1
EXHIBIT 10.82
--------------------------------------------------------------------------------
INDUSTRIAL NEW JOBS
TRAINING AGREEMENT
between
KIRKWOOD COMMUNITY COLLEGE
Cedar Rapids, Iowa ("Kirkwood")
and
XXXXXX NETWORK SERVICES, INC.
("Employer")
Dated as of October 31, 1996
--------------------------------------------------------------------------------
Relating to
$390,000
Kirkwood Community College,
Cedar Rapids, Iowa
Industrial New Jobs Training Certificates
(XxXxxx Network Services, Inc. Project)
2
INDUSTRIAL NEW JOBS
TRAINING AGREEMENT
This Industrial New Jobs Training Agreement (the "Agreement")
made and entered into as of October 31, 1996, between KIRKWOOD COMMUNITY
COLLEGE, (Merged Area X), Cedar Rapids, Iowa, ("Kirkwood") and XXXXXX NETWORK
SERVICES, INC., ("Employer"), under the following circumstances:
A. Pursuant to the Iowa Industrial New Jobs Training
Act, Iowa Code Chapter 260E, Kirkwood and Employer have determined to enter
into this Agreement for purposes of establishing a Project to educate and train
certain persons employed by Employer in new jobs within the Merged Area.
X. Xxxxxxxx and Employer each have full right and lawful
authority to enter into this Agreement and to perform and observe the
provisions hereof on their respective parts to be performed and observed.
NOW, THEREFORE, in consideration of the premises and the
mutual representations and agreements hereinafter contained, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. "Act" means the Iowa Industrial New Jobs
Training Act, Iowa Code Chapter 260E, as it may be amended from time to time,
and the regulations issued thereunder by the Iowa Department of Economic
Development as the regulations may be amended from time to time.
Section 1.2. "Certificates" means Kirkwood Community
College Industrial New Jobs Training Certificates authorized to be issued
pursuant to the Resolution for purposes of funding the Program Costs.
Section 1.3. "Debt Service" shall mean the payment of
the principal and premium, if any, and interest on the Certificates in
accordance with the Resolution and the terms of the Certificates.
Section 1.4. "Incremental Property Taxes" means
incremental property taxes, as defined in Section 260E.4 of the Act, to be
received or derived from Employer's Taxable Business Property where new jobs
are created as a result of the Project.
Section 1.5. "New Jobs Withholding Credits" means the
new jobs credit from withholding, as defined in Section 260E.5 of the Act, paid
to Kirkwood by Employer.
Section 1.6. "Person" shall include, but not be
limited to, individual, corporate, government or governmental subdivision or
agency, business trust, estate, trust, partnership or association, or any other
legal entity.
Section 1.7. "Program Costs" means all necessary and
incidental costs of providing Program Services for the Project including the
Debt Service and the deferred costs of Certificate issuance. Attached hereto as
Exhibit "B" and incorporated herein by this reference is a tentative budget
relating to the Project.
3
Section 1.8. "Program Services" for the Project are as
tentatively set forth on Exhibits "B" and "C" attached hereto and incorporated
herein by this reference. Exhibit "C" sets forth the number of new jobs to be
trained, the expected beginning and ending date of the training to be provided,
the length of time each new job category will be provided training, the
estimated costs, the training that will be provided and the expected date by
which the number of new jobs will be filled.
Section 1.9. "Project" shall consist of this training
arrangement to provide Program Services pursuant to this Agreement with respect
to Employer's employees to be employed by Employer in new jobs at the Project
Site in Cedar Rapids, Linn County, Iowa.
Section 1.10. "Project Fund" means a special fund of
Kirkwood into which a portion of the proceeds from the issuance and sale of the
Certificates shall be deposited and which shall be used to pay Program Costs
and for no other purpose.
Section 1.11. "Project Site" means the real estate
(including improvements constructed or to be constructed thereon) described in
Exhibit "A", attached hereto and incorporated herein by reference, where
Employer's facility, where new jobs will be created, is located.
