Exhibit 10.31
AGREEMENT
AMONG
Intek Information, Inc.
as Employer
Fort ▇▇▇▇▇ Community College
as Educational Institution
and
Kansas Department of Commerce & Housing
Dated as of
March 15,1999
EXECUTION COPY
FINAL DRAFT DATED: March 8,1999
TABLE OF CONTENTS
PARTIES........................................................................1
RECITALS.......................................................................1
ARTICLE I
DEFINITIONS....................................................................1
ARTICLE II
REPRESENTATIONS AND WARRANTIES.................................................4
Section 2.1 Representations and Warranties of the Educational Institution......4
Section 2.2 Representations, Warranties and Covenants of the Employer..........4
ARTICLE III
PROJECT; PROGRAM SERVICES......................................................6
Section 3.1 The Project........................................................6
Section 3.2 Performance of the Project.........................................6
Section 3.3 IMPACT Program Services Fund Account for the Project; SKILL
Project Fund; Subaccounts; Payment of Project Costs................7
Section 3.4 Insufficient Funds.................................................8
ARTICLE IV
EVENTS OF DEFAULT..............................................................9
Section 4.1 Events of Default..................................................9
Section 4.2 Termination or Breach of this Agreement; Payments for
Termination or Breach Required by the IMPACT Act..................10
Section 4.3 Remedies..........................................................14
Section 4.4 No Remedy Exclusive...............................................15
Section 4.5 Waivers...........................................................15
Section 4.6 Educational Institution Defaults..................................15
ARTICLE V
MISCELLANEOUS.................................................................16
Section 5.1 Execution in Counterparts.........................................16
Section 5.2 Severability......................................................16
Section 5.3 Governing Law ....................................................16
Section 5.4 Notices...........................................................16
Section 5.5 Immunity of Officers, Board Members, and Employees................16
Section 5.6 Assignment........................................................17
Section 5.7 Obligations to Fund Limited.......................................17
Section 5.8 Books and Records.................................................17
Section 5.9 Additional Provisions and Exhibits Incorporated...................17
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EXECUTION.....................................................................18
EXHIBIT A General Information
EXHIBIT B Project Description
EXHIBIT C Project Costs and Sources of Payments
EXHIBIT D Additional Provisions
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This Agreement entered into as of the Date of Agreement indicated on
Exhibit A hereto, by and among the Educational Institution indicated in Exhibit
A hereto, the Employer indicated on Exhibit A hereto and the Kansas Department
of Commerce & Housing ("KDOCH").
WITNESSETH
WHEREAS, the Secretary of KDOCH pursuant to the provisions of K.S.A. 74-
50,102 through 74-50,112 (the "IMPACT Act") has developed a program (the "IMPACT
Program") to provide for the establishment of projects to provide financial
assistance to defray business costs and/or training of workers for new jobs for
a new or expanding Kansas basic enterprise; and
WHEREAS, the Employer desires to participate in the IMPACT Program and to
develop a project to provide training of workers and other program services for
new jobs to be created by the Employer; and
WHEREAS, the Employer and the Educational Institution have agreed on an
arrangement for such training and for dispensing such other program services and
have entered into this Agreement to set forth their respective undertakings with
respect thereto; and
WHEREAS, the Secretary of KDOCH is responsible for administering the IMPACT
Program and has an interest in the development and accomplishment of such
arrangement and the enforcement of certain of the provisions hereof,
NOW THEREFORE in consideration of the premises and the mutual
representations and agreements hereinafter contained the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
As used herein, the following words and phrases shall have the following
meanings:
"Agreement" means this Agreement.
"Compliance Determination Date" means each date as of which KDOCH
determines if the Employer has complied with its covenants in this Agreement, as
set forth in Section 4.2(c) hereof.
"Contract Year" means each 12 month period ending on an anniversary date of
the Date of this Agreement.
"Date of Agreement" means the date identified as such on Exhibit A hereto.
"Educational Institution" means the entity as described on Exhibit A
hereto, its successors and assigns.
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"Employer" means the entity as described on Exhibit A hereto, its
successors and assigns.
"Existing Job" means any job or position of employment with the Employer at
any of its facilities in the State of Kansas which is filled by an employee of
the Employer on the Date of Agreement, or at any time during the 18 month period
immediately preceding the Date of Agreement.
"Existing Jobs Performance Percentage" means the Existing Jobs Performance
Percentage as set forth in Exhibit C hereto.
"Expiration Date" means the earlier of (a) the Termination Date described
in Exhibit A and (b) the date on which the Employer's Net Withholding Tax equals
or exceeds the Gross Funded Cost of the Project.
"Gross Funded Cost" means the Gross Funded Cost as set forth in Exhibit C
hereto.
"IMPACT Act" means K.S.A. 74-50,102 through 74-50,112, as from time to time
amended, and the Rules and Regulations promulgated thereunder.
"IMPACT Program" means the program established by the Secretary pursuant to
the IMPACT Act.
"IMPACT Program Services Fund" means the fund by that name created pursuant
to the IMPACT Act.
"KDOCH" means the Kansas Department of Commerce & Housing.
