Nebraska Lease Agreement - County of Dodge, Nebraska and the Oilgear Co.
EXECUTION COPY
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LEASE AGREEMENT
Between
COUNTY OF DODGE, NEBRASKA,
Lessor,
and
THE OILGEAR COMPANY,
Lessee
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Dated as of October 1, 1997
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$4,000,000
County of Dodge, Nebraska
Variable Rate Demand Industrial Development Revenue Bonds, Series 1997
(The Oilgear Company Project)
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Certain rights of Lessor under this Agreement have been assigned to, and
are subject to a security interest in favor of, Norwest Bank Wisconsin, National
Association, as Trustee under a Trust Indenture, dated as of the date first
above written, as amended or supplemented from time to time. Information
concerning such security interest may be obtained from the Trustee at 100 East
Wisconsin Avenue, Milwaukee, Wisconsin 53202.
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND USE OF PHRASES
Section 1.1. Definitions.............................................................. 2
Section 1.2. Use of Phrases; Rules of Construction.................................... 4
ARTICLE II
DEMISING CLAUSES; LEASE TERM; RENTAL PROVISIONS
Section 2.1. Demise of the Leased Premises............................................ 4
Section 2.2. Title to Leased Premises................................................. 4
Section 2.3. Quiet Enjoyment.......................................................... 5
Section 2.4. Issuance of Bonds To Finance the Project................................. 5
Section 2.5. Effective Date of Agreement; Duration of Lease Term...................... 5
Section 2.6. Delivery and Acceptance of Possession.................................... 5
Section 2.7. Rental Payments.......................................................... 5
Section 2.8. Direct, Unsecured Obligation............................................. 6
Section 2.9. Pledge and Assignment to Trustee......................................... 6
ARTICLE III
ACQUISITION, CONSTRUCTION AND INSTALLATION OF THE PROJECT
Section 3.1. Agreement To Complete the Project; Title to Project...................... 6
Section 3.2. Manner of Procuring Disbursements from the Cost of Issuance Fund......... 7
Section 3.3. Manner of Procuring Disbursements from the Construction Fund............. 7
Section 3.4. Amendments to Project Plans and Specifications........................... 8
Section 3.5. Establishment of Project Completion Date................................. 8
Section 3.6. Closing of Construction Fund............................................. 8
Section 3.7. Maintenance and Improvement of Project................................... 8
Section 3.8. Enforcement of Contracts................................................. 9
Section 3.9. Ownership of Tax Benefits................................................ 9
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ARTICLE IV
CONVERSION OF INTEREST RATES, REMARKETING AGENT
AND CREDIT FACILITIES
Section 4.1. Conversion of Interest Rate................................................... 9
Section 4.2. Concerning Remarketing Agent.................................................. 9
Section 4.3. Concerning Substitute Credit Facilities....................................... 9
Section 4.4. References to Credit Facility Provider After Expiration or Default of
Credit Facility............................................................... 9
ARTICLE V
PREPAYMENT OF LEASE RENTALS
Section 5.1. Optional Prepayment Upon Occurrence of
Certain Extraordinary Events.................................................. 10
Section 5.2. Mandatory Prepayment of Rental Payments
Upon Determination of Taxability.............................................. 11
Section 5.3. Optional Prepayment of Rental Payments........................................ 11
Section 5.4. Deposit of Prepayments in Redemption Fund..................................... 12
Section 5.5. Corresponding Redemption of Bonds............................................. 12
Section 5.6. Purchase and Cancellation of Bonds............................................ 12
ARTICLE VI
REPRESENTATIONS OF COMPANY
Section 6.1. Corporate Existence and Authorization......................................... 12
Section 6.2. Accuracy of Project Description and Project Budget............................ 12
Section 6.3. Absence of Conflicting Agreements............................................. 13
Section 6.4. Taxes......................................................................... 13
Section 6.5. Regulatory Approvals.......................................................... 13
Section 6.6. Absence of Litigation......................................................... 13
Section 6.7. Date and Survival of Representations; Exceptions.............................. 13
ARTICLE VII
COVENANTS OF COMPANY
Section 7.1. Payment of Rental Payments.................................................... 13
Section 7.2. Unconditional Obligation to Provide Issuer with Sufficient Revenues........... 14
Section 7.3. Indemnification of Issuer..................................................... 14
Section 7.4. Taxes, Licenses, Utilities and Governmental Charges........................... 16
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Section 7.5. Insurance.................................................................... 16
Section 7.6. Tax Status of Bonds.......................................................... 16
Section 7.7. Sale or Transfer of Project.................................................. 18
Section 7.8. Maintenance of Corporate Existence........................................... 19
Section 7.9. Transfers of Assets.......................................................... 19
Section 7.10. No Warranty of Condition or Suitability by Issuer............................ 19
Section 7.11. Inspection of the Leased Premises............................................ 20
Section 7.12. Granting of Easements........................................................ 20
Section 7.13. Company To Hold Issuer and Trustee Harmless.................................. 20
Section 7.14. Mortgage or Security Interest in Leased Premises............................. 21
ARTICLE VIII
DAMAGE; EMINENT DOMAIN
Section 8.1. Damage........................................................................ 21
Section 8.2. Eminent Domain................................................................ 21
ARTICLE IX
ASSIGNMENT, SUBLEASING, PLEDGING AND SELLING;
REDEMPTION; RENT PREPAYMENT AND ABATEMENT
Section 9.1. Assignment.................................................................... 22
Section 9.2. Redemption of Bonds........................................................... 22
Section 9.3. Prepayment of Rents........................................................... 22
Section 9.4. Reference to Bonds Ineffective After Bonds Paid............................... 22
ARTICLE X
RELEASE OF LEASED PREMISES
Section 10.1. Option To Acquire Legal Title Upon Full Payment of the Bonds.................. 22
Section 10.2. Partial Releases.............................................................. 23
ARTICLE XI
THE TRUSTEE AND TRUST FUNDS
Section 11.1. Payment of Trustee's Fees..................................................... 23
Section 11.2. Duty To Provide Data.......................................................... 24
Section 11.3. Investment of Trust Funds; Arbitrage.......................................... 24
Section 11.4. Bond Fund and Redemption Fund................................................. 25
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Section 11.5. Surplus Construction Fund..................................................... 25
Section 11.6. Excess Trust Fund Moneys...................................................... 25
ARTICLE XII
DEFAULT PROVISIONS
Section 12.1. Defaults; Events of Default................................................... 25
Section 12.2. Acceleration.................................................................. 26
Section 12.3. Remedies...................................................................... 26
Section 12.4. Disposition of Amounts Collected.............................................. 26
Section 12.5. Payment of Costs and Expenses................................................. 26
Section 12.6. Limitation on Waivers......................................................... 26
Section 12.7. Performance by Third Parties.................................................. 27
Section 12.8. Performance for Issuer Under Indenture........................................ 27
ARTICLE XIII
MISCELLANEOUS
Section 13.1. Amendments.................................................................... 27
Section 13.2. Successors.................................................................... 27
Section 13.3. Governing Law................................................................. 27
Section 13.4. Captions...................................................................... 27
Section 13.5. Counterparts.................................................................. 28
Section 13.6. Notices....................................................................... 28
Section 13.7. Severability.................................................................. 28
Section 13.8. Limited Liability of Issuer................................................... 28