Section 1.12. "Reserve" means a portion of the proceeds
from the issuance and sale of Certificates to be used from time to time to
satisfy Debt Service when due.
Section 1.13. "Resolution" means the Resolution or
Resolutions authorizing the issuance of Industrial New Jobs Training
Certificates adopted by Kirkwood in connection with the Project.
Section 1.14. "Revenue Fund" means the special tax fund
created in the Resolution in order to pay the principal of and interest on
Certificates issued in connection with the Project.
Section 1.15. "Taxable Business Property" means the
Project Site.
Section 1.16. "Training" means the Program Services
exclusive of administrative fees for the new jobs training program, Kirkwood's
legal, underwriting and financial fees, allowable discount, other costs
associated with the Certificates, and the Reserve.
Other terms used in this Agreement shall have the meanings set
out in the Act.
ARTICLE II
PROJECT; PROGRAM SERVICES
Section 2.1. Kirkwood agrees to provide the Program
Services to the extent of funds available for that purpose in the Project Fund.
It is understood and agreed that Employer and Kirkwood will cooperate in the
coordination and programming of the specific expenditures and operation of the
Project within the guidelines set out in this Agreement and Exhibits "B" and
"C". Kirkwood may, in its discretion, subcontract with other entities or
persons to provide all or part of the Training. It is understood and agreed
that the Training set forth on Exhibit "C" is tentative and is subject to
change, within the budget for the Project, upon the mutual agreement of
Kirkwood, acting through its appropriate officials, and Employer.
Section 2.2. Kirkwood and Employer agree that all
necessary and incidental costs, including but not limited to Program Costs and
Debt Service and related costs may be paid from one or a
-2-
4
combination of the following sources: (a) New Jobs Withholding Credits, (b)
Incremental Property Taxes, and (c) tuition, student fees, or special charges
fixed by the Board of Directors of Kirkwood to defray Program Costs in whole or
in part. New Jobs Withholding Credits and Incremental Property Taxes shall be
placed in the Revenue Fund established in the Resolution and used exclusively
for purposes of the Project. Tuition, student fees or special charges, if any,
shall be placed in the Project Fund and used exclusively for purposes of the
Project. Kirkwood and Employer agree that Employer's Taxable Business Property
includes its current and future interest in the Project Site. Employer
acknowledges that it is not relying on any representations of Kirkwood, its
agents or attorneys, that the foregoing, in fact or law, constitutes Employer's
Taxable Business Property under the Act.
Section 2.3. Kirkwood and Employer agree that the
receipts from the New Jobs Withholding Credits and the Incremental Property
Taxes, and the Revenue Fund into which the same are paid may be irrevocably
pledged by Kirkwood for the payment of the Debt Service. Attached hereto as
Exhibit "D" is a tentative payment schedule for the Certificates. Following
issuance and sale of the Certificates a final payment schedule, if different
from Exhibit D, shall be prepared using the actual rates of interest and
maturities for the Certificates. Such final payment schedule, if prepared,
shall become a part of this Agreement, as Exhibit D, without further action by
Employer or Kirkwood and shall supersede the Exhibit D attached hereto. A copy
of such final payment schedule shall be provided to Employer.
Section 2.4. The term of this Agreement shall not
exceed ten (10) years and shall coincide with the period of time over which the
Certificates mature and the Program Costs are deferred; provided, that this
Agreement shall not terminate and the obligations, representations, warranties,
covenants and agreements of Employer hereunder shall continue until the
Certificates, if any, issued in connection with the Project shall have been
paid in full.
Section 2.5. Kirkwood may revise or expand the
Training from time to time with the consent of Employer; provided that no
revision shall be made which would change the Project to purposes other than
purposes permitted by the Act.
Section 2.6. The Certificates will be issued pursuant
to the Resolution adopted by the Board of Directors of Kirkwood in the
aggregate principal amount, bearing interest (at a rate to be determined at the
time the Certificates are authorized to be issued), maturing, and being
redeemable as set forth in the Resolution.
The proceeds from the sale of the Certificates shall be paid
to Kirkwood and deposited in the Project Fund or other fund established by
Kirkwood. The Project Fund shall be used only for purposes of the Project.
