buildings, improvements, machinery, equipment and fixtures will not impair the
character and use of the Facility as an enterprise permitted hereby and by Legal
Requirements.
If the Lessee shall elect to construct any such new buildings
and improvements, for all purposes of this Lease, any reference to the word
"Improvements" shall be deemed to also include any such new buildings and
improvements and all additions thereto and all replacements and alterations
thereof and any reference to the word "Equipment" shall be deemed to include any
such new machinery, equipment and fixtures which are either attached to or are
used in connection with the operation or maintenance of such new buildings and
improvements and all additions or replacements thereof.
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The Net Proceeds of hazard or casualty insurance required by
ARTICLE VI hereof and received with respect to such damage or loss to the
Facility shall be paid to the Indenture Trustee and, if no Lease Default or
Lease Event of Default has occurred and is continuing, shall be applied in the
following manner.
(i) there shall be paid to the Lessee from the Net Proceeds
such part thereof as shall equal the cost to the Lessee of making such
temporary repairs or doing such other work, as, in the Lessee's
reasonable opinion, may be necessary in order to protect the Facility
pending adjustment of the insurance loss or the making of permanent
repairs, restoration, replacement or rebuilding;
(ii) there shall be paid to the Lessee from the Net Proceeds
such part thereof as shall equal the cost to the Lessee of repairing,
restoring, replacing or rebuilding the Facility or any part thereof;
(iii) payment to the Lessee pursuant to subdivisions (i) or
(ii) of this subsection (a) from such Net Proceeds shall be made to the
Lessee from time to time as the work progresses, in amounts equal to
the cost of labor and material incorporated into and used in such work,
the contractors', architects' and engineers' fees, and other charges in
connection with such work, upon delivery to the Board, the Bond
Sublessor, the Lessor, the Bond Trustee and the Indenture Trustee of a
certificate of the Lessee's architect or general contractor, as the
case may be, in charge of such work, certifying: (1) that the amounts
so to be paid to the Lessee are payable to the Lessee in accordance
with the provisions of this Article and that such amounts are then due
and payable by the Lessee or have theretofore been paid by the Lessee
(2) the progress of the work (3) that the work has been done in
accordance with the plans and specifications therefor and all insurance
requirements of ARTICLE VI hereof (4) that the sum requested when added
to all sums previously paid out under this Article for the work does
not exceed the value of the work done to the date of such certificate
(5) the estimated cost of completing the work in reasonable detail and
(6) that the remaining Net Proceeds are sufficient to pay the estimated
cost of completing the work; and
(iv) the Lessee shall furnish to the Indenture Trustee the
Lessor and upon request, to the Board the Bond Sublessor or the Bond
Trustee as the case may be at the time of any such payment an official
search or other evidence reasonably satisfactory to such Person that
there has not been filed with respect to the Land or the Improvements
any mocha s or other Lien which has not been discharged of record in
respect of any work labor services or materials performed furnished or
supplied in connection with the work and that all of said materials
have been purchased free and clear of all Liens Upon the termination of
this Lease and the payment in full of the Bonds the Notes and the
Certificates any monies then held by the Bond Trustee or the Indenture
Trustee shall be paid over to the Lessee subject to the rights of the
Bond Trustee and the Indenture Trustee under the Operative Agreements
(b) The insurance monies if any paid to the Lessee as provided
under this Article on account of any or destruction to the Facility shall be
held by it in trust and applied only for the purposes of repairing
reconstructing or restoring the Facility or constructing new buildings and
improvements and installing new building equipment and fixtures thereto.
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(c) If any of the insurance monies paid by the insurance
company to the Indenture Trustee or the is hereinabove provided shall remain
after the completion of such repairs restoration replacement or rebuilding, and
this Lease shall not have terminated, the excess shall be paid to the Lessee. If
the Net Proceeds shall be insufficient to pay the entire cost of such repairs,
restoration, replacement or rebuilding, the Lessee shall pay the deficiency.
(d) Except in connection with a Casualty constituting a Total
Loss with respect to which the Lessee has delivered a Termination Notice
pursuant to SECTION 3.6, in the event of any such damage by fire or any other
Casualty, the provisions of this Lease shall be unaffected and the Lessee shall
remain and continue liable for the payment of all Basic Rent and Supplemental
Rent and all other charges required hereunder to be paid by the Lessee, as
though no damage by fire or any other Casualty has occurred.
(e) The Lessor and the Lessee agree that they will cooperate
with each other, to such extent as such other party may reasonably require, in
connection with the prosecution or defense of any action or proceeding arising
out of, or for the collection of any insurance monies that may be due in the
event of, any loss or damage, and that they will execute and deliver to such
other parties such instruments as may be required to facilitate the recovery of
any insurance monies. In no event shall the Lessor or the Lessee settle or
consent to the settlement of any such proceeding without the prior written
consent of the other party and the Indenture Trustee.
(f) The Lessee agrees to give prompt notice to the Board, the
Bond Sublessor, the Lessor, the Indenture Trustee and the Bond Trustee with
respect to all fires and any other casualties occurring in, on, at or about the
Facility.
(g) The Lessee shall not, by reason of its inability to use
all or any part of the Facility during any period in which the Facility is
damaged or destroyed or is being repaired, rebuilt, restored or replaced, nor by
reason of the payment of the costs of such rebuilding repairing, restoring or
replacing, be entitled to any reimbursement from the Board, the Bond Sublessor,
the Lessor, the Bond Trustee, the Indenture Trustee, or the Noteholders or to
any abatement or diminution of the rentals payable by the Lessee under this
Lease (including the Lessee's obligation to pay Rent under SECTIONS 4.1 and 4.2)
or of any other Obligations of the Lessee under this Lease except as expressly
provided in this Section.
SECTION 8.2 CONDEMNATION.
(a) Subject to the provisions of the Operative Agreements, if
during the Term, title to, or the temporary use of, all or any part of the
Facility shall be condemned by or sold under threat of condemnation to any
authority possessing the power of eminent domain, to such extent that the claim
or loss resulting from such condemnation is greater than 10% of the Termination
Value, the Lessee shall, within eighty (80) days after the date of entry of a
final order in any eminent domain proceedings granting condemnation or the date
of sale under threat of condemnation, notify the Board, the Bond Sublessor, the
Lessor, the Bond Trustee and the Indenture Trustee in writing (which notice may
be, in the case of Total Condemnation, a Termination Notice, in which case the
provisions of SECTION 3.6 shall govern) as to the nature and extent of such
condemnation or loss of title and whether it is practicable and desirable to
acquire or construct substitute improvements.
(b) If the Lessee shall determine that such substitution is
practicable and desirable, subject to the provisions of the Operative
Agreements, the Lessee shall proceed
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promptly with and complete with reasonable dispatch the acquisition or
construction of such substitute improvements, so as to place the Facility in
substantially the same condition as existed prior to the exercise of the said
power of eminent domain, including the acquisition or construction of other
improvements suitable for the Lessee's operations at the Facility (which
improvements will be deemed a part of the Facility and available for use and
occupancy by the Lessee without the payment of any rent other than herein
provided, to the same extent as if such other improvements were specifically
described herein and demised hereby); provided that such improvements will be
acquired by the Lessor subject to no Liens, security interests or encumbrances
other than Permitted Liens. In such case, any Net Proceeds received from any
award or awards with respect to the Facility or any part thereof made in such
condemnation or eminent domain proceedings, or of the sale proceeds, shall be
applied in the same manner as provided in Section 8.1 hereof (with respect to
the receipt of hazard of casualty insurance proceeds).
(c) The Lessee shall not, by reason of its inability to use
all or any part of the Facility during any such period of restoration or
acquisition nor by reason of the payment of the costs of such restoration or
acquisition, be entitled to any reimbursement from the Board, the Bond
Sublessor, the Lessor, the Bond Trustee, the Indenture Trustee, or the
Noteholders or to any abatement or diminution of the rentals payable by the
Lessee under this Lease (including, without limitation, the Lessee's obligation
to pay Rent under SECTIONS 4.1 and 4.2) nor of any other Obligations hereunder
except as expressly provided in this Section.
(d) The Lessor shall cooperate fully with the Lessee in the
handling and conduct of any prospective or pending condemnation proceedings with
respect to the Facility or any part thereof, and shall, to the extent it may
lawfully do so, permit the Lessee to litigate in any such proceeding in the name
and on behalf of the Board, the Bond Sublessor, and the Lessor. In no event will
the Board, the Bond Sublessor, the Lessor or the Lessee settle or consent to the
settlement of any prospective or pending condemnation proceedings with respect
to the Facility or any part thereof without the prior written consent of the
Lessor, the Lessee, the Board, the Bond Sublessor, the Bond Trustee and the
Indenture Trustee.
(e) Lessor hereby grants, and shall cause the Board and the
Bond Sublessor to grant, to the Lessee its legal rights, as the owner of the
title to, or a leasehold estate in, the Facility, to settle any condemnation
proceeding or prospective condemnation proceeding involving all or any portion
of the Facility.
SECTION 8.3 ENVIRONMENTAL MATTERS. Promptly upon the Lessee's
actual knowledge of the presence of Hazardous Substances in any portion of the
Facility in concentrations and conditions that could constitute an Environmental
Violation, the Lessee shall notify the Lessor, the Board, the Bond Sublessor,
the Bond Trustee and the Indenture Trustee in writing of such condition. The
Lessee shall, not later than thirty (30) days after the Lessee has actual
knowledge of such Environmental Violation, deliver to the Lessor, the Board, the
Bond Sublessor, the Bond Trustee and the Indenture Trustee an Officer's
Certificate with respect thereto estimating in good faith the cost of
remediating the same and, at the Lessee's sole cost and expense, promptly and
diligently undertake any response, clean up, remedial or other action necessary
to remove, cleanup or remediate the Environmental Violation in accordance with
all Legal Requirements and Insurance Requirements. The Lessee shall, upon
completion of remedial action, cause to be prepared by an environmental
consultant reasonably acceptable to the Lessor a report describing the
Environmental Violation and the actions taken by the Lessee (or its agents) in
response to such Environmental Violation, and a statement by the consultant that
the
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Environmental Violation has been remedied in full compliance in all material
respects with applicable Environmental Laws.
ARTICLE IX
SPECIAL COVENANTS
SECTION 9.1 NO WARRANTY OF CONDITION OR SUITABILITY BY THE
LESSOR; EXCULPATION AND INDEMNIFICATION. LESSEE AGREES THAT IT IS RENTING THE
PROPERTY "AS IS" WITHOUT REPRESENTATION, WARRANTY OR COVENANT (EXPRESS OR
IMPLIED) BY THE LESSOR (OTHER THAN, IN THE CASE OF THE LESSOR, THE ABSENCE OF
LESSOR LIENS AND THE COVENANT OF QUIET ENJOYMENT) AND SUBJECT TO (A) THE
EXISTING STATE OF TITLE, (B) THE RIGHTS OF ANY PARTIES IN POSSESSION THEREOF,
(C) ANY STATE OF FACTS WHICH AN ACCURATE SURVEY OR PHYSICAL INSPECTION MIGHT
SHOW AND (D) VIOLATIONS OF LEGAL REQUIREMENTS WHICH MAY EXIST ON THE DATE
HEREOF. NONE OF THE LESSOR, THE INVESTOR, THE BOARD, THE BOND SUBLESSOR, THE
BOND TRUSTEE, THE INDENTURE TRUSTEE, AND ANY NOTEHOLDER HAS MADE OR SHALL BE
DEEMED TO HAVE MADE ANY REPRESENTATION, WARRANTY OR COVENANT (EXPRESS OR
IMPLIED, INCLUDING THE CONDITION OF ANY IMPROVEMENTS THEREON, THE SOIL
CONDITION, OR ANY ENVIRONMENTAL OR HAZARDOUS MATERIAL CONDITION) OR SHALL BE
DEEMED TO HAVE ANY LIABILITY WHATSOEVER AS TO THE TITLE, VALUE, HABITABILITY,
USE, CONDITION, DESIGN, OPERATION, OR FITNESS FOR USE OF THE PROPERTY (OR ANY
PART THEREOF), OR ANY OTHER REPRESENTATION, WARRANTY OR COVENANT WHATSOEVER,
EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY (OR ANY PART THEREOF) (OTHER
THAN THE ABSENCE OF LESSOR LIENS AND THE COVENANT OF QUIET ENJOYMENT) AND NONE
OF THE LESSOR, THE INVESTOR, THE BOARD, THE BOND SUBLESSOR, THE BOND TRUSTEE,
THE INDENTURE TRUSTEE, AND ANY NOTEHOLDER SHALL BE LIABLE FOR ANY LATENT, OR
PATENT DEFECT THEREIN OR THE FAILURE OF THE PROPERTY, OR ANY PART THEREOF, TO
COMPLY WITH ANY LEGAL REQUIREMENT, INSURANCE REQUIREMENT OR FACILITY
REQUIREMENT.
SECTION 9.2 SURRENDER OF POSSESSION. Upon accrual of the
Lessor's right of re-entry because of the occurrence of a Lease Event of Default
hereunder or upon the cancellation or termination of this Lease for any reason
other than the purchase of the Facility pursuant to Article XI hereof, the
Lessee shall peacefully surrender possession of the Facility to the Lessor in
good condition and repair, ordinary wear and tear excepted; provided, however,
the Lessee shall have, subject to the provisions of the Operative Agreements,
the right within thirty (30) days (or such later date as the Lessor may agree
to) after the termination of this Lease to remove from the Land any buildings,
improvements, furniture, trade fixtures, machinery and equipment owned by the
Lessee and not constituting part of the Facility. All repairs to and
restorations of the Facility required to be made because of such removal shall
be made by and at the sole cost and expense of the Lessee, and during said
30-day (or extended) period the Lessee shall bear the sole responsibility for
and bear the sole risk of loss for said buildings, improvements, furniture,
trade fixtures, machinery and equipment. All buildings, improvements, furniture,
trade fixtures, machinery and equipment owned by the, Lessee and which are not
so removed from the Facility
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prior to the expiration of said period shall be the separate and absolute
property of the Board, subject to Permitted Liens.
SECTION 9.3 RIGHT OF ACCESS TO THE FACILITY. The Lessee agrees
that the Lessor, the Board, the Bond -Sublessor, the Bond Trustee, and the
Indenture Trustee and their duly authorized representatives shall upon
reasonable notice have the right at reasonable times during business hours,
subject to the Lessee's usual safety and security requirements, to enter upon
the Land (a) to examine and inspect the Facility without interference or
prejudice to the Lessee's operations, (b) performing such work in and about the
Facility as may be made necessary by reason of a Lease Event of Default, and (c)
exhibiting the Facility to prospective purchasers, sublessees, lenders or
trustees.
SECTION 9.4 GRANTING OF EASEMENTS. If no Lease Event of
Default shall have occurred and be continuing, the Lessee may at any time or
times, subject to the provisions of the Operative Agreements, cause the Lessor,
and the Lessor shall cause the Board and the Bond Sublessor, to (1) grant
easements, licenses, rights-of-way and other rights or privileges in the nature
of easements that are for the direct use of the Facility, or part thereof, by
the grantee, (2) release existing easements, licenses, rights-of-way and other
rights or privileges, all with or without consideration and upon such terms and
conditions as the Lessee shall determine, (3) incur Permitted Liens, or (4)
execute non-disturbance agreements in form and substance acceptable to the
Lessor and the Indenture Trustee. The Lessor agrees that it will execute and
deliver, and will cause and the Board and the Bond Sublessor to execute and
deliver, any instrument necessary or appropriate to confirm and grant or release
any such easement, license, right-of-way or other right or privilege or any such
agreement or other arrangement, upon receipt by the Lessor, the Board, the Bond
Sublessor, the Bond Trustee and the Indenture Trustee of: (i) a copy of the
instrument of grant or release or of the agreement or other arrangement, (ii) a
notice signed by the Lessee requesting such instrument, and (iii) a certificate
executed by the Lessee stating that such grant or release is not detrimental to
the proper conduct of the business of the Lessee, will not impair the effective
use or interfere with the efficient and economical operation of the Facility,
and will not materially adversely affect the security intended to be given by or
under the Security Documents. If the instrument of grant shall provide that any
such easement or right and the rights of such other parties thereunder shall be
superior to the rights of the Lessor under this Lease or the Indenture Trustee
under the Indenture and shall not be affected by any termination of this Lease
or default on the part of the Lessee hereunder, then such easement shall not
have any effect whatsoever without the written consent of the Indenture Trustee,
which shall not be unreasonably withheld. If no Lease Event of Default shall
have occurred and be continuing, subject to the provisions of the Operative
Agreements, any payments or other consideration received by the Lessee for any
such grant or with respect to or under any such agreement or other arrangement
shall be and remain the property of the Lessee, but, in the event of the
termination of this Lease or default by the Lessee, all rights then existing of
the Lessee with respect to or under such giant shall inure to the benefit of and
be exercisable by the Lessor and the Indenture Trustee.
SECTION 9.5 INDEMNIFICATION. The Lessee shall indemnify and
save the Board, the Bond Sublessor, the Lessor, the Bond Trustee, the Indenture
Trustee and the Noteholders (each, an "Indemnitee") harmless from and against
all claims by or on behalf of any Person arising from the conduct or management
of, or from any work or thing done in on or about the Facility during the Term
and against and from all claims arising during the Term from (a) any condition
of the Facility (b) any breach or default in the performance of any of the
Lessee's
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obligations under this Lease (c) any contract entered into in connection with
the acquisition purchase construction, installation and equipping of the
Facility, (d) any Environmental Violation or any violation of Legal Requirements
or Insurance Requirements, (e) any negligence of the Lessee or of any of its
agents, contractors, servants employees or licensees and (f) any negligence of
any assignee or sublessee of the Lessee or of any agents, contractors, servants,
employees or licensees of any assignee or sublessee of the Lessee, except in
each case to the extent arising from the willful misconduct or gross negligence
of an Indemnitee and then only with respect to such Indemnitee. The Lessee shall
indemnify and save each Indemnitee harmless from and against all costs and
expenses (except those which have arisen from the willful misconduct or gross
negligence of such Indemnitee) incurred in or in connection with any action or
proceeding brought thereon, and upon notice from the Indemnitee the Lessee shall
defend them or either of them in any such action or proceeding.
Notwithstanding anything contained in this Section to the
contrary, the Lessee shall not be required to defend, indemnify and hold
harmless any Indemnitee for any Claim in respect of the Non Guaranteed Residual
Amount, except for Claims relating to or arising or alleged to arise out of: (A)
a violation of any Environmental Law or as to any Environmental Claim (B) during
the Construction Period (i) third party Claims (including by the Noteholders)
against the Lessor, the Board or the Bond Sublessor caused by or resulting from
the Lessee's own actions or failure to act (including any default in payment
under the Guarantee) other than Claims arising directly or indirectly out of the
Lessee's (in its capacity as the Construction Agent) failure to achieve the
Completion of the Facility by the Outside Completion Date (ii) Claims brought by
the Lessor the Board or the Bond Sublessor relating to fraud misappropriation of
funds illegal acts or willful misconduct on the part of the Lessee or (iii)
bankruptcy or insolvency of the Lessee or (C) at any time after the Construction
Period the occurrence and continuance of (i) a default under the Guarantee
(including any breach of the Guarantor's obligations to pay the entirety of all
amounts under the Notes and the Indenture due upon any acceleration thereof but
excluding defaults relating to breaches of Article VIII or Sections 9.3 (other
than any breach of the Lessee's payment obligations with respect to the Notes
and the Indenture as aforesaid) through 9.7 inclusive of the Guarantee) or (ii)
a Specified Lease Event of Default.
SECTION 9.6 DEPRECIATION AND INVESTMENT TAX CREDIT. The Lessor
agrees that any depreciation or investment tax credit with respect to the
Facility or any part thereof shall be made available to the Lessee or any of its
sublessees and the Lessor will fully cooperate with the Lessee or any of its
sublessees in any effort to avail itself of any such depreciation or investment
tax credit.
SECTION 9.7 LESSEE TO MAINTAIN ITS EXISTENCE. The Lessee
agrees that until all amounts owing in respect of the Bonds the Senior Secured
Notes, the Investor Contribution and the Operative Agreements are indefeasibly
paid for in accordance with the terms of the Indenture and the other Operative
Agreements it will maintain its existence and will not file a certificate of
dissolution or otherwise dispose of all or substantially all of its assets
provided however that subject to the provisions of the Operative Agreements the
Lessee may, without violating the agreement contained in tins Section
consolidate with or merge into a corporation limited liability company or other
business entity organized and existing under the laws of one of the states of
the United States or permit one or more other such entities to consolidate with
or merge into it or may sell or otherwise transfer to another such entity all or
substantially all of its assets as an entirety and thereafter file a certificate
of dissolution, provided (i) the surviving resulting or
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transferee entity expressly assumes in writing all the obligations of the Lessee
contained in this Lease and the other Operative Agreements and such writing is
furnished to the Board the Bond Sublessor the Lessor the Bond Trustee and the
Indenture Trustee prior to the effective date of such assumption and (ii) the
Indenture Trustee and the Bond Trustee have received an opinion of counsel in
form and substance reasonably satisfactory to the Indenture Trustee and the Bond
Trustee as to the compliance by the Lessee with the provisions of this Section.
SECTION 9.8 SECURITY INTERESTS. The Lessor and the Lessee
agree, at the written request of the other party or the Board, the Bond
Sublessor, the Board Trustee, the Indenture Trustee or the Noteholders, to enter
into all instruments (including financing statements and statements of
continuation) necessary for perfection of and continuance of the perfection of
the Liens and security interests of the Board, the Bond Sublessor, the Lessor,
the Bond Trustee, and the Indenture Trustee in the Facility. The Lessor and the
Lessee shall cooperate with the Board, the Bond Sublessor, the Bond Trustee, and
the Indenture Trustee in mailing all filings in furtherance thereof, by
executing such continuation statements and providing such information as the
Indenture Trustee may require to renew or continue such Liens and security
interests. The Lessor shall maintain, and upon any change thereto provide the
Indenture Trustee and the Bond Trustee with a copy of, a file showing a
description of all Equipment, said file to be compiled from the certificates
furnished to the Lessor pursuant to SECTION 7.2 hereof.
SECTION 9.9 NO TERMINATION OR ABATEMENT. The Lessee shall
remain obligated under this Lease in accordance with its terms and shall not
take any action to terminate, rescind or avoid this Lease, notwithstanding any
action for bankruptcy, insolvency, reorganization, liquidation, dissolution, or
other proceeding affecting the Lessor, or any action with respect to the
Facility or this Lease which may be taken by any trustee, receiver or liquidator
of the Lessor or by any court with respect to the Lessor, and the Lessee hereby
waives all right (i) to terminate or surrender this Lease, except as otherwise
expressly provided herein, or (ii) to avail itself of any abatement, suspension,
deferment, reduction, setoff, counterclaim or defense with respect to any Rent.
The Lessee shall remain obligated under this Lease in accordance with its terms
and the Lessee hereby waives any and all rights now or hereafter conferred by
statute or otherwise to modify or to avoid strict compliance with its
obligations under this Lease. Notwithstanding any such statute or otherwise, the
Lessee shall be bound by all of the terms and conditions contained in this
Lease.
SECTION 9.10 PERFORMANCE OF OBLIGATIONS OF THE BOARD, THE BOND
SUBLESSOR AND THE LESSOR. The Lessee agrees that it shall perform all of the
obligations of the Bond Sublessor under the Bond Lease of the Lessor under the
Bond Sublease and the Board, the Bond Sublessor and the Lessor under the
Security Documents, except the obligations of the Board, the Bond Sublessor and
the Lessor to execute and deliver documents and instruments required to be
executed and delivered by them under the provisions thereof.
ARTICLE X
OPTION TO PURCHASE THE FACILITY
SECTION 10.1 PURCHASE OPTION. The Lessee shall have the option
on any Payment Date (exercisable by giving the Lessor irrevocable written notice
(the "PURCHASE NOTICE") of the Lessee's election to exercise such option not
less than one hundred and eighty (180) days prior to such Payment Date) to
purchase (i) the Lessor's interest in the Facility at any time, or (ii) the
Facility at any time after the seventh anniversary of the Closing Date; provided
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that the conditions to the exercise of the Bond Sublessor's Purchase Option set
forth in SECTION 11.1 of the Bond Lease have been satisfied, in each case at a
price equal to the Termination Value. If the Lessee has exercised its option
pursuant to this Section (the "PURCHASE OPTION"), the Lessor shall transfer,
and, in the case of clause (ii) above, cause the Board and the Bond Sublessor to
transfer to the Lessee or the Lessee's designee all of the Lessor's, and their,
right, title and interest in and to the Facility in accordance with SECTION 3.6
as of the date specified in the Purchase Notice upon receipt of all Rent
(including the Termination Value) and other amounts then due and payable under
this Lease and other Operative Agreements. Upon receipt of such Purchase Notice,
the Lessor will give, and cause the Bond Sublessor to give, similar notices
exercising the comparable purchase options under the Bond Lease and the Bond
Sublease.
SECTION 10.2 MATURITY DATE PURCHASE OPTION. Not less than
twelve (12) months prior to the Maturity Date, the Lessee may give the Lessor
and Indenture Trustee irrevocable written notice (the "MATURITY DATE ELECTION
NOTICE") of the exercise of the Maturity Date Purchase Option or its election to
remarket the Facility pursuant to SECTION 10.3. The Lessee does not give a
Maturity Date Election Notice on or before the date twelve months prior to the
Maturity Date, then the Lessee shall be obligated to purchase the Facility
pursuant to this SECTION 10.2 (unless the Lessee has exercised the Purchase
Option in accordance with Section 10.1). If the Lessee has exercised the
Maturity Date Purchase Option, then on the Maturity Date the Lessee shall pay to
the Lessor the Termination Value and, upon receipt of such amount plus all other
amounts then due and payable under this Lease and any other Operative Agreement,
the Lessor shall transfer, and cause the Board and the Bond Sublessor to
transfer, to the Lessee or the Lessee's designee all of their right, title and
interest in and to the Facility in accordance with SECTION 3.6. Upon receipt of
such Maturity Date Election Notice, the Lessor will give, and cause the Bond
Sublessor to give, similar notices exercising the comparable purchase options
under the Bond Lease and the Bond Sublease. Notwithstanding anything herein to
the contrary, the Lessee shall be deemed to have elected the Maturity Date
Purchase Option if a Lease Event of Default has occurred and is continuing
during the Marketing Period, unless the Indenture Trustee and the Lessor have
consented to the Lessee's remarketing of the Facility under such circumstances,
which consent may be withheld by either of them in their sole and absolute
discretion.
SECTION 10.3 SALE PROCEDURE.
(a) During the Marketing Period, the Lessee, as nonexclusive
broker for the Lessor, shall use best efforts to obtain bids for the cash
purchase of the Facility for the highest price available in a commercially
reasonable sale in the relevant market, shall notify the Lessor promptly of the
name and address of each prospective purchaser and the cash price which each
prospective purchaser shall have offered to pay for the Facility and shall
provide the Lessor with such additional information about the bids and the bid
solicitation procedure as the Lessor may request from time to time. The Lessor
may reject any and all bids and may also obtain bids for the purchase of the
Facility; provided, however, that notwithstanding the foregoing, the Lessor
shall accept the highest bid providing for the sale of the Facility if such bid
is greater than or equal to the sum of the Non-Guaranteed Residual Amount and
all costs and expenses referred to in SECTION 10.4(i) and is a bona fide offer
by a third party purchaser who is not an Affiliate of the Lessee. If, ten
Business Days prior to the Maturity Date, no prospective purchaser shall have
offered to pay for the Facility in an amount equal to or greater than the sum of
the Non-Guaranteed Residual Amount and all costs and expenses referred to in
SECTION 10.4(i), the Lessor may elect to retain the Facility by giving the
Lessee at least two (2) Business Days' prior written notice of the Lessor's
election to retain the Facility, and upon receipt of such notice, the
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Lessee shall surrender the Facility to the Lessor on the Maturity Date and pay
the Lessor the amounts provided for in SECTION 10.3(b). Unless the Lessor shall
have elected to retain the Facility pursuant to the preceding sentence, the
Lessor, or the Lessee on its behalf, shall sell the Facility free of any Lessor
Liens, without recourse or warranty, for cash to the purchaser or purchasers
identified by the Lessee or the Lessor, as the case may be, and the Lessee shall
surrender the Facility so sold to the purchaser in the condition specified in
SECTION 3.7. Failure to sell the Facility shall not constitute a Lease Event of
Default so long as the Lessee has complied with its obligations set forth in
this SECTION 10.3.
(b) If the Facility has not been sold on or prior to the
Maturity Date for any reason whatsoever, then on the Maturity Date, (i) the
Lessee shall pay to the Lessor the Maximum Residual Guarantee Amount and all
Supplemental Rent and other amounts then owing hereunder or under the other
Operative Agreements and (ii) this Lease and all of the Lessee's right, title
and interest in the Facility shall terminate, and the Lessee shall surrender the
Facility in the condition specified in SECTION 3.7. Thereafter, the Lessee will
use commercially reasonable efforts to assist the Lessor in remarketing the
Facility and transfer its interest therein to the Lessor.
SECTION 10.4 APPLICATION OF PROCEEDS FROM SALE. The Lessor
shall apply the proceeds of sale of the Facility in the following order of
priority:
(i) FIRST, to pay or to reimburse the Lessor and the Lessee
for the payment of all reasonable costs and expenses incurred by the Lessor in
connection with the sale; and
(ii) SECOND, the balance shall be paid to the Indenture
Trustee to be applied pursuant to the provisions of the Indenture.
SECTION 10.5 INDEMNITY FOR EXCESSIVE WEAR. If the proceeds of
the sale described in SECTION 10.3(a), less all expenses incurred by the Lessor
and the Lessee in connection with such sale, shall be less than the
Non-Guaranteed Residual Amount (such difference, the "Net Sale Proceeds
Shortfall") and if it shall have been determined (pursuant to the Appraisal
Procedure) that the Fair Market Sales Value of the Facility shall have been
impaired by greater than expected wear and tear during the Term, the Lessee
shall pay to the Lessor within ten (10) days after receipt of the Lessor's
written statement (i) the amount of such excess wear and tear determined by the
Appraisal Procedure set forth in SECTION 10.6 or (ii) the amount of the Net Sale
Proceeds Shortfall, whichever amount is less.
SECTION 10.6 APPRAISAL PROCEDURE. For determining the Fair
Market Sales Value of the Facility or any other amount which may, pursuant to
any provision of any Operative Agreement, be determined by an appraisal
procedure, the Lessor and the Lessee shall use the following procedure (the
"Appraisal Procedure"). The Lessor and the Lessee shall endeavor to reach an
agreement as to such amount for a period often (10) days from commencement of
the Appraisal Procedure, and if they cannot agree within ten (10) days, then two
qualified appraisers, one chosen by the Lessee and one chosen by the Lessor,
shall agree thereupon, but if either party shall fail to choose an appraiser
within twenty (20) days after notice from the other party of the selection of
its appraiser, then the appraisal by such appointed appraiser shall be binding
on the Lessee and the Lessor. If the two appraisers cannot agree within twenty
(20) days after both shall have been appointed, then a third appraiser shall be
selected by the two appraisers or, failing agreement as to such third appraiser
within thirty (30) days after both shall have been appointed, by the American
Arbitration Association. The decisions of the three appraisers shall be given
within twenty (20) days of the appointment of the third appraiser and the
decision of the
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appraiser most different from the average of the other two shall be discarded
and such average shall be binding on the Lessor and the Lessee; provided that if
the highest appraisal and the lowest appraisal are equidistant from the third
appraisal, the third appraisal shall be binding on the Lessor and the Lessee.
The reasonable fees and expenses of all of the appraisers shall be paid by the
Lessee.
SECTION 10.7 CERTAIN OBLIGATIONS CONTINUE. During the
Marketing Period, the obligation of the Lessee to pay Rent with respect to the
Facility (including the installment of Basic Rent and all Supplemental Rent due
on the Maturity Date) shall continue undiminished until payment in full, without
duplication, to the Lessor of the sale proceeds, the Maximum Residual Guarantee
Amount, if any, the amount due under SECTION 10.5, (ii) any, and all other
amounts due to the Lessor with respect to the Facility. The Lessor shall have
the right, but shall be under no duty, to solicit bids, to inquire into the
efforts of the Lessee to obtain bids or otherwise to take action in connection
with any such sale, other than as expressly provided in this Article.
ARTICLE XI
DEFAULTS AND REMEDIES
SECTION 11.1 EVENTS OF DEFAULT. If any one or more of the
following events shall occur (each a "Lease Event of Default"):
(a) Default in the due and punctual payment of (i) Basic Rent
or Supplemental Rent (except to the extent such Supplemental Rent
represents the payment of the Maximum Residual Guarantee Amount or the
Termination Value) when the same has become due and payable and such
default shall have continued for three days or (ii) the Maximum
Residual Guarantee Amount or the Termination Value when the same has
become due and payable; or
(b) Default in the due observance or performance of (x)
Article VI or (y) any covenant, agreement, obligation or provision of
this Lease or any other Operative Agreements on the Lessee's part to be
observed or performed (except as specified elsewhere in this SECTION
11.1), and such default shall continue for thirty (30) days after the
Lessee has been given a notice specifying such default; provided that
such 30-day period shall be extended (up to a maximum period of 180
days) as to defaults which cannot be cured with the payment of money
but are curable, though not reasonably capable of cure within such
30-day period, so long as the Lessee has commenced to cure such default
prior to the end of such 30-day period and prosecutes such cure to
completion and such extension, individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect; or
(c) Any Agency Agreement Event of Default, any default under
the Guarantee, any event of default under the Escrow Agreement or any
Indenture Event of Default; or
(d) The Lessee shall: (1) admit in writing its inability to
pay its debts as they become due; or (2) file a petition in bankruptcy
or for reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under the federal bankruptcy
laws of the United States of America or any other similar present or
future
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federal or state statute or regulation, or file a pleading asking for
such relief; or (3) make an assignment for the benefit of creditors; or
(4) consent to the appointment of a trustee, receiver or liquidator for
all or a major portion of its property or fail to have the appointment
of any trustee, receiver or liquidator vacated or set aside; or (5) be
finally adjudicated as bankrupt or insolvent under any federal or state
law; or (6) be subject to any proceeding, or suffer the entry of a
final and non-appealable court order, under any federal or state law
appointing a trustee, receiver or liquidator for all or a major part of
its property or ordering the winding-up or liquidation of its affairs,
or approving a petition filed against it under the federal bankruptcy
laws of the United States of America, which order or proceeding shall
not be dismissed, vacated, denied, set aside or stayed within sixty
(60) days after the day of entry or commencement; or
(e) The Lessee shall vacate or abandon the Facility, or shall
have been ejected from the Facility or any material portion thereof by
reason of a defect in title to the Facility or violation of any Legal
Requirement; or
(f) Default under any Indebtedness of the Lessee (after the
expiration of any applicable grace period) in making any payment in
respect thereof or any default or other event shall occur or condition
shall exist in respect of any Indebtedness, the effect of which is to
cause, or permit any holder of such Indebtedness to cause, such
Indebtedness to become due before its stated maturity or before its
regularly scheduled dates of payment; or
(g) A judgment, decree, writ, warrant of attachment or similar
process in an amount equal to or exceeding, individually or in the
aggregate, $500,000 shall be entered against the Lessee or the Facility
that is not satisfied, vacated, discharged, appealed from (with
execution or similar process continuously stayed) within thirty (30)
days of such entry; or
(h) Any representation or warranty of the Lessee set forth in
any Operative Agreement or in any certificate delivered pursuant
thereto shall be incorrect in any material respect when made;
then, in any such event, the Lessor may, in addition to the other rights and
remedies provided for in this Lease, terminate this Lease by giving the Lessee
five (5) days notice of such termination, whereupon this Lease shall terminate.
The Lessee shall pay as Supplemental Rent all costs and expenses incurred by or
on behalf of the Lessor and the Indenture Trustee, including fees and expenses
of counsel, as a result of any Lease Event of Default hereunder.
SECTION 11.2 FINAL LIQUIDATED DAMAGES. If a Lease Event of
Default shall have occurred and be continuing, the Lessor shall have the right
to recover, by demand upon the Lessee, and the Lessee shall pay to the Lessor,
without duplication, as final liquidated damages (but without limiting its
obligations hereunder or under the other Operative Agreements to indemnify the
Lessor, the Indenture Trustee and each other Indemnified Person), and in lieu of
all damages beyond the date of such demand, the sum of (a) the Termination
Value, plus (b) all Supplemental Rent and other amounts accruing under this
Lease. Upon payment of such sum, the Lessee shall be entitled to receive, at the
Lessee's request and cost, the conveyance and assignment of the Board's, the
Bond Sublessor's, and the Lessor's right, title and interest in the Facility, in
each case in recordable form and otherwise in conformity with local custom and
free and clear of the Lien of the Security Documents and any Lessor Liens. The
Facility shall be
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conveyed to the Lessee (or the Lessee's designee) "AS IS" in all respects. If
any statute or rule of law shall limit the amount of such final liquidated
damages to less than the amount agreed upon, the Lessor shall be entitled to the
maximum amount allowable under such statute or rule of law, but the Lessee shall
not be entitled to receive the conveyance and assignment of the Facility unless
the Lessee shall have paid in full the sum specified in the first sentence of
this Section.
SECTION 11.3 LEASE REMEDIES. If the Lessor is unable to
enforce the remedies set forth in Section 11.2 against the Lessee and the
Facility, the following remedies shall be available to the Lessor with respect
to the Lessee and the Facility:
(a) Surrender of Possession. If a Lease Event of Default
shall have occurred and be continuing, and whether or not this Lease shall have
been terminated pursuant to SECTION 11.1, the Lessee shall, upon thirty (30)
days written notice, surrender to the Lessor possession of the Facility and the
Lessee shall quit the same. The Lessor may enter upon and repossess the Facility
by the means as are available at law or in equity, and may remove the Lessee and
all other Persons and remove or retain any and all personal property and the
Lessee's equipment and personality and severable Modifications from the
Facility. The Lessor shall have no liability by reason of any such entry,
repossession, removal or retention performed in accordance with applicable law.
(b) Reletting. If a Lease Event of Default shall have occurred
and be continuing, and whether or not this Lease shall have been terminated
pursuant to SECTION 11.1, the Lessor may, but shall be under no obligation to,
relet all, or any portion, of the Facility; for the account of the Lessee or
otherwise, for such term or terms (which may be greater or less than the period
which would otherwise have constituted the balance of the Term) and on such
conditions (which may include concessions or free rent) and for such purposes as
the Lessor may determine, and the Lessor may collect, receive and retain the
rents resulting from such reletting. The Lessor shall not be liable to the
Lessee for any failure to relet the Facility or for any failure to collect any
rent due upon such reletting.
(c) Damages. None of (a) the termination of this Lease
pursuant to SECTION 11.1; (b) the repossession of the Facility; or (c) except to
the extent required by applicable law, the failure of the Lessor to relet all,
or any portion, of the Facility, the reletting of all or any portion thereof, or
the failure of the Lessor to collect or receive any rentals due upon any such
reletting shall relieve the Lessee of its liability and obligations hereunder,
all of which shall survive any such termination, repossession or reletting. If
any Lease Event of Default shall have occurred and be continuing and
notwithstanding any termination of this Lease pursuant to SECTION 11.1, the
Lessee shall forthwith pay to the Lessor all Basic Rent, Supplemental Rent
(including the Termination Value) and other sums due and payable hereunder to
and including the date of such termination. Thereafter, on the days on which the
Basic Rent or Supplemental Rent, as applicable, are payable under this Lease or
would have been payable under this Lease if the same had not been terminated
pursuant to SECTION 11.1 and until the end of the Term or what would have been
the Term in the absence of such termination the Lessee shall pay the Lessor as
current liquidated damages (it being agreed that it would be impossible
accurately to determine actual damages) an amount equal to the Basic Rent and
Supplemental Rent that are payable under this Lease or would have been payable
by the Lessee hereunder if this Lease had not been terminated pursuant to
SECTION 11.1, less the net proceeds, if any, which are actually received by the
Lessor with respect to the period in question of any reletting of the Facility
or any portion thereof; provided that the Lessee's obligation to make payments
of Basic Rent and Supplemental Rent under this SECTION 11.3 shall continue only
so long as the Lessor shall not have received the
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amounts specified in SECTION 11.2 or SECTION 11.3(d). In calculating the amount
of such net proceeds from reletting, there shall be deducted all of the
Lessor's, the Indenture Trustee's and any Noteholder's expenses in connection
therewith, including repossession costs, brokerage commissions, fees and
expenses for counsel and any necessary repair or alteration costs and expenses
incurred in preparation for such reletting. To the extent the Lessor receives
any damages pursuant to this SECTION 11.3, such amounts shall be regarded as
amounts paid on account of Rent.
(d) Acceleration of Rent. If a Lease Event of Default shall
have occurred and be continuing, and this Lease shall not have been terminated
pursuant to SECTION 11.1, and whether or not the Lessor shall have collected any
current liquidated damages pursuant to SECTION 11.3(c), the Lessor may upon
written notice to the Lessee (to the extent permitted by applicable law)
accelerate all payments of Basic Rent due hereunder and, upon such acceleration,
the Lessee shall immediately pay the Lessor, as final liquidated damages and in
lieu of all current liquidated damages on account of such Lease Event of Default
beyond the date of such acceleration (it being agreed that it would be
impossible accurately to determine actual damages) an amount equal to the sum
of(a) all Basic Rent (assuming interest at a rate per annum equal to the Overdue
Rate), as applicable, due from the date of such acceleration until the end of
the Term, (b) the Maximum Residual Guarantee Amount that would be payable under
SECTION 10.3(b) assuming the proceeds of the sale pursuant to such SECTION
10.3(a) are equal to zero, which sum is then discounted to present value at a
rate equal to the rate then being paid on United States treasury securities with
maturities corresponding to the then remaining Term plus 0.50%. Following
payment of such amount by the Lessee, so long as this Lease shall not have been
terminated pursuant to SECTION 11.1, the Lessee will be permitted to stay in
possession of the Facility for the remainder of the Term, subject to the terms
and conditions of this Lease, including the obligation to pay Supplemental Rent.
if any statute or rule of law shall limit the amount of such final liquidated
damages to less than the total amount of Rent for which this Lease expressly
provides, the Lessor shall be entitled to the maximum amount allowable under
such statute or rule of law, but the Lessee shall not be relieved of its
obligations hereunder unless the Lessee shall have paid in full the Termination
Value plus all Supplemental Rent and other amounts of Rent for which this Lease
expressly provides.
SECTION 11.4 WAIVER OF CERTAIN RIGHTS. If this Lease shall be
terminated pursuant to Section 11.1, the Lessee waives, to the fullest extent
permitted by law, (a) any notice of re-entry or the institution of legal
proceedings to obtain re-entry or possession; (b) any right of redemption,
re-entry or repossession; (c) the benefit of any laws now or hereafter in force
exempting property from liability for rent or for debt; and (d) any other rights
which might otherwise limit or modify any of the Lessor's nights or remedies
under this Article XI.
SECTION 11.5 ASSIGNMENT OF RIGHTS. Under Contracts if a Lease
Event of Default shall have occurred and be continuing and whether or not this
Lease shall have been terminated pursuant to SECTION 11.1 the Lessee shall upon
the Lessor's demand immediately assign, transfer and set over to the Lessor all
of the Lessee's right, title and interest in and to each agreement executed by
the Lessee in connection with the construction, renovation, development, use or
operation of the Facility (including all right, title and interest of the Lessee
with respect to all warranty, performance, service and indemnity provisions).
SECTION 11.6 SURVIVAL OF OBLIGATIONS. The Lessee covenants and
agrees with the Lessor, the Bond Trustee, the Indenture Trustee and Noteholders
that its obligations under this Lease shall survive the cancellation and
termination of this Lease, for any cause, and that the
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Lessee shall continue to pay the Basic Rent and Supplemental Rent and perform
all other obligations provided for in this Lease, all at the time or times
provided in this Lease; provided, however, that upon the payment of all Basic
Rent and Supplemental Rent required under Article IV hereof, and upon the
satisfaction and discharge of the Bond Indenture and the Indenture, the Lessee's
obligation under this Lease shall thereupon cease and terminate in full.
SECTION 11.7 PERFORMANCE OF THE LESSEE'S OBLIGATIONS BY THE
LESSOR, THE BOND TRUSTEE OR THE INDENTURE TRUSTEE. If the Lessee shall fail to
keep or perform any of its obligations as provided in this Lease, then the
Lessor, the Bond Trustee or the Indenture Trustee may (but shall not be
obligated to), and without waiving or releasing the Lessee from any obligation
hereunder, as an additional but not exclusive remedy, perform such obligation,
and all amounts paid by the Lessor, the Bond Trustee or the Indenture Trustee
and all necessary incidental reasonable costs and expenses incurred by the
Lessor, the Bond Trustee or the Indenture Trustee in performing such obligations
shall be deemed Supplemental Rent and shall be paid to the Lessor, the Bond
Trustee or the Indenture Trustee on demand, and if not so paid by the Lessee,
the Lessor, the Bond Trustee or the Indenture Trustee shall have the same rights
and remedies provided for in this Article XI for a default in the payment of
Basic Rent.
SECTION 11.8 RIGHTS AND REMEDIES CUMULATIVE. The rights and
remedies provided herein and those available at law, equity or otherwise,
including any mortgage foreclosure remedies provided under the laws of the State
of Missouri, shall be construed as cumulative and continuing rights and
remedies, in addition to (and not in limitation of) one another. None of them
shall be exhausted by the exercise of any of them on one or more occasions. The
Lessor, the Bond Trustee and the Indenture Trustee shall each be entitled to
specific performance and injunctive or other equitable relief for any breach or
threatened breach of any of the provisions of this Lease, notwithstanding
availability of an adequate remedy at law, and the Lessee hereby waives the
right to raise such defense in any proceeding in equity.
SECTION 11.9 WAIVER OF BREACH. No waiver of any breach of any
covenant or agreement herein contained shall operate as a waiver of any
subsequent breach of the same covenant or agreement or as a waiver of any breach
of any other covenant or agreement, and in case of a breach by the Lessee of any
covenant, agreement or undertaking, the Lessor, the Bond Trustee or the
Indenture Trustee may nevertheless accept from the Lessee any payment or
payments hereunder without in any way waiving the Lessor's, the Bond Trustee's
or the Indenture Trustee's right to exercise any of its rights and remedies
provided for herein with respect to any such default or defaults of the Lessee
which were inexistence at the time such payment or payments were accepted by the
Lessor, the Bond Trustee or the Indenture Trustee. Notwithstanding anything else
contained herein, so long as any Bond or any Note is outstanding, any action by
the Bond Trustee or the Indenture Trustee automatically binds the Lessor with
respect to such action.
SECTION 11.10 INDENTURE TRUSTEE'S EXERCISE OF THE LESSOR'S
REMEDIES. Whenever any Lease Event of Default shall have occurred and be
continuing, the Indenture Trustee may, but shall not be obliged to, exercise any
or all of the rights of the Lessor under this Article. In addition, the
Indenture Trustee shall have available to it all of the remedies prescribed by
the Indenture.
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ARTICLE XII
ASSIGNMENT AND SUBLEASE
SECTION 12.1 ASSIGNMENT; SUBLEASE.
(a) Subject to the provisions of the Operative Agreements and so
long as no Lease Event of Default has occurred and is continuing, the Lessee
shall have the right to assign, transfer, encumber or dispose of this Lease, but
only with the written consent of all of the Board, the Bond Sublessor, the
Lessor, the Investor, the Bond Trustee and the Indenture Trustee (it being
understood that such consent may be given or withheld by any of such parties in
its absolute discretion); and any assignment of this Lease by the Lessee without
such consents shall be void. With respect to any assignment, the Lessee shall
comply with the following conditions:
(1) Such assignment shall be in writing, duly executed and
acknowledged by the assignor and in proper form for recording;
(2) Such assignment shall include the entire then unexpired
term of this Lease;
(3) A duplicate original of such assignment shall be delivered to
the Board, the Bond Sublessor, the Lessor, the Investor, the Bond Trustee
and the Indenture Trustee within ten (10) days after the execution
thereof, together with an assumption agreement, duly executed and
acknowledged by the assignee in proper form for recording, by which the
assignee shall assume all of the terms, covenants and conditions of this
Lease on the part of the Lessee to be thereafter performed and observed;
(4) At the time of any such assignment there shall be no damage or
destruction to the Facility which has not been repaired, restored and
replaced in accordance with the provisions of this Lease, unless
sufficient funds then held by the Lessee for the purposes of such repair,
restoration and replacement are simultaneously transferred to the
assignee; and
(5) all Rent and all other amounts accruing under this Lease and the
other Operative Agreements up to and including the effective date of the
assignment shall have been paid in full.
Upon the satisfaction of the conditions set forth herein, the
assignor shall be relieved of all further liability occurring on and after the
effective date of such assignment.
(b) Subject to the provisions of the Operative Agreements, the
Lessee shall have the right to sublet all or any portion of the Facility. No
sublease of the Facility, or any portion thereof, shall release or discharge the
Lessee from its primary liability for the payment of the Basic Rent and
Supplemental Rent hereunder and the performance of all of the covenants and
agreements herein contained, and its duties and obligations under this Lease
shall continue as if no such sublease had been made. The Lessee shall, within
ten (10) days after the delivery thereof, furnish or cause to be furnished to
the Board, the Bond Sublessor, the Lessor, the Bond Trustee and the Indenture
Trustee a true and correct copy of each such sublease. Any sublease
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may provide, at the Lessor's option, that the Lessor's consent shall not be
required in respect of any further subletting thereunder if such further
subletting is for a similar purpose as the original sublease and is for a
purpose permissible under this Lease.
SECTION 12.2 ASSIGNMENT BY THE LESSOR. The Lessor shall assign and
pledge its interest in this Lease to the Bond Trustee pursuant to the Assignment
of Lease, as security for payment of the principal of, premium, if any, and
interest on, the Bonds and the Notes and the Lessee shall consent to such pledge
and assignment pursuant to the Consent to Assignment.
SECTION 12.3 ASSIGNMENT OF LEASE. In order to secure the payment and
performance of the obligations of the Lessee under this Lease, the Lessee hereby
pledges and assigns to the Lessor all right, title and interest of the Lessee
in, to and under this Lease pursuant to the Lessee Leasehold Deed of Trust.
ARTICLE XIII
AMENDMENTS, CHANGES AND MODIFICATIONS
SECTION 13.1 AMENDMENTS, CHANGES AND MODIFICATIONS. This Lease may
not be amended, changed, modified, altered or terminated without the prior
written consent of the Indenture Trustee and the Bond Trustee, given in
accordance with the provisions of the Indenture and the Bond Indenture (which
consent may be withheld in the Indenture Trustee's and the Bond Trustee's
absolute discretion), and any agreement or writing purporting to do so will be
void ab initio.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
SECTION 14.1 NOTICES. All notices, certificates or other
communications required or desired to be given hereunder shall be in writing and
shall be deemed duly given when mailed by registered or certified mail, postage
prepaid, or sent by reputable overnight delivery, addressed as follows:
(a) To the Board Missouri Development Finance Board
Harry S. Truman Building, Room 680
301 West High Street
Jefferson City, Missouri 65108
ATTN: Executive Director
(b) To the Bond Trustee: State Street Bank and Trust Company of
Missouri, N.A.
One Metropolitan Square, Suite 3900
211 North Broadway
St. Louis, Missouri 63102
ATTN: Corporate Trust Department
(c) To the Bond O'Fallon Public Facilities Authority
Sublessor: 100 N. Main Street
O'Fallon, Missouri 63366
ATTN: President
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(d) To the Lessor: MCI O'Fallon 1999 Trust
c/o Wilmington Trust Company
1100 North Market Street
Rodney Square North, Wilmington, Delaware
19890-0001
(e) To the Lessee: MasterCard International Incorporated
2000 Purchase Street
Purchase, NY 10577-2509
ATTN: General Counsel
With a copy to: MasterCard International Incorporated
2000 Purchase Street
Purchase, NY 10577-2509
ATTN: General Counsel
(f) To the Indenture State Street Bank and Trust Company of
Trustee: Missouri, N.A.
One Metropolitan Square, 39th Floor
211 North Broadway
St. Louis, Missouri 63102
ATTN: Corporate Trust Division
All notices shall be deemed given as of the date of receipt. A
duplicate copy of each notice, certificate or other communication given
hereunder by a party to another party shall also be given to the Indenture
Trustee. The Board, the Bond Sublessor, the Bond Trustee, the Indenture Trustee,
the Lessor, and the Lessee may from time to time designate, by notice given
hereunder to the others of such parties, such other address to which subsequent
notices, certificates or other communications shall be sent.
SECTION 14.2 NET LEASE. The parties hereto agree (a) that this Lease
shall be deemed and construed to be a net lease, (b) that the payments of Basic
Rent and Supplemental Rent are designed to provide the Lessor funds adequate in
amount to pay all principal of, premium, if any, and interest accruing on the
Bonds and the Notes and the Investor Yield and the return of the Investor
Contribution (and any Investor Premium), as the same become due and payable, (c)
that to the extent that the specified payments of Rent are not sufficient to
provide the Lessor with funds sufficient for the purposes aforesaid, the Lessee
shall be obligated to pay, and it does hereby covenant and agree to pay, upon
demand therefor, as Supplemental Rent, such further sums of money, in cash, as
may from time to time be required for such purposes, and (d) that if after the
principal of, premium, if any, and interest on the Notes and the Investor Yield
and the return of the Investor Contribution, and all costs incident to the
payment thereof, have been paid in full the Lessor holds unexpended funds
received in accordance with the terms hereof, such unexpended funds shall, after
payment therefrom of all sums then due and owing by the Lessee under the terms
of this Lease, and except as otherwise provided in this Lease, the Bond
Documents and the Indenture, become the absolute property of and be paid over
forthwith to the Lessee.
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SECTION 14.3 RISK OF LOSS. The risk of loss of or decrease in the
enjoyment and beneficial use of the Facility as a result of the damage or
destruction thereof by fire, the elements, casualties, thefts, riots, wars or
otherwise is assumed by the Lessee, and the Lessor shall in no event be
answerable or accountable therefor.
SECTION 14.4 GOVERNING LAW. TO THE EXTENT THIS LEASE IS REQUIRED
UNDER APPLICABLE LAW TO BE TREATED AS A LEASE RATHER THAN AS A FINANCING
ARRANGEMENT, THIS LEASE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF MISSOURI AND, TO THE EXTENT THIS LEASE MAY BE TREATED
AS A FINANCING ARRANGEMENT, IT SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW
YORK EXCLUDING ALL CHOICE OF LAW AND CONFLICT OF LAWS RULES THAT WOULD APPLY THE
LAW OF ANY OTHER STATE.
SECTION 14.5 BINDING EFFECT. This Lease shall be binding upon and
shall inure to the benefit of the Lessor and the Lessee and their respective
successors and permitted assigns.
SECTION 14.6 SEVERABILITY. If for any reason any provision of this
Lease shall be determined to be invalid or unenforceable, the validity and
enforceability of the other provisions hereof shall not be affected thereby.
SECTION 14.7 EXECUTION IN COUNTERPARTS. This Lease may be executed
simultaneously in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute but one and the same instrument.
SECTION 14.8 ESTOPPEL CERTIFICATES. At any time and from time to
time upon not less than twenty (20) days' prior request by the Lessor or the
Lessee (the "REQUESTING PARTY"), the other party (whichever party shall have
received such request, the "CERTIFYING PARTY") shall furnish to the Requesting
Party a certificate signed by an individual having the office of vice president
or higher in the Certifying Party certifying that this Lease is in full force
and effect (or that this Lease is in full force and effect as modified and
setting forth the modifications); the dates to which the Basic Rent and
Supplemental Rent have been paid; and, to the knowledge of the signer of such
certificate, whether or not the Requesting Party is in default under any of its
obligations hereunder (and, if so, the nature of such alleged default). Any such
certificate furnished pursuant to this SECTION 14.8 may be relied upon by the
Requesting Party (provided that such reliance shall not relieve such Requesting
Party from its obligations hereunder or under any other Operative Agreements),
and any existing or prospective mortgagee, purchaser or lender, and any
accountant or auditor, of, from or to the Requesting Party (or any Affiliate
thereof).
SECTION 14.9 MEMORANDUM OF LEASE. This Lease shall not be recorded,
but the Lessor and the Lessee shall, upon the Closing Date, execute and deliver
a short-form memorandum of this Lease (a "MEMORANDUM OF LEASE") in form suitable
for recording under the laws of Missouri, which memorandum shall be recorded at
the Lessee's sole cost and expense.
SECTION 14.10 NO MERGER. There shall be no merger of this Lease, or
the leasehold estate created by this Lease, with any other estate or interest in
the Facility, or any part thereof, by reason of the fact that the same person
may acquire, own or hold, directly or indirectly, (i) this Lease or the
leasehold estate created by this Lease, or any interest in this Lease
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or in any such leasehold estate, and (ii) any such other estate or interest in
the Facility or any part thereof; and no such merger shall occur unless and
until all persons having an interest (including a security interest) in (a) this
Lease or the leasehold estate created by this Lease and (b) any such other
estate or interest in the Facility or any part thereof, shall join in a written
instrument effecting such merger and shall duly record the same.
[The remainder of this page intentionally left blank.]
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EXHIBIT A
52 acres
A tract of land being part of Fractional Section 13 and part of Lot
23 of the "Walnut Grove Tract" in U.S. Survey 1669, Township 46 North, Range 2
East, St. Charles County, Missouri and being more particularly described as
follows:
Beginning at the intersection of the Southwestern line of said U.S.
Survey 1669 with the Northern line of U.S. Survey 1641, said point being the
Southwestern corner of said Lot 23 of the "Walnut Grove Tract," said point also
being the Southeast corner of property conveyed to McEagle-O'Fallon, L.C. by
deed recorded in Book 1989, page 316 of the St. Charles County Records; thence
along the common line between said U.S. Survey 1641 and said Fractional 13,
South 82 degrees 34 minutes 07 seconds West, 1,014.38 feet to a point, said
point being the Southwest corner of said McEagel-O-Fallon; thence along the
Southwestern line of McEagle-O'Fallon, North 18 degrees 40 minutes 53 seconds
West, 762.00 feet to a Iron Pipe; thence South 89 degrees 20 minutes 07 seconds
West, 236.96 feet to an Iron Pipe; thence South 49 degrees 01 minutes 37 seconds
West, 278.60 feet to an Iron Pipe on the existing Northeastern right-of-way line
of Highway 40-61, said point being 88.50 feet perpendicular Northeasterly from
existing centerline station 322+47.5; thence leaving said Northeastern
right-of-way line, North 34 degrees 48 minutes 36 seconds West, 156.56 feet to a
point, said point being 92.21 feet perpendicular Northeasterly from existing
centerline station 320-91.0; thence North 20 degrees 14 minutes 05 seconds West,
216.00 feet to a point, said point being 151.51 feet perpendicular Northeasterly
from existing centerline station 318+83.3; thence North 14 degrees 45 minutes 35
seconds West, 149.18 feet to a point, said point being 205.97 feet perpendicular
Northeasterly from existing centerline station 317+44.4; thence North 5 degrees
11 minutes 43 seconds West, 148.14 feet to a point, said point, said point, said
point being 205.97 feet perpendicular Northeasterly from existing centerline
station 317+44.4; thence North 5 degrees 11 minutes 43 seconds West, 148.14 feet
to a point, said point being 282.20 feet perpendicular Northeasterly from
existing centerline station 316+17.4; thence North 4 degrees 26 minutes 08
seconds East, 148.75 feet to a point, said point being 379.02 feet perpendicular
Northeasterly from existing centerline station 315+04.5; thence North 14 degrees
05 minutes 19 seconds East, 148.55 feet to a point, said point being 493.24 feet
perpendicular Northeasterly from existing centerline station 314+09.5; thence
North 18 degrees 56 minutes 07 seconds East, 103.32 feet to a point, said point
being 578.00 feet perpendicular Northeasterly from existing centerline station
313+50.4; thence South 69 degrees 32 minutes 53 seconds East, 60.30 feet; thence
South 18 degrees 32 minutes 53 seconds East, 30.75 feet; thence North 71 degrees
27 minutes 07 seconds East, 264.44 feet; thence North 89 degrees 56 minutes 28
seconds East, 112.33 feet; thence South 62 degrees 54 minutes 33 seconds East,
197.46 feet; thence South 49 degrees 19 minutes 53 seconds East, 165.21 feet;
thence South 79 degrees 27 minutes 53 seconds East, 1,110.50 feet; thence South
44 degrees 35 minutes 23 seconds East, 669.00 feet; thence South 14 degrees 40
minutes 37 seconds West, 332.23 feet to a point on the Northern line of a tract
of land conveyed to Ira C. and Lillian Jones by Alfred Selfen, Et al, by deed
recorded in Book 372, page 7 of the St. Charles County Records; thence along
said Northern line of Jones, South 82 degrees 08 minutes 07 seconds West, 475.86
feet to a point on the Southwestern of said U.S. Survey 1669; thence along said
Southwestern line, South 26 degree 46 minutes 13 seconds East, 211.46 feet to
the point of beginning and containing 52.08 acres according to survey by The
Clayton Engineering Company March, 1999.
EXHIBIT B
IMPROVEMENTS
All buildings, structures, improvements and fixtures located on or
to be purchased, constructed and otherwise improved on the Land, including the
Facility or pursuant to ARTICLE VII of the Lease, and in any case which paid for
in whole or in part from the proceeds of Bonds and all additions, alterations,
modifications and improvements thereof made pursuant to the Bond Sublease, the
Bond Lease or this Lease.
EXHIBIT C
EQUIPMENT
All items of machinery, equipment and parts or other personal
property installed or acquired or to be acquired for installation in the
Improvements or elsewhere on the Land, including the Facility or pursuant to
ARTICLE VII of the Lease, and in any case when paid for in whole or in part from
the proceeds of Bonds and all replacements thereof and substitutions therefor
made pursuant to the Bond Sublease, the Bond Lease or this Lease.
MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE is made as of the 31st day of August, 1999,
between MCI O'Fallon 1999 Trust, a Delaware business trust (the "LANDLORD") and
MasterCard International Incorporated, a non-stock membership corporation
organized under the laws of the State of Delaware ("TENANT").
W I T N E S S E T H
WHEREAS, Landlord is the owner of a subleasehold estate in and to
the real estate described in EXHIBIT A hereto and by this reference incorporated
herein (the "PREMISES"); and
WHEREAS, pursuant to a Lease, dated as of August 31, 1999, between
Landlord and Tenant (the "LEASE"), Landlord leased the Premises to Tenant; and
WHEREAS, Landlord and Tenant desire to give notice of the
existence of the Lease;
NOW, THEREFORE, in consideration of the covenants and agreements on
the part of Tenant set forth in the Lease, Landlord does hereby demise and lease
to Tenant and Tenant does hereby take and lease from Landlord the Premises,
subject to the terms and conditions set forth in the Lease.
The term of the Lease commences on August 31, 1999, and ends on
September 1, 2009. The Lease grants to Tenant an option to extend the term of
the Lease for one (1) extension term of ten (10) years.
The Lease contains an option in favor of Tenant to purchase the
Premises on the terms and conditions set forth therein.
The Lease is subject and subordinate to the instruments set forth in
EXHIBIT B hereto and by reference incorporated herein.
Notice is hereby given that the Lease contains numerous terms,
covenants, provisions and conditions not required to be set forth in memoranda
of leases and/or in memoranda of executory contracts and options. This
Memorandum is subject in all events to all of the terms, covenants, provisions
and conditions in the Lease contained, to which reference is hereby made, which
Lease shall govern in the event of any conflict between any of the terms,
provisions and conditions thereof, and the terms of this Memorandum.
IN WITNESS WHEREOF, the parties have executed this Memorandum of
Lease as of the day and year first above written.
MCI O'FALLON 1999 TRUST
By First Bank of Missouri, not in its
individual Capacity but solely as
co-trustee
[SEAL]
By:/s/Matt J. McLaughlin
------------------------------
Name: Matt J. McLaughlin
------------------------------
Title: Vice President
------------------------------
MASTERCARD INTERNATIONAL
INCORPORATED
By:
------------------------------
Its:
------------------------------
[SEAL]
STATE OF KANSAS )
) SS.
COUNTY OF WYANDOTTE )
On this 30th day of August, 1999, before me appeared Matt McLaughlin
to, me personally known, who, being by me duly sworn, did say that he or she is
the Vice President of First Bank of Missouri, the co-trustee of MCI O'Fallon
1999 Trust, a Delaware business trust, and that the seal affixed to the
foregoing instrument is the seal of said Trust; and that said instrument was
signed and sealed in behalf of said Trustee by authority of its Vice President;
and said individual acknowledged said instrument to be the free act and deed of
said Trust.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
official seal in the City and State aforesaid, the day and year first above
written.
(SEAL) /s/Susan K. Baldwin
---------------------------------------
Notary Public
My term expires 07-21-02
2
STATE OF MISSOURI )
) SS.
CITY OF ST. LOUIS )
On this 30th day of August, 1999, before me appeared John D.
Ranieri, to me personally known, who, being by me duly sworn, did say that he or
she is the Vice President of the MasterCard International Incorporated, a
non-stock membership corporation organized under the laws of the State of
Delaware; and that the seal affixed to the foregoing instrument is the seal of
said Corporation; and that said instrument was signed and sealed in behalf of
said Corporation by authority of its Board of Directors; and said individual
acknowledged said instrument to be the free act and deed of said Corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
official seal in the City and State aforesaid, the day and year first above
written.
(SEAL) /s/Linda L. Rands
--------------------------------------
Notary Public
My terms expires: August 20, 2002
3
EXHIBIT A
52 acres
A tract of land being part of Fractional Section 13 and part of Lot
23 of the "Walnut Grove Tract" in U.S. Survey 1669, Township 46 North, Range 2
East, St. Charles County, Missouri and being more particularly described as
follows:
Beginning at the intersection of the Southwestern line of said U.S.
Survey 1669 with the Northern line of U.S. Survey 1641, said point being the
Southwestern corner of said Lot 23 of the "Walnut Grove Tract", said point also
being the Southeast corner of property conveyed to McEagle-O'Fallon, L.C. by
deed recorded in Book 1989, page 316 of the St. Charles County Records; thence
along the common line between said U.S. Survey 1641 and said Fractional 13,
South 82 degrees 34 minutes 07 seconds West, 1,014.38 feet to a point, said
point being the Southwest corner of said McEagle-O'Fallon; thence along the
Southwestern line of McEagle-O'Fallon, North 18 degrees 40 minutes 53 seconds
West, 762.00 feet to a Iron Pipe; thence South 89 degrees 20 minutes 07 seconds
West, 236.96 feet to an Iron Pipe; thence South 49 degrees 01 minutes 37 seconds
West, 278.60 feet to an Iron Pipe on the existing Northeastern right-of-way line
of Highway 40-61, said point being 88.50 feet perpendicular Northeasterly from
existing centerline station 322+47.5; thence leaving said Northeastern
right-of-way line, North 34 degrees 48 minutes 36 seconds West, 156.56 feet to a
point, said point being 92.21 feet perpendicular Northeasterly from existing
centerline station 320+91.0; thence North 20 degrees 14 minutes 05 seconds West,
216.00 feet to a point, said point being 151.51 feet perpendicular Northeasterly
from existing centerline station 3 18+83.3; thence North 14 degrees 45 minutes
35 seconds West, 149.18 feet to a point, said point being 205.97 feet
perpendicular Northeasterly horn existing centerline station 317+44.4; thence
North 5 degrees 11 minutes 43 seconds West, 148.14 feet to a point, said point
being 282.20 feet perpendicular Northeasterly from existing centerline station
316+17.4; thence North 4 degrees 26 minutes 08 seconds East, 148.75 feet to a
point, said point being 379.02 feet perpendicular Northeasterly from existing
centerline station 315+04.5; thence North 14 degrees 05 minutes 19 seconds East,
148.55 feet to a point, said point being 493.24 feet perpendicular Northeasterly
from existing centerline station 314+09.5; thence North 18 degrees 56 minutes 07
seconds East, 103.32 feet to a point, said point being 578.00 feet perpendicular
Northeasterly from existing centerline station 313+50.4; thence South 69 degrees
32 minutes 53 seconds East, 60.30 feet; thence South 18 degrees 32 minutes 53
seconds East, 30.75 feet; thence North 71 degrees 27 minutes 07 seconds East,
264.44 feet; thence North 89 degrees 56 minutes 28 seconds East, 112.33 feet;
thence South 62 degrees 54 minutes 33 seconds East, 197.46 feet; thence South 49
degrees 19 minutes 53 seconds East, 165.21 feet; thence South 79 degrees 27
minutes 53 seconds East, 1,110.50 feet; thence South 44 degrees 35 minutes 23
seconds East, 669.00 feet; thence South 14 degrees 40 minutes 37 seconds West,
332.23 feet to a point on the Northern line of a tract of land conveyed to Ira
C. and Lillian Jones by Alfred Selfen, Etal, by deed recorded in Book 372, page
7 of the St. Charles County Records; thence along said Northern line of Jones,
South 82 degrees 08 minutes 07 seconds West, 475.86 feet to a point on the
Southwestern of said U.S. Survey 1669; thence along said Southwestern line,
South 26 degrees 46 minutes 13 seconds East, 211.46 feet to the point of
beginning and containing 52.08 acres according to survey by The Clayton
Engineering Company March, 1999.
4
EXHIBIT B
SENIOR INSTRUMENTS
1. Bond Deed of Trust and Security Agreement dated as of August 31, 1999,
from Missouri Development Finance Board (the "BOARD") to Steven E.
Kushner, as trustee (the "MORTGAGE TRUSTEE") for the benefit of State
Street Bank and Trust Company of Missouri, N.A., as bond trustee (the
"BOND TRUSTEE");
2. Bond Lease, dated as of August 31, 1999, between the Board, as lessor,
and O'Fallon Public Facilities Authority (the "SUBLESSOR"), as lessee;
3. Bond Lease Leasehold Deed of Trust, dated as of August 31, 1999, from
Sublessor to Mortgage Trustee for the benefit of Bond Trustee;
4. Bond Sublease, dated as of August 31, 1999, between Sublessor, as
lessor, and Landlord, as lessee; and
5. Bond Sublease Leasehold Deed of Trust, dated as of August 31, 1999, from
Landlord to Mortgage Trustee for the benefit of Bond Trustee.