EXHIBIT A-Legal Description of Land
EXHIBIT B-Description of Building Improvement
EXHIBIT C-Description of Equipment
EXHIBIT D-Project Costs
EXHIBIT E-Form of Requisition
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LEASE AGREEMENT
THIS LEASE AGREEMENT dated as of October 1, 1997 by and between the
COUNTY OF DODGE, NEBRASKA, a political subdivision of the State of Nebraska (the
"Issuer"), as lessor, and THE OILGEAR COMPANY, a Wisconsin corporation (the
"Company"), as lessee;
W I T N E S S E T H :
WHEREAS, pursuant to and in accordance with the provisions of the
Nebraska Industrial Development Act, Chapter 13, Article 11, Reissue Revised
Statutes of Nebraska, 1943, as amended (the "Act"), the Issuer proposes to
finance by the issuance of industrial revenue bonds of the Issuer a portion of
the cost of acquisition and improvement of an addition to the Company's existing
hydraulic pump manufacturing facilities located in Dodge County, Nebraska and
the acquisition and installation of equipment for such facilities (the
"Project"), which addition and equipment constitute a "project" within the
meaning of the Act and which addition is being constructed and acquired within
the jurisdiction of the Issuer and will be operated by The Oilgear Company, a
Wisconsin corporation (the "Company"); and
WHEREAS, it has been determined that the estimated amount necessary to
finance a portion of the cost of the acquisition and improvement of the Project,
including necessary expenses incidental thereto, will require the issuance, sale
and delivery of County of Dodge, Nebraska Variable Rate Demand Industrial
Development Revenue Bonds, Series 1997 (The Oilgear Company Project) in the
principal amount of $4,000,000 (the "Bonds"); and
WHEREAS, the Company has conveyed to Issuer a leasehold interest in the
Building Improvement (as defined herein) component of the Project pursuant to
the Building Improvement Lease (as defined herein) and title to the Equipment
(as defined herein) component of the Project, as and when acquired, for the
purpose of owning and leasing to the Company the Project as provided herein; and
WHEREAS, the Issuer proposes to make the Project available to the
Company by providing the proceeds of the Bonds to the Company to defray a
portion of the costs of acquisition and improvement of the Project, and leasing
the Project and related premises to the Company; and
WHEREAS, the Company desires to borrow the proceeds of the Bonds from
the Issuer and lease the Project and related premises from the Issuer upon the
terms and conditions hereinafter set forth; and
WHEREAS, the execution and delivery of this Agreement have been in all
respects duly and validly authorized by resolution of the Issuer's governing
body; and
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WHEREAS, the Company and the Issuer each have full right and lawful
authority to enter into this Lease 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 of the covenants
and undertakings herein expressed, the Issuer and the Company agree as follows:
ARTICLE I
DEFINITIONS AND USE OF PHRASES
Section 1.1. Definitions. As used in this Agreement and the recitals
hereto, the terms and phrases defined in the Trust Indenture dated even herewith
between the Issuer and Norwest Bank Wisconsin, National Association, as Trustee,
shall, except as set forth below, have the same meanings herein. In addition:
"Agreement" means this Agreement and all amendments and supplements
hereto.
"Bond Discount" means the difference between the Bond Amount and the
price at which the Bonds are sold by the Issuer to the original purchaser(s) of
the Bonds.
"Building Improvement" means the building improvement and addition
located on the Land and described in Exhibit B to the Agreement.
"Building Improvement Lease" means the Building Improvement Lease dated
as of October 1, 1997 by which the Company transfers a leasehold interest in the
Building Improvement to the Issuer.
"Eligible Costs of the Project" means the following categorical costs
of providing the Project:
(a) the "Bond Issuance Costs," namely the costs, fees and
expenses incurred or to be incurred by the Company in connection
with the issuance and sale of the Bonds which are subject to the
limitation described in Section 147(g)(1) of the Internal Revenue Code,
including commitment or other financing fees, the fees and
disbursements of Bond Counsel, the Trustee's acceptance fee, the filing
and recording fees in connection with any filings or recording
necessary under the Indenture or to perfect the lien thereof, any
administrative fee of the Issuer, the fees and disbursements of counsel
to the Issuer, the fees and disbursements of counsel to the Company,
the fees and disbursements of counsel to the underwriter, the fees and
disbursements of counsel to the Credit Facility Provider, rating agency
fees, the fees and disbursements of the Company's accountants, the
costs of preparing or printing the Bonds and the documentation
supporting the issuance of the Bonds, the costs of any title insurance
policies, appraisals, environmental audits and similar costs relating
to the Project or other security for the Company's obligations under
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the Credit Facility Reimbursement Agreement, and any other costs of a
similar nature reasonably incurred;
(b) the "Engineering Costs," namely the architectural and
engineering costs and other costs which are or were necessary for the
design and planning of the Project and which were incurred after
March 22, 1997 with respect to equipment expenditures and construction
expenditures;
(c) the "Basic Project Costs," namely those costs of
acquiring, constructing and installing the Project which were incurred
after March 22, 1997 with respect to equipment expenditures and
construction expenditures, and which were or are for the purpose of
providing land or property of a character subject to the allowance for
depreciation under the Internal Revenue Code; and
(d) the "Other Costs," namely such other costs incurred
in connection with the Project or the financing thereof which, in the
opinion of Bond Counsel, may be paid or reimbursed to the Company from
the Construction Fund without adverse effect on the legality of the
Bonds or the exclusion of interest thereon from gross income under
Sections 103(a) and 144(a)(4) of the Internal Revenue Code.
"Equipment" means the equipment described in Exhibit C to this
Agreement, including, upon disbursement of moneys from the Construction Fund,
such equipment for which proper disbursements are made pursuant to Section 3.3
of this Agreement.
"Event of Default" means any of the events designated as such in
Section 12.1 of this Agreement.
"Land" means the real estate described in Exhibit A attached hereto and
by this reference made a part of this Agreement.
"Leased Premises" means the Building Improvement and the Equipment, all
located upon the Land.
"Lease Term" means the duration of Company's right to use and occupy
the Leased Premises as specified in Section 2.5 hereof.
"Permitted Encumbrances" means, as of any particular time, (a) this
Agreement and the Building Improvement Lease, (b) utility, access and other
easements and rights of way, restrictions, reservations, reversions and
exceptions that will not interfere with or impair the operations being conducted
at the Project (or, if no operations are being conducted therein, the operations
for which the Project was designed or last modified), (c) such minor defects,
irregularities, encumbrances, easements, rights of way and clouds on title as
normally exist with respect to properties similar in character to the Project,
and as do not, in the opinion of Independent Counsel, materially impair the
property affected thereby for the purpose for which
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it was acquired or is held by the Issuer, (d) such mortgages, encumbrances and
liens authorized by the Company which do not materially impair the property
affected thereby for the purpose for which it was acquired or is held by the
Issuer and (e) any arrangement given by the Issuer to the Company with respect
to the Leased Premises as security for the reconveyance of the Leased Premises
in accordance with the provisions of Article X of this Agreement.
Section 1.2. Use of Phrases; Rules of Construction. The following
provisions shall be applied wherever appropriate herein:
"Herein," "hereby," "hereunder," "hereof" and other equivalent words
refer to this Agreement as an entirety and not solely to the particular portion
of this Agreement in which any such word is used.
The definitions set forth in Section 1.1 hereof shall be deemed
applicable whether the words defined are herein used in the singular or the
plural.
Wherever used herein, any pronoun or pronouns shall be deemed to
include both the singular and plural and to cover all genders.
Unless otherwise provided, any determinations or reports hereunder
which require the application of accounting concepts or principles shall be made
in accordance with generally accepted accounting principles.
ARTICLE II
DEMISING CLAUSES; LEASE TERM; RENTAL PROVISIONS
Section 2.1. Demise of the Leased Premises. The Issuer demises and
leases to the Company, and Company leases from the Issuer, the Leased Premises
at the rental set forth in Section 2.7 hereof and in accordance with the
provisions of this Agreement.