Pending disbursements for Program Services and Program Costs, the proceeds so
deposited in the Project Fund, together with any investment earnings thereon,
shall be subject to a lien in favor of the holders of the Certificates as
provided in the Resolution authorizing the Certificates.
Section 2.7. In the event Certificates are not issued
or sold by Kirkwood, Employer agrees to pay to Kirkwood a sum equal to the
necessary and incidental costs actually incurred by Kirkwood which would have
been paid from the proceeds of the Certificates, or the funds available from
the sources described in Sections 2.2 and 3.4 of this Agreement if the
Certificates had been issued by Kirkwood.
Section 2.8. Investment earnings from any source on
moneys deposited in the Project Fund, Revenue Fund or any other fund shall be
regarded as revenues of the Project and be used for payment of the Debt Service
or such other uses authorized by the Resolution.
-3-
5
Section 2.9. Employer certifies that the number of
jobs, including formerly existing jobs, on its payroll in Iowa is twelve (12)
as of August 10, 1995. Employer further certifies that the number of jobs,
including formerly existing jobs, on its payroll with respect to the Project
is twelve (12) as of the date set forth in the preceding sentence.
Section 2.10. The administrative fee of Kirkwood and
the state administrative fee shall be the administrative fee of Kirkwood and
the state administrative fee, respectively, determined as of the date or dates
of issuance of the Certificates. In addition, the necessary Reserve shall be
determined as of the date or dates of issuance of the Certificates. The amount
of money to be provided for Training shall be adjusted to reflect changes in
the foregoing fees and necessary Reserve.
ARTICLE III
PAYMENTS; SECURITY
Section 3.1. Employer agrees to timely pay or cause to
be paid the property taxes on the Taxable Business Property and agrees to
timely pay the New Jobs Withholding Credits to Kirkwood.
Section 3.2. Kirkwood agrees that the Revenue Fund
shall be pledged for the payment of the Debt Service.
Section 3.3 To secure the obligations of Employer
under this Agreement, Employer shall provide Kirkwood with a Financial
Guarantee Bond (the "Bond") in form and from a surety acceptable to Kirkwood.
The Bond must be renewed annually with the form and surety acceptable to
Kirkwood. The Bond shall secure Employer's performance under this Agreement in
an amount equal to the amount of New Jobs Withholding Credits that are
necessary to pay the remaining Debt Service. Kirkwood will cooperate with
Employer to establish such amount on an annual basis. Employer shall provide
Kirkwood with evidence of the renewed Bond at least sixty (60) days prior to
the expiration of each Bond. Failure by Employer to maintain a Bond or to
provide evidence of the renewed Bond at least sixty (60) days prior to the
expiration of each Bond shall be an event of default under this Agreement.
Upon occurrence of any event of default under this Agreement Kirkwood may
exercise all rights under this Agreement and the Bond.
Kirkwood agrees to provide notice to the surety on the Bond,
as renewed, of the occurrence of an event of default under this Agreement.
Kirkwood further agrees to notify Employer of a claim made against the Bond.
Such notice shall be addressed as provided in Section 6.4 with a copy to the
attention of Employer's Legal Department or President.
The Bond and each renewal shall be in lieu of the rights
Kirkwood may have to assert a lien against the property of Employer as provided
in the Act and Iowa law.
Nothing contained herein shall abrogate the collection of, or
any lien for, unpaid property taxes which have attached to real estate pursuant
to Iowa Code chapter 445, including taxes levied against tangible property that
is assessed and taxed as real property pursuant to Iowa Code chapter 427A, or
the collection of, or any lien for, unpaid taxes for which notice of lien has
been property recorded or filed pursuant to Iowa Code section 422.26.
