================================================================================
-----------------------------------
LEASE
DATED AS OF FEBRUARY 1, 2001
-----------------------------------
BETWEEN
UNIFIED GOVERNMENT OF WYANDOTTE COUNTY/KANSAS CITY, KANSAS,
AS THE ISSUER
AND
KANSAS EPA LABORATORY, LLC,
AS THE TENANT
$22,075,000
TAXABLE INDUSTRIAL REVENUE BONDS
(EPA LABORATORY PROJECT)
SERIES 2001
================================================================================
LEASE
TABLE OF CONTENTS
PAGE
Parties...................................................... 1
Recitals..................................................... 1
ARTICLE I
DEFINITIONS
Section 1.1. Definitions.................................................. 1
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations of the Tenant................................ 1
Section 2.2. Representations of the Issuer................................ 2
ARTICLE III
LEASE OF THE PROJECT
Section 3.1. Granting of Leasehold Estate................................. 2
Section 3.2. Possession................................................... 2
Section 3.3. Access to the Project........................................ 3
Section 3.4. Granting of Easements........................................ 3
ARTICLE IV
ISSUANCE OF BONDS; PURCHASE AND CONSTRUCTION OF THE PROJECT
Section 4.1. Issuance of Series 2001 Bonds; Additional Bonds.............. 3
Section 4.2. Initial Acquisition of Land and Improvements from Tenant..... 3
Section 4.3. Acquisition, Purchase, Construction and Installation
of the Project............................................... 3
Section 4.4. Project Contracts; Project Documents......................... 3
Section 4.5. Payment of Project Costs for Buildings, Structures,
Facilities, Additions and Improvements....................... 4
Section 4.6. Payment of Project Costs for Machinery, Equipment and
Personal Property............................................ 5
Section 4.7. Completion of Project........................................ 5
Section 4.8. Deficiency of Project Fund................................... 5
Section 4.9. Surplus in Project Fund...................................... 5
Section 4.10. Right of Entry by the Issuer................................. 5
Section 4.11. Machinery, Equipment or Personal Property Purchased
by the Tenant................................................ 5
Section 4.12. Project is Property of the Issuer............................ 5
Section 4.13. Kansas Retailers' Sales Tax.................................. 5
Section 4.14. No Warranty by the Issuer.................................... 6
Section 4.15. Enforcement of Contracts and Surety Bonds.................... 6
(i)
ARTICLE V
RENTAL PAYMENTS
Section 5.1. Basic Rent................................................... 6
Section 5.2. Acquisition of Bonds by the Tenant........................... 6
Section 5.3. Additional Rent.............................................. 6
Section 5.4. Prepayment of Basic Rent..................................... 7
Section 5.5. Rent Payable Without Abatement or Setoff..................... 7
Section 5.6. Deposit and Application of Rent by Trustee................... 7
Section 5.7. Net Lease.................................................... 7
ARTICLE VI
INSURANCE
Section 6.1. Insurance as a Condition to Disbursement..................... 7
Section 6.2. Insurance After Completion................................... 8
Section 6.3. General Insurance Provisions................................. 8
Section 6.4. Title Insurance.............................................. 8
ARTICLE VII
IMPOSITIONS
Section 7.1. Impositions.................................................. 8
Section 7.2. Receipted Statements......................................... 8
Section 7.3. The Issuer May Not Sell Its Ownership Interest............... 8
Section 7.4. Contest of Impositions....................................... 9
ARTICLE VIII
USE AND MAINTENANCE OF THE PROJECT
Section 8.1. Use of Project............................................... 9
Section 8.2. Repairs and Maintenance...................................... 9
Section 8.3. Environmental Matters........................................ 9
Section 8.4. Utilities.................................................... 9
Section 8.5. Liability of Tenant.......................................... 9
ARTICLE IX
SUBLEASE AND ASSIGNMENT
Section 9.1. Sublease by the Tenant....................................... 9
Section 9.2. Assignment of Lease.......................................... 10
ARTICLE X
ADDITIONAL COVENANTS
Section 10.1. Surrender of Possession...................................... 10
Section 10.2. Indemnification by the Tenant................................ 10
Section 10.3. Continuing Disclosure........................................ 10
Section 10.4. Financial Statements and Annual Budget....................... 10
Section 10.5. Investment Tax Credit; Depreciation.......................... 11
Section 10.6. Security Interests........................................... 11
Section 10.7. Additional Covenants of the Tenant........................... 11
Section 10.8. Additional Covenants of the Issuer........................... 11
ARTICLE XI
REMOVAL OF MACHINERY AND EQUIPMENT; IMPROVEMENTS TO THE PROJECT
Section 11.1. Removal, Disposition and Substitution of Machinery
and Equipment................................................ 12
Section 11.2. Additions, Improvements, Modifications and Alterations
to the Project............................................... 12
Section 11.3. Additional Improvements on the Land.......................... 12
Section 11.4. Permits and Authorizations................................... 13
Section 11.5. Mechanics' Liens............................................. 13
(ii)
ARTICLE XII
OPTION TO EXTEND TERM
Section 12.1. Option to Extend Term........................................ 13
ARTICLE XIII
OPTION TO PURCHASE PROJECT
Section 13.1. Option to Purchase Project................................... 13
Section 13.2. Quality of Title............................................. 13
Section 13.3. Purchase Price............................................... 14
Section 13.4. Closing of Purchase.......................................... 14
Section 13.5. Effect of Failure to Complete Purchase....................... 14
Section 13.6. Application of Condemnation Awards if the Tenant
Purchases Project............................................ 14
Section 13.7. Obligation to Purchase Project............................... 14
ARTICLE XIV
OPTION TO PURCHASE UNIMPROVED PORTIONS OF LAND
Section 14.1. Option to Purchase Unimproved Portions of Land............... 14
Section 14.2. Quality of Title............................................. 15
Section 14.3. Purchase Price............................................... 15
Section 14.4. Closing of Purchase.......................................... 15
Section 14.5. Effect of Purchase on Lease.................................. 15
Section 14.6. Effect of Failure to Complete Purchase....................... 15
ARTICLE XV
DAMAGE, DESTRUCTION AND CONDEMNATION
Section 15.1. Damage and Destruction....................................... 15
Section 15.2. Condemnation................................................. 16
ARTICLE XVI
TERMINATION BY REASON OF CHANGE OF CIRCUMSTANCES
Section 16.1. Termination by Reason of Change of Circumstances............. 16
ARTICLE XVII
REMEDIES ON DEFAULT
Section 17.1. Remedies on Default.......................................... 16
Section 17.2. Survival of Obligations...................................... 17
Section 17.3. Performance of the Tenant's Obligations by the Issuer........ 17
ARTICLE XVIII
MISCELLANEOUS PROVISIONS
Section 18.1. Rights and Remedies.......................................... 17
Section 18.2. Waiver of Breach............................................. 17
Section 18.3. The Issuer Shall Not Unreasonably Withhold Consents
and Approvals................................................ 17
Section 18.4. Amendments................................................... 18
Section 18.5. Notices...................................................... 18
Section 18.6. Construction and Enforcement................................. 18
Section 18.7. Severability................................................. 18
Section 18.8. Successors and Assigns....................................... 18
Section 18.9. Headings..................................................... 18
Section 18.10. Counterparts................................................. 18
Section 18.11. Governing Law................................................ 18
Signatures...................................................S-1
Acknowledgments..............................................S-1
Appendix A - Form of Certificate for Payment of Project Costs
Schedule I - Property Subject to Lease
(iii)
LEASE
THIS LEASE, made and entered into as of February 1, 2001, by and between
the UNIFIED GOVERNMENT OF WYANDOTTE COUNTY/KANSAS CITY, KANSAS, a municipal
corporation and political subdivision of the State of Kansas, as Issuer, and
KANSAS EPA LABORATORY, LLC, a Missouri limited liability company, as Tenant.
WITNESSETH:
WHEREAS, the Issuer is a municipal corporation and political subdivision
duly organized and existing under the laws of the State, with full lawful power
and authority to enter into this Lease by and through its governing body; and
WHEREAS, the Issuer, in furtherance of the purposes and pursuant to the
provisions of the Act, and in order to promote, stimulate and develop the
general economic welfare and prosperity of the Issuer and the State, has
proposed and does hereby propose that it shall:
(a) construct the Project;
(b) lease the Project to the Tenant for the rentals and upon the
terms and conditions hereinafter set forth; and
(c) issue, for the purpose of paying the costs of the Project, the
Bonds under and pursuant to and subject to the provisions of the Act and
the Indenture, said Indenture being incorporated herein by reference and
authorized by an ordinance of the governing body of the Issuer; and
WHEREAS, the Tenant, pursuant to the foregoing proposals of the Issuer,
desires to lease the Project from the Issuer for the rentals and upon the terms
and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein set forth, the Issuer and the Tenant do hereby covenant
and agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS. In addition to the words, terms and phrases
elsewhere defined in this Lease, capitalized words, terms and phrases as used
herein shall have the meanings given to such words, terms and phrases in SECTION
101 of the Indenture (which definitions are hereby incorporated by reference),
unless the context or use indicates another or different meaning or intent.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.1. REPRESENTATIONS OF THE TENANT. The Tenant hereby represents
and warrants to the Issuer as follows:
(a) The Tenant (i) is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of
Missouri, and is qualified to transact business under the laws of the
State, (ii) has the power and authority to own its properties and assets
and to carry on its business as now being conducted and as contemplated by
this Lease and (iii) has the full legal right, power and authority to
execute and deliver this Lease and to perform all the undertakings of the
Tenant thereunder.
(b) The execution, delivery and performance of this Lease by the
Tenant, the consummation of the transactions contemplated hereby, and the
fulfillment of the terms and conditions hereof do not and will not
conflict with or result in a breach of any of the terms or conditions of
its Articles of Organization or Operating Agreement or any restriction,
agreement or instrument to which the Tenant is now a party or by which it
is bound or to which any property of the Tenant is subject, and do not and
will not constitute a default under any of the foregoing, or to the best
of the Tenant's knowledge, cause the Tenant to be in violation of any law,
ordinance, decision, order, decree, rule or regulation of any court or
governmental authority having jurisdiction over the Tenant or its
properties, including the Project, and do not and will not result in the
creation or imposition of any lien, charge or encumbrance of any nature
upon any of the property or assets of the Tenant contrary to the terms of
any instrument or agreement to which the Tenant is a party or by which it
is bound.
(c) There are no actions, suits, proceedings, inquiries or
investigations at law or in equity pending or, to the knowledge of the
Tenant, threatened against the Tenant or any of its members or any
property of the Tenant or any of its members in any court or before any
federal, state, municipal or other governmental agency, which, if decided
adversely to the Tenant or any of its members, would have a material
adverse effect upon the Tenant or any of its members or upon the business
or properties of the Tenant or any of its members or upon their power,
authority and right to enter into this Lease. Neither the Tenant nor any
of its members is in default with respect to any order of any court or
governmental agency.
(d) The operation of the Project in the manner presently
contemplated and as described herein will not conflict in any material
respect with any existing zoning, water or air pollution or other
ordinance, order, law or regulations applicable thereto. To the best of
the Tenant's knowledge the Project has been designed in accordance with
all applicable federal, state and local laws, ordinances, rules and
regulations relating to zoning, building, safety and environmental
quality. All necessary permits, licenses, consents and permissions with
respect to the Project have been obtained as of the date of execution of
this Lease to the extent that the same are obtainable as of such date.
(e) Neither the Tenant nor any of its members (i) is in default in
the payment of the principal of or interest on any indebtedness for
borrowed money or (ii) is in default under any instrument or agreement
under and subject to which any indebtedness for borrowed money has been
issued.
(f) The Tenant has filed all federal and state income tax returns
which, to the knowledge of the Tenant, are required to be filed and has
paid all taxes shown on said returns and all assessments and governmental
charges received by it to the extent that they have become due.
(g) To the best of the Tenant's knowledge, no member of the
governing body of the Issuer or any other officer of the Issuer has any
significant or conflicting interest, financial, employment or otherwise,
in the Tenant, the Project or in the transactions contemplated hereby.
SECTION 2.2. REPRESENTATIONS OF THE ISSUER. The Issuer hereby represents
and warrants to the Tenant as follows:
(a) The Issuer is a municipal corporation and political subdivision
duly organized and existing under the Constitution and laws of the State.