Section 2.2. Title to Leased Premises. The Issuer warrants that it
lawfully owns and is lawfully possessed of a leasehold interest in the Building
Improvement pursuant to the terms of the Building Improvement Lease subject to
Permitted Encumbrances, but the Issuer has no liability in regard thereto. The
Issuer warrants that, pursuant to a bill of sale from the Company to the Issuer
and on file with the Trustee, it lawfully owns and is lawfully possessed of all
Equipment for which disbursements have been made from the Construction Fund
pursuant to Section 3.3 hereof, but the Issuer has no liability in regard
thereto.
If the Issuer or the Company acquires the interest of the other in the
Leased Premises, including pursuant to the Building Improvement Lease, there
shall be no merger of the leasehold estate into (i) the fee simple estate in the
Building Improvement or the Equipment or (ii) any leasehold estate superior to
that of the Company.
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Section 2.3. Quiet Enjoyment. The Issuer covenants and agrees that the
Company, upon paying the rent herein and upon performing and observing the
covenants, conditions and agreements hereof, shall and may peaceably hold and
enjoy the Leased Premises during the Lease Term without any interruption or
disturbance, subject however, to the terms of this Agreement.
Section 2.4. Issuance of Bonds To Finance the Project. Simultaneously
with the delivery of this Agreement, the Issuer shall issue, sell and deliver
the Bonds in the Bond Amount to provide funds to the Company pursuant to this
Agreement. The Bonds shall be issued in accordance with the Indenture. The
Company's approval of the terms of the Bonds and the Indenture shall be
conclusively established by its execution and delivery of this Agreement. If for
any reason the Bonds are not issued, sold and delivered, this Agreement shall
cease, terminate and be void.
The proceeds of the original sale of the Bonds shall be delivered to
the Trustee at the direction of the Issuer. Such proceeds shall be apportioned
by the Trustee and deposited in Trust Funds, as follows:
(a) An amount equal to the Cost of Issuance Deposit
Amount shall be deposited into the Cost of Issuance Fund; and
(b) The balance shall be deposited into the Construction
Fund.
The Bond Discount shall be deemed to have been applied to the Bond Issuance
Costs. The Bond Amount equals the sum of the Bond Discount plus items (a) and
(b) above.
Section 2.5. Effective Date of Agreement; Duration of Lease Term. This
Agreement shall become effective upon its delivery, and the leasehold estate
created herein shall then begin, and, subject to the provisions of this
Agreement (including particularly Articles V and X hereof), shall continue until
such date as payment has been made in full of the Bonds or provision for such
payment has been made as provided in the Indenture.
Section 2.6. Delivery and Acceptance of Possession. The Issuer agrees
that the Company shall have possession of the Leased Premises (subject to the
right of Trustee to enter thereon for inspection purposes and to the other
provisions of Section 7.11 hereof) whenever such possession is desired by the
Company.
Section 2.7. Rental Payments. (a) On or prior to each Interest Payment
Date and any other date under the Indenture on which the principal of, premium,
if any, and interest on the Bonds is payable, the Company shall pay as basic
rent for the Leased Premises a sum equal to the amount due and payable on such
dates (the "Rental Payments") to the Trustee or any Alternate Paying Agent as
provided in the Indenture. The Company, on any date on which all the Bonds shall
be declared to be and shall become due and payable prior to their stated
maturity pursuant to the provisions of the Indenture, shall also pay directly to
Trustee as Rental Payments
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the aggregate amount of principal and interest so becoming due and payable on
all the Bonds. If at any payment date, Interest Payment Date or redemption date,
the balance in the Bond Fund is insufficient to make required payments of
principal, premium, if any, and interest on such date, the Company shall
forthwith pay as Rental Payments any such deficiency.
Interest on the Bonds is payable (i) on and prior to the Conversion
Date, on the first Business Day of each January, April, July and October,
commencing January, 1998, (ii) thereafter, on January 1, April 1, July 1 and
October 1 of each year, commencing the first such date which is at least 30 days
after the Conversion Date, and (iii) on each other Interest Payment Date for the
Bonds as provided in the Indenture. The Rental Payments shall be made by the
Company (or by the Credit Facility Provider pursuant to the Credit Facility)
directly to the Trustee then acting under the Indenture. The Trustee shall
deposit all Rental Payments into the Bond Fund or the Redemption Fund as
provided in the Indenture.
The Company's obligations to pay Rental Payments shall be discharged
to the extent that the corresponding payments of principal of, premium, if any,
and interest on the Bonds are made from the Bond Fund in accordance with the
provisions of the Indenture.
Section 2.8. DIRECT, UNSECURED OBLIGATION. The obligations of the
Company to pay Rental Payments under this Agreement are direct, unsecured
obligations of the Company.
Section 2.9. PLEDGE AND ASSIGNMENT TO TRUSTEE. Simultaneously with the
delivery of this Agreement, the Issuer shall pledge and assign to the Trustee
under the Indenture all of the Issuer's right, title and interest in and to this
Agreement and all of the Issuer's rights to receive payments hereunder;
provided, however, that the Issuer reserves the right to enforce the Unassigned
Rights in its own name and for its own account. The Company hereby consents to
such pledge and assignment and agrees that the Trustee may enforce any and all
rights, privileges and remedies of the Issuer (other than the Unassigned Rights)
under or with respect to this Agreement.
ARTICLE III
ACQUISITION, CONSTRUCTION AND INSTALLATION OF THE PROJECT
Section 3.1. AGREEMENT TO COMPLETE THE PROJECT; TITLE TO PROJECT. (a)
The Company, as agent for Issuer, agrees to complete, or cause to be completed,
the construction, acquisition and installation of the Project with all
reasonable dispatch in accordance with the Project Plans and Specifications. If
the moneys in the Construction Fund shall be insufficient to pay the costs of
completing the Project, the Company shall nevertheless complete the same and
shall be responsible for causing the costs thereof to be paid. The Company shall
procure any and all building permits, use and occupancy permits, and other
permits, licenses and authorizations necessary for the construction, completion,
occupancy and use of the Project.
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(b) Title to all machinery, equipment and personal property of every
nature paid for out of the Construction Fund (either by direct payment or by
virtue of reimbursement to the Company) shall be transferred to the Issuer.
Section 3.2. Manner of Procuring Disbursements from the Cost of
Issuance Fund. Bond Issuance Costs, to the extent financed by the Bonds, may be
disbursed only from the Cost of Issuance Fund and only in an aggregate amount
not exceeding the Cost of Issuance Deposit Amount. Upon requisition as
hereinafter provided, the moneys in the Cost of Issuance Fund shall be disbursed
to or at the order of the Company to pay (or reimburse the Company for) the Bond
Issuance Costs described in the definition of Eligible Costs of the Project
herein.
Disbursements from the Cost of Issuance Fund shall be made by the
Trustee only upon receipt of (a) an appropriately completed Company's
Requisition substantially in the form attached hereto as Exhibit E, executed on
behalf of the Company by a Company's Representative, accompanied by the
supporting information and documentation specified therein and (b) the written
approval of the Credit Facility Provider.
Disbursements from the Cost of Issuance Fund shall be subject to such
further terms and conditions as are contained in the Credit Facility
Reimbursement Agreement.
If the moneys in the Cost of Issuance Fund shall be insufficient to pay
all of the Bond Issuance Costs, the Company shall be responsible for paying the
difference from funds other than Bond proceeds. If there shall be any balance in
the Cost of Issuance Fund remaining after the earlier of the date which is 90
days after the date of issuance of the Bonds or the date the Trustee receives a
certification by the Company's Representative that all Bond Issuance Costs have
been paid, such remaining balance shall be transferred to the Construction Fund,
or if the Construction Fund has been closed pursuant to Section 3.6 hereof, to
the Surplus Construction Fund.
Section 3.3. Manner of Procuring Disbursements from the Construction
Fund. Upon requisition as hereinafter provided, moneys in the Construction Fund
shall be disbursed to or at the order of the Company to pay (or reimburse the
Company for) the Engineering Costs, the Basic Project Costs and the Other Costs
of the Project described in the definition of Eligible Costs of the Project
herein.