Section 3.4. This Agreement is entered into upon the
expectation that, as set forth in Exhibit "D", sufficient funds from
Incremental Property Taxes and New Jobs Withholding Credits will be generated
to pay the Debt Service. Employer and Kirkwood have designed the Project to
fit within the
-4-
6
funds expected to be available from the sources of payment set forth in Section
2.2. Exhibit "D" sets forth the minimum annual amount of Incremental Property
Taxes, New Jobs Withholding Credits or tuition and fee payments to be paid for
Program Costs. Employer's projections of gross wages to be paid to employees
in new jobs covered by this Agreement, the estimated assessed value of Project
Site improvements are set forth in Exhibit "E" attached hereto and incorporated
herein.
Section 3.5. If for any reason the funds in the
Project Fund or the Revenue Fund are not sufficient to satisfy the Program
Costs, other than costs of Training, Employer, upon written notice that the
funds in the Project Fund or the Revenue Fund are not sufficient, will,
nonetheless, advance to Kirkwood such amounts as may, from time to time, be
required to satisfy the Program Costs. If Employer should advance any amount
under this Section, it shall not be entitled to any abatement, diminution or
postponement of other payments required; provided, however, to the extent
permitted by law, Employer will be entitled to payment of amounts advanced,
without interest, from the Project Fund or the Revenue Fund when Kirkwood
determines that a surplus exists and that such surplus is not needed to satisfy
other Program Costs and the Debt Service has been paid in full. Any such
advancements received or to be received from Employer under this Section shall
not be pledged to payment of the Certificates under the Resolution. The notice
required hereunder shall specify the date by which Employer is to make the
necessary advance; provided, however, in the absence of such date specified in
the notice, the advance shall be due within fifteen (15) days of the date of
the notice. The obligation of Employer hereunder shall be primary and Kirkwood
may proceed against Employer without proceeding against or exhausting any other
remedies which it may have and without resorting to any other security held by
Kirkwood.
ARTICLE IV
COVENANTS, REPRESENTATIONS AND WARRANTIES
Section 4.1. Representations of Kirkwood. Kirkwood
represents that: (a) it is duly organized and validly existing under the laws
of the State of Iowa; (b) it is not in violation of or in conflict with any
provisions of the laws of the State which would impair its ability to carry out
its obligations hereunder; (c) it is empowered to enter into the transactions
contemplated by this Agreement; and (d) it will do all things in its power
required of it in order to maintain its existence or assure the assumption of
its obligations hereunder by any successor public body.
Section 4.2. Representations, Warranties and Covenants
of Employer. Employer represents, warrants and covenants that:
(a) It is a corporation organized under the
laws of the State of Iowa and is authorized to do business in
the State of Iowa.
(b) It has full power and authority to
execute, deliver and perform this Agreement and all other
instruments given by 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 Employer's articles of incorporation,
bylaws or any indenture, agreement, mortgage, lease,
undertaking or any other restriction, obligation or instrument
to which Employer is a party or by which it is bound. This
Agreement has by proper action been duly authorized, executed
and delivered by Employer and all steps necessary have been
taken to constitute this Agreement a valid and binding
obligation of Employer.
-5-
7
(c) There is no litigation or proceeding
pending, or to the knowledge of Employer threatened, against
Employer or any other person affecting in any manner
whatsoever the right of Employer to execute the Agreement or
to otherwise comply with its obligations contained in the
Agreement.
(d) The employees to be trained under this
Agreement have not commenced work for Employer prior to the
date set forth in Section 2.9, and those employees will be
employed in new jobs in connection with the expansion of
Employer's business operations in the merged area. Each of
the employees to be trained under the Agreement will be
employed directly by Employer.
(e) Employer is an industry, as that term is
defined in the Act, and is engaged in providing services
(other than retail, health or professional services) in
interstate commerce.
(f) Each of the jobs covered by this
Agreement is a "new job" as that term is defined in the Act.
(g) Employer has an interest in the Project
Site.
(h) Employer knowingly assumes the obligation
under Section 3.5 hereof in the event the sources of payment
described in Section 2.2 are not sufficient to satisfy the
Program Costs in full.
(i) This Agreement is entered into upon the
expectation that there will not be any revenues from
Incremental Property Taxes and that references herein to
Incremental Property Taxes and Taxable Business Property are
merely for the convenience of the parties and such references
do not imply that revenues from Incremental Property Taxes are
anticipated or that Kirkwood need take any action with regard
to Incremental Property Taxes.