"New Job" means a "new job" as defined in the IMPACT Act, and shall include
all transfers of the Employer's employees from positions outside of the State of
Kansas to positions at the New Job Facilities.
"New Job Facilities" or "Project Facilities" means the facilities of the
Employer at which the New Jobs will be created, as identified in Exhibit A
hereto.
"New Jobs Performance Percentage" means the New Jobs Performance Percentage
as set forth in Exhibit C hereto.
"Program Costs of the Project" or "Program Costs of the SKILL Project"
means those Project Costs which are authorized to be financed from the IMPACT
Program Services Fund pursuant to the IMPACT Act and which are being so financed
under the terms of this Agreement.
"Project"or "SKILL Project" means the Project or SKILL Project as defined
in Exhibit B hereto.
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"Project Costs" or "SKILL Project Costs" means the Program Costs of the
SKILL Project and all other costs of the SKILL Project identified in, Exhibit C
hereto.
"Project Fund" or "SKILL Project Fund" means the fund by that name created
in the Project Bank pursuant to Section 3.3 hereof.
"Project Services" or "SKILL Project Services" means the items identified
as such on Exhibit C hereto.
"Qualified Investments" means such investments in which the Educational
Institution is authorized by law to invest its funds.
"Quarterly Report" means the Quarterly Reports required to be submitted by
the Employer pursuant to Section 4.2(b) hereof.
"Quarterly Report Date" means each of the Quarterly Report Dates set forth
in Exhibit C hereto.
"Remainder Account" means the subaccount by that name in the Project Fund
created pursuant to Section 3.3 hereof.
"Secretary" means the Secretary of KDOCH.
"SKILL Project Bank" means the bank identified as such in Exhibit A hereto.
"SKILL Program Services Project Account" means the subaccount by that name
in the SKILL Project Fund created pursuant to Section 3.3 hereof.
"Term of this Agreement" means the period from the Date of Agreement to the
Expiration Date.
"Training Equipment" means the equipment identified as such in Exhibit C
hereto to be acquired or leased by the Educational Institution in connection
with the SKILL Project.
"Training Facilities" means the facilities identified as such in Exhibit A
hereto owned by the Educational Institution at which the training, instruction
and testing for the SKILL Project will be conducted and the Training Equipment.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties of the Educational Institution.
-------------------------------------------------------------
The Educational Institution represents and warrants as follows:
(a) it is an educational institution as described in the IMPACT Act;
(b) it is not in violation of or conflict with any provisions of the laws
of the State of Kansas which would impair its ability to carry out its
obligations hereunder;
(c) it is empowered to enter into the transactions comtemplated by this
Agreement;
(d) during the Term of this Agreement the Training Facilities will at all
times be adequate to provide the SKILL Project Services contemplated hereby;
(e) during the Term of this Agreement the Educational Institution will
have or employ sufficient teachers, trainers, instructors and other personnel to
provide the training, instruction, and other services included in the SKILL
Project Services;
(f) the Program Costs of the SKILL Project do not include (i) any wages
to be paid to persons receiving education or training under the SKILL Project,
(ii) any costs for the purchase or lease of the Training Equipment in excess of
50% of the Program Costs of the SKILL Project, and (iii) any costs for
administrative expenses of the Educational Institution in excess of 10% of the
Program Costs of the SKILL Project;
(g) amounts received to finance the Program Costs of the SKILL Project
from the IMPACT Program Services Fund shall be applied by the Educational
Institution only to finance or pay Program Services, as defined in the IMPACT
Act;
(h) the Educational Institution will at all times during the Term of this
Agreement comply with the provisions of the IMPACT Act; and
(i) the Educational Institution will at all times during the Term of this
Agreement comply with any restrictions that might be imposed by the Kansas
Development Finance Authority or KDOCH on the use of proceeds of any bonds
issued to finance the Program Costs of the SKILL Project in order to maintain
the tax-exempt status of such bonds.
Section 2.2 Representations, Warranties and Covenants of the Employer:
---------------------------------------------------------
The Employer represents, warrants, and covenants as follows:
(a) it is a Kansas basic enterprise as defined in the IMPACT Act;
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(b) it is an entity of the type identified on Exhibit A hereto, duly
organized and validly existing under the laws of the State of Organization
identified on Exhibit A hereto, and is authorized to do business in the State of
Kansas;
(c) it has full power and authority to execute, deliver and perform this
Agreement and all other instruments given by the Employer to secure its
performance and to enter into and carry out the transactions contemplated
herein. Such execution, delivery and performance are not in contravention of law
or the Employer's organizational documents or any indenture, agreement,
mortgage, lease, undertaking or any other restriction, obligation or instrument
to which the Employer is a party or by which the Employer is bound. This
Agreement has by proper action or authorization, been executed and delivered by
the Employer and all steps necessary have been taken to constitute this
Agreement a valid and binding obligation of the Employer;
(d) there is no litigation or proceeding pending, or to the knowledge of
the Employer threatened, against the Employer or any other person affecting in
any manner whatsoever the right of the Employer to execute the Agreement or to
otherwise comply with its obligations contained in the Agreement;
(e) each of the jobs included in the SKILL Project is a New Job;
(f) the portion of the training costs for each New Job paid from the
IMPACT Program Services Fund shall be for training that occurs within 36 months
from the date such New Job is first filled by the Employer;
(g) all information contained on the Exhibits hereto which have been
provided by the Employer is true, complete and accurate in all material
respects;
(h) it will cooperate with and coordinate its employment activities with
all state and federal programs for which all or any part of the Project may
qualify;
(i) it will at all times during the Term of this Agreement comply with
the applicable provisions of the IMPACT Act; and
(j) it acknowledges that it has no ownership claim to any Training
Equipment purchased with funds made available under this Agreement or otherwise
provided by the Educational Institution and has no claim for reimbursement for
any in-kind services or any funds or other contributions it has provided or will
provide for the project. It may retain ownership of any equipment purchased with
its own funds and utilized during the project.