Disbursements from the Construction Fund shall be made by the Trustee
only upon receipt of (a) an appropriately completed Company's Requisition
substantially in the form attached hereto as Exhibit E, executed on behalf of
the Company by a Company's Representative, accompanied with the proper
information and documentation specified therein, and (b) the written approval of
the Credit Facility Provider. For each disbursement with respect to Equipment,
the Company shall provide to the Trustee a bill of sale transferring title to
such equipment to the Issuer. The Company agrees that the Trustee may condition
any disbursement from the Construction Fund upon its receipt of such additional
information and documentation as it may reasonably require to evidence the truth
and accuracy of the statements and
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representations contained in the Company's Requisition. The Trustee shall have
the right to withhold disbursements from the Construction Fund if the
Company's Requisition is incomplete or inaccurate in any material respect.
Disbursements from the Construction Fund shall be subject to such
further terms and conditions as are contained in the Credit Facility
Reimbursement Agreement.
Section 3.4. Amendments to Project Plans and Specifications. Subject
to the conditions set forth in this Section 3.4, the Company shall have the
right to amend its Project Plans and Specifications and to issue change orders
to contractors from time to time as the Company shall deem necessary or
desirable.
The Company agrees that it will make no amendment or change to the
Project Plans and Specifications which would adversely affect the legality of
the Bonds or the exclusion of interest thereon from gross income under
Section 103(a) of the Internal Revenue Code.
Section 3.5. Establishment of Project Completion Date. The Company
shall evidence the completion of the Project by filing the following items with
the Issuer, the Credit Facility Provider and the Trustee: a Company's
Certificate certifying, without prejudice to any rights against third parties
(i) that the Project has been constructed, acquired and installed in accordance
with Project Plans and Specifications, (ii) the date of Project completion and,
if applicable, the respective dates of completion of each of the component
phases of the Project, and (iii) that all labor, services, materials and
supplies used to construct, acquire and install the Project have been paid in
full, except for such portion thereof (which shall be identified in detail)
which the Company is disputing in good faith and by appropriate proceeding. Upon
such filing, the date specified in the Company Certificate, as described in
clause (ii) above, shall be the "Completion Date" for purposes of this
Agreement.
Section 3.6. Closing of Construction Fund. Upon being furnished the
items described in Section 3.5 hereof, the Trustee shall close the Construction
Fund and transfer the remaining balance therein, if any, to the Surplus
Construction Fund. If the Company has not filed such items by ninety days prior
to the third annual anniversary of the Dated Date, the Company shall file with
the Trustee a Company's Certificate stating in detail the reasons therefor,
certifying the amounts, if any, which are then due and owing to contractors,
materialmen or other suppliers for the Project and containing detailed estimates
of the costs necessary to complete the Project in accordance with the Project
Plans and Specifications.
Section 3.7. Maintenance and Improvement of Project. Upon completion
of the Project and thereafter for so long as any Bonds shall be Outstanding, the
Company agrees to keep and maintain the Project in good condition, repair and
working order, except for ordinary wear and tear and obsolescence. Subject to
Section 3.4 hereof the Company may remodel, modify or otherwise improve the
Project from time to time as the Company in its discretion determine to be in
its best interests.
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Section 3.8. Enforcement of Contracts. (a) The Issuer covenants that
it will take any action and institute any proceedings requested by the Company
to cause and require all contractors and material or equipment suppliers to
complete their contracts diligently in accordance with the terms of said
contracts, including, without limitation, the correcting of any defective work
or products. The Issuer agrees that the Company may, from time to time, in its
own name, or in the name of the Issuer, take such action as may be necessary or
advisable, as determined by the Company, to insure the construction or
acquisition of the Project in accordance with the Project Plans and
Specifications and any applicable contract pertaining thereto, to insure the
peaceable and quiet enjoyment of the Project for the term of this Agreement.
Section 3.9. Ownership of Tax Benefits. It is the intention of the
parties that any tax benefits resulting from ownership of the Leased Premises
and any tax credit or comparable credit which may ever be available shall accrue
to the benefit of the Company , and the Company may, and the Issuer upon advice
of counsel may, make any election and take other action in accordance with the
Internal Revenue Code and the regulations promulgated thereunder as may be
necessary to entitle the Company to have such benefit and credit.
ARTICLE IV
CONVERSION OF INTEREST RATES, REMARKETING AGENT
AND CREDIT FACILITIES
Section 4.1. Conversion of Interest Rate. The Company shall have the
right to convert the interest rate on the Bonds from the Variable Rate to the
Fixed Rates by delivering a Conversion Notice to the Trustee and causing the
other conditions set forth in Section 402(b) of the Indenture to be satisfied.
In the event that any Proposed Conversion Date established by the delivery of a
Conversion Notice does not become the Conversion Date, the Company shall have
the right to establish another Proposed Conversion Date in the same manner.
Section 4.2. Concerning Remarketing Agent. The Company shall at all
times cause a Remarketing Agent meeting the requirements of Section 413 of the
Indenture to perform the functions required of the Remarketing Agent hereunder
and under the Indenture. The Company shall be responsible for the payment of the
fees and expenses of the Remarketing Agent. Any successor Remarketing Agent
shall be appointed by the Issuer at the direction of the Company.
Section 4.3. Concerning Substitute Credit Facilities. The Company may
furnish Substitute Credit Facilities from time to time in accordance with
Section 1202 of the Indenture.
Section 4.4. References to Credit Facility Provider After Expiration
or Default of Credit Facility. The particular provisions of this Agreement which
require the approval, consent or direction of, or notice to, the Credit Facility
Provider apply only while a Credit Facility is outstanding and if the Credit
Facility Provider is not in default in any payment required to be made on the
Credit Facility.
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ARTICLE V
PREPAYMENT OF LEASE RENTALS
Section 5.1. Optional Prepayment Upon Occurrence of Certain
Extraordinary Events. At the option of the Company the Rental Payments may be
prepaid in whole (but not in part) if any of the following shall occur:
(a) The Project shall have been damaged or destroyed to
such extent that, in the opinion of the Company expressed in a
Company's Certificate filed with the Issuer, the Trustee and the Credit
Facility Provider following such damage or destruction, (i) the
completion of the Project will be delayed for at least six months,
(ii) it is not practicable or desirable to rebuild, repair or restore
the Project within a period of six consecutive months following such
damage or destruction, or (iii) the Company is or will be thereby
prevented from carrying on its normal operations at the Project for a
period of at least six consecutive months;
(b) Title to or the temporary use of all or substantially
all the Project shall have been taken under the exercise of the power
of eminent domain by any governmental authority to such extent that, in
the opinion of the Company expressed in a Company's Certificate filed
with the Issuer, the Trustee and the Credit Facility Provider, (i) the
completion of the Project will be delayed for at least six months, or
(ii) the Company is or will be thereby prevented from carrying on its
normal operations at the Project for a period of at least six
consecutive months;
(c) Any court or administrative body of competent
jurisdiction shall enter a judgment, order or decree requiring the
Company to cease all or any substantial part of its operations at the
Project to such extent that, in the opinion of the Company expressed in
a Company's Certificate filed with the Issuer, the Trustee and the
Credit Facility Provider, the Company is or will be thereby prevented
from carrying on its normal operations at the Project for a period of
at least six consecutive months; or
(d) As a result of any changes in the Constitution of
Nebraska or the Constitution of the United States of America or of
legislative or administrative action (whether state or federal) or by
final decree, judgment or order of any court or administrative body
(whether state or federal), this Agreement shall have become void or
unenforceable or impossible of performance in accordance with the
intent and purposes of the parties as expressed in this Agreement, or
unreasonable burdens or excessive liabilities shall have been imposed
on the Issuer or the Company as a consequence of the Bonds being
Outstanding, including without limitation federal, state or other ad
valorem, property, income or other taxes not being imposed on the date
of this Agreement.