(j) Employer's projections of the annual
gross wages to be paid by Employer to employees in the new
jobs covered by this Agreement are truly and accurately
depicted on Exhibit "E".
(k) The Project Site and Employer's
operations at the Project Site will be in compliance with all
applicable federal, state and local environmental statutes,
laws and regulations. Employer will not conduct its
operations at the Project Site, or elsewhere, in such a manner
as to allow any federal, state or governmental liens or
encumbrances, to enforce the payment or contribution for
environmental damage, injury or cleanup, to be placed on the
Project Site.
ARTICLE V
EVENTS OF DEFAULT
Section 5.1. Events of Default. Each of the following
shall be an "event of default":
(a) Employer shall fail to pay, advance or
deposit any amount required to be made by Employer on or
prior to the date on which such payment, advancement or
deposit is due and payable and continuing for more than five
(5) business days thereafter.
-6-
8
(b) Employer shall fail to observe and perform
any other agreement, representation, term or condition
contained in this Agreement, if such failure continues for a
period of twenty (20) days after notice of such failure is
given to Employer by Kirkwood, or for such longer period
as Kirkwood may agree to in writing; provided, that if the
failure is other than the payment of money and is of such
nature that it cannot be corrected within the applicable
period, such failure shall not constitute an event of default
so long as Employer institutes curative action within the
applicable period and diligently pursues such action to
completion.
(c) 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; or (v) have a
receiver or trustee appointed for it or for the whole or any
substantial part of its property.
(d) Employer shall (i) close or announce that
it is closing its operations at the Project Site (unless such
operations will be transferred to another facility in the
State of Iowa and as a result Kirkwood will be entitled to
receive the revenue from the sources set forth in Section 2.2
or receives assurance satisfactory to Kirkwood of the receipt
by Kirkwood of payments to satisfy the Debt Service on the
Certificates); or (ii) have failed to make improvements to
the Project Site within the time set forth on Exhibit "E" and
for that reason the Project has not or will not generate
sufficient Incremental Property Taxes to enable Kirkwood to
satisfy the Debt Service from the sources set forth in
Section 2.2.
(e) Kirkwood determines from time to time that,
for any reason, sufficient realized or projected revenue from
Incremental Property Taxes and/or New Jobs Withholding Credits
will not be generated by the Project to enable Kirkwood to
satisfy the Debt Service from the sources set forth in
Section 2.2.
(f) Any representation or warranty made by
Employer herein or any statement in any report, certificate,
financial statement or other instrument furnished in
connection with this Agreement or with the sale of the
Certificates shall at any time prove to have been false or
misleading in any material respect when made or given.
(g) Employer acts in a manner contrary to any
provision of this Agreement or fails to act in a manner
required by any provision of this Agreement and Kirkwood
determines as a result of such act or failure to act that
there are not or will not be sufficient funds generated by the
Project to enable Kirkwood to satisfy the Debt Service from
the sources set forth in Section 2.2.
The exercise of remedies upon the occurrence of any event of
default under subsection (c) above shall be subject to any applicable
limitations of federal bankruptcy law affecting or precluding such exercise
during the pendency of or immediately following any bankruptcy, liquidation or
reorganization.
Section 5.2. Whenever an event of default shall have
happened and be subsisting, Kirkwood may, without notice to Employer, withhold
Training and suspend payments to Employer, and apply all or a part of any
remaining funds budgeted for Training to the satisfaction of the Debt Service
on the Certificates. In addition, Kirkwood may take whatever other action at
law or in equity may appear
-7-
9
necessary or desirable to collect the payments and other amounts then due and
thereafter to become due, or to enforce performance and observance of any other
obligation or agreement of Employer under this Agreement. Notwithstanding the
foregoing, Kirkwood shall not be obligated to take any step which in its
opinion will or might cause it to expend time or money or otherwise incur
liability unless and until a satisfactory indemnity bond has been furnished to
Kirkwood at no cost or expense to Kirkwood. Any amounts collected as payments
or applicable to payments and any other amounts which would be applicable to
payment of principal of and premium, if any, and interest on the Certificates
collected pursuant to action taken under this Section shall be paid by Kirkwood
to the holders of the Certificates.
