PURCHASE AND ASSIGNMENT AGREEMENT

Transcription

1 THIS ASSIGNMENT EVIDENCES AN OBLIGATION EXEMPTED OR ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER FEDERAL AND STATE OF COLORADO SECURITIES LAWS. UNDER NO CIRCUMSTANCES SHALL THIS ASSIGNMENT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED OR DISPOSED OF WITHOUT COMPLIANCE WITH THE REQUIREMENTS OF THE LEASE REFERRED TO HEREIN AND WITH ANY APPLICABLE STATE OR FEDERAL SECURITIES LAWS. PURCHASE AND ASSIGNMENT AGREEMENT Lease Purchase Agreement dated December 28,2016 Between the Asset Acquisition Authority, Inc., as Lessor, and the Regional Transportation District, as District Dated as ofdecember 28, 2016 This Purchase and Assignment Agreement (this "Assignment Agreement") is made as of the date stated above between JPMorgan Chase Bank, N.A., as the purchaser, and Asset Acquisition Authority, Inc., a Colorado nonprofit corporation (the "Corporation"), as seller. Section 1. Definitions. Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Lease Purchase Agreement (the "Lease") between the Corporation, as lessor, and the Regional Transportation District (the "District"), a public body corporate and politic and a political subdivision of the State of Colorado, as lessee, dated as of December 28, In addition, the following terms have the following meanings: "20 16A Leased Property" shall mean all of the property identified in Exhibit A to the Lease, as amended from time to time in accordance with the terms and provisions of the Lease. "Base Rentals" means the payments payable by the District pursuant to Section 6.2 of the Lease and Exhibit B thereto, as it may be amended thereunder, during the Initial Term and any Renewal Term, which constitute the payments payable by the District for and in consideration of the right to use the 2016A Leased Property during the Lease Term. "Liens" shall mean any liens, encumbrances, security interests and claims of any nature whatsoever. "Purchase Price" means $74,470,000 (Seventy Four Million Four Hundred Seventy Thousand Dollars). "Purchaser" shall initially mean JPMorgan Chase Bank, N.A., and to the extent that this Assignment Agreement is subsequently transferred in accordance with the terms and provisions of this Assignment Agreement and the Lease, Purchaser shall thereafter mean the Registered Owner. 1

2 "Registered Owner" means the registered owner of this Assignment Agreement, according to the records maintained by the Registrar. The initial Registered Owner is "Secured Obligations" means all of the following: (A) all of the Lease Revenues and other receipts receivable by or on behalf of the Corporation pursuant to the Lease including without limitation, (i) all Base Rentals to be received from the District pursuant to the Lease and which are to be paid directly to the Registered Owner pursuant to this Assignment, (ii) all Extraordinary Revenues received pursuant to the Lease, and (iii) all rights to enforce payments under the Lease when due (other than the rights of the Corporation with respect to certain payments or reimbursement to the Corporation thereunder for its costs, fee and expenses) or otherwise to enforce rights under the Lease for the benefit of the Registered Owner; (B) the District's obligation to perform and observe all covenants, agreements and conditions (direct or indirect, absolute or contingent, due or to become due, or existing or hereafter arising) of the District under the Lease; and (C) the Corporation's obligation to perform and observe all covenants, agreements and conditions (direct or indirect, absolute or contingent, due or to become due, or existing or hereafter arising) of the Corporation under the Lease and this Assignment Agreement. Section 2. Sale and Assignment Agreement; Grant of Security Interest 2.1 Effective upon the date of Purchaser's payment of the Purchase Price (the "Effective Date"), the Corporation hereby sells, transfers and assigns to Purchaser and its successors and assigns without recourse (except as otherwise expressly provided herein) all of the Corporation's present and future right, title and interest in and to the Lease, the Lease Revenues, and any proceeds of any of the foregoing, including, without limitation, any insurance proceeds and claims against third parties (collectively, the "Sold Property") to have and to hold for its and their own use and benefit forever. 2.2 The above assignment is an assignment of rights and benefits only under the Lease, not an assignment or transfer of any obligations or liabilities of the Corporation under the Lease. THE CORPORATION AGREES THAT IT ALONE SHALL BE LIABLE FOR, AND SHALL FAITHFULLY AND PROMPTLY PERFORM, ALL OF ITS OBLIGATIONS UNDER THE LEASE WHETHER SUCH OBLIGATIONS ARISE BEFORE OR AFTER THE EFFECTIVE DATE. The Purchaser hereby acknowledges that the Registered Owner has assumed certain obligations under the Lease. The Purchaser hereby agrees that so long as it is the Registered Owner under this Assignment Agreement, the Purchaser shall be bound by and perform the obligations of the Registered Owner set forth in the Lease. The District shall be deemed to be a third party beneficiary of this provision. Upon any transfer or assignment of this Assignment Agreement to a subsequent Registered Owner in accordance with the terms and provisions of the Lease and this Assignment Agreement, any such Registered Owner, as a condition of such transfer or assignment, shall agree to be bound by and perform the obligations of the Registered Owner set forth in the Lease. 2