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To exercise such option the Company shall give notice to the Issuer and the
Trustee within one hundred eighty days following the occurrence of the event
which is said to give rise to the right to exercise such option. The notice
shall refer to this Section 5.1, shall describe and give the date of the subject
event, shall have attached to it the requisite Company's Certificate, and shall
direct a redemption of all Outstanding Bonds pursuant to Section 404 of the
Indenture on a specified Business Day for which the notice of redemption
required by Section 302 of the Indenture can be given. As a further condition to
the exercise of such option, the Company shall obtain the written consent of the
Credit Facility Provider.
Section 5.2. Mandatory Prepayment of Rental Payments Upon
Determination of Taxability. (a) The Company agrees to prepay the entire
outstanding principal balance of the Rental Payments if a Determination of
Taxability shall occur. The Issuer and the Company authorize the Trustee to take
actions necessary to call all Bonds for redemption pursuant to Section 405(a) of
the Indenture on the earliest practicable Business Day (selected by the Trustee)
within 60 days following the date on which a Determination of Taxability shall
have occurred and to draw on the Credit Facility to prepay the Rental Payments
in the amount of 103% of the principal amount of the Bonds to be so redeemed and
all interest thereon accrued and to accrue to the date of redemption.
(b) After the Conversion Date, the Company agrees to prepay the
entire outstanding principal balance of the Rental Payments on the first day of
the month in which the Credit Facility Expiration Date is to occur unless, at
least 45 days prior to such date, the Company shall have caused to be delivered
to the Trustee a Substitute Credit Facility meeting the requirements of
Section 1202 of the Indenture or an amendment to the Credit Facility extending
the Credit Facility Expiration Date by and at least the lesser of one year or
the period ending on the fifteenth day of the month in which the next Reset Date
is to occur. The Issuer and the Company authorize the Trustee to take actions
necessary to call all Bonds for redemption pursuant to Section 405(b) of the
Indenture on such date and to draw on the Credit Facility to prepay the Rental
Payments in the amount of 100% of the principal amount of the Bonds to be so
redeemed and all interest thereon accrued and to accrue to the date of
redemption.
Section 5.3. Optional Prepayment of Rental Payments. At the option of
the Company the Rental Payments may be prepaid (a) on or prior to the Conversion
Date in whole or in part (in multiples of $5,000) on any Business Day and
(b) after the Conversion Date, in whole on any date or in part (in multiples of
$5,000) on any regularly scheduled Interest Payment Date which is (i) on or
after the third anniversary of the Conversion Date if the Conversion Date occurs
at least five years, but less than seven years, prior to the Final Maturity Date
and (ii) on or after the fourth anniversary of the Conversion Date if the
Conversion Date occurs at least seven years, but less than 10 years, prior to
the Final Maturity Date. If the Conversion Date occurs less than five years
prior to the Final Maturity Date, the Rental Payments shall not thereafter be
subject to prepayment pursuant to this Section 5.3.
Such option may not be exercised if a Determination of Taxability has
occurred. To exercise such option the Company shall give notice to the Issuer
and the Trustee at least 45 days
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prior to the Business Day specified therein as the redemption date. Such notice
shall refer to this Section 5.3, shall state the principal amount of the
prepayment, and shall direct the redemption of a like principal amount of Bonds
pursuant to Section 403 of the Indenture on a specified authorized redemption
date for which the notice of redemption required by Section 302 of the Indenture
can be given. If the prepayment shall be in part, it shall be in the amount of a
multiple of $5,000 and shall be applied to the scheduled principal installments
on the Rental Payments in the inverse order of their maturities. As further
conditions to the exercise of such option, the Company shall obtain the written
consent of the Credit Facility Provider and (unless the Credit Facility provides
for the payment of any redemption premium required by Section 403 of the
Indenture in connection with such a prepayment) shall cause the Trustee to have
in hand, on the date the Trustee gives such redemption notice, Eligible Funds in
an amount equal to the amount of any such premium.
Section 5.4. Deposit of Prepayments in Redemption Fund. All
prepayments by the Company of the principal component of the Rental Payments,
together with the premium component of Rental Payments, if any, shall be
deposited by the Trustee when received into the Redemption Fund. Any accrued
interest component of the Rental Payments paid in connection with any such
prepayment shall be deposited into the Bond Fund.
Section 5.5. Corresponding Redemption of Bonds. All authorized
prepayments of the Rental Payments shall be applied to a corresponding
redemption of the Bonds.
Section 5.6. Purchase and Cancellation of Bonds. The Company shall
have the right to purchase any Outstanding Bond with Eligible Funds and deliver
it to the Trustee for cancellation. Any such purchase and cancellation of a Bond
made with Eligible Funds as to which the Trustee has received a Preference
Opinion shall ipso facto reduce the unpaid principal balance of the Rental
Payments on the date of such cancellation by an amount equal to the unpaid
principal amount of such Bond.
ARTICLE VI
REPRESENTATIONS OF COMPANY
Section 6.1. Corporate Existence and Authorization. The Company
represents that it is a corporation duly organized and validly existing in good
standing under the laws of the State of Wisconsin identified in the first
paragraph of this Agreement and represents that it has obtained all
authorizations necessary on its part for the due and valid execution and
delivery of this Agreement and the assumption of the obligations represented
hereby and thereby.
Section 6.2. Accuracy of Project Description and Project Budget. The
Company represents that the description of the Building Improvement as set forth
in Exhibit B hereto and the description of the Equipment as set forth in
Exhibit C hereto are accurate in all material respects, that the budget for the
Project as set forth in Exhibit D is an accurate summary of the Company's best
estimates, respectively, of the total costs and the Eligible Costs of the
Project,
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and that all property of which the Project is or will be comprised consists of
land or property of a character subject to the allowance for depreciation as
required by Section 144(a)(1)(A) of the Internal Revenue Code.
Section 6.3. Absence of Conflicting Agreements. The Company represents
that the execution and delivery of this Agreement, the Building Improvement
Lease and the Bond Guaranty Agreement and the performance by the Company
hereunder and thereunder will not conflict with or constitute a breach of or
default under any organizational documents, articles of incorporation, bylaws,
articles of organization, operating agreement, indenture, loan agreement or
instrument or agreement to which the Company is a party or by which the Company
or its properties are bound.
Section 6.4. Taxes. The Company represents that they have no
outstanding unpaid tax liabilities (other than taxes which are currently
accruing from current operations and ownership of property, which are not
delinquent) and that no tax deficiencies are proposed or have been assessed and
are unsatisfied against the Company.
Section 6.5. Regulatory Approvals. The Company represents that no
authorization, approval, consent or license of any governmental regulatory body
or authority, not already obtained, is required for the valid and lawful
execution and delivery of this Agreement by the Company or the assumption of the
obligations of the Company represented hereby and thereby.
Section 6.6. Absence of Litigation. The Company represents that it is
not a party to any litigation or administrative proceeding, nor so far as is
known by the Company is any litigation or administrative proceeding threatened
against it which in either case would, if adversely determined, cause any
material adverse change in its financial condition, the conduct of its business
or its ability to perform its obligations under this Agreement.
Section 6.7. Date and Survival of Representations; Exceptions. The
representations of the Company made in this Article VI are made as of the date
of the issuance and delivery of the Bonds, and all such representations shall
survive the execution and delivery of this Agreement and the issuance and
delivery of the Bonds.
Any exceptions to the representations made in this Article VI shall be
set forth in a Company's Certificate delivered to the Trustee and original
purchaser of the Bonds contemporaneously herewith, and to the extent so set
forth, they shall be exceptions to the representations made in this Article VI
to the same extent as if they were expressly stated herein.