Section 5.3. Immediately upon the occurrence of an
event of default, there shall be due from Employer to Kirkwood such amount as
will enable Kirkwood to presently satisfy the remaining Debt Service on the
Certificates. Such amount shall be equal to the total amount of the standby
tax levied or required to be levied under Section 260E.6 of the Act to satisfy
the remaining Debt Service on the Certificates determined from Exhibit D
prepared in accordance with Section 2.3. No demand or notice of the amount due
immediately upon the occurrence of an event of default is or shall be required
to fix the liability of Employer or the amount due from Employer. The amount
due hereunder from Employer shall be a debt of Employer to Kirkwood and
Kirkwood may set off against the amount due from Employer any debt or debts of
Kirkwood to Employer. Amounts received by Kirkwood hereunder shall not be
pledged to repayment of the Certificates.
Section 5.4. No remedy conferred upon or reserved to
Kirkwood 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
Kirkwood 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, nor shall it be necessary to make any declaration of an event
of default other than such declaration as may be expressly required herein.
Kirkwood will not perfect the lien provided by Iowa law in accordance with the
terms of Section 3.3.
Section 5.5. 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 be a waiver of any other breach hereunder.
ARTICLE VI
MISCELLANEOUS
Section 6.1. 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 6.2. If any provision 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,
-8-
10
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 6.3. This Agreement shall be governed
exclusively by and construed in accordance with the laws of the State of Iowa.
With the exception of the lien provisions of Iowa law as modified by Section
3.3, the applicable provisions of Iowa law, including the Act, are a part of
this Agreement as if set forth herein.
Section 6.4. 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 appropriate Notice Address as follows:
Financial Manager
Financial Services
Kirkwood Community College
P.O. Box 2068
0000 Xxxxxxxx Xxxxxxxxx, X.X.
Xxxxx Xxxxxx, Xxxx 00000
Xxxx Xxxxx
XxXxxx Network Services, Inc.
000 0xx Xxxxxx X.X.
Xxxxx Xxxxxx, XX 00000
Employer and Kirkwood may, by notice given hereunder,
designate any further or different addresses or persons to which subsequent
notices, requests or other communications shall be sent.
Revisions in the Training set forth on Exhibit "C" and an
increase in the number of new jobs covered by this Agreement shall be approved
in writing by the above representatives of Kirkwood and Employer, their
respective successors or such other individuals as either party designates in
the manner set forth herein, provided, however, consent of Employer shall not
be required for a reduction in Training following an event of default.
Section 6.5. All covenants, stipulations, obligations
and agreements of Kirkwood and Employer contained in this Agreement shall be
effective to the extent authorized and permitted by applicable law. No such
covenant, stipulation, obligation or agreement shall be deemed to be a
covenant, stipulation, obligation or agreement of any present or future member,
officer, agent or employee of Kirkwood or the Board of Directors of Kirkwood
other than in their official capacity, and neither the members of the Board of
Directors of Kirkwood nor any official, agent or employee of Kirkwood shall be
liable personally on the Certificates or the covenants, stipulations,
obligations or agreements of Kirkwood contained in this Agreement.
Section 6.6. This Agreement shall inure to the benefit
of and shall be binding in accordance with its terms upon Kirkwood, Employer
and their respective permitted successors and assigns provided that this
Agreement may not be assigned by Employer without the written consent of
Kirkwood and may not be assigned by Kirkwood without the consent of Employer
except as may be necessary to enforce or secure payment of the Debt Service.