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ARTICLE III
PROJECT; PROGRAM SERVICES
Section 3.1 The Project.
------------
The Project shall consist of the training, instruction, testing, and
services described in Exhibit B hereto and the creation of the New Jobs and the
employment of the employees to fill such New Jobs for the periods and with wages
and with employee benefits at least as favorable as those set forth in Exhibit B
hereto. To the extent that the Project consists of components that are not
Program Services, within the meaning of the IMPACT Act, or which require funding
beyond the limits prescribed in the IMPACT Act or available funding from the
IMPACT Program Services Fund, such components or such excess funding shall be
financed from sources other than the IMPACT Program Services Fund. The Project
Costs, the Program Costs of the Project and the Project Costs payable from (i)
the IMPACT Program Services Fund, (ii) tuition, student fees or special charges,
(iii) the Educational Institution, (iv) grants or donations from federal
agencies or other public or private sources and (v) funds provided by the
Employer are set forth on Exhibit C hereto.
The Project or any of its components, including but not limited to Employer
and Educational Institution matching funds or in-kind services, employee wages
and employee benefits, and the training plan in its entirety, may be amended or
modified only with the express written approval of the Educational Institution,
the Employer and KDOCH, except that amendments or modifications that increase
the Project Costs payable from the IMPACT Program Services Fund or decrease the
Repayment Amount shall also require the approval of the Governor's Council on
Work Force Training and Investment; provided however that the Employer (i) may
increase employee wages or employee benefits without notice to or approval of
any entity, and (ii) may make adjustments in the wages or benefits of any
employee which do not result in a reduction in aggregate value of such
employee's wages and benefits without notice to or approval of any entity.
Section 3.2 Performance of the Project.
--------------------------
(a) The Educational Institution. The Educational Institution agrees to
-----------------------------
provide, either directly or indirectly through contracted or subcontracted
services, the training, instruction, testing and services constituting the
Project in accordance with the Training Schedule set forth in Exhibit B, to
acquire and install the Training Equipment, if any, included as part of the
Project at the Training Facilities, and to make the necessary modifications,
additions and improvements to the Training Facilities, if any, included as a
part of the Project. The Educational Institution may, in its discretion,
contract or subcontract with other entities or persons to provide and accomplish
all or part of the components of the Project.
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(b) The Employer.
-------------
(i) New Jobs. The Employer agrees to create the New Jobs described
in Exhibit B hereto at the New Jobs Facilities, hire the
employees and/or transfer employees from its out-of-state
facilities to fill the New Jobs at the New Jobs Facilities at
the times and for the periods of time, at wages and with
employee benefits at least as favorable as set forth in Exhibit
B hereto.
(ii) Existing Jobs. The Employer agrees not to reduce the Existing
Jobs below the levels set forth in Exhibit A hereto nor to
reduce the wages paid or employee benefits received with
respect to such Existing Jobs during the term of this
Agreement.
Section 3.3 IMPACT Program Services Fund Account for the Project; SKILL Project
--------------------------------------------------------------------
Fund; Subaccounts; Payment of Project Costs.
--------------------------------------------
KDOCH agrees to create a separate and distinct account within the IMPACT
Program Services Fund for the Project and to transfer money to such account to
be available for the payment of Program Costs of the Project in accordance with
the Schedule of Deposit of Funds and/or Performance of In-Kind Services set
forth in Exhibit C hereto. KDOCH agrees to transfer funds from time to time from
such separate account in the IMPACT Program Services Fund pursuant to the IMPACT
Act to the SKILL Project Bank to pay for all or part of the Program Costs of the
SKILL Project upon the receipt from the Educational Institution of a written
request, satisfactory in form and content to the Secretary, requesting payment
or reimbursement for the payment of Program Costs of the SKILL Project.
The Educational Institution shall establish at the Project Bank a separate
and distinct account to be known as the Project Fund and shall establish therein
two subaccounts to be known as the SKILL Program Services Project Account and
the Remainder Account. Unless otherwise precluded by law, such accounts shall be
interest bearing accounts.