(b) Under the provisions of the Act, the Issuer has the power to
enter into and perform the transactions contemplated by this Lease and the
Indenture and to carry out its obligations hereunder and thereunder. By
proper action of its governing body, the Issuer has duly authorized the
execution and delivery of this Lease and the Indenture and the issuance,
execution and delivery of the Bonds.
(c) The execution, delivery and performance of this Lease and the
Indenture by the Issuer, the consummation of the transactions contemplated
hereby, and the fulfillment of the terms and conditions hereof do not and
will not conflict with or result in a breach of any of the terms or
conditions of any restriction, agreement or instrument to which the Issuer
is now a party or by which it is bound or to which any property of the
Issuer is subject, and do not and will not constitute a default under any
of the foregoing, or to the best of the Issuer's knowledge, cause the
Issuer to be in violation of any law, ordinance, decision, order, decree,
rule or regulation of any court or governmental authority having
jurisdiction over the Issuer or its properties, including the Project, and
do not and will not result in the creation or imposition of any lien,
charge or encumbrance of any nature upon any of the property or assets of
the Issuer contrary to the terms of any instrument or agreement to which
the Issuer is a party or by which it is bound.
(d) The Issuer has not, in whole or in part, assigned, leased,
hypothecated or otherwise created any other interest in, or disposed of,
or caused or permitted any lien, claim or encumbrance to be placed
against, the Project, except for this Lease, the Sublease and the pledge
of the Project pursuant to the Indenture.
(e) The Issuer has obtained the consent to and/or approval of the
issuance of the Bonds by each municipal corporation or political
subdivision the consent or approval of which is required by the provisions
of the Act.
(f) To the best of the Issuer's knowledge, no member of the
governing body of the Issuer or any other officer of the Issuer has any
significant or conflicting interest, financial, employment or otherwise,
in the Tenant, the Project or in the transactions contemplated hereby.
ARTICLE III
LEASE OF THE PROJECT
SECTION 3.1. GRANTING OF LEASEHOLD ESTATE. The Issuer hereby rents, leases
and lets to the Tenant, and the Tenant hereby rents, leases and hires from
Issuer, the Project, subject to Permitted Encumbrances, for the rentals and upon
and subject to the terms and conditions contained herein, for the Basic Term.
The Tenant agrees that it will not create or allow to be created any Encumbrance
upon the Project other than Permitted Encumbrances
SECTION 3.2. POSSESSION. The Issuer covenants and agrees that as long as
the Tenant shall not be in default hereunder, the Tenant shall have sole and
exclusive possession of the Project (subject to the Issuer's right of access
pursuant to SECTION 3.3 hereof and subject to the Sublease pursuant to SECTION
9.1 hereof) and shall and may peaceably and quietly have, hold and enjoy the
Project during the Term. The Issuer covenants and agrees that it will not take
any action, other than pursuant to ARTICLE XVII hereof, to prevent the Tenant
from having quiet and peaceable possession and enjoyment of the Project during
the Term and will, at the request and expense of the Tenant, cooperate with the
Tenant in order that the Tenant may have quiet and peaceable possession and
enjoyment of the Project and will defend the Tenant's enjoyment and possession
thereof against all parties.
2
SECTION 3.3. ACCESS TO THE PROJECT. The Issuer, for itself and its duly
authorized representatives and agents, including the Trustee, reserves the right
to enter the Project at all reasonable times during usual business hours
throughout the Term for the purpose of (a) examining and inspecting the same,
(b) performing such work made necessary by reason of the Tenant's default under
any of the provisions of this Lease, and (c) while a Lease Event of Default is
continuing hereunder, for the purpose of exhibiting the Project to prospective
purchasers, lessees or mortgagees. The Issuer may, during the progress of said
work mentioned in (b) above, keep and store on the Project all necessary
materials, supplies and equipment and shall not be liable for necessary
inconvenience, annoyances, disturbances, loss of business or other damage
suffered by reason of the performance of any such work or the storage of such
materials, supplies and equipment.
SECTION 3.4. GRANTING OF EASEMENTS. If no Lease Event of Default under
this Lease shall have occurred and be continuing, the Tenant may, at any time or
times, (a) grant easements, licenses and other rights or privileges in the
nature of easements with respect to any property included in the Project, free
from any rights of the Issuer or the Owners, or (b) 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 Tenant shall determine,
and the Issuer agrees, to the extent that it may legally do so, that it will
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 Issuer of: (i) a
copy of the instrument of grant or release or of the agreement or other
arrangement, (ii) a written application signed by the Authorized Tenant
Representative requesting such instrument, and (iii) a certificate executed by
the Tenant stating that (A) such grant or release is not detrimental to the
proper conduct of the business of the Tenant, and (B) such grant or release will
not impair the effective use or interfere with the efficient and economical
operation of the Project and will not materially adversely affect the security
of the Owners. If the instrument of grant shall so provide, any such easement or
right and the rights of such other parties thereunder shall be superior to the
rights of the Issuer and the Owners and shall not be affected by any termination
of this Lease or default on the part of the Tenant hereunder. If no Lease Event
of Default shall have happened and be continuing, any payments or other
consideration received by the Tenant for any such grant or with respect to or
under any such agreement or other arrangement shall be and remain the property
of the Tenant, but, in the event of the termination of this Lease because of
Default of the Tenant, all rights then existing of the Tenant with respect to or
under such grant shall inure to the benefit of and be exercisable by the Issuer.
ARTICLE IV
ISSUANCE OF BONDS; PURCHASE AND CONSTRUCTION OF THE PROJECT
SECTION 4.1. ISSUANCE OF SERIES 2001 BONDS; ADDITIONAL BONDS.
(a) In order to provide funds for the payment of the Project Costs and
Costs of Issuance, the Issuer agrees that it will issue and sell the Series 2001
Bonds and cause the Series 2001 Bonds to be delivered to the Series 2001
Placement Agent as provided in the Indenture. The proceeds of the sale of the
Series 2001 Bonds shall be paid over to the Trustee for the account of the
Issuer. The Trustee shall promptly deposit the proceeds of the sale of the Bonds
into the funds and accounts provided in the Indenture, to be used and applied as
provided in the Indenture.
(b) The Issuer may in its discretion authorize the issuance of Additional
Bonds from time to time upon the terms and conditions and for the purposes
provided in SECTION 209 of the Indenture. If the Tenant is not in default
hereunder, the Issuer will, at the request of the Tenant, from time to time, use
its best efforts to issue the amount of Additional Bonds specified by the
Tenant; provided, however, that the terms and provisions of such Additional
Bonds, the purchase price to be paid therefor and the manner in which the
proceeds therefrom are to be disbursed shall have been approved in writing by
the Tenant; and provided further that the Tenant and the Issuer shall, if
necessary, have entered into an amendment to this Lease to provide for
additional Rental Payments in an amount at least sufficient to pay the principal
of, premium, if any, and interest on the Additional Bonds when due. The terms
and provisions of any Additional Bonds shall be set forth in the Supplemental
Indenture authorizing such Additional Bonds.
SECTION 4.2. INITIAL ACQUISITION OF LAND AND IMPROVEMENTS FROM TENANT. The
Tenant shall prior to or concurrently with the issuance of the Bonds, convey or
cause to be conveyed to the Issuer the Land and such of the Improvements as are
then completed, installed or in progress. Concurrently with such conveyance, the
Tenant shall deliver a deed and any other necessary instruments of transfer to
the Issuer and make provisions for the discharge of any liens or encumbrances
incurred by it in connection with the construction, installation or development
of the Project.
SECTION 4.3. ACQUISITION, PURCHASE, CONSTRUCTION AND INSTALLATION OF THE
PROJECT. The Issuer and the Tenant agree that the Issuer will, but solely from
the moneys in the Project Fund and the accounts contained therein, and the
Tenant will, as the agent of the Issuer, acquire, purchase, construct and
install the Project in accordance with the Plans and Specifications. The Tenant
may make minor changes in and to the Plans and Specifications, but major changes
shall only be made with the prior written approval of the Trustee. The Tenant
agrees that it will use its best efforts to cause the acquisition, purchase,
construction and installation of the Project to be completed as soon as
practicable with all reasonable dispatch.
SECTION 4.4. PROJECT CONTRACTS; PROJECT DOCUMENTS.
(a) It is recognized by the parties hereto that prior to the execution
hereof the Tenant has entered into a contract or contracts with respect to the
acquisition and/or construction of the Improvements (the "PROJECT CONTRACTS").
Prior to the execution hereof, certain work has been or may have been performed
on the Project pursuant to said Project Contracts or otherwise. The Tenant
hereby conveys, transfers and assigns to the Issuer all of the Tenant's interest
in the Project Contracts and the Issuer hereby designates the Tenant as the
Issuer's agent for the purpose of executing and performing the Project
Contracts. After the execution hereof, the Tenant shall cause the Project
Contracts to be fully performed by the contractor(s) thereunder in accordance
with the terms thereof, and the Tenant covenants to cause the Improvements to be
acquired, constructed and/or completed in accordance with the Project Contracts.
The Tenant warrants that the construction and/or acquisition of the Improvements
in accordance with said Project Contracts will result in the Project being
suitable for use by the Tenant for its purposes. Any and all amounts received by
the Issuer, the Trustee or the Tenant from any of the contractors or other
suppliers by way of breach of contract, refunds or adjustments shall become a
part of and be deposited in the Project Fund or the accounts contained therein.
3
(b) The Tenant, at its own cost and expense, will deliver to the Trustee
copies of the following documents (which shall be collectively referred to
herein as the "PROJECT DOCUMENTS") concurrently with the initial issuance and
delivery of the Series 2001 Bonds or at such time as such documents become
available and in any event by such time as work is commenced on the portion of
the Project to which they relate:
(i) Plans and Specifications. All Plans and Specifications.
(ii) Construction Contracts. The guaranteed maximum price general
contractor's contract for the Project.
(iii) Performance and Payment Bonds. Performance and payment bonds
in amounts equal to one-hundred percent of the Project Costs insuring the
Tenant, the Issuer and the Trustee, as their respective interests may
appear against all delays in completion of all construction contracts,
against failure timely to complete the Project in accordance with the
Plans and Specifications, and against claims for payment to cover labor
and material used or reasonably required for use in the performance of the
construction contracts.
(iv) Title Insurance. A standard ALTA leasehold policy or policies
of title insurance, or a commitment therefor, showing the Trustee as the
insured party, with respect to the Project, together with an endorsement
equivalent to ALTA 9 and an appropriate ALTA zoning endorsement, in an
aggregate amount not less than the principal amount of the Series 2001
Bonds, which policy or policies shall insure that the Tenant holds good
and marketable leasehold title to the Project, subject only to Permitted
Encumbrances.
(v) Survey. Survey of the Land, prepared by a surveyor licensed in
the State of Missouri in accordance with the standard detail requirements
for land title surveys adopted by ALTA and ACSM, as revised and in effect
on the date of such survey, and certified to the Trustee not more than 90
days prior to the date of original issuance of the Series 2001 Bonds,
indicating location of any existing facilities on the real property, or
such surveys to be in such other form as may be acceptable to the Trustee.
(vi) Environmental Audit. A phase I and phase II environmental audit
of the Project.
(vii) Insurance. Certificate(s) of insurance demonstrating
compliance with the provisions of ARTICLE VI hereof.
(viii) Assignment of Construction Documents and General Contractor
Consent. An assignment of the construction documents from the Tenant to
the Trustee and a consent to such assignment from the general contractor
employed for the Project and the agreement of such general contractor, to
the effect that upon a Lease Event of Default by the Tenant under this
Lease, said general contractor will, at the request of the Trustee,
continue performance under its contract with the Tenant in accordance with
the terms thereof, provided it is reimbursed in accordance with said
contract for all services, work, labor and materials rendered under such
contract.
(ix) Assignment of Architectural and Engineering Documents and
Architect Consent. An assignment of the architectural and engineering
documents from the Tenant to the Trustee and a consent to such assignment
from the architect employed for the Project and the agreement of the
architect, to the effect that upon a Lease Event of Default by the Tenant
under this Lease, said architect will, at the request of the Trustee,
continue performance under its contract with the Tenant in accordance with
the terms thereof, provided it is reimbursed in accordance with said
contract for all services rendered under such contract.
(x) Sublease. A fully-executed copy of the Sublease for the Project.