Section 6.7. Employer covenants and agrees that it
will not sell, lease, sublease, mortgage or in any manner dispose of its
interest in the facilities described herein or any capital part thereof so as
to remove the same from the tax rolls until satisfaction and discharge of the
Certificates unless
-9-
11
Employer provides Kirkwood with assurance, in a form acceptable to and approved
by Kirkwood, of future payments necessary to meet the Debt Service on the
Certificates. Employer further covenants and agrees to keep the facilities
continuously insured against loss or damage by fire, lightening, such other
perils as are covered by standard "extended coverage" endorsements, vandalism
and malicious mischief and containing customary loss deductible provisions.
Section 6.8. Kirkwood agrees to use its best efforts
to sell and issue the Certificates, and Employer will cooperate with Kirkwood
to provide necessary financial information in connection with the sale of the
Certificates. It is understood and agreed that should the Certificates not be
marketed or marketable within a reasonable time that this Agreement may be
terminated and the Project terminated, provided, however, the obligation of
Employer under Section 2.7 hereof shall continue following any such
termination.
Section 6.9. Employer covenants that it shall take
such action or shall refrain from taking any action as shall be necessary under
the Internal Revenue Code of 1986, Sections 103, 141-150 and the rulings and
regulations thereunder to maintain any exemption from Federal income taxes of
the interest on the Certificates.
Section 6.10. Disbursements to Employer for Program
Services under this Agreement shall be made only upon approval of vouchers
therefor by the Board of Directors of Kirkwood. Employer agrees that it will
request disbursements only for approved Program Services. Employer agrees that
it will not request disbursements that are prohibited by Sections 6.11, 6.12
and 6.13 hereof. Amounts disbursed to Employer shall be conditional and
subject to subsequent verification and audit of the Project. Requests by
Employer for disbursements, including those requests received by Kirkwood,
shall not constitute a debt of Kirkwood to Employer.
Section 6.11. No monies disbursed from the proceeds of
the Certificates will be used directly or indirectly to finance land,
facilities or depreciable property (or an interest therein) of Employer or
other private Person.
Section 6.12. No monies disbursed from the proceeds of
the Certificates will be used directly or indirectly for the acquisition of any
property (or an interest therein) unless the first use of such property is
pursuant to such acquisition and such property is owned by Kirkwood.
Section 6.13. No monies disbursed from the proceeds of
the Certificates will be used directly or indirectly to provide any airplane,
skybox or other private luxury box, health club facility, facility primarily
used for gambling or a store the principal business of which is the sale of
alcoholic beverages for consumption off premises.
Section 6.14. The provisions of this Agreement and the
provisions of the Resolution are to be construed wherever possible so that they
will not be in conflict. In the event such construction is not possible, the
provisions of the Resolution shall prevail.
Section 6.15. Employer acknowledges that issuance of
the Certificates may be conditioned on receipt by Kirkwood of an opinion of
bond counsel that interest on all or part of the Certificates is exempt from
federal income tax and that such opinion will be predicated on satisfaction of
the applicable provisions of the Internal Revenue Code of 1986 including, but
not limited to, the receipt by Kirkwood of an allocation of the State of Iowa
volume ceiling for the Project.
Section 6.16. Employer acknowledges that pursuant to
Section 260E.6 of the Act, the Resolution adopted by Kirkwood may authorize the
issuance of industrial new jobs training Certificates
-10-
12
to fund Iowa Code Chapter 260E training programs with other employers.
Employer acknowledges and agrees that the industrial new jobs training
Certificates issued by Kirkwood to fund training programs for multiple
projects, including this Project, will not be identifiable or specifically
attributable to this Project.
References in this Agreement to "Certificates" include a
reference to an undivided portion of industrial new jobs training Certificates
issued by Kirkwood to fund training programs for multiple projects, including
this Project. Employer's obligations, covenants and representations set forth
herein with respect to the Certificates are not and shall not be conditioned on
the issuance of training certificates identifiable or specifically attributable
to this Project.
Section 6.17. This Agreement, including Exhibits,
constitutes the entire agreement between Kirkwood and Employer with respect to
the subject matter hereof and as such supersedes all previous negotiations,
commitments and understandings. Captions and the alignment of the Agreement
are for convenience only and shall not be construed to modify the rights or
obligations of the parties.