All amounts received by the Educational Institution from KDOCH from amounts
on deposit in the IMPACT Program Services Fund shall be deposited into the SKILL
Program Services Project Account, may be invested as hereinafter provided, and
shall be withdrawn and applied only to the payment of Program Costs of the SKILL
Project. The investment earnings from amounts on deposit in the SKILL Program
Services Project Account shall be retained therein. Any excess on deposit in the
SKILL Program Services Project Account after the earlier of (i) the completion
of the Project, or (ii) the payment in full of the Program Costs of the SKILL
Project shall be transferred to KDOCH for deposit into the IMPACT Program
Services Fund.
All amounts received from all other funding sources to be used to pay SKILL
Project Costs shall be deposited into the Remainder Account, may be invested as
hereinafter provided, and shall be withdrawn and applied to the payment of SKILL
Project Costs not being paid from the SKILL Program Services Project Account;.
provided, however, that the Employer is
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authorized to pay all or any part of its portion of the SKILL Project Costs
directly and will get credit for the same so long as the Employer includes in
the Quarterly Report immediately following the date of such payment, an
accounting of such payment setting forth the amount and purpose of such payment,
the date of such payment, the recipient of such payment and such other
information as KDOCH may deem necessary to determine that such payment was for
an authorized SKILL Project Cost. The investment earnings from amounts on
deposit in the Remainder Account shall be retained therein. Any excess on
deposit in the Remainder Account after the payment in full of SKILL Project
Costs shall be paid on a pro rata basis in accordance with the amount of their
contributions to the entities and persons providing funding for the Remainder
Account, or otherwise as determined by KDOCH.
Amounts on deposit in the SKILL Project Fund may be invested by the
Educational Institution only in Qualified Investments. Any investment earnings
on such Qualified Investments shall be deposited into the appropriate subaccount
of the SKILL Project Fund from which such investment was made.
Section 3.4 Insufficient Funds.
------------------
In the event that there are insufficient funds in the SKILL Project Fund
to pay all of the SKILL Project Costs, the Employer may deposit additional
funds into the SKILL Project Fund to provide for such payment and/or make such
payment directly and account for the same in the manner as is set forth in
Section 3.3 hereof or may determine which portions of the Project shall not be
accomplished or completed. Notwithstanding the foregoing, in no event shall
amounts on deposit in the IMPACT Program Services Fund or the SKILL Program
Services Project Account be used to pay for anything but Program Costs of the
SKILL Project. In addition, nothing herein shall relieve the Employer from
fulfilling its obligations herein to provide New Jobs for the periods of time,
at the wages and with the employee benefits set forth in Exhibit B hereto.
If the Employer should deposit any additional funds in the SKILL Project
Fund to make up any deficiencies therein as aforesaid or make any direct
payments to make up such deficiencies as aforesaid, it shall not be entitled to
any reimbursement therefor from the Educational Institution or KDOCH, nor shall
it be entitled to any abatement, diminution or postponement of any other
payments required to be paid by the Employer hereunder; provided however, that
the Employer shall be entitled to reimbursement for such deficiency payments
from either the IMPACT Program Services Fund, the SKILL Program Services
Project Account or the Remainder Account when a surplus exists and the
Educational Institution and KDOCH determine that such surplus is not needed to
satisfy other Project Costs.
Notwithstanding anything in this Agreement to the contrary, in no event
shall KDOCH be construed as agreeing to provide funding for Project Costs in a
manner or amount inconsistent with the requirements and limitations of the
IMPACT Act.
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ARTICLE IV
EVENTS OF DEFAULT
Section 4.1 Events of Default.
-----------------
Each of the following shall be an "event of default":
(a) the Employer shall cease operation of its New Job Facilities without
relocation to a comparable facility located within the State of Kansas during
the Term of this Agreement;
(b) the Employer shall fail to pay or advance any amount required to be
made by the Employer on or prior to the date on which such payment is due and
payable and continuing for more than five (5) business days thereafter;
(c) (1) the Employer shall fail as of any Compliance Determination Date
(as hereinafter defined) to create and maintain New Jobs at levels projected by
the Employer as set forth in Exhibit B hereto, to maintain Existing Jobs at
levels in existence on the Date of Agreement as set forth in Exhibit A hereto,
or to pay wages for New Jobs at levels projected by the Employer as set forth in
Exhibit B hereto or the Employer discontinues substantial operations at the New
Jobs Facilities and (2) such failure or action shall result in a termination or
breach of this Agreement pursuant to Section 4.2 hereof;
(d) the Employer shall fail to observe and perform any other agreement,
term or condition contained in this Agreement, if such failure continues for a
period of thirty (30) days after notice of such failure is given to the Employer
by the Educational Institution or KDOCH, or for such longer period as the
Educational Institution and KDOCH may agree to in writing; provided, that if the
failure is other than the payment of money and is of such a nature that it
cannot be corrected within the applicable period, such failure shall not
constitute an event of default so long as the Employer institutes curative
action acceptable to KDOCH within the applicable period and diligently pursues
such action in a manner acceptable to KDOCH until such failure is corrected;
(e) the Employer shall: (i) admit in writing its inability to pay its
debts generally as they become due; (ii) have an order for relief entered in any
case commenced by or against it under the federal bankruptcy laws, as now or
hereafter in effect; (iii) commence a proceeding under any other federal or
state bankruptcy, insolvency, reorganization or other similar law, or have such
a proceeding commenced against it and either have an order of insolvency or
reorganization entered against it or have the proceeding remain undismissed and
unstayed for ninety (90) days; (iv) make an assignment for the benefit of
creditors other than assignments made in the ordinary course of business; or (v)
have a receiver or trustee appointed for it or for the whole or any substantial
part of its property; or
(f) any representation or warranty made by the Employer herein or any
statement in any report, certificate, financial statement or other instrument
furnished in connection with this
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Agreement shall at any time prove to have been false or misleading in any
material respect when made or given.