The Tenant covenants and agrees to obtain and thereafter promptly to
deliver to the Trustee all remaining construction contracts, purchase orders,
approvals, licenses and permits required or necessary for the Project.
SECTION 4.5 PAYMENT OF PROJECT COSTS FOR BUILDINGS, STRUCTURES,
FACILITIES, ADDITIONS AND IMPROVEMENTS. The Issuer hereby agrees to pay for the
construction and installation of the buildings, structures, facilities,
additions and improvements constituting a part of the Improvements, but solely
from the Project Fund and the accounts contained therein, and hereby authorizes
and directs the Trustee to pay for the same, but solely from the Project Fund
and the accounts contained therein, from time to time, upon receipt by the
Trustee of a certificate signed by the Authorized Tenant Representative and Xxxx
Construction, L.P. and approved by the Project Consultant in the form set forth
by APPENDIX A hereto which is incorporated herein by reference. The sole
obligation of the Issuer under this section shall be to cause the Trustee to
make such disbursements upon receipt of such certificates. The Tenant agrees
that the maximum amount of funds to be disbursed from the Project Fund for Cost
of Issuance is $155,556.09 and the maximum amount for non-construction contract
Project Costs disbursements from the Project Fund is $1,156,812.50. Any Costs of
Issuance or non-construction contract project costs disbursement requests shall
be made on the form set forth in APPENDIX A signed by the Authorized Tenant
Representative, but shall not require signatures from Xxxx Construction, L.P. or
the Project Consultant. The Trustee may rely fully on any such directions and
shall not be required to make any investigation in connection therewith, except
that the Trustee shall investigate requests for reimbursements made directly to
the Tenant and shall require such supporting evidence as would be required by a
reasonable and prudent trustee.
4
SECTION 4.6. PAYMENT OF PROJECT COSTS FOR MACHINERY, EQUIPMENT AND
PERSONAL PROPERTY. The Issuer hereby agrees to pay for the purchase and
acquisition of any machinery, equipment and personal property constituting a
part of the Improvements, but solely from the Project Fund and the accounts
contained therein, and hereby authorizes and directs the Trustee to pay for the
same, but solely from the Project Fund and the accounts contained therein, from
time to time, upon receipt by the Trustee of a certificate signed by the
Authorized Tenant Representative and approved by the Project Consultant in the
form provided by APPENDIX A hereto which is incorporated herein by reference,
which certificate is accompanied by the following specific information:
(a) name of the seller;
(b) name of the manufacturer;
(c) a copy of the seller's invoice, purchase order or other like
document evidencing the purchase by the Tenant of such machinery and/or
equipment;
(d) common descriptive name of machinery or equipment;
(e) manufacturer's or seller's technical description of machinery or
equipment;
(f) capacity or similar designation;
(g) serial number, if any; and
(h) model number, if any.
The sole obligation of the Issuer under this Section shall be to cause the
Trustee to make such disbursements upon receipt of said certificates and
information. The Trustee may rely fully on any such certificate and shall not be
required to make any independent investigation in connection therewith, except
that the Trustee shall investigate requests for reimbursements made directly to
the Tenant and shall require such supporting evidence as would be required by a
reasonable and prudent trustee. All machinery, equipment and personal property
acquired, in whole or in part, from funds deposited in the Project Fund or any
accounts contained therein pursuant to this Section shall be and become a part
of the Project.
SECTION 4.7. COMPLETION OF PROJECT. The Tenant warrants that the Project,
when completed, will be necessary or useful in its development for use by the
Tenant for its purposes. The Issuer and the Tenant each covenant and agree to
proceed diligently to complete the Project on or before the Completion Date.
Upon completion of the Project and acceptance of the Project by the Subtenant,
the Tenant shall cause the Authorized Tenant Representative to deliver a
Certificate of Completion to the Trustee.
SECTION 4.8. DEFICIENCY OF PROJECT FUND. If the Project Fund and the
accounts contained therein shall be insufficient to pay fully all Project Costs
and to fully complete the Project, lien free, the Tenant covenants to pay the
full amount of any such deficiency by making payments directly to the
contractors and to the suppliers of materials, machinery, equipment, property
and services as the same shall become due, and the Tenant shall indemnify and
hold harmless the Issuer from any obligation to pay such deficiency.
SECTION 4.9. SURPLUS IN PROJECT FUND. In the event funds are remaining in
the Project Fund or any of the accounts contained therein on the date the
Certificate of Completion is furnished to Trustee or on the Completion Date,
whichever shall first occur, such remaining funds shall be transferred by the
Trustee to the applicable account within the Debt Service Fund on the Completion
Date and shall be applied in accordance with the provisions of SECTION 504 of
the Indenture.
SECTION 4.10. RIGHT OF ENTRY BY THE ISSUER. The duly authorized agents of
the Issuer shall have the right at any reasonable time prior to the completion
of the Project to have access to the Project or any parts thereof for the
purpose of inspecting and supervising the acquisition, installation or
construction thereof.
SECTION 4.11. MACHINERY, EQUIPMENT OR PERSONAL PROPERTY PURCHASED BY THE
TENANT. Any item of machinery, equipment or personal property for which the
entire purchase price is paid by the Tenant with the Tenant's own funds, and no
part of the purchase price of which is paid from funds deposited in the Project
Fund or any of the accounts contained therein pursuant to the terms of this
Lease or the Indenture, then such item of machinery, equipment or personal
property shall be deemed the property of the Tenant and shall not be deemed a
part of the Project.
SECTION 4.12. PROJECT IS PROPERTY OF THE ISSUER. Except as otherwise
specifically provided herein, all buildings, improvements and work constituting
a part of the Project, all work and materials on the Project as such work
progresses, and the Project as fully completed, anything under this Lease which
becomes, is deemed to be, or constitutes a part of the Project, and the Project
as repaired, rebuilt, rearranged, restored or replaced by the Tenant under the
provisions of this Lease, shall immediately when erected or installed become the
absolute property of the Issuer.
5
SECTION 4.13. KANSAS RETAILERS' SALES TAX.
(a) The parties have entered into this Lease in contemplation that, under
the existing provisions of K.S.A. 79-3606(d) and other applicable laws, sales of
tangible personal property or services purchased in connection with construction
of the Project are entitled to exemption from the tax imposed by the Kansas
Retailers' Sales Tax Act. The parties agree that the Issuer shall, upon the
request of and with the Tenant's assistance, promptly obtain from the State and
furnish to the contractors and suppliers an exemption certificate for the
construction of the Project. The Tenant covenants that said exemption shall be
used only in connection with the purchase of tangible personal property or
services becoming a part of the Project.
(b) The parties further acknowledge that, under the existing provisions of
K.S.A. 79-3603(h), a tax may be levied at the currently lawful rate upon the
gross receipts derived by the Issuer from the renting or leasing of personal
property, if any, purchased from the proceeds of the Bonds. The Tenant agrees to
pay, as Additional Rent hereunder, the full amount of any such tax as
hereinafter determined. Such payments, if required, shall be made at the same
time as the installments of Basic Rent provided for hereby, and shall be made
directly to the Issuer, or in such other manner as the Issuer may from time to
time direct in writing. It shall be the duty of the Issuer to promptly file any
returns and remit any such taxes to the State, or to make suitable provision
therefor, in accordance with applicable laws, rulings and regulations. The
Issuer's taxable gross receipts shall be determined by multiplying that portion
of each installment of Basic Rent which represents the payment of principal of
the Bonds by a fraction in which the total proceeds of the Bonds is the
denominator, and the amount expended from Bond proceeds for the acquisition of
personal property (which amount shall be determined by the Tenant and set forth
in a certificate delivered to the Issuer, the Tenant and the Trustee immediately
following completion of construction of the Project) is the numerator. The
amount of each installment of tax due shall be determined by multiplying the
Issuer's taxable gross receipts determined in accordance with the preceding
sentence (unless a different determination has been made in a judicial or
administrative proceeding as hereinafter provided), by such other tax rate
percentage as may from time to time be imposed by applicable law.
Notwithstanding the foregoing provisions, if it shall be determined in any
judicial or administrative proceeding that the Issuer's taxable gross receipts
are in an amount other than the amount determined by applying the foregoing
provisions, the Tenant shall be obligated to pay and hereby agrees to pay the
full amount of such tax, based upon such judicially or administratively
determined gross receipts, it being the intent of this provision that the Tenant
shall pay in full the amount of any such tax, but no more than such amount,
which the Issuer is obligated to collect under the present or any future laws of
the State.
SECTION 4.14. NO WARRANTY BY THE ISSUER. The Tenant recognizes that,
because the components of the Project have been and are to be designated and
selected by it, THE ISSUER HAS NOT MADE AND WILL NOT MAKE AN INSPECTION OF THE
PROJECT OR OF ANY FIXTURE OR OTHER ITEM CONSTITUTING A PORTION THEREOF, AND THE
ISSUER MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED OR OTHERWISE,
WITH RESPECT TO THE SAME OR THE LOCATION, USE, DESCRIPTION, DESIGN,
MERCHANTABILITY, FITNESS FOR USE FOR ANY PARTICULAR PURPOSE, CONDITION OR
DURABILITY THEREOF, OR AS TO THE QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN,
IT BEING AGREED THAT ALL RISKS INCIDENT THERETO ARE TO BE BORNE BY THE TENANT.
IN THE EVENT OF ANY DEFECT OR DEFICIENCY OF ANY NATURE IN THE PROJECT OR ANY
FIXTURE OR OTHER ITEM CONSTITUTING A PORTION THEREOF, WHETHER PATENT OR LATENT,
THE ISSUER SHALL HAVE NO RESPONSIBILITY OR LIABILITY WITH RESPECT THERETO. THE
PROVISIONS OF THIS SECTION 4.14 HAVE BEEN NEGOTIATED AND ARE INTENDED TO BE A
COMPLETE EXCLUSION AND NEGATION OF ANY WARRANTIES OR REPRESENTATIONS BY THE
ISSUER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROJECT OR ANY FIXTURE OR OTHER
ITEM CONSTITUTING A PORTION THEREOF, WHETHER ARISING PURSUANT TO THE UNIFORM
COMMERCIAL CODE OR ANY OTHER LAW NOW OR HEREAFTER IN EFFECT.
SECTION 4.15. ENFORCEMENT OF CONTRACTS AND SURETY BONDS. In the event of a
material default of any contractor or subcontractor under any construction
contract or any other contract made in connection with the Project, or in the
event of a material breach of warranty with respect to any materials,
workmanship or performance, the Tenant will promptly proceed, either separately
or in conjunction with others, to pursue diligently the remedies of the Tenant
against the contractor or subcontractor in default and against any surety on a
bond securing the performance of such contract. Any amounts recovered by way of
damages, refunds, adjustments or otherwise in connection with the foregoing,
after deduction of expenses incurred in such recovery and after reimbursement to
the Tenant of any amounts theretofore paid by the Tenant and not previously
reimbursed to the Tenant for correcting or remedying of the default which gave
rise to the proceedings against the contractor, subcontractor or surety, shall
be paid into the Project Fund if received before the date of completion of the
Project, and otherwise shall be deposited into the Debt Service Fund and applied
as provided in SECTION 604 of the Indenture.
ARTICLE V
RENTAL PAYMENTS
SECTION 5.1. BASIC RENT. The Issuer reserves and the Tenant covenants and
agrees to pay to the Trustee during the Basic Term, for the account of the
Issuer, for deposit in the Debt Service Fund and the accounts contained therein,
on each Basic Rent Payment Date, Basic Rent in immediately available funds.
SECTION 5.2. ACQUISITION OF BONDS BY THE TENANT. In the event the Tenant
acquires any Outstanding Bonds, it may present the same to the Issuer for
cancellation, and upon such cancellation, the Tenant's obligation to pay Basic
Rent shall be reduced accordingly, but in no event shall the Tenant's obligation
to pay Basic Rent be reduced in such a manner that the Trustee shall not have on
hand in the Debt Service Fund or the accounts contained therein funds sufficient
to pay the maturing principal of, premium, if any, and interest on Outstanding
Bonds as and when the same shall become due and payable in accordance with the
provisions of the Indenture.