ARTICLE VII
COVENANTS OF COMPANY
Section 7.1. Payment of Rental Payments. The Company agrees to pay as
Rental Payments the principal of, premium, if any, and interest on the Bonds in
the manner and
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amounts and the times and places specified in Section 2.7 hereof and in
accordance with the Indenture.
Section 7.2. Unconditional Obligation to Provide Issuer with
Sufficient Revenues. The Company unconditionally agrees that it shall make
payments to the Trustee (for the account of the Issuer) in lawful money of the
United States of America and in such amounts and at such times (if not sooner
required under the terms of this Agreement) as shall be necessary to enable the
Trustee to make full and prompt payment when due (whether at stated maturity,
upon redemption prior to stated maturity or upon acceleration of stated
maturity) of the principal of, premium, if any, and interest on all Bonds issued
under the Indenture. The obligations of the Company to make the payments
required in this Section 7.2 shall be absolute and unconditional and shall not
be subject to diminution by setoff, counterclaim, abatement or otherwise, and
until such time as the principal of, premium, if any, and interest on the Bonds
shall have been paid or provided for in accordance with the Indenture, the
Company: (i) will not suspend or discontinue, or permit the suspension or
discontinuance of, any payments provided for in this Section 7.2; (ii) will
perform and observe all its other agreements contained in this Agreement; and
(iii) will not terminate this Agreement for any cause, including, without
limiting the generality of the foregoing, any defect in title to the Leased
Premises, failure of the Leased Premises to comply with the Project Plans and
Specifications, any acts or circumstances that may constitute failure of
consideration, destruction of or damage to the Leased Premises, frustration of
commercial purpose, any change in the tax or other laws or administrative
rulings of or administrative actions by the United States of America or the
State of Nebraska or any political subdivision of either, or any failure of the
Issuer to perform and observe any agreement, whether expressed or implied, or
any duty, liability or obligation arising out of or in connection with this
Agreement. Nothing contained in this Section 7.2 shall be construed to release
the Issuer from the performance of any of the agreements on their part herein
contained; and if the Issuer shall fail to perform any such agreement on its
part, the Company may institute such action against the Issuer as the Company
may deem necessary to compel performance, provided that no such action shall
violate the agreements on the part of the Company contained in this Section 7.2,
or diminish the amounts required to be paid by the Company pursuant to
Section 7.2.
Section 7.3. Indemnification of Issuer. Notwithstanding anything to
the contrary herein contained by implication or otherwise, the obligations of
the Issuer created by or arising out of this Agreement shall not be general debt
obligations of the Issuer, do not constitute or give rise to charges against its
general credit and shall not constitute or give rise to any personal liability
of any member of the Issuer's Governing Body or the officers, agents and
employees of the Issuer on the Bonds or for any act or omission related to the
authorization or issuance of the Bonds.
The Company shall and covenants and agrees to indemnify, protect,
defend and save the Issuer harmless from and against any and all claims,
demands, liabilities and costs, including attorneys' fees, arising from damage
or injury, actual or claimed, of whatsoever kind or character, to property or
persons, occurring or allegedly occurring or arising in any manner from the
transactions of which this Agreement is a part of or arising in any manner in
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connection with the Issuer's ownership of the Leased Premises or the financing
of the Project, including, without limiting the generality of the foregoing,
arising from (i) the work done on the Project, or (ii) any breach or default on
the part of the Company in the performance of any of its obligations under this
Agreement, or (iii) any violation of contract, agreement or restriction by the
Company relating to the Leased Premises or (iv) any violation by the Company of
law, ordinance or regulation affecting the Leased Premises or any part thereof
or the ownership or occupancy or use thereof, or (v) any misrepresentation by
the Company in any document or certificate issued or delivered in connection
with the issuance and delivery of the Bonds.
Without limiting the generality of the foregoing, the Company shall
indemnify and save the Issuer harmless against and from all claims by or on
behalf of any person, firm or corporation arising from the conduct or management
of, or from any work or thing done on, the Leased Premises during the Lease
Term, and against and from all claims arising during the Lease Term from:
(a) any condition of the Leased Premises caused by the Company;
(b) any environmental condition not caused by the Issuer;
(c) any failure on the part of the Company in the performance of
any of its obligations under this Agreement;
(d) any contract entered into in connection with the
acquisition, construction and installation of the Project;
(e) any act of negligence of the Company or of its agents,
contractors, servants, employees or licenses; and
(f) any act of negligence of any assignee or sublessee of the
Company, or of any agent, contractor, servant, employee or licensee of
any assignee or sublessee of the Company.
Nothing in the foregoing indemnity shall protect the Issuer against its
own default, gross negligence or willful misconduct.
If any action shall be brought against the Issuer in respect of which
indemnity may be sought under the foregoing provisions of this Section 7.3
against the Company, the Issuer shall promptly notify the Company in writing,
and the Company shall assume the defense thereof including the employment of
counsel and the payment of all expenses. In any such action the Issuer shall
have the right to employ separate counsel, but the reasonable fees and expenses
of such counsel shall be at the expense of the Issuer unless the Company and the
Issuer shall have mutually agreed to the employment of such counsel. The Company
shall not be liable for any settlement of such action effected without written
consent, but if settled with the written consent of the Company or if there be a
final judgment for the plaintiff in any such action, the Company
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agrees to indemnify and hold harmless the Issuer from and against any loss or
liability by reason of such settlement or judgment.
The provisions of this Section 7.3 shall pertain only to the
transaction contemplated under this Agreement but shall in any event survive the
termination of this Agreement.
Section 7.4. TAXES, LICENSES, UTILITIES AND GOVERNMENTAL CHARGES. The
Company agrees to pay promptly, as and when the same shall become due and
payable, each and every lawful cost, expense and obligation of every kind and
nature, foreseen or unforeseen, for the payment of which either the Issuer or
the Company is or shall become liable by reason of its estate or interest in the
Leased Premises or in any portion thereof, or by reason of or in any manner
connected with or arising out of the possession, operation, maintenance,
alteration, repair, rebuilding, use or occupancy of the Leased Premises or any
part thereof. The Company also agrees to pay and discharge, promptly as and when
the same shall become due and payable, all lawful real estate taxes, personal
property taxes, business and occupation taxes, occupational license taxes,
assessments for public improvements or benefits and all other lawful
governmental taxes, impositions and charges of every kind and nature, ordinary
or extraordinary, general or special, foreseen or unforeseen, whether similar or
dissimilar to any of the foregoing, and all applicable interest and penalties
thereon, if any, which at any time shall be or become due and payable and which
shall be lawfully levied, assessed or imposed upon or with respect to, or which
shall be or become liens upon, the Leased Premises or any portion thereof or any
interest of the Company therein. The Company also agrees to pay or cause to be
paid all lawful charges for gas, water, sewer, electricity, light, heat, power,
telephone and other utility and service used, rendered or supplied to, upon or
in connection with the Leased Premises. The Company agrees that the Issuer is
not, nor shall it be, required to furnish free of charge to the Company or any
other occupant of the Leased Premises any gas, water, sewer, electricity, light,
heat, power or other facilities, equipment, labor, materials or services of any
kind, except as otherwise may be required by law or except as the same shall
generally be furnished without charge to other owners or users of comparable
property within the Issuer's jurisdiction.
The Company shall have the right in good faith and by appropriate
proceeding to dispute or contest the validity or amount of any such tax,
assessment, governmental charge or utility charge, and during the pendency of
any such dispute or contest, the Company shall not be deemed to be in default
under this Section 7.4 by reason of its failure to have paid the disputed or
contested amount.