The declaration of an event of default under Subsection (e) above, and
the exercise of any remedies upon any such declaration shall be subject to any
applicable limitations of federal bankruptcy law affecting or precluding such
declaration or exercise during the pendency of or immediately following any
bankruptcy, liquidation or reorganization proceedings.
Section 4.2 Termination or Breach of this Agreement; Payments for Termination or
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Breach Required by the IMPACT Act.
---------------------------------
(a) The parties hereto acknowledge that the amount of the Program Costs
of the Project to be financed from the IMPACT Program Services Fund was
determined in the following manner:
Step 1. The Employer projected (a) the number of New Jobs (each a
"Projected New Job") to be created and filled at the New Jobs
Facilities during the Term of this Agreement, (b) the gross
wages projected to be paid (the "Projected Gross Wages") for
each Projected New Job for each Contract Year (or portion
thereof) during the Term of this Agreement (for each Projected
New Job for a period not exceeding 10 full years from the date
such Projected New Job is expected to be first filled by the
Employer) and (c) the duration (the "Projected Duration") of
each Projected New Job during the Term of this Agreement.
Step 2. KDOCH determined the amount of withholding tax (the "Projected
New Job Withholding Taxes") that will be withheld for each
Projected New Job during the Term of this Agreement by applying
the appropriate Estimated Rate of Withholding Tax for each
Contract Year (or portion thereof) to the Projected Gross Wages
for each Projected New Job for such Contract Year (or portion
thereof) and totalling the results of each Contract Year (or
portion thereof). These calculations are set forth in Exhibit C
hereto.
Step 3. The Projected New Job Withholding Taxes for all of the
Projected New Jobs were added together to produce a projected
aggregate amount (the "Total Projected New Job Withholding
Taxes") of withholding taxes that will be withheld for all
Projected New Jobs during the Term of this Agreement. The Total
Projected New Job Withholding Taxes is set forth in Exhibit C
hereto.
Step 4. In accordance with the IMPACT Act, the Total Projected New Job
Withholding Taxes was multiplied by 90% to produce an amount
(the "Maximum Funding Amount") equal to the maximum amount
for which the Project is eligible under the IMPACT Act. The
Maximum Funding Amount is set forth on Exhibit C hereto.
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Step 5. The portion of the Project Costs to be funded from the IMPACT
Program Services Fund (the "Program Costs of the Project") was
determined by KDOCH and is set forth in Exhibit C hereto. The
Program Costs of the Project equal a percentage (the "Funding
Percent") of the Maximum Funding Amount. The Funding Percent is
set forth in Exhibit C hereto.
(b) The Employer agrees to submit quarterly reports (the "Quarterly
Reports") to the Secretary within 10 days of each Quarterly Report Date set
forth in Exhibit C hereto during the Term of this Agreement setting forth (i)
the number of New Jobs created by the Employer which are covered by this
Agreement, (ii) the date of commencement (the "Date of Commencement") and, if
appropriate, of termination of employment (the "Date of Termination") of each
employee filling each such New Job (iii) the gross wages paid to each such
employee for each such New Job from the respective Date of Commencement through
the respective Date of Termination or the Quarterly Report Date for which the
Quarterly Report is being submitted (iv) the total amount of withholding taxes
that were withheld for each such New Job during the periods covered by the
Quarterly Report, (v) the number of Existing Jobs filled by employees of the
Employer as of the Quarterly Report Date, (vi) the number of Existing Jobs that
were discontinued or unfilled as of the Quarterly Report, Date, the date on
which each such Existing Job was discontinued or unfilled and the average
monthly salary and withholding taxes paid with respect to each such Existing Job
immediately prior to its discontinuation or vacancy, and (vii) such other
information relating to New Jobs, Existing Jobs, wages, benefits or the Project
as KDOCH may request.
(c) On the basis of the Quarterly Reports submitted by the Employer,
KDOCH will determine from time to time at least once annually at the end of a
Contract Year and in any case, as of a Quarterly Report Date (the date of each
determination being a "Compliance Determination Date") the Net Withholding Taxes
in the following manner:
Step 1. For each New Job created by the Employer from the Date of
this Agreement to the Compliance Determination Date (the
"Compliance Period"), KDOCH shall calculate the total amount of
gross wages actually paid with respect to such New Job during
the Compliance Period and the total amount of withholding taxes
that were withheld with respect to such New Job during the
Compliance Period.
Step 2. The total withholding taxes (the "Total New Jobs Withholding
Taxes") that were withheld with respect to all New Jobs created
by the Employer during the Compliance Period shall be
determined by adding the withholding taxes for each New Job so
created.