SECTION 5.3. ADDITIONAL RENT. Within thirty (30) days after receipt of
written notice thereof, the Tenant shall pay to the Trustee, for the account of
the Issuer, as Additional Rent, the following amounts:
(a) all reasonable fees, charges and expenses, including agent and
counsel fees, of the Trustee and the Paying Agents incurred under this
Lease, the Indenture or any other document entered into in connection with
the Bonds;
6
(b) all reasonable costs incident to the payment of the principal
of, premium, if any, and interest on the Bonds as the same becomes due and
payable, including all costs and expenses in connection with the call,
redemption and payment of all Outstanding Bonds;
(c) all reasonable fees, charges and expenses, including agent and
counsel fees, reasonably incurred in connection with the enforcement of
any rights against the Tenant or the Project under this Lease or the
Indenture by the Issuer, the Trustee or the Owners, provided, however, the
Tenant shall not be obligated to pay for such fees, charges and expenses
as may be incurred by the Issuer or the Trustee solely as a result of its
own gross negligence or wrongful misconduct;
(d) an amount sufficient to reimburse the Issuer for all expenses
reasonably incurred by the Issuer hereunder and in connection with the
performance of its obligations under this Lease or the Indenture; and
(e) all other payments of whatever nature which the Tenant has
agreed to pay or assume under the provisions of this Lease, the Indenture
or any other document entered into in connection with the Bonds.
SECTION 5.4. PREPAYMENT OF BASIC RENT. The Tenant may at any time prepay
all or any part of the Basic Rent.
SECTION 5.5. RENT PAYABLE WITHOUT ABATEMENT OR SETOFF. The Tenant
covenants and agrees with and for the express benefit of the Issuer and the
Owners that all payments of Basic Rent and Additional Rent shall be made by the
Tenant as the same become due, and that the Tenant shall perform all of its
obligations, covenants and agreements hereunder without notice or demand and
without abatement, deduction, setoff, 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
Improvements shall have been acquired, started or completed, or whether the
Issuer's title to the Project or any part thereof is defective or non-existent,
and notwithstanding any failure of consideration or commercial frustration of
purpose, the eviction or constructive eviction of the Tenant, any Change of
Circumstances, any change in the tax or other laws of the United States of
America, the State, or any municipal corporation or political subdivision of
either, any change in the Issuer's legal organization or status, or any default
of the Issuer hereunder, and regardless of the invalidity of any action of the
Issuer or any other event or condition whatsoever, and regardless of the
invalidity of any portion of this Lease, and the Tenant hereby waives the
provisions of any statute or other law now or hereafter in effect contrary to
any of its obligations, covenants or agreements under this Lease or which
releases or purports to release the Tenant therefrom. Nothing in this Lease
shall be construed as a waiver by the Tenant of any rights or claims the Tenant
may have against the Issuer under this Lease or otherwise, but any recovery upon
such rights and claims shall be had from the Issuer separately, it being the
intent of this Lease that the Tenant shall be unconditionally and absolutely
obligated to perform fully all of its obligations, agreements and covenants
under this Lease (including the obligation to pay Basic Rent and Additional
Rent) for the benefit of the Owners.
SECTION 5.6. DEPOSIT AND APPLICATION OF RENT BY TRUSTEE. The Trustee shall
deposit, use and apply all payments of Basic Rent and Additional Rent in
accordance with the provisions of this Lease and the Indenture.
SECTION 5.7. NET LEASE. The parties hereto agree that (a) this Lease is
intended to be a net lease, (b) the payments of Basic Rent and Additional Rent
are designed to provide the Issuer and the Trustee with funds adequate in amount
to pay all principal of, premium, if any, and interest on the Bonds as the same
become due and payable and to pay and discharge all of the other duties and
requirements set forth herein, and (c) to the extent that the payments of Basic
Rent and Additional Rent are not adequate to provide the Issuer and the Trustee
with funds sufficient for the purposes aforesaid, the Tenant shall be obligated
to pay, and it does hereby covenant and agree to pay, upon demand therefor, as
Additional Rent, such further sums of money as may from time to time be required
for such purposes.
ARTICLE VI
INSURANCE
SECTION 6.1. INSURANCE AS A CONDITION TO DISBURSEMENT. As a condition
precedent to disbursement of funds from the Project Fund and the accounts
contained therein pursuant to ARTICLE IV hereunder, the following policies of
insurance shall be in full force and effect:
(a) at all times during the Term, the Tenant shall maintain at its
sole cost and expense general accident and public liability insurance
covering the Tenant's operations in or upon the Project (including
coverage for all losses whatsoever arising from the ownership,
maintenance, use or operation of any automobile, truck or other vehicle in
or upon the Project) under which the Tenant shall be named as the insured
and the Issuer and the Trustee shall be additional named insureds, as
their interests in the Project shall appear, in an amount not less than
the then maximum liability of a governmental entity for claims arising out
of a single occurrence as provided by the Kansas Tort Claims Act or other
similar future law (currently $500,000 per occurrence), which policy shall
provide that such insurance may not be cancelled by the issuer thereof
without at least 30 days' advance written notice to the Issuer, the
Tenant, and the Trustee, such insurance to be maintained throughout the
Term;
(b) at all times during the term, the Tenant shall maintain at its
sole cost and expense, in connection with the Project, the workers'
compensation insurance required by the laws of the State; and
(c) at all times during the Construction Period, the Tenant shall,
at its sole cost and expense, maintain or cause the contractor under its
construction contract with respect to the Project to maintain, in full
force and effect a policy or policies of Builder's Risk-Completed Value
Form Insurance insuring the Project against fire, lightning and all other
risks covered by the broadest form extended coverage endorsement then and
from time to time thereafter in use in the State to the Full Insurable
Value of the Project (subject to reasonable loss deductible clauses not to
exceed $25,000). Such insurance coverage shall name the Tenant as insured
and the Issuer and the Trustee as additional named insureds, as their
respective interests appear, and all Net Proceeds received under such
policy or policies by the Issuer or the Tenant shall be paid over to the
Trustee and be applied as set forth in ARTICLE XV hereof.
7
SECTION 6.2. INSURANCE AFTER COMPLETION. The Tenant shall, prior to or
simultaneously with the expiration of the insurance provided for in SECTION 6.1
and throughout the Basic Term, at its sole cost and expense, (a) keep the
Project constantly insured against loss or damage by fire, lightning and all
other risks covered by the broadest form extended coverage insurance endorsement
then in use in the State in an amount equal to the Full Insurable Value thereof
(subject to reasonable loss deductible provisions), (b) maintain general
accident and public liability insurance pursuant to the requirements set forth
in SECTION 6.1(A) of this Lease and (c) business interruption insurance in an
amount not less than 12 months of Basic Rent payments.
SECTION 6.3. GENERAL INSURANCE PROVISIONS.
(a) Copies of the insurance policies required under this Article, or
originals or certificates or acceptable binders thereof, each bearing notations
evidencing payment of the premiums or other evidence of such payment
satisfactory to the Issuer, shall be delivered by the Tenant to the Issuer and
the Trustee within ten (10) days following the execution hereof and at least
thirty (30) days prior to the expiration dates of any expiring policies. All
policies of such insurance and all renewals thereof shall name the Tenant as the
insured and the Issuer and the Trustee as additional named insureds as their
respective interests may appear, shall contain a provision that such insurance
may not be cancelled or amended by the issuer thereof without at least thirty
(30) days' written notice to the Issuer, the Tenant and the Trustee and shall be
payable to the Issuer, the Tenant and Trustee as their respective interests
appear. The Issuer and the Tenant each hereby agree to do anything necessary, be
it the endorsement of checks or otherwise, to cause any such payment to be made
to the Trustee, as long as such payment is required by this Lease to be made to
the Trustee. Any charges made by the Trustee for its services shall be paid by
the Tenant.
(b) Each policy of insurance hereinabove referred to shall be issued by a
nationally recognized responsible insurance company qualified under the laws of
the State to assume the risks covered therein except that the Tenant may be
self-insured as to any required insurance coverages with the consent of the
Issuer and the Trustee, which consent will not be unreasonably withheld.
(c) Certificates of insurance evidencing the insurance coverages herein
required shall be filed with the Trustee continuously during the term of this
Lease.
(d) Each policy of insurance hereinabove referred to may be subject to a
reasonable deductible in an amount approved by the Trustee.
(e) Each policy of insurance required herein may be provided through
blanket policies of insurance maintained by the Tenant.
SECTION 6.4. TITLE INSURANCE. On or prior to the date of issuance and
delivery of the Bonds by the Issuer, the Tenant shall purchase a policy of or an
endorsement to owner's title insurance, insuring fee simple title to the Project
in the Issuer, subject to Permitted Encumbrances, deleting the survey exception
and the coinsurance provisions of the policy, in an amount equal to the maximum
insurable value thereof for title insurance purposes. The Tenant shall deliver
copies of such policy to the Trustee on or before the date of issuance of the
Bonds. The Issuer and the Tenant agree that any and all proceeds received
therefrom during the Basic Term (a) if received before the completion of the
Project, shall be paid into and become a part of the Project Fund, (b) if
received thereafter but before the Bonds and interest thereon have been paid in
full, shall be paid into and become a part of the Debt Service Fund, and (c) if
received after the Bonds, premium, if any, and interest thereon have been paid
in full, shall belong and be paid to the Tenant.
ARTICLE VII
IMPOSITIONS
SECTION 7.1. IMPOSITIONS. The Tenant shall, during the Term, bear, pay and
discharge, before the delinquency thereof, any and all Impositions. In the event
any Impositions may be lawfully paid in installments, the Tenant shall be
required to pay only such installments thereof as become due and payable during
the Term as and when the same become due and payable. The Tenant shall indemnify
and hold harmless the Issuer from any and all Impositions due and payable during
the Term and any costs and expenses incurred by the Issuer in connection
therewith.
SECTION 7.2. RECEIPTED STATEMENTS. Unless the Tenant exercises its right
to contest any Impositions in accordance with SECTION 7.4 hereof, the Tenant
shall, within thirty (30) days after the last day for payment (without penalty
or interest) of an Imposition which the Tenant is required to bear, pay and
discharge such Imposition pursuant to the terms hereof and deliver to the Issuer
a photostatic or other suitable copy of the statement issued therefor duly
receipted to show the payment thereof.
SECTION 7.3. THE ISSUER MAY NOT SELL ITS OWNERSHIP INTEREST. The Issuer
covenants that, unless the Tenant is in default under this Lease it will not,
without the Tenant's written consent, unless required by law, sell or otherwise
part with or encumber its fee or other ownership interest in the Project at any
time during the Term.
8
SECTION 7.4. CONTEST OF IMPOSITIONS. The Tenant shall have the right, in
its own or the Issuer's name or both, to contest the validity or amount of any
Imposition by appropriate legal proceedings instituted at least ten (10) days
before the Imposition complained of becomes delinquent if, and provided, that
the Tenant (a) before instituting any such contest, shall give the Issuer
written notice of its intention to do so and, if requested in writing by the
Issuer, shall deposit with the Trustee a surety bond of a surety company
acceptable to the Issuer as surety, in favor of the Issuer, or cash, in a sum of
at least the amount of the Imposition so contested, assuring the payment of such
contested Impositions together with all interest and penalties to accrue thereon
and court costs, (b) diligently prosecutes any such contest and at all times
effectively stays or prevents any official or judicial sale therefor, under
execution or otherwise, and (c) promptly pays any final judgment enforcing the
Imposition so contested and thereafter promptly procures record release or
satisfaction thereof. The Tenant shall indemnify and hold harmless the Issuer
from any costs and expenses the Issuer may incur related to any such contest.
ARTICLE VIII
USE AND MAINTENANCE OF THE PROJECT
SECTION 8.1. USE OF PROJECT. Subject to the provisions of this Lease, the
Tenant shall have the right to use the Project for any and all purposes allowed
by law and contemplated by the Constitution of the State and the Act. The Tenant
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
Project or to any adjoining public ways, as to the manner of use or the
condition of the Project or of adjoining public ways. The Tenant shall comply
with the mandatory requirements, rules and regulations of all insurers under the
policies required to be carried under the provisions of this Lease. The Tenant
shall pay all reasonable 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 Tenant to comply with the provisions of this Section.
SECTION 8.2. REPAIRS AND MAINTENANCE. The Tenant covenants and agrees that
it will, during the Term, keep and maintain the Project and all parts thereof in
good condition and repair, including but not limited to the furnishing of all
parts, mechanisms and devices required to keep the machinery, equipment and
personal property constituting a part of the Project in good mechanical and
working order, and that during said period of time it will keep the Project and
all parts thereof free from filth, nuisance or conditions unreasonably
increasing the danger of fire.