Section 7.5. INSURANCE. The Company agrees, both generally and
specifically with respect to the Leased Premises, that it will insure against
such risks in such amounts as are customarily insured against by companies of
like size similarly situated. Such insurance shall be obtained by the purchase
of insurance policies (including blanket policies covering multiple risks)
issued by reputable insurance companies authorized and qualified to underwrite
such risks.
Section 7.6. TAX STATUS OF BONDS. It is intended that the interest on
the Bonds be exempt from Federal income taxation pursuant to Sections 103(a) and
144(a)(4) of the Internal
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Revenue Code. In general, the Company agrees that it will take no action which
would (and will omit no action the omission of which would) cause an Event of
Taxability. Without limiting the generality of such covenant, the Company
agrees:
(a) that its requisition from the Construction Fund will
be such that at least 95% of the net proceeds of the Bonds will be used
for the acquisition, construction, reconstruction or improvement of
land or property of a character subject to the allowance for
depreciation;
(b) that the issuance costs financed by the Bonds will
not exceed 2% of the aggregate face amount of the issue;
(c) that not more than 25% of the net proceeds of the
Bonds will be used to provide a facility the primary purpose of which
is one of the following: retail food and beverage services, automobile
sales or service, or the provision of recreation or entertainment;
(d) that no portion of the proceeds of the Bonds will be
used to provide the following: any private or commercial golf course,
country club, massage parlor, tennis club, skating facility (including
roller skating, skateboard and ice skating), racquet sports facility
(including any handball or racquetball court), hot tub facility, suntan
facility or racetrack;
(e) that no portion of the proceeds of the Bonds will be
used for the acquisition of any property (or an interest therein)
unless either (i) the first use of such property is pursuant to such
acquisition, (ii) in the case of any building (and the equipment
therefor) the rehabilitation expenditures with respect to such building
incurred within two years after the Bonds are issued equal or exceed
15% of the portion of the cost of acquiring such building (and
equipment) financed with the net proceeds of the Bonds, or (iii) in the
case of structures other than a building, the rehabilitation
expenditures with respect to such structures incurred within two years
after the Bonds are issued equal or exceed 100% of the portion of the
cost of acquiring such structures financed with the net proceeds of the
Bonds;
(f) that less than 25% of the net proceeds of the Bonds
will be used (directly or indirectly) for the acquisition of land (or
an interest therein);
(g) that it will permit no use of the proceeds of the
Bonds which would cause the Bonds to be classified as "arbitrage bonds"
within the meaning of Section 148 of the Internal Revenue Code;
(h) that it will duly file with the Trustee annually
within 60 days of each anniversary of the date of this Agreement a list
of the includable prior bonds and capital expenditures under the $10
million limit of Section 144(a)(4) of the Internal Revenue
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Code and a list of the includable prior bonds for each "test period
beneficiary" under the $40 million limit of Section 144(a)(10) of the
Internal Revenue Code, provided that the Company may cease providing
such list commencing with the second anniversary date occurring after
the expiration of the later of three years of the date of issuance of
the Bonds or three years after the Project is first placed in service;
(i) that the $10 million limit of Section 144(a)(4) of
the Internal Revenue Code and the $40 million limit of
Section 144(a)(10) of the Internal Revenue Code will not be exceeded;
(j) that it shall pay any rebate amount required to be
paid on behalf of the Issuer to the United States Treasury pursuant to
Section 148(f) of the Internal Revenue Code and any proposed, temporary
or final regulations promulgated thereunder and, to assure payment of
such amount, that it shall pay to the Trustee any amount required to be
deposited into the Rebate Account pursuant to Section 803 of the
Indenture; and
(k) that the Project will at all times be used as a
"manufacturing facility" within the meaning of Section 144(a)(12)(C) of
the Internal Revenue Code for the Project Enterprise or otherwise.
If, nevertheless, an Event of Taxability shall occur, the Company shall
not be deemed to be in default under this Section 7.6 if it complies in all
respects with Section 5.2 of this Agreement. Prepayment of the Rental Payments,
including the premium provided for in Section 5.2, shall be the sole liability
of the Company for an Event of Taxability.
Section 7.7. Sale or Transfer of Project. The Company may sell,
assign, sublease or otherwise transfer all or any part of its interest in the
Leased Premises and in connection therewith may assign all or any portion of its
rights and privileges under this Agreement, provided that:
(a) if such sale, assignment, sublease or transfer
involves (in a single transaction or any series of transactions) all or
substantially all of the Company's assets, the Company shall comply
with Section 7.9 of this Agreement;
(b) if such transaction involves the sale, assignment,
sublease or transfer of all or substantially all of the Project, the
purchaser, sublessee, transferee or assignee, as the case may be, shall
have assumed in writing all obligations of the Company contained in
Section 7.6 hereof;
(c) no such sale, transfer or assignment shall relieve the
Company from primary liability for the performance of its obligations
hereunder and under the Bond Guaranty Agreement unless the requirements
set forth in Section 7.9 (a) through (d) of this Agreement are met with
respect to the purchaser, lessee, transferee or assignee, in which
event the Company shall be released of all further obligation hereunder
and such
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purchaser, transferee or assignee shall become the "Company" for
purposes hereof, of the Bond Guaranty Agreement and of the Indenture;
(d) the Company shall have delivered to the Trustee and
the Issuer an opinion of Bond Counsel to the effect that such
transaction will not violate the Act, adversely affect the legality of
the Bonds or result in an Event of Taxability; and
(e) the Company shall have complied with the applicable
provisions of the Credit Facility Reimbursement Agreement and the
related collateral documents.
Section 7.8. Maintenance of Corporate Existence. The Company agrees
that, except as otherwise permitted in Section 7.9 of this Agreement, it will
maintain its existence and will neither dissolve nor institute any proceedings
for dissolution.
Section 7.9. Transfers of Assets. The Company agrees that it will not
(in a single transaction or any series of transactions) dissolve or otherwise
dispose of all or substantially all its assets, and will not consolidate with or
merge into another entity or permit one or more other entities to consolidate
with or merge into it; provided, however, that the Company may, without
violating the foregoing, consolidate with or merge into another entity, or
permit one or more other entities to consolidate with or merge into it, or
transfer all or substantially all its assets to another entity (and thereafter
be released of all further obligation hereunder and dissolve or not dissolve as
it may elect) if:
(a) the resulting, surviving or transferee entity, as the
case may be, is a corporation, limited liability company, partnership
or other recognized legal entity organized and duly existing in good
standing under the laws of one of the States of the United States of
America;
(b) such resulting, surviving or transferee entity has
obtained the prior written consent of the Credit Facility Provider (or,
if there is no Credit Facility then in effect or the Credit Facility
Provider is in default of its obligations thereunder, the Requisite
Consent of Bondowners) to such transaction;
(c) such resulting, surviving or transferee entity
expressly assumes in writing (delivered to the Issuer and the Trustee)
all of the obligations of the Company contained in this Agreement, the
Bond Guaranty Agreement and the Continuing Disclosure Agreement (after
which it shall be the "Company" for purposes hereof and thereof); and
(d) the Company shall have delivered to the Trustee and
the Issuer an opinion of Bond Counsel to the effect that such
transaction will not adversely affect the legality of the Bonds or
result in an Event of Taxability.
Section 7.10. No Warranty of Condition or Suitability by Issuer. The
Issuer makes no warranty, either express or implied, as to the condition of the
Leased Premises or that they will
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be suitable for the Company's purposes or needs. The Company releases the Issuer
from, agrees that the Issuer shall not be liable for and agrees to hold the
Issuer harmless against, any loss or damage to property or any injury to or
death of any person that may be occasioned by any act or omission of the Company
relating to the Leased Premises or the use thereof. The provisions of this
Section shall pertain only to the transaction contemplated under this Agreement
but shall in any event survive any termination of this Agreement.