Step 3. For each Existing Job that was in existence on the Date of
this Agreement and which was discontinued or unfilled (each, a
"Lost Existing Job") for any period (the "Vacancy Period")
during the Compliance Period, KDOCH shall calculate the total
amount of gross wages that would have
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been paid with respect to such Lost Existing Job during such
Vacancy Period and the total amount of withholding taxes that
would have been withheld with respect to such Lost Existing
Job during such Vacancy Period.
Step 4. The total withholding taxes (the "Total Existing Jobs Lost
Withholding Taxes") that would have been withheld with respect
to all Lost Existing Jobs during the Compliance Period shall be
determined by adding the withholding taxes that would have been
withheld during each Vacancy Period for the Lost Existing Job
corresponding to such Vacancy Period.
Step 5. The net withholding taxes ("Net Withholding Taxes") for the
Compliance Period shall be determined by subtracting the Total
Existing Jobs Lost Withholding Taxes for the Compliance Period
from the Total New Jobs Withholding Taxes for the Compliance
Period (the Net Withholding Taxes may be a negative amount).
(d) If KDOCH determines as of any Compliance Determination Date for the
Compliance Period ending on such Compliance Determination Date (w) that the
Employer has failed to create and maintain New Jobs during such Compliance
Period in an amount at least equal to the amount determined by multiplying the
New Jobs Performance Percentage times the number of New Jobs to be created and
maintained by the Employer during such Compliance Period as set forth in Exhibit
B hereto or (x) that the Employer has failed to maintain Existing Jobs during
such Compliance Period in an amount at least equal to the amount determined by
multiplying the Existing Jobs Performance Percentage times the number of
Existing Jobs to be maintained by the Employer during such Compliance Period as
set forth in Exhibit A hereto or (y) that the Employer has failed to pay wages
for the New Jobs created and maintained during such Compliance Period at levels
projected by the Employer for such New Jobs as set forth in Exhibit B hereto, or
(z) that the Employer discontinued substantial operations at the New Jobs
Facilities during such Compliance Period (other than temporarily for short
periods of time to perform normal maintenance or repairs), then (i): KDOCH may
declare this Agreement to be terminated as of such Compliance Determination
Date, or, in the case of discontinued substantial operations of the New Jobs
Facilities, as of the date on which KDOCH becomes aware of such discontinued
operations or the Quarterly Report Date immediately succeeding the date of such
discontinued substantial operations, whichever occurs first (such date being
referred to herein as a "Termination Date") and (ii) the Employer shall
immediately pay to KDOCH for deposit in the IMPACT Program Services Fund a
portion, of the Gross Funded Cost (the "Repayment Amount") determined in
accordance with the Repayment Formula set out in subsection (f) or (g) of this
Section 4.2, as the case may be. In addition, upon such termination any
unexpended amounts (the "Non-Disbursed Funds") on deposit in the SKILL Program
Services Project Account and the separate account for the Project in the IMPACT
Program Services Fund shall revert to KDOCH for its use in connection with the
IMPACT Program.
(e) Unless this Agreement shall have been deemed to have been terminated
pursuant to subsection (d) of this Section 4.2, if on the Expiration Date of
this Agreement (which shall
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also be a Compliance Determination Date), KDOCH determines that the Employer has
failed to create and maintain New Jobs during the Term of this Agreement in an
amount at least equal to the amount determined by multiplying the New Jobs
Performance Percentage times the number of New Jobs to be created and maintained
by the Employer during the Term of this Agreement as set forth in Exhibit A
hereto, or that the Employer has failed to maintain Existing Jobs during the
Term of this Agreement in an amount at least equal to the amount determined by
multiplying the Existing Jobs Performance Percentage times the number of
Existing Jobs to be maintained by the Employer during the Term of this Agreement
as set forth in Exhibit A hereto, or that the Employer has failed to pay wages
for the New Jobs created and maintained during the Term of this Agreement at
levels projected by the Employer for such New Jobs as set forth in Exhibit B
hereto, this Agreement shall be deemed to have been breached and the Employer
shall immediately pay to KDOCH for deposit in the IMPACT Program Services Fund
the Repayment Amount determined in accordance with the Repayment Formula set out
in subsection (f) of this Section 4.2.
(f) The Repayment Amount for termination or breach of this Agreement (other
than because of discontinuation of substantial operations of the New Jobs
Facilities) shall be determined in accordance with the following Repayment
Formula (provided however, that the Repayment Amount shall not exceed the Gross
Funded Cost):
RA = GFC - NDF - NWT - RPNWT
Where:
RA = Repayment Amount
GFC = the Gross Funded Cost as shown on
Exhibit C hereto
NDF = Non-Disbursed Funds
NWT = Net Withholding Taxes
RPNWT = Revised Projected Net Withholding Taxes
(determined as hereinafter provided)
Determination of Revised Projected Net Withholding Taxes: KDOCH shall calculate
the total projected gross wages for all New Jobs in existence as of the
Termination Date and projected by KDOCH to be maintained by the Employer until
the Expiration Date and the total withholding taxes (the "Revised Projected New
Jobs Withholding Taxes") that are projected by KDOCH to be withheld with respect
to such New Jobs during the period beginning on the Termination Date and ending
on the Expiration Date (the "Remaining Test Period") in the same manner as set
forth in subsection (c) of this Section 4.2 for determining the Total New Jobs
Withholding Taxes using revised information relating to New Jobs, the projected
wages relating thereto, their projected duration, and other information that
KDOCH deems pertinent. In addition, KDOCH shall
13
calculate the total projected gross wages for each Existing Job that was in
existence on the Date of this Agreement and which will, in the judgment of
KDOCH, be discontinued or unfilled (each a "Projected Lost Existing Job") for
any period (the "Projected Vacancy Period") during the Remaining Test Period,
the total amount of withholding taxes that would have been withheld, in the
judgment of KDOCH, with respect to each such Projected Lost Existing Job during
such Projected Vacancy Period if such Projected Lost Existing Job were not
discontinued or unfilled during the Projected Vacancy Period and the total
withholding taxes (the "Total Existing Jobs Projected Lost Withholding Taxes")
that would have been withheld, in the judgment of KDOCH, with respect to all
Projected Lost Existing Jobs during the Remaining Test Period in the manner set
forth in subsection (c) of this Section 4.2 for determining the Total Existing
Jobs Lost Withholding Taxes using revised information relating to Existing
Jobs, the discontinuance or vacancies therein, the wages and withholding taxes
relating thereto, and other information that KDOCH deems pertinent. Absent clear
and convincing evidence to the satisfaction of KDOCH to the contrary, any
Existing Job which has been discontinued or unfilled at any time during the six
month period immediately preceding the Compliance Determination Date shall be
treated as a Projected Lost Existing Job for the Remaining Test Period. The
Revised Projected Net Withholding Taxes shall be determined by subtracting the
Total Existing Jobs Projected Lost Withholding Taxes for the Remaining Test
Period from the Revised Projected New Jobs Withholding Taxes for the Remaining
Test Period (the Revised Projected Net Withholding Taxes may be a negative
amount).
(g) The Repayment Amount for termination of this Agreement because of
discontinuation of substantial operations of the New Jobs Facilities shall be
determined in accordance with the following Repayment Formula (provided however,
that the Repayment Amount shall not exceed the Gross Funded Cost):
RA = GFC - NDF - NWT
Where:
RA = Repayment Amount
GFC = Gross Funded Cost as- shown on Exhibit C hereto
NDF = Non-Disbursed Funds
NWT = Net Withholding Taxes
Section 4.3 Remedies.
---------
Whenever an event of default shall have happened and be subsisting,
KDOCH may terminate disbursement of any unexpended amounts on deposit in the
SKILL Program Services Project Account and the separate account for the Project
in the IMPACT Program Services Fund and divert such amounts to KDOCH for its use
in connection with the IMPACT Program and the Educational Institution or KDOCH
may take whatever action at law or in equity may appear
14
necessary or desirable to collect any payment and other amounts then due and
thereafter to become due by the Employer hereunder, or to enforce performance
and observance of any other obligation or agreement of the Employer under this
Agreement. Notwithstanding the foregoing, neither the Educational Institution
nor KDOCH shall be obligated to take any step which in its opinion will or might
cause it to expend time money or otherwise incur liability unless and until a
satisfactory indemnity bond has been furnished to it at no cost or expense to
it. Notwithstanding any provision herein to the contrary, if the Educational
Institution and KDOCH cannot agree on a course of action in the event of an
occurrence of an event of default, KDOCH shall have the right to determine the
proper course of action.
Section 4.4 No Remedy Exclusive.
-------------------
No remedy conferred upon or reserved to the Educational Institution or
KDOCH by this Agreement is intended to be exclusive of any other available
remedy or remedies, but each and every such remedy shall be cumulative and shall
be in addition to every other remedy now or hereafter existing at law, in equity
or by statute. No delay or omission to exercise any right or power accruing upon
any default shall impair any such right or power or shall be construed to be a
waiver thereof, but any such right and power may be exercised from time to time
and as often as may be deemed expedient. In order to entitle the Educational
Institution and KDOCH to exercise any remedy reserved to it in this Article, it
shall not be necessary to give any notice, other than such notice as may be
expressly required herein.
Section 4.5 Waivers.
-------
In the event any agreement contained in this Agreement should be breached
by either party and thereafter waived by the other party, such waiver shall be
limited to the particular breach so waived and shall not be deemed to waive any
other breach hereunder.
Section 4.6 Educational Institution Defaults.
--------------------------------
If the Educational Institution fails to observe and perform any obligation,
term or condition contained in this Agreement for a period of thirty (30) days
after notice of such failure is given by the Employer or KDOCH, or for such
longer period as the Employer and KDOCH may agree to in writing, such action or
omission will be considered a default and Employer or KDOCH may take whatever
action, at law or in equity, may appear necessary or desirable, to enforce
performance and the observance of any obligation or term of this Agreement.
15
ARTICLE V
MISCELLANEOUS
Section 5.1 Execution in Counterparts.
-------------------------
This Agreement may be executed in any number of counterparts, each of
which shall be regarded as an original and all of which shall constitute but one
and the same instrument.
Section 5.2 Severability.
------------
If any provisions of this Agreement, or any covenant, stipulation,
obligation, agreement, act or action, or part thereof made, assumed, entered
into or taken thereunder or any application thereof, is for any reason held to
be illegal or invalid, such illegality or invalidity shall not affect any other
provision or any other covenant, stipulation, obligation, agreement, act or
action or part thereof, made, assumed, entered into, or taken, each of which
shall be construed and enforced as if such illegal or invalid portion were not
contained herein. Nor shall such illegality or invalidity of any application
thereof affect any legal and valid application thereof, and each such provision,
covenant, stipulation, obligation, agreement, act, or action, or part shall be
deemed to be effective, operative, made, entered into or taken in the manner and
to the full extent permitted by law.
Section 5.3 Governing Law.
-------------
This Agreement shall be governed exclusively by and construed in
accordance with the laws of the State of Kansas.
Section 5.4 Notices.
-------
All notices, requests or other communications hereunder shall be in
writing and shall be deemed to be sufficiently given when mailed by registered
or certified mail, postage prepaid, addressed to the Educational Institution or
the Employer at their respective addresses shown in Exhibit A hereto and to
KDOCH at:
Kansas Department of Commerce & Housing
Business Development Division
▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
The Educational Institution, the Employer and KDOCH may, by notice given
hereunder, designate any further or different addresses to which subsequent
notices, requests or other communications shall be sent.
Section 5.5 Immunity of Officers, Board Members, and Employees.
--------------------------------------------------
All covenants, stipulations, obligations and agreements of the parties
contained in this Agreement shall be effective to the extent authorized and
permitted by applicable law. No such
16
covenant, stipulation, obligation or agreement shall be deemed to be a covenant,
stipulation, obligation or agreement of any present or future member, director,
officer, agent or employee of the Employer or its affiliates, the Educational
Institution, the Kansas Board of Regents, the Governor's Council on Work Force
Training and Investment, or KDOCH or the Board of Trustees, Secretary or any
governing authority of an Educational Institution, other than in his or her
official capacity, and neither the Secretary, nor the members of the Board of
Directors shall be subject to any personal liability or accountability by reason
of the covenants, stipulations, obligations or agreements of the Educational
Institution or KDOCH contained in this Agreement.
Section 5.6 Assignment.
----------
This Agreement shall inure to the benefit of and shall be binding in
accordance with its terms upon the Educational Institution, KDOCH, the Employer
and their respective permitted successors and assigns provided that this
Agreement may not be assigned by the Employer without the express written
consent of the Educational Institution and KDOCH, nor by the Educational
Institution without the express written consent of the Employer and KDOCH.
Section 5.7 Obligations to Fund Limited.
---------------------------
The obligation of KDOCH to fund the SKILL Program Services Project
Account or to pay for Program Costs of the SKILL Project shall be limited by the
availability for such purpose from time to time of amounts on deposit in the
IMPACT Program Services Fund.
Section 5.8 Books and Records.
-----------------
The Educational Institution and KDOCH shall keep accurate books and
records of the SKILL Project Fund, the SKILL Program Services Project Account,
the Remainder Account and the separate account for the Project within the IMPACT
Program Services Fund and the deposits to and disbursements from such funds and
accounts, the amounts expended for Project Costs and all other data, statistics
and information relating to the Project and shall maintain the same for at least
5 years after the Termination Date. The Employer shall keep accurate books and
records of its activities relating to the Project including data, statistics and
information relating to the New Jobs created pursuant to this Agreement, the
wages and benefits for the employees in the New Job, the dates and amounts of
any in-kind contributions of Project Costs and the performance of its
obligations under this Agreement. The Educational Institution, KDOCH and the
Employer shall make such books and records available for inspection by the other
parties hereto at any time upon reasonable notice and shall provide the other
parties hereto with quarterly reports (on each Quarterly Report Date) detailing
such activities and other data relating to the Project during the Term of this
Agreement.
Section 5.9 Additional Provisions and Exhibits Incorporated.
-----------------------------------------------
The parties hereto agree to the Additional Provisions set forth on
Exhibit D hereto and the other matters set out in the other Exhibits hereto and
such Additional Provisions and other matters and Exhibits are incorporated
herein as if fully set out herein.
17
IN WITNESS WHEREOF, the Educational Institution, the Employer and KDOCH
have caused this Agreement to be duly executed all as of the Date of the
Agreement.
Fort ▇▇▇▇▇ Community College
----------------------------
as Educational Institution
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
--------------------------
Title: President
-------------------------
Intek Information, Inc.,
------------------------
as Employer
By: /s/▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
--------------------------
Title: Chairman/CEO
-------------------------
Kansas Department of Commerce & Housing
By: /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
--------------------------
Title: Deputy Secretary
-------------------------
Pursuant to the provisions of the IMPACT Act, this Agreement and the Project
have been approved by the Governor's Council on Work Force Training and
Investment.
Governor's Council on Work
Force Training and Investment
By:**Signature illegible**
----------------------------
Chairperson
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