SECTION 8.3. ENVIRONMENTAL MATTERS. The Tenant is solely responsible for
maintaining the Project in compliance with all Environmental Laws. In the event
that the Tenant does not expeditiously proceed with any compliance action with
respect to the Project lawfully required by any local, state or federal
authority under applicable Environmental Law, the Issuer, immediately after
notice to the Tenant, may elect (but may not be required) to undertake such
compliance. Any moneys expended by the Issuer in efforts to comply with any
applicable Environmental Law (including the cost of hiring consultants,
undertaking sampling and testing, performing any cleanup necessary or useful in
the compliance process and attorneys' fees) shall be due and payable as
Additional Rent hereunder with interest thereon at the average rate of interest
per annum on the Bonds, plus two (2) percentage points, from the date such cost
is incurred. There shall be unlimited recourse to the Tenant to the extent of
any liability incurred by the Issuer with respect to any breaches of the
provisions of this Section.
The Tenant shall indemnify the Issuer, the Trustee and the Owners and
shall defend and hold them harmless from and against all loss, cost, damage and
expense (including, without limitation, attorneys' fees and costs associated
incurred in the investigation, defense and settlement of claims) that they may
incur, directly or indirectly, as a result of or in connection with the
assertion against them or any of them of any claim relating to the presence on,
escape or removal from the Project of any hazardous substance or other material
regulated by any applicable Environmental Law, or compliance with any applicable
Environmental Law, whether before, during or after the term of this Lease,
including claims relating to personal injury or damage to property.
SECTION 8.4. UTILITIES. All utilities and utility services used by the
Tenant in, on or about the Project shall be contracted for by the Tenant in the
Tenant's own name and paid for by the Tenant, and the Tenant shall, at its sole
cost and expense, procure any and all permits, licenses or authorizations
necessary in connection therewith; provided, however, during the term of the
Sublease all utilities shall be paid for directly by the Subtenant.
SECTION 8.5. LIABILITY OF TENANT. Anything in this Lease to the contrary
notwithstanding, the Tenant shall be liable to the Issuer pursuant to the
provisions of this Lease or otherwise, as to any loss or damage which may have
been occasioned by the negligence of the Tenant, its agents or employees.
ARTICLE IX
SUBLEASE AND ASSIGNMENT
SECTION 9.1. SUBLEASE BY THE TENANT. The Tenant has entered into the
Sublease with the Subtenant. Tenant hereby collaterally assigns all of its
right, title and interest in and to the Sublease to the Issuer as collateral for
the performance of its obligations under this Lease. Tenant shall cause the
Subtenant to execute such agreements as the Trustee may reasonably require to
provide all payments of rent to be made by the Subtenant shall be made directly
to the Trustee for deposit in the Debt Service Fund. The Issuer hereby consents
to the sublease of this Lease to the Subtenant pursuant to the Sublease. The
Tenant may not amend the Sublease without the prior written consent of the
Issuer and the Trustee.
9
SECTION 9.2. ASSIGNMENT OF LEASE. The Tenant shall have the right to
assign, transfer or dispose of this Lease or any interest therein or part
thereof, with the written consent of the Issuer, for any lawful purpose under
the Act; provided, however, the prior written consent of the Issuer shall not be
required if such assignee or transferee is an Affiliate. With respect to any
assignment (including any assignment to an Affiliate), the Tenant 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 Issuer and the Trustee not later than thirty (30) days prior to the
proposed effective date, 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 Tenant to be performed and observed;
(4) At the time of any such assignment there shall be no damage or
destruction to the Project which has not been repaired, restored and
replaced in accordance with the provisions of this Lease, unless any funds
then held by the Tenant for the purposes of such repair, restoration and
replacement are simultaneously transferred to the assignee;
(5) Subtenant shall have delivered to the Trustee in forms
satisfactory to the Trustee (i) its written consent to such assignment,
transfer or disposition and (ii) an estoppel certificate with respect to
there being no defaults or events of default under the Sublease;
(6) Moody's shall reaffirm the then current rating on the Bonds; and
(7) There shall be delivered to the Trustee and the Issuer an
opinion of counsel that all conditions precedent to such assignment have
been satisfied.
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, provided, however, such assignment shall not relieve
the assignor of its obligations pursuant to SECTION 10.2.
ARTICLE X
ADDITIONAL COVENANTS
SECTION 10.1. SURRENDER OF POSSESSION. Upon accrual of the Issuer's right
of re-entry as the result of the Tenant's default hereunder or upon the
cancellation or termination of this Lease by lapse of time or otherwise (other
than as a result of the Tenant's purchase of the Project), the Tenant shall
peacefully surrender possession of the Project to the Issuer in good condition
and repair, ordinary wear and tear excepted; provided, however, the Tenant shall
have the right, prior to or within sixty (60) days after the termination of this
Lease, to remove from or about the Project the buildings, improvements,
machinery, equipment, personal property, furniture and trade fixtures which the
Tenant owns under the provisions of this Lease and which are not a part of the
Project. All repairs to and restorations of the Project required to be made
because of such removal shall be made by and at the sole cost and expense of the
Tenant. All buildings, improvements, machinery, equipment, personal property,
furniture and trade fixtures owned by the Tenant and which are not so removed
from or about the Project prior to or within sixty (60) days after such
termination of this Lease shall become the separate and absolute property of the
Issuer.
SECTION 10.2. INDEMNIFICATION BY THE TENANT. The Tenant shall and hereby
covenants and agrees to indemnify, protect, defend and hold harmless the Issuer
and the Trustee from and against any and all claims, demands, liabilities and
costs, including reasonable attorneys' fees, except those costs which have
arisen from the willful misconduct or gross negligence of the Issuer or the
Trustee, arising from damage or injury, actual or claimed, of whatsoever kind or
character, to property or persons, occurring in, on or about the Project during
the Term hereof, and upon timely written notice from the Issuer or the Trustee,
the Tenant shall defend the Issuer and the Trustee in any action or proceeding
brought thereon; provided, however, that nothing contained in this Section shall
be construed as requiring the Tenant to indemnify the Issuer or the Trustee for
any claim resulting from any act or omission of the Issuer or the Trustee, or
their respective agents and employees.
SECTION 10.3. CONTINUING DISCLOSURE. The Tenant hereby covenants and
agrees that it will comply with and carry out all of the provisions of the
Continuing Disclosure Agreement dated as of February 1, 2001 among the Trustee
and the Tenant. Notwithstanding any other provision of this Lease, failure of
the Tenant to comply with such Continuing Disclosure Agreement shall not be
considered a Lease Event of Default under this Lease; however, the Trustee may
(and, at the request of the Owners of at least 25% aggregate principal amount in
Outstanding Bonds, shall) or any Owner or Beneficial Owner (as hereinafter
defined) may take such actions as may be necessary and appropriate, including
seeking specific performance by court order, to cause the Tenant to comply with
its obligations under this Section. For purposes of this Section, "BENEFICIAL
OWNER" means any person which has the power, directly or indirectly, to vote or
consent with respect to, or to dispose of ownership of, any Bonds (including
persons holding Bonds through nominees, depositories or other intermediaries).
SECTION 10.4. FINANCIAL STATEMENTS AND ANNUAL BUDGET.
(a) So long as any Bonds are Outstanding and unpaid and subject to the
terms of the Indenture, the Tenant shall furnish or cause to be furnished to the
Trustee, the Issuer and the Series 2001 Placement Agent, as soon as practicable
after the end of each fiscal year and in any event within One Hundred and Eighty
(180) days thereafter, duplicate copies of the financial statements of the
Tenant prepared by a certified public accountant or a firm of certified public
accountants, which accountant or accountants shall be of recognized standing
selected by the Tenant. Such financial statements shall set forth in comparative
form the figures for the previous fiscal year and such financial statements
shall be prepared in accordance with generally accepted accounting principles
consistently applied (except for any change in accounting principles with which
such public accountants concur) and the examination of such accountants in
connection with such financial statements shall be made in accordance with
generally accepted auditing standards, and accordingly include such tests of the
accounting records and such other auditing procedures as considered necessary in
the circumstances.
10
(b) No later than 30 days prior to the end of each calendar year, the
Tenant shall submit to the Trustee and the Series 2001 Placement Agent the
Annual Budget for the following calendar year shown on a monthly basis. The
Annual Budget shall be certified by the manager of the Tenant as true and
correct and shall include the estimated revenues and expenses of the Project by
category for the following year. In addition, the Annual Budget shall include
the monthly amounts to be deposited into the Tax and Insurance Fund.
SECTION 10.5. INVESTMENT TAX CREDIT; DEPRECIATION. The Tenant shall be
entitled to claim the full benefit of (a) any investment credit against federal
or state income tax allowable with respect to expenditures of the character
contemplated hereby under any federal or state income tax laws now or from time
to time hereafter in effect, and (b) any deduction for depreciation with respect
to the Project from federal or state income taxes. The Issuer agrees that it
will upon the Tenant's request execute all such elections, returns or other
documents which may be reasonably necessary or required to more fully assure the
availability of such benefits to the Tenant.
SECTION 10.6. SECURITY INTERESTS. The Issuer and the Tenant agree to
execute and deliver all instruments (including financing statements and
statements of continuation thereof) necessary for perfection of and continuance
of the security interest of the Issuer in and to the Project. The Tenant shall
file or cause to be filed all such instruments required to be so filed and shall
continue or cause to be continued the liens of such instruments for so long as
the Bonds shall be Outstanding.
SECTION 10.7. ADDITIONAL COVENANTS OF THE TENANT.
(a) The Tenant shall construct and operate the Project in accordance with
all applicable federal, state and local laws, ordinances, rules and regulations
and all agreements and instruments to which it is a party or by which it is
bound.
(b) The Tenant shall not sell, transfer, convey, encumber or otherwise
dispose of the Project or any part thereof during the Term except as provided in
this Lease and the Sublease, and the Tenant hereby further agrees that any sale,
transfer or other disposition of the Project in violation hereof or thereof
shall be null, void and without effect, shall cause a reversion of title to the
Tenant and shall be ineffective to relieve the Tenant of its obligations under
this Lease.
(c) The Tenant shall not demolish any part of the Project except in
accordance with the Plans and Specifications or substantially remove from the
Project any real or personal property.
(d) The Tenant acknowledges that it has reviewed the provisions of the
Indenture. By the execution and delivery of this Lease, the Tenant approves the
Indenture and agrees to be bound by all provisions thereof applicable to the
Tenant.
(e) The Tenant shall not execute any other agreement with provisions
contradictory to, or in opposition to, the provisions hereof, and in any event,
the requirements of this Lease are paramount and controlling as to the rights
and obligations herein set forth and supersede any other requirements in
conflict herewith.
(f) If the Tenant becomes aware of any circumstance, event or condition
which would result in the interest on the Bonds becoming subject to Kansas
income taxation, the Tenant shall promptly give written notice thereof to the
Issuer, the Trustee and the Series 2001 Placement Agent.
(g) Tenant shall cause all payments to be made by Subtenant under the
Sublease to be paid directly to the Trustee for deposit into the Revenue Fund.
If Tenant shall at any time receive all or any part of a payment made by
Subtenant under the Sublease, the Tenant shall immediately deliver such funds to
the Trustee for deposit into the Revenue Fund.
SECTION 10.8. ADDITIONAL COVENANTS OF THE ISSUER. Except as otherwise
provided herein or in the Indenture, the Issuer shall not during the Term, in
whole or in part, assign, lease, hypothecate or otherwise create any other
interest in, or dispose of, or cause or permit any lien, claim or encumbrance to
be placed against, the Project, except this Lease, the Sublease and the pledge
of the Project pursuant to the Indenture.