Section 7.11. Inspection of the Leased Premises. The Company agrees
that Trustee and the Issuer and their duly authorized agents shall have the
right at all reasonable times during business hours, with seven days' prior
written notice to the Company, to enter upon the Land and to examine and inspect
the Leased Premises without interference or prejudice to the Company's
operations. The Company further agrees that the Issuer and its duly authorized
agents who are acceptable to the Company shall have such rights of access to the
Leased Premises as may be reasonably necessary to cause to be completed the
acquisition, construction and installation provided for in Section 3.1 hereof.
Section 7.12. Granting of Easements. If no event of default shall have
happened and be continuing, the Company may at any time or times grant
easements, licenses, rights of way (including the dedication of public highways)
and other rights or privileges in the nature of easements with respect to any
property included in the Leased Premises, or the Company may release existing
easements, licenses, rights of way and other rights or privileges with or
without consideration and the Issuer agrees that it shall execute and deliver
and will cause and direct Trustee to execute and deliver any instrument
necessary or appropriate to confirm and grant or release any such easement,
license, right of way or other right or privilege upon receipt by the Issuer of:
(a) a copy of the instrument of grant or release; (b) a written application
signed by an authorized officer of the Company requesting such instrument; and
(c) a Company's Certificate stating (i) that such grant or release is not
detrimental to the proper conduct of the business of the Company, and (ii) no
default exists under this Agreement.
Section 7.13. Company To Hold Issuer and Trustee Harmless. The Company
shall at all times keep and hold the Issuer harmless from any and all claims and
demands, losses and expenses arising out of, or connected with, the Company's
operations at the Project, or as a result of anything claimed to be done or
omitted to be done by the Company, provided the Issuer shall in each instance
give the Company prompt written notice of any such claim or demand, and the
Issuer shall cooperate with the Company in the investigation of such claim.
In the event of any claims, demand or action arising out of an
occurrence covered by such indemnification of which the Issuer has knowledge,
the Issuer agrees to give the Company prompt notice, in writing, and to
cooperate with the Company in the investigation thereof.
The Company agrees to indemnify each of the Trustee or any predecessor
Trustee for, and to hold it harmless against, any and all loss, damage, claims,
expense or liability arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the reasonable costs
and expenses of defending itself against any claim or liability in
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connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent that such loss, expense or liability or expense
is due to its own negligence or bad faith.
Section 7.14. Mortgage or Security Interest in Leased Premises.
Notwithstanding any other provision of this Agreement, the Company may grant
such mortgages, deeds of trust or security interests on its interests in the
Leased Premises as in the determination of the Company are necessary or
convenient to its operation of the Leased Premises.
ARTICLE VIII
DAMAGE; EMINENT DOMAIN
Section 8.1. Damage. If prior to the full payment of the Bonds (or
provision for payment thereof having been made to the satisfaction of the
Trustee in accordance with the provisions of the Indenture) the Project shall be
damaged by fire, flood, windstorm or other casualty to such extent that the
Company has the option of prepaying the Rental Payments pursuant to
Section 5.1(a) of this Agreement, the Company shall either (a) prepay the entire
outstanding balance of the Rental Payments in accordance with Section 5.1 of
this Agreement or (b) repair, replace or restore the damaged property to such
condition as in the judgment of the Company will restore the capacity of the
Project to conduct the Project Enterprise to a level at least equal to the
lesser of (i) the capacity of the Project to conduct the Project Enterprise as
it existed immediately prior to such damage or (ii) the designed capacity of the
Project to conduct the Project Enterprise on the date hereof.
Section 8.2. Eminent Domain. If prior to full payment of the Bonds (or
provision for payment thereof having been made in accordance with the provisions
of the Indenture) the Project shall be taken by eminent domain, in whole or in
part, to such extent that the Company has the option of prepaying the Rental
Payments pursuant to Section 5.1(b) of this Agreement, the Company shall either
(a) prepay the entire outstanding balance of the Rental Payments in accordance
with Section 5.1 of this Agreement, or (b) acquire such new property in the
County of Dodge, Nebraska, as in the judgment of the Company will be necessary
to restore the capacity of the Project to conduct the Project Enterprise to a
level at least equal to the lesser of (i) the capacity of the Project to conduct
the Project Enterprise as it existed immediately prior to such taking, or
(ii) the designed capacity of the Project to conduct the Project Enterprise on
the date hereof.
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ARTICLE IX
ASSIGNMENT, SUBLEASING, PLEDGING AND SELLING;
REDEMPTION; RENT PREPAYMENT AND ABATEMENT
Section 9.1. Assignment. It is understood and agreed that this
Agreement (and the Rental Payments hereunder) will be assigned and pledged to
Trustee as security for the payment of the principal of and interest on the
Bonds, but otherwise the Issuer shall not, without the prior written consent of
the Company, assign, encumber, sell or dispose of all or any part of its right,
title and interest in and to the Leased Premises and this Agreement, except to
the Company in accordance with the provisions of this Agreement and to Trustee
under the Indenture without the prior written consent of the Company.
Section 9.2. Redemption of Bonds. The Issuer, at the request at any
time of the Company, shall forthwith take all steps that may be necessary under
the applicable redemption provisions of the Indenture to effect redemption of
all or part of the then Outstanding Bonds, as may be specified by the Company,
on the earliest redemption date on which such redemption may be made under such
applicable provisions or upon the date set for the redemption by the Company.
Section 9.3. Prepayment of Rents. To permit the redemption of Bonds
pursuant to the exercise of any options of the Company hereunder, and solely for
that purpose, there is expressly reserved to the Company the right, and the
Company is authorized and permitted, to prepay the Rental Payments as provided
in Article V hereof, and the Issuer agrees that Trustee may accept such
prepayment of rents when the same are tendered by the Company. All rents so
prepaid shall be credited on the Rental Payments and shall be used for the
redemption of the Bonds in accordance with the Indenture.
Section 9.4. Reference to Bonds Ineffective After Bonds Paid. Upon
payment in full of the Bonds (or provision for payment thereof having been made
in accordance with the provisions of the Indenture) and all fees and charges of
the Trustee and any Alternate Paying Agent, all references in this Agreement to
the Bonds, and the Trustee shall be ineffective and neither the Trustee nor the
Bondowners shall thereafter have any rights hereunder, saving and excepting
those that shall have theretofore vested.
ARTICLE X
RELEASE OF LEASED PREMISES
Section 10.1. Option To Acquire Legal Title Upon Full Payment of the
Bonds. The Company shall have and is hereby granted an option to purchase and
acquire legal title to and the Issuer agrees to sell the Equipment and release
all its interest in the Building Improvement in full at or at any time after the
expiration or sooner termination of the Lease Term following full payment of the
Bonds (or provision for payment thereof having been made in accordance
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with the provisions of the Indenture), for a price of $10.00. At the closing of
the foregoing purchase, the Issuer will deliver to the Company documents
conveying to the Company good and marketable title to the Equipment being
acquired, as such property then exists, or to release the Issuer's interest in
the Building Improvement under the Building Improvement Lease subject to the
following: (i) those liens and encumbrances, if any, to which title to said
property was subject when conveyed to the Issuer; (ii) those liens and
encumbrances created by the Company or to the creation or suffering of which the
Company consented; (iii) those liens and encumbrances resulting from the failure
of the Company to perform or observe any of the agreements on its part contained
in this Agreement; (iv) Permitted Encumbrances other than the Building
Improvement Lease and this Agreement; and (v) the rights and title of any
condemning authority with respect to Section 5.1 hereof.
Section 10.2. Partial Releases. To the extent that the Company is
entitled to cause the release of any portion of the Equipment or Building
Improvement pursuant to the terms of this Agreement, the Company, in addition to
complying with the other applicable provisions of this Agreement, shall cause to
be prepared, as necessary, a release deed or bill