ARTICLE VII
SUPPLEMENTAL NEW JOBS CREDIT FROM WITHHOLDING
Certain jobs included in the Project are eligible for a
supplemental new jobs credit from withholding in an amount equal to one and
one-half percent of the gross wages paid by the Employer pursuant to Senate
File 2351 adopted by the 76th General Assembly effective July 1, 1996.
Kirkwood and the Employer agree that the Supplemental Program shall be
administered in the same manner as the remainder of the Project and that all
terms and conditions of this Agreement shall apply to the entire Project
including the Supplemental Program.
Section 7.1. Terms used in this Article shall have the
meanings set out in Article I or this Section 7.1. Other terms used in this
Article shall have the meanings set out in Chapters 15A or 260E, Code of Iowa,
1995, as amended.
- "Average Wage" means the average county wage in the
county where the Project Site is located or the
average regional wage, whichever is lower, as
compiled annually by the Department for the Community
Economic Betterment Program.
- "Starting Wages" or "Wages" means the wage being paid
or to be paid by the Employer under the terms of this
Agreement and which has been determined by Kirkwood
to equal or exceed the Average Wage based upon
criteria established in Section 15A.7 Code of Iowa,
1995, as amended, and rules promulgated by the
Department.
- "Supplemental Program" means that portion of the
Project including Program Services and Program Costs
eligible to be funded from a supplemental new jobs
credit from withholding from jobs created under this
Agreement because the Employer has agreed to pay
Starting Wages as defined in this Agreement.
Section 7.2. The Employer agrees that it shall pay
Wages for the jobs included in the Supplemental Program (and for which the
supplemental new jobs credit from withholding is collected) at least equal to
the Average Wage. In the event the Employer fails to pay Wages for the jobs
included in the Supplemental Program, such failure may constitute an event of
default under this Agreement.
-11-
13
Section 7.3. The supplemental new jobs credit from
withholding shall be collected, accounted for and may be pledged by Kirkwood in
the same manner as described in Section 2.2 of this Agreement and Section
260E.5 of the Act.
Section 7.4. The number of jobs included in the
Supplemental Program are identified on Exhibit C. The specific jobs are as
identified in writing by the Employer. Kirkwood hereby determines eligibility
of the Supplemental Program and Starting Wages for those jobs shown on Exhibit
C as included in the Supplemental Program.
Section 7.5. To provide funds for the payment of the
costs of the Supplemental Program Kirkwood may borrow money, issue and sell
Certificates and secure the payment of the Certificates in the same manner as
described in Article II of this Agreement and Section 260E.6 of the Act. It is
the intent of the parties that the Supplemental Program shall be funded and
administered in such a manner as to maintain any tax exempt status of the
interest on Certificates issued to fund the Program Services under Chapter
260E.
Section 7.6. The Supplemental Program and the
supplemental new jobs credit from withholding provided for in this Article VII
shall be in addition to and not in lieu of the program and credit authorized in
Article II of this Agreement and Section 260E.5 of the Act. The Program
Services set forth on Exhibits B and C, the tentative payback schedule set
forth on Exhibit D, and the Employer's projections of wages to be paid in those
new jobs qualifying for the supplemental new jobs credit from withholding
includes the Supplemental Program.
IN WITNESS WHEREOF, Kirkwood and Employer have caused this
Agreement to be duly executed all as of the date hereinabove written.
KIRKWOOD COMMUNITY COLLEGE
October 31, 1996 By /s/ XXXXX X. XXXXXX
------------------------------------ -----------------------------------
Date
ATTEST:
/s/ XXXXXX X. GLASS
------------------------------------
XXXXXX NETWORK SERVICES, INC.
000 0xx Xxxxxx X.X.
Xxxxx Xxxxxx, XX 00000
October 29, 1996 By /s/ XXXXXXX X. XXXX
------------------------------------ -----------------------------------
Date Xxxxxxx X. Xxxx, President
ATTEST:
/s/ XXXXX X. XXXXX
------------------------------------
XXXXX X. XXXXX, Secretary
-12-