11
ARTICLE XI
REMOVAL OF MACHINERY AND EQUIPMENT;
IMPROVEMENTS TO THE PROJECT
SECTION 11.1. REMOVAL, DISPOSITION AND SUBSTITUTION OF MACHINERY AND
EQUIPMENT. The Tenant shall have the right, provided the Tenant is not in
default in the payment of Basic Rent and Additional Rent, to remove and sell or
otherwise dispose of (any such removal, sale or disposition referred to in this
Section as a "REMOVAL") any machinery and equipment which constitutes a part of
the Project and which is no longer used by the Tenant or, in the opinion of the
Tenant, is no longer suitable for use by the Tenant in its operations (whether
by reason of changed processes, changed techniques, obsolescence, depreciation
or otherwise), subject, however, to the following conditions:
(a) With respect only to such items of machinery and equipment that
originally cost $25,000 or more:
(i) Prior to any Removal, the Tenant shall deliver to the
Trustee a certificate signed by the Authorized Tenant Representative
(A) containing a complete description, including the make, model and
serial numbers, if any, of any machinery and equipment constituting
a part of the Project which it proposes to so remove, (B) stating
the reason for such Removal, (C) stating what disposition, if any,
of the machinery and equipment is to be made by the Tenant after
such Removal and the names of the party or parties to whom such
disposition is to be made and the consideration to be received by
the Tenant therefor, if any, and (D) setting forth the original cost
and the current fair market value of such machinery and equipment;
provided, however, that in no event shall the current fair market
value of such machinery and equipment be less than the consideration
to be received by the Tenant upon the disposition thereof be less
than the current fair market value.
(ii) Prior to any such Removal, the Tenant shall pay the
current fair market value of such machinery and equipment as set
forth in said certificate to the Trustee and the Trustee shall
deposit such amount in the Debt Service Fund.
(iii) The Tenant may remove any machinery and equipment
constituting a part of the Project without first complying with the
provisions of subparagraph (ii) above so long as the Tenant promptly
replaces any such machinery and equipment so removed with machinery
and equipment of the same or a different kind but which are capable
of performing the same function, efficiently, as the machinery and
equipment so removed, and the machinery and equipment so acquired by
the Tenant to replace such machinery and equipment shall be deemed a
part of the Project. Within thirty (30) days after any such
replacement by the Tenant, the Tenant shall deliver to the Trustee a
certificate of the Authorized Tenant Representative setting forth a
complete description, including make, model and serial numbers, if
any, of the machinery and equipment which the Tenant has acquired to
replace the machinery and equipment so removed by the Tenant, the
cost thereof and a statement that said machinery and equipment have
been installed.
(b) With respect to items of machinery and equipment that originally
cost less than $25,000, the Tenant shall deliver to the Trustee a
certificate setting forth the facts provided for in subparagraph (a)(i)
above. In no event shall the Tenant annually remove items of machinery and
equipment having an aggregate original cost of more than $100,000 pursuant
to this subsection (b).
All machinery and equipment constituting a part of the Project that is
removed by the Tenant pursuant to this Section shall become the absolute
property of the Tenant and may be sold or otherwise disposed of by the Tenant
without accounting to the Issuer with respect thereto. In all cases, the Tenant
shall pay all the costs and expenses of any such Removal and shall immediately
repair at its expense all damage to the Project caused thereby. The Tenant's
rights under this Article to remove machinery and equipment constituting a part
of the Project is intended only to permit the Tenant to maintain an efficient
operation by the Removal of such machinery and equipment no longer suitable to
the Tenant's use for any of the reasons set forth in this paragraph and such
right is not to be construed to permit a Removal under any other circumstances
and shall not be construed to permit the wholesale Removal of such machinery and
equipment by the Tenant.
SECTION 11.2. ADDITIONS, IMPROVEMENTS, MODIFICATIONS AND ALTERATIONS TO
THE PROJECT. The Tenant shall have and is hereby given the right, at its sole
cost and expense, to make such additions, improvements, modifications, and
alterations in and to any part of the Project as the Tenant from time to time
may deem necessary or advisable; provided, however, the Tenant shall not make
any additions, improvements, modifications or alterations which will adversely
affect the operation of the Project or substantially reduce its value. All
additions, improvements, modifications and alterations made by the Tenant
pursuant to the authority of this Section shall (a) be made in a workmanlike
manner and in strict compliance with all laws and ordinances applicable thereto,
(b) when commenced, be prosecuted to completion with due diligence, and (c) when
completed, shall be deemed a part of the Project; provided, however, that
additions of machinery, equipment or personal property of the Tenant, not
purchased or acquired from funds deposited with the Trustee hereunder and not
constituting a part of the Project shall remain the separate property of the
Tenant and may be removed by the Tenant prior to termination of this Lease;
provided further, however, that all such additional machinery, equipment or
personal property which remain in the Project after the termination of this
Lease for any cause other than the purchase of the Project pursuant to ARTICLE
XIII hereof shall, upon and in the event of such termination, become the
separate and absolute property of the Issuer.
SECTION 11.3. ADDITIONAL IMPROVEMENTS ON THE LAND. The Tenant shall have
and is hereby given the right, at its sole cost and expense, to construct on the
Land or within areas occupied by the Improvements, or in airspace above the
Project, such additional buildings and improvements as the Tenant may from time
to time deem necessary or advisable. All additional buildings and improvements
constructed by the Tenant pursuant to the authority of this Section shall,
during the Term, remain the property of the Tenant and may be added to, altered
or razed and removed by the Tenant at any time during the Term. The Tenant
covenants and agrees (a) to make all repairs and restorations, if any, required
to be made to the Project because of the construction of, addition to,
alteration or removal of, said additional buildings or improvements, (b) to keep
and maintain said additional buildings and improvements in good condition and
repair, ordinary wear and tear excepted, (c) to promptly and with due diligence
either raze and remove from the Land, in a good, workmanlike manner, or repair,
replace or restore such of said additional buildings or improvements as may from
time to time be damaged by fire or other casualty, and (d) that all additional
buildings and improvements constructed by the Tenant pursuant to this Section
which remain in place after the termination of this Lease for any cause other
than the purchase of the Project pursuant to ARTICLE XIII hereof shall, upon and
in the event of such termination, become the separate and absolute property of
the Issuer.
12
SECTION 11.4. PERMITS AND AUTHORIZATIONS. The Tenant shall not do or
permit others under its control to do any work in or in connection with the
Project or related to any repair, rebuilding, restoration, replacement,
alteration of or addition to the Project, or any part thereof, unless all
requisite municipal and other governmental permits and authorizations shall have
first been procured and paid for. All such work shall be done in a good and
workmanlike manner 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 this Lease.
SECTION 11.5. MECHANICS' LIENS.
(a) The Tenant shall not do or permit anything to be done whereby the
Project, or any part thereof, may be encumbered by any mechanics' or other
similar lien and if, whenever and so often as any mechanics' or other similar
lien is filed against the Project, or any part thereof, the Tenant shall
discharge the same of record within thirty (30) days after the date of filing.
Notice is hereby given that the Issuer does not authorize or consent to and
shall not be liable for any labor or materials furnished to the Tenant or anyone
claiming by, through or under the Tenant upon credit, and that no mechanics' or
similar lien for any such labor, services or materials shall attach to or affect
the reversionary or other estate of the Issuer in and to the Project, or any
part thereof.
(b) Notwithstanding subsection (a) above, the Tenant shall have the right
to contest any such mechanics' or other similar lien if within said 30 day
period stated above the Tenant (i) notifies the Issuer in writing of its
intention so to do, and if requested by the Issuer, deposits with the Trustee a
surety bond issued by a surety company acceptable to the Issuer as surety, in
favor of the Issuer or cash, in the amount of the lien claim so contested,
indemnifying and protecting the Issuer from and against any liability, loss,
damage, cost and expense of whatever kind or nature growing out of or in any way
connected with said asserted lien and the contest thereof, (ii) diligently
prosecutes such contest, at all times effectively staying or preventing any
official or judicial sale of the Project or any part thereof or interest
therein, under execution or otherwise, and (iii) promptly pays or otherwise
satisfies any final judgment adjudging or enforcing such contested lien claim
and thereafter promptly procures record release or satisfaction thereof. The
Tenant shall indemnify and hold harmless the Issuer from any loss, costs or
expenses the Issuer may incur in relation to any such contest. The Issuer shall
cooperate fully with the Tenant in any such contest.
ARTICLE XII
OPTION TO EXTEND TERM
SECTION 12.1. OPTION TO EXTEND TERM. The Tenant shall have and is hereby
given the right and option, to extend the term of this Lease for the Additional
Term provided that (a) the Tenant shall give the Issuer written notice of its
intention to exercise each such option at least thirty (30) days prior to the
expiration of the Basic Term and (b) the Tenant is not in default hereunder in
the payment of Basic Rent or Additional Rent at the time it gives the Issuer
such notice or at the time the Additional Term commences. In the event the
Tenant exercises such option, the terms, covenants, conditions and provisions
set forth in this Lease shall be in full force and effect and binding upon the
Issuer and the Tenant during the Additional Term except that the Basic Rent
during the Additional Term shall be the sum of $100.00, payable in advance on
the first Business Day of the Additional Term.
ARTICLE XIII
OPTION TO PURCHASE PROJECT
SECTION 13.1. OPTION TO PURCHASE PROJECT. Subject to the provisions of
this Article, the Tenant shall have the right and option to purchase the Project
at any time during the Term. The Tenant shall exercise its aforesaid option by
giving written notice of the Tenant's election to exercise its option to the
Issuer and, if any of the Bonds shall then be unpaid or provision for their
payment shall not have been made in accordance with the provisions of the
Indenture, to the Trustee, which notice shall specify the date, time and place
of the closing of such purchase, which date (the "PROJECT CLOSING DATE") shall
not be earlier than 30 days or later than 90 days after such notice is given;
provided, however, that the Tenant may not exercise such option if there has
occurred and is continuing any event which, with notice or lapse of time or
both, would constitute a Lease Event of Default at the time said notice is given
and may not purchase the Project on the Project Closing Date if any such event
has occurred and is continuing on such date.
SECTION 13.2. QUALITY OF TITLE. If the Tenant gives the Issuer notice of
its election to purchase the Project as provided in SECTION 13.1, the Issuer
shall sell and convey its interests in and to the Project to the Tenant on the
Project Closing Date free and clear of all liens and encumbrances whatsoever
except (a) those to which the title was subject on the date of the Tenant's
conveyance to the Issuer of the Project, or to which title became subject with
the Tenant's written consent, or which resulted from any failure of the Tenant
to perform any of its covenants or obligations under this Lease, (b) taxes and
assessments, general and special, if any, and (c) the rights, titles and
interests of any party having condemned or who is attempting to condemn title
to, or the use for a limited period of, all or any part of the Project.
13
SECTION 13.3. PURCHASE PRICE. The purchase price payable by the Tenant in
the event of its exercise of the option granted pursuant to SECTION 13.1 shall
be the sum of the following (which the Tenant shall and covenants and agrees to
pay in cash at the time of delivery of the Issuer's deed or other instrument or
instruments of transfer to the Project to the Tenant as hereinafter provided):
(a) an amount of money which, when added to the amount then on
deposit in the Debt Service Fund and the accounts contained therein, will
be sufficient to pay at maturity or to redeem and pay in full (i) the
principal of all of the Outstanding Bonds, (ii) all interest due thereon
to date of maturity or redemption, whichever first occurs, and (iii) all
costs, expenses and premiums incident to the redemption and payment of the
Bonds in full, plus
(b) $100.00.
Nothing in this Article shall release or discharge the Tenant from its duty or
obligation under this Lease to make any payment of Basic Rent or Additional Rent
which, in accordance with the terms of this Lease, becomes due and payable prior
to the Project Closing Date, or its duty and obligation to fully perform and
observe all covenants and conditions herein stated to be performed and observed
by the Tenant prior to the Project Closing Date.
SECTION 13.4. CLOSING OF PURCHASE. On the Project Closing Date the Issuer
shall deliver to the Tenant its special warranty deed or other appropriate
instrument or instruments of conveyance or assignment, properly executed and
conveying the Project to the Tenant free and clear of all liens and encumbrances
whatsoever except as set forth in the preceding section above or conveying such
other title to the Project as may be acceptable to the Tenant, and then and
there the Tenant shall pay the full purchase price for the Project as follows:
(a) the amount specified in clause (a) of SECTION 13.3 shall be paid to the
Trustee, who shall deposit the same in the Debt Service Fund and shall use the
same to pay or redeem the Bonds and the interest thereon as provided in the
Indenture, and (b) the amount specified in clause (b) of SECTION 13.3 shall be
paid to the Issuer; provided, however, that nothing contained herein shall
require the Issuer to deliver its special warranty deed or other appropriate
instrument or instruments of assignment or conveyance to the Tenant until after
all duties and obligations of the Tenant under this Lease to the date of such
delivery have been fully performed and satisfied. Upon the delivery to the
Tenant of the Issuer's special warranty deed or other appropriate instrument or
instruments of assignment or conveyance and payment of the purchase price by the
Tenant, this Lease shall, ipso facto, terminate.