3 2.3 The above sale and assignment is intended to be an absolute and unconditional sale and is not intended as a loan by Purchaser to the Corporation. Accordingly, in the event of bankruptcy of the Corporation, the Sold Property shall not be part of the Corporation's estate. However, if the above sale and assignment is deemed to be a loan by Purchaser to the Corporation, then the Corporation shall be deemed to have granted to Purchaser, and hereby grants to Purchaser, a continuing first priority security interest in the Sold Property and all proceeds thereof as collateral security for all Secured Obligations, and this Assignment Agreement shall be deemed a security agreement with respect to such loan. 2.4 The Corporation and Purchaser expressly acknowledge and agree that: (a) under the Lease, the Corporation has retained title to the 2016A Leased Property subject to the provisions of the Lease and the sale and assignment of the Sold Property hereunder and subject to the District's right to purchase the 2016A Leased Property in accordance with the terms and provisions of the Lease; and (b) the Sold Property that is sold and assigned by the Corporation to Purchaser represents the right to receive Base Rentals and other Lease Revenues under the Lease, and to enforce the Corporation's rights under the Lease, and does not include title to or any other ownership interest in the 2016A Leased Property. As collateral security for the Secured Obligations, the Corporation hereby grants to Purchaser a first priority security interest in the Corporation's interest in the Lease, the Base Rentals, and the Lease Revenues, and, subject to the terms and limitations of the Lease, the 20 16A Leased Property and any and all proceeds thereof. The Corporation agrees to execute and deliver to Purchaser all necessary documents to evidence and perfect such security interest, including, without limitation, UCC financing statements and any an1endments thereto. 2.5 In the event the Lease is terminated upon the occurrence of an Event of Nonappropriation or an Event of Default thereunder, the Purchaser shall have the right to exercise Lease Remedies or to direct the Corporation to exercise Lease Remedies, as further set forth in the Lease. Upon the exercise of such Lease Remedies, the Purchaser shall be entitled to receive from the proceeds received from the exercise of the Lease Remedies an amount equal to the then applicable Remaining Lease Balance plus any reasonable costs incurred in connection with exercising the Lease Remedies, subject to the limitations set forth in the Lease. Any proceeds received as a result of the exercise of Lease Remedies in excess of such amount shall be paid to the District. The District shall be a third party beneficiary of this provision. Section 3. Corporation's Representations. The Corporation represents to Purchaser that: 3.1 The Corporation is a nonprofit corporation duly organized, existing and in good standing under the laws of the State, is duly qualified to do business in the State, has all necessary power to enter into the Lease and this Assignment Agreement, is possessed of full power to own, hold and lease (as lessor or lessee) personal property and has duly authorized the execution and delivery of the Lease and the Assignment Agreement. The Lease and this Assignment Agreement have been duly executed by an authorized officer of the Corporation and constitute legal, valid and binding obligations of the Corporation enforceable against the Corporation in accordance with their respective terms, subject to any applicable bankruptcy, insolvency, moratorium or other similar Jaws or equitable principals affecting the enforcement of creditor's rights generally and liens securing such rights. 3

4 3.2 The Corporation will not pledge or assign the Lease Revenues or any of its other rights under the Lease except pursuant to this Assignment Agreement, and will not encumber the 2016A Leased Property except for Permitted Encumbrances. 3.3 Neither the execution and delivery hereof, nor the fulfillment of or compliance with the terms and conditions hereof, nor the consummation of the transactions contemplated hereby, conflicts with or results in a breach of the terms, conditions and provisions of any restriction or any agreement or instrument to which the Corporation is now a party or by which the Corporation is bound or constitutes a default under any of the foregoing. 3.4 To the Corporation's knowledge, there is no litigation or proceeding pending against the Corporation affecting the right of the Corporation to execute and deliver the Lease or this Assignment Agreement or to perform its respective obligations thereunder or hereunder. 3.5 The Corporation and its officers and, to the knowledge of the Corporation, its directors, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. To the knowledge of the District, none of the District's directors or officers, or any agent of the District that will act in any capacity in connection with or benefit from the Lease or this Assignment Agreement, is a Sanctioned Person. Neither the Lease, this Assignment Agreement, any borrowing hereunder, the use of proceeds or other transaction contemplated by the Lease or this Assignment Agreement will violate any Anti-Corruption Law or applicable Sanctions. 3.6 The 2016A Leased Property is free and clear of any Liens other than the Lease, Permitted Encumbrances, and the security interest granted by the Corporation to Purchaser as set forth in Sections 2.3 and 2.4 above (the "Security Interests") and the rights of the District under the Lease. 3.7 The 2016A Leased Property has been delivered to and unconditionally accepted by the District. The District has not asserted any right of offset, defense or counterclaim to any of its obligations under the Lease. Section 4. Covenants 4.1 The Corporation agrees that it (a) shall not have any further or future interest in or rights to any of the Sold Property, (b) shall not have any right to amend, modify, compromise, release, terminate or permit prepayment of the Lease except as set forth in the Lease; and (c) shall not take any action which may materially impair the payment of Base Rentals or the validity or enforceability of the Lease except as set forth in the Lease. The Corporation agrees that, without the prior written consent of the Registered Owner, it shall not sell, assign, transfer or otherwise dispose of any of the 20 16A Leased Property or any interest therein or exercise any Lease Remedies except as permitted by the terms and provisions of the Lease. 4.2 If the Corporation receives any Base Rentals, then the Corporation shall receive such payments in trust for the Registered Owner and shall immediately deliver the same to the Registered Owner in the form received, duly endorsed by the Corporation for deposit by the Registered Owner. 4