SECTION 13.5. EFFECT OF FAILURE TO COMPLETE PURCHASE. If, for any reason
whatsoever, the purchase of the Project by the Tenant pursuant to valid notice
of election to purchase given as aforesaid is not effected on the Project
Closing Date, this Lease shall be and remain in full force and effect according
to its terms the same as though no notice of election to purchase had been
given, except that:
(a) If such purchase is not effected on the Project Closing Date
because of the failure or refusal of the Tenant to fully perform and
observe all of the covenants and conditions herein contained on the
Tenant's part to be performed or observed to the Project Closing Date, the
Tenant shall be deemed to be in default under this Lease and the Issuer
shall have such rights and the Tenant shall have such duties and
obligations as are stated in ARTICLE XVII hereof with like effect as
though written notice of default had been given and any grace period for
the correction of such default had expired and said default remains
unsatisfied.
(b) If such purchase is not effected on the Project Closing Date
because on said date the Issuer does not have or is unable to convey to
the Tenant such title to the Project as the Tenant is required to accept,
the Issuer shall use its best efforts to cure any such defect in its title
to the Project. In the event the Issuer is unable to cure such defect in
its title to the Project, or if the Issuer's failure to close would be a
breach of its obligations hereunder, the Tenant shall have the right to
cancel this Lease forthwith if, but only if, the principal of and interest
on the Bonds and all costs incident to the redemption and payment of the
Bonds have been paid in full.
SECTION 13.6. APPLICATION OF CONDEMNATION AWARDS IF THE TENANT PURCHASES
PROJECT. The right of the Tenant to exercise its option to purchase the Project
under the provisions of this Article shall remain unimpaired notwithstanding any
condemnation of title to, or the use for a limited period of, all or any part of
the Project. If the Tenant shall exercise its option and pay the purchase price
as provided in this Article, all of the condemnation awards received by the
Issuer after the payment of said purchase price, less all attorneys' fees and
other expenses and costs incurred by the Issuer in connection with such
condemnation, shall belong and be paid to the Tenant.
SECTION 13.7. OBLIGATION TO PURCHASE PROJECT. The Tenant hereby agrees to
purchase the Project from the Issuer, and the Issuer hereby agrees to sell the
Project to the Tenant, for the sum of $100.00 at the expiration of the Term,
following full payment of the Bonds or provision for payment thereof having been
made in accordance with the provisions of the Indenture.
ARTICLE XIV
OPTION TO PURCHASE UNIMPROVED PORTIONS OF LAND
SECTION 14.1. OPTION TO PURCHASE UNIMPROVED PORTIONS OF LAND. The Tenant
shall have and is hereby given the right and option to purchase at any time and
from time to time during the Term any vacant part or vacant parts of the
unimproved Land constituting a part of the Project; provided, however, the
Tenant shall furnish the Issuer with a certificate of the Authorized Tenant
Representative, dated not more than thirty (30) days prior to the date of the
purchase and stating that, in the opinion of the Authorized Tenant
Representative, (a) the portion of such Land with respect to which the option is
exercised is not needed for the operation of the Project for the purposes herein
stated and (b) the purchase will not impair the usefulness or operating
efficiency or materially impair the value of the Project and will not destroy or
materially impair the means of ingress thereto and egress therefrom. The Tenant
shall exercise such option by giving written notice of the Tenant's election to
exercise its option to the Issuer and, if any of the Bonds shall then be unpaid
or provision for their payment shall not have been made in accordance with the
provisions of the Indenture, to the Trustee, which notice shall specify (i) the
legal description of the portion of the Land with respect to which the Tenant's
option is exercised, (ii) the date, time and place of closing of the purchase,
which date (the "LAND CLOSING DATE") shall not be earlier than 30 days or later
than 90 days after the notice is given, and (iii) the appraised current fair
market value of the portions of the Land with respect to which the Tenant's
option is exercised, as determined by an independent, qualified appraiser, and
which notice shall be accompanied by such report of such appraiser and a
certificate signed by the chief executive or chief financial officer of the
Tenant stating that no event has occurred and is continuing which, with notice
or lapse of time or both, would constitute a Lease Event of Default; provided,
however, that the Tenant may not exercise this option if there has occurred and
is continuing any event which, with notice or lapse of time or both, would
constitute a Lease Event of Default at the time such notice is given and may not
purchase said real property on the Land Closing Date if any such event has
occurred and is continuing on such date. The option hereby given shall include
the right to purchase a perpetual easement for right-of-way to and from the
public roadway and the right to purchase such land as is necessary to assure
that there will always be access between the real property purchased pursuant to
this ARTICLE XIV and the public roadway.
14
SECTION 14.2. QUALITY OF TITLE. If the Tenant gives the Issuer notice of
its election to purchase a portion of the unimproved Land as provided in SECTION
14.1, the Issuer shall sell and convey to the Tenant the real property described
in the Tenant's notice on the Land Closing Date free and clear of all liens and
encumbrances whatsoever except (a) those to which the title was subject on the
date of commencement of the Term, or to which title became subject with the
Tenant's written consent, or which resulted from any failure of the Tenant to
perform any of its agreements or obligations under this Lease, (b) taxes and
assessments, general or special, if any, and (c) the rights, titles and
interests of any party having condemned or who is attempting to condemn title
to, or the use for a limited period of, all or any part of the real property
described in the Tenant's aforesaid notice.
SECTION 14.3. PURCHASE PRICE. The purchase price payable by the Tenant in
the event of its exercise of the option granted pursuant to SECTION 14.1 shall
be an amount equal to the then current fair market value of the real property so
purchased, as determined with reference to the independent appraiser's report
furnished to the Issuer and, in certain circumstances, the Trustee, pursuant to
SECTION 14.1, which the Tenant shall and covenants and agrees to pay in cash at
the time of delivery of the Issuer's special warranty deed as hereinafter
provided.
SECTION 14.4. CLOSING OF PURCHASE. If the Issuer has title to the real
property to be purchased by the Tenant pursuant to this ARTICLE XIV free and
clear of all liens and encumbrances whatsoever except as stated above or has
such other title to the real property as may be acceptable to the Tenant, then
on the Land Closing Date, the Issuer shall deliver to the Tenant its special
warranty deed, properly executed and conveying the real property to the Tenant
free and clear of all liens and encumbrances whatsoever except as stated above,
and then and there the Tenant shall pay the aforesaid purchase price, for the
real property, such purchase price to be paid to the Trustee for the account of
the Issuer and deposited by the Trustee in the Debt Service Fund and shall be
used to pay or redeem Bonds on the date the Bonds are first subject to
redemption as provided in the Indenture; provided, however, that nothing herein
shall require the Issuer to deliver its special warranty deed to the Tenant
until after all duties and obligations of the Tenant under this Lease to the
date of such delivery have been fully performed and satisfied.
SECTION 14.5. EFFECT OF PURCHASE ON LEASE. The exercise by the Tenant of
the option granted under this ARTICLE XIV and the purchase and sale and
conveyance of a portion or portions of the Land constituting a part of the
Project pursuant hereto shall in no way whatsoever affect this Lease, and all
the terms and provisions hereof shall remain in full force and effect the same
as though no notice of election to purchase had been given, and specifically,
but not in limitation of the generality of the foregoing, exercise of such
option shall not affect, alter, diminish, reduce or xxxxx the Tenant's
obligations to pay all Basic Rent and Additional Rent required hereunder.
SECTION 14.6. EFFECT OF FAILURE TO COMPLETE PURCHASE. If, for any reason
whatsoever, the purchase by the Tenant of the real property described in the
notice provided by the Tenant pursuant to SECTION 14.1 of this Lease is not
effected on the Land Closing Date, this Lease shall be and remain in full force
and effect according to its terms the same as though no notice of election to
purchase had been given.
ARTICLE XV
DAMAGE, DESTRUCTION AND CONDEMNATION
SECTION 15.1. DAMAGE AND DESTRUCTION.
(a) If, during the Basic Term, the Project is damaged or destroyed, in
whole or in part, by fire or other casualty, the Tenant shall promptly notify
the Issuer and the Trustee in writing as to the nature and extent of such damage
or loss and whether it is practicable and desirable to rebuild, repair, restore
or replace such damage or loss.
(b) If the Tenant shall determine that such rebuilding, repairing,
restoring or replacing is practicable and desirable, the Tenant shall forthwith
proceed with and complete with reasonable dispatch such rebuilding, repairing,
restoring or replacing of the property damaged or destroyed so as to place the
Project in substantially the same condition as existed prior to the event
causing such damage or destruction, with such changes, alterations and
modifications (including the substitution and addition of other property) as may
be desired by the Tenant and as will not impair the operating unity or
productive capacity of the Project. In such case, any Net Proceeds of casualty
insurance required by this Lease and received with respect to any such damage or
loss to the Project shall be paid to the Trustee and shall be deposited in the
Project Replacement Fund and shall be used and applied for the purpose of paying
the cost of such rebuilding, repairing, restoring or replacing such damage or
loss. Any amount remaining in the Project Replacement Fund after such
rebuilding, repairing, restoring or replacing shall be deposited into the Debt
Service Fund.
(c) If the Tenant shall determine that rebuilding, repairing, restoring or
replacing the Project is not practicable and desirable, any Net Proceeds of
casualty insurance required by this Lease and received with respect to any such
damage or loss to the Project shall be paid into the Debt Service Fund and shall
be used to redeem Bonds on the earliest possible redemption date pursuant to
ARTICLE III of the Indenture. The Tenant agrees that it shall be reasonable in
exercising its judgment pursuant to this subsection (c).
15
(d) The Tenant shall not, by reason of its inability to use all or any
part of the Project during any period in which the Project is damaged or
destroyed, or is being repaired, rebuilt, restored or replaced or by reason of
the payment of the costs of such rebuilding, repairing, restoring or replacing,
be entitled to any reimbursement or any abatement or diminution of the Basic
Rent or Additional Rent payable by the Tenant under this Lease or of any other
obligations of the Tenant under this Lease except as expressly provided in this
Section.
(e) Anything in this Article to the contrary notwithstanding, the Issuer
and Trustee shall have the right at any time and from time to time to withhold
payment of all or any part of the Net Proceeds attributable to damage or
destruction of the Project to the Tenant or any third party from the Project
Replacement Fund if a Lease Event of Default has occurred and is continuing, or
the Issuer or Trustee has given notice to the Tenant of any Default which, with
the passage of time, will become a Lease Event of Default. In the event the
Tenant shall cure any Defaults specified herein, the Trustee may make payments
from the Net Proceeds to the Tenant in accordance with the provisions of this
Article. However, if this Lease is terminated or the Issuer or the Trustee
otherwise re-enters and takes possession of the Project without terminating this
Lease, the Trustee shall pay all the Net Proceeds held by it in the Project
Replacement Fund into the Debt Service Fund, and all rights of the Tenant in and
to such Net Proceeds shall cease.
SECTION 15.2. CONDEMNATION.
(a) If, during the Basic Term, title to, or the temporary use of, all or
any part of the Project shall be condemned by any authority exercising the power
of eminent domain, the Tenant shall, within ninety (90) days after the date of
entry of a final order in any eminent domain proceedings granting condemnation,
notify the Issuer and the Trustee in writing as to the nature and extent of such
condemnation and whether it is practicable and desirable to acquire or construct
substitute improvements.
(b) If the Tenant shall determine that such substitution is practicable
and desirable, the Tenant shall forthwith proceed with and complete with
reasonable dispatch the acquisition or construction of such substitute
improvements, so as to place the Project in substantially the same condition as
existed prior to the exercise of such power of eminent domain, including the
acquisition or construction of other improvements suitable for the Tenant's
operations of the Project. In such case, any Net Proceeds received from any
award or awards with respect to the Project or any part thereof made in such
condemnation or eminent domain proceeds shall be paid to the Trustee and shall
be deposited in the Project Replacement Fund and shall be used and applied for
the purpose of paying the cost of such substitution. Any amount remaining in the
Project Replacement Fund after such acquisition or construction shall be
deposited into the Debt Service Fund. If such Net Proceeds are not sufficient to
pay in full the costs of such substitution, the Tenant shall nonetheless
complete the work thereof and shall pay that portion of the costs thereof in
excess of the amount of such Net Proceeds.