5 4.3 At Purchaser's written request, the Corporation shall execute and deliver to Purchaser such assignments, notices of assignment, UCC financing statements, assignments of financing statements and other documents, in form and substance satisfactory to Purchaser, and the Corporation shall take such other actions, as Purchaser may reasonably request from time to time to evidence, perfect, maintain and enforce Purchaser's rights in the Sold Property or the Security Interest and/or to enforce or exercise Purchaser's remedies under the Lease. Purchaser may, where permitted by law, fi le such UCC financing statements without the Corporation's signature. Section 5. BiiJing and CoHection 5.1 The Purchaser and the Corporation agree that upon the Effective Date, the Purchaser shall send invoices for Base Rentals directly to the District and Purchaser will require Base Rentals to be made directly to Purchaser; and the Corporation shall not send any such invoices to the District so long as this Assignment Agreement is in full force and effect. 5.2 The Corporation hereby irrevocably constitutes and appoints the Registered Owner and any officer, employee or agent of the Registered Owner, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the name of the Corporation or the Registered Owner to collect, receive and endorse any checks and other instrwnents relating to any Base Rentals. This power of attorney is a power coupled with an interest and is irrevocable. The powers conferred on the Registered Owner under this paragraph are solely to protect the Registered Owner's interests in the Sold Property and shall not impose any obligation on the Registered Owner to exercise any such powers. The Registered Owner shall be accountable only for amounts it actually receives as a result of the exercise of such powers. Section 6. Governing Law; Jurisdiction. This Assignment Agreement shall be deemed to have been made in and shall be governed by and interpreted in accordance with the laws of the State of Colorado. In connection with any litigation relating to this Assignment Agreement, the Corporation and the Purchaser irrevocably consent to the jurisdiction of any federal or State court in Colorado. Section 7. Jurv Waiver. BOTH PARTIES AND THE DISTRICT EXPRESSLY WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF, IN CONNECTION WITH OR IN ANY WAY RELATED TO THIS ASSIGNMENT AGREEMENT. Section 8. Assignment. The Corporation may not assign its rights or obligations hereunder to any other party. Purchaser may sell, assign or otherwise dispose of its rights to and/or interests in the Sold Property and the Security Interests, in whole but not in part, together with its other rights or obligations under the Lease and this Assignment Agreement, in whole but not in part, at any time, provided that either such assignment is made in compliance with the provisions of Section 13.1 of the Lease, or such assignment is made to JPMorgan Chase & Co., or any of its subsidiaries or affiliates or their successors. Any prohibited assignment shall be null and void. 5