(c) If the Tenant shall determine that it is not practicable and desirable
to acquire or construct substitute improvements, any Net Proceeds of
condemnation awards received by the Tenant shall be paid into the Debt Service
Fund and shall be used to redeem Bonds on the earliest possible redemption date
pursuant to ARTICLE III of the Indenture. The Tenant agrees that it shall be
reasonable in exercising its judgment pursuant to this subsection (c).
(d) The Tenant shall not, by reason of its inability to use all or any
part of the Project 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 or any abatement or diminution of the Basic Rent
or Additional Rent payable by the Tenant under this Lease nor of any other
obligations hereunder except as expressly provided in this Section.
(e) The Issuer shall cooperate fully with the Tenant in the handling and
conduct of any prospective or pending condemnation proceedings with respect to
the Project or any part thereof. In no event will the Issuer voluntarily settle
or consent to the settlement of any prospective or pending condemnation
proceedings with respect to the Project or any part thereof without the written
consent of the Tenant.
ARTICLE XVI
TERMINATION BY REASON OF
CHANGE OF CIRCUMSTANCES
SECTION 16.1 TERMINATION BY REASON OF CHANGE OF CIRCUMSTANCES. If, at any
time during the Basic Term, a Change of Circumstances occurs, then and in such
event the Tenant shall have the option to terminate this Lease by giving the
Issuer notice of such termination within ninety (90) days after the Tenant has
actual knowledge of the event giving rise to such option; provided, however,
that such termination shall not become effective unless and until none of the
Bonds are Outstanding.
16
ARTICLE XVII
REMEDIES ON DEFAULT
SECTION 17.1 REMEDIES ON DEFAULT. Whenever any Lease Event of Default
shall have occurred and be continuing, the Issuer may take any one or more of
the following remedial actions:
(a) by written notice to the Tenant upon acceleration of maturity of
the Bonds as provided in the Indenture, the Trustee may declare the
aggregate amount of all unpaid Basic Rent or Additional Rent then or
thereafter required to be paid under this Lease by the Tenant to be
immediately due and payable, whereupon the same shall become immediately
due and payable by the Tenant;
(b) give the Tenant written notice of intention to terminate this
Lease on a date specified therein, which date shall not be earlier than
ten (10) days after such notice is given and, if all defaults have not
then been cured on the date so specified, the Tenant's rights to
possession of the Project shall cease, and this Lease shall thereupon be
terminated, and the Issuer may reenter and take possession of the Project;
or
(c) without terminating the Term hereof, or this Lease, conduct
inspections or an Environmental Assessment of the Project, re-enter the
Project or take possession thereof pursuant to legal proceedings or
pursuant to any notice provided for by law, and having elected to re-enter
or take possession of the Project without terminating the Term or this
Lease, the Issuer shall use reasonable diligence to relet the Project, or
parts thereof, for such term or terms and at such rental and upon such
other terms and conditions as the Issuer may deem advisable, with the
right to make alterations and repairs to the Project, and no such re-entry
or taking of possession of the Project by the Issuer shall be construed as
an election on the Issuer's part to terminate this Lease, and no such
re-entry or taking of possession by the Issuer shall relieve the Tenant of
its obligation to pay Basic Rent or Additional Rent (at the time or times
provided herein), or of any of its other obligations under this Lease, all
of which shall survive such re-entry or taking of possession, and the
Tenant shall continue to pay the Basic Rent and Additional Rent provided
for in this Lease until the end of the Term, whether or not the Project
shall have been relet. The net proceeds, if any, of any reletting of the
Project after deducting all of the Issuer's expenses incurred in
connection with such reletting, including without limitation, all
repossession costs, brokerage commissions, legal expenses, expenses of
employees, alteration costs and expenses of preparation of the Project for
reletting, shall be deposited in the Debt Service Fund for payment of
principal of, premium, if any, and interest on the Bonds.
If the Issuer elects to re-enter or take possession of the Project
pursuant to subsection (c) hereunder, the Issuer may (subject, however, to any
restrictions against termination of this Lease in the Indenture), by notice to
the Tenant given at any time thereafter while the Tenant is in default in the
payment of Basic Rent or Additional Rent or in the performance of any other
obligation under this Lease, elect to terminate this Lease in accordance with
subsection (b) hereunder If, in accordance with any of the foregoing provisions
of this Article, the Issuer shall have the right to elect to re-enter and take
possession of the Project, the Issuer may enter and expel the Tenant and those
claiming through or under the Tenant and remove the property and effects of both
or either (forcibly if necessary) without being guilty of any manner of trespass
and without prejudice to any remedies for arrears of Basic Rent or Additional
Rent or preceding breach of covenant.
SECTION 17.2. SURVIVAL OF OBLIGATIONS. The Tenant covenants and agrees
with the Issuer and the Owners that until the Bonds and the interest thereon and
premium, if any, are paid in full or provision made for the payment thereof in
accordance with the Indenture, its obligations under this Lease shall survive
the cancellation and termination of this Lease, for any cause, and that the
Tenant shall continue to pay Basic Rent and Additional Rent and perform all
other obligations provided for in this Lease, all at the time or times provided
in this Lease.
SECTION 17.3. PERFORMANCE OF THE TENANT'S OBLIGATIONS BY THE ISSUER. If
the Tenant shall fail to keep or perform any of its obligations as provided in
this Lease, then the Issuer may (but shall not be obligated to), upon the
continuance of such failure on the Tenant's part for ninety (90) days after
notice of such failure is given to the Tenant by the Issuer or the Trustee, and
without waiving or releasing the Tenant from any obligation hereunder, as an
additional but not exclusive remedy, make any such payment or perform any such
obligation, and the Tenant shall reimburse the Issuer for all sums so paid by
the Issuer and all necessary or incidental costs and expenses incurred by the
Issuer in performing such obligations upon demand as Additional Rent. If such
Additional Rent is not so paid by the Tenant, the Issuer shall have the same
rights and remedies provided for in SECTION 17.1 in the case of default by the
Tenant in the payment of Rental Payments.
ARTICLE XVIII
MISCELLANEOUS PROVISIONS
SECTION 18.1. RIGHTS AND REMEDIES. The rights and remedies conferred upon
or reserved to the Issuer and the Tenant hereunder and those provided by law
shall be construed as cumulative and continuing rights and shall be in addition
to every other right or remedy given under this Lease or hereafter existing at
law or in equity or by statute, subject to the provisions of the Indenture. No
right or remedy shall be exhausted by the exercise thereof on one or more
occasions. No delay or omission in exercising any right or remedy shall impair
any such right or remedy or shall be construed as a waiver thereof. The Issuer
and the Tenant 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, and each party hereby waives the right to raise such
defense in any proceeding in equity.
SECTION 18.2. 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 either party of any covenant,
agreement or undertaking, the nondefaulting party may nevertheless accept from
the other any payment or payments or performance hereunder without in any way
waiving its right to exercise any of its rights and remedies provided for herein
or otherwise with respect to any such default or defaults which were in
existence at the time such payment or payments or performance were accepted by
it.
17
SECTION 18.3. THE ISSUER SHALL NOT UNREASONABLY WITHHOLD CONSENTS AND
APPROVALS. Wherever in this Lease it is provided that the Issuer shall, may or
must give its approval or consent, or execute supplemental agreements, exhibits
or schedules, the Issuer shall not unreasonably, arbitrarily or unnecessarily
withhold, condition or delay or refuse to give such approvals or consents or
refuse to execute such supplemental agreements, exhibits or schedules.
SECTION 18.4. AMENDMENTS. This Lease may be amended, changed or modified
in the following manner:
(a) With respect to an amendment, change or modification which
reduces the Basic Rent or Additional Rent, or any amendment which reduces
the percentage of Owners whose consent is required for any such amendment,
change or modification, by an agreement in writing executed by the Issuer
and the Tenant and consented to in writing by the Owners of 100% of the
aggregate principal amount of the Bonds then Outstanding;
(b) With respect to any other amendment, change or modification
which will materially adversely affect the security or rights of the
Owners, by an agreement in writing executed by the Issuer and the Tenant
and consented to in writing by the Owners of a majority of the aggregate
principal amount of the Bonds then Outstanding; and
(c) With respect to all other amendments, changes, or modifications,
by an agreement in writing executed by the Issuer and the Tenant.
At least thirty (30) days prior to the execution of any agreement pursuant to
(c) above, the Issuer and the Tenant shall furnish the Trustee and the Series
2001 Placement Agent with a copy of the amendment, change or modification
proposed to be made.
SECTION 18.5. NOTICES. All notices required or desired to be given
hereunder shall be in writing and shall be mailed by registered or certified
mail to the appropriate Notice Address. All notices given by certified or
registered mail as aforesaid shall be deemed duly given as of the date they are
so mailed.
SECTION 18.6. CONSTRUCTION AND ENFORCEMENT. This Lease shall be construed
and enforced in accordance with the laws of the State. The provisions of this
Lease shall be applied and interpreted in accordance with the rules of
interpretation set forth in the Indenture. Wherever in this Lease it is provided
that either party shall or will make any payment or perform or refrain from
performing any act or obligation, each such provision shall, even though not so
expressed, be construed as an express covenant to make such payment or to
perform, or not to perform, as the case may be, such act or obligation.
SECTION 18.7. SEVERABILITY. If, for any reason, any provision hereof shall
be determined to be invalid or unenforceable, the validity and effect of the
other provisions hereof shall not be affected thereby.
SECTION 18.8. SUCCESSORS AND ASSIGNS. The covenants, agreements and
conditions herein contained shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns.
SECTION 18.9. HEADINGS. The article and section headings hereof are for
convenience of reference only and shall not be treated as a part of this Lease
or as affecting the true meaning of the provisions hereof.
SECTION 18.10. COUNTERPARTS. This Lease may be executed simultaneously in
multiple counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same instrument.
SECTION 18.11. GOVERNING LAW. This Lease shall be governed by and
construed in accordance with the laws of the State of Kansas.
18
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
day and year first above written.
UNIFIED GOVERNMENT OF
WYANDOTTE COUNTY/KANSAS CITY, KANSAS
By: /s/ Xxxxx Xxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Mayor/CEO
(Seal)
ATTEST:
/s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Deputy Unified Government Clerk
ACKNOWLEDGMENT
STATE OF KANSAS )
) SS:
COUNTY OF ____________________ )
BE IT REMEMBERED, that on this 1 day of February, 2001, before me, the
undersigned, a Notary Public in and for said State, came Xxxxx Xxxxxxxxxx,
Mayor/CEO of the Unified Government of Wyandotte County/Kansas City, Kansas, and
Xxxxx X. Xxxxxxx, Deputy Unified Government Clerk of said Unified Government,
who are personally known to me to be such officers, and who are personally known
to me to be the same persons who executed, as such officers, the within
instrument on behalf of said Unified Government, and such persons duly
acknowledged the execution of the same to be the act and deed of said Unified
Government.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal, the day and year last above written.
/s/ Xxxxx Xxxxxxx
----------------------------------------
Notary Public in and for said State
My Appointment expires: 07/01/2004.
Lease
EPA Laboratory - 2001
KANSAS EPA LABORATORY, LLC
By: /s/ Xxxxxx Xxxx
------------------------------------
Name: Xxxxxx Xxxx
Title: Member
S-1
ACKNOWLEDGMENT
STATE OF KANSAS )
) SS:
COUNTY OF ____________________ )
BE IT REMEMBERED that on this 5 day of February, 2001, before me, the
undersigned, a Notary Public in and for said State, came Xxxxxx Xxxx, a member
of Kansas EPA Laboratory, LLC, a Missouri limited liability company duly
organized and existing under and by virtue of the laws of said state, who is
personally known to me to be such member, and who is personally known to me to
be the same person who executed, as such manager, the within instrument on
behalf of said company, and such person duly acknowledged the execution of the
same to be the act and deed of said company.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal, the day and year last above written.
/s/ Xxxxx X. Xxxxxxx
----------------------------------------
Notary Public in and for said State
My Appointment expires 07/22/2002.
Lease
EPA Laboratory - 2001
S-2
Schedule I-1