6 Section 9. Waiver. Purchaser shall not be required to exercise any powers or to take any action to preserve, collect, enforce, defend or protect its rights in the Lease, the Base Rentals, the Security Interests, or the 2016A Leased Property or to maintain, repair, protect, preserve or insure the 2016A Leased Property, except as otherwise set forth in the Lease. Purchaser may at any time agree to amend, modify, supplement, compromise, waive, release, cancel or terminate any term or condition of the Lease except Section 13.1 of the Lease. Section 10. Notices. All notices, certificates or other communications required to be given pursuant to this Assignment Agreement shall be sufficiently given and shall be deemed given when delivered or mailed by certified or registered mail, postage prepaid, addressed as follows: (a) If the notice is to the Corporation, then it shall be addressed to the Asset Acquisition Authority, Inc., 1600 Blake Street, Denver, Colorado , Attention: President. (b) If the notice is to the District, then it shall be addressed to Regional Transportation District, 1600 Blake Street, Denver, Colorado ; Attention: Chief Financial Officer. (c) If the notice is to the initial Purchaser, then it shall be addressed to JPMorgan Chase Bank, N.A., 1111 Polaris Parkway, Suite 3A, Columbus, OH 43240, Attention: Britney Posey. The Corporation, the District, and the Purchaser may, by written notice, designate any further or different means of communication and further or different addresses to which subsequent notices, certificates or other communications shall be sent. Section 11. Miscellaneous. The provisions of this Assignment Agreement shall not be modified, amended or waived, orally or by course of conduct, but only by written instrument referring hereto and executed by the parties hereto. Any provision hereof relating to the third party beneficiary rights of the District may only be modified, amended or waived with the written consent of the District. All section headings of this Assignment Agreement are inserted for convenience only and shall not be deemed to constitute a part hereof. If any provision of this Assigrunent Agreement is invalid or in contravention of any applicable law or regulation, such provision shall be severable without affecting the validity or enforceability of any other provisions of this Assignment Agreement. This Assigrunent Agreement shall be binding upon and shall inure to the benefit of the Corporation and Purchaser and their respective successors and permitted assigns. Section 12. Purchase Conditions. Purchaser shall not be obligated to pay the Purchase Price unless all of the following conditions are satisfied in full or waived by the Purchaser: (a) the Corporation has signed and delivered the Assignment Agreement and Purchaser has accepted it; (b) a duly executed copy of the Lease has been delivered to Purchaser with this Assignment Agreement; (c) Purchaser has received all requested Uniform Commercial Code financing statements, assignments, amendments, partial releases and/or terminations; (d) Purcl}aser has received evidence of insurance coverage, and related certificates of insurance 6

7 naming Purchaser loss payee and additional insured, as requested by Purchaser; (e) District has signed and delivered directly to Purchaser a consent to assignment; (f) Purchaser has received such documents and certificates relating to the tax-exempt interest payable under the Lease (including, without limitation, IRS Form 80380) as Purchaser may request; (g) Purchaser has received an opinion of District's special counsel in form and substance reasonably satisfactory to Purchaser; and (h) the Lease, District's consent to assignment, the opinion of District's special counsel and all other documents shall be satisfactory in form and substance to Purchaser. Section 13. Purchase Price. The Purchase Price is an amount equal to $74,470,000 payable to the Corporation on the Effective Date. Section 14. Rent Due. The Corporation represents that, as of the Effective Date, the Base Rental Schedule attached hereto as Exhibit A is the same as the Base Rental Schedule attached to the Lease. Upon any amendment or modification of the Base Rental Schedule in accordance with the terms and provisions of the Lease, the Corporation shall provide the Registered Owner with an updated Base Rental Schedule that shall be attached as an amended Exhibit A to this Assignment Agreement. Section 15. Actions by JPMorgan Chase Bank. So long as JPMorgan Chase Bank, N.A. or DNT Asset Trust is the Registered Owner of this Assignment Agreement, JPMorgan Chase Bank, N.A. shall have the right to consent, direct remedies and take all actions on behalf of itself or DNT Asset Trust under this Assignment Agreement and under the Lease. Section 16. Blocked Persons. Each of the parties hereto covenants and agrees that as to itself, it is not a Blocked Person, and that it shall not permit a Blocked Person to own or control it. As used herein, "Blocked Person" means any person or entity that is now or at any time hereafter (x) on a list of Specially Designated Nationals issued by the Office of Foreign Assets Control ("OF AC") of the United States Department of the Treasury or any sectoral sanctions identification Jist, (y) whose property or interests in property are blocked by OF AC or who is subject to sanctions imposed by law, including any executive order of any branch or Department ofthe United States government, or (z) otherwise designated by the United States or any regulator having jurisdiction or regulatory oversight over such party to be a person with whom the relationship created by, or transactions arising under, this Agreement result in penalties against the other party or limitations on the other party's ability to enforce its rights and remedies under this Agreement. 7

8 ASSET ACQUISITION AUTHORITY, INC. JPMORGAN CHASE BANK, N.A. By: Title: Address: 1600 Blake Street Denver, Colorado Attention: President. Title: Address: 8

9 ASSET ACQUISITION AUTHORITY, INC. JPMORGAN CHASE BANK, N.A. By: Title: --.., Address: 1600 Blake Street Denver, Colorado Attention: President Address: 1111 Polaris Parkway, Suite 3A Columbus, OH Attention: Britney Posey 8

10 EXHIBIT A BASE RENTALS SCHEDULE Base Base Rentals Rentals Principal Interest Date Component Component Total Base Rentals 6/1/2017 $11,917, $602, $12,519, /11/ , , /1/ ,039, , ,635, /1// , , / ,270, , ,751, /l // , , /1/ ,507, , ,871, /1// , , /1/ ,745, , ,990, /1// , , /1/ ,988, , , $74,4 70, $4,218, $78,688, v5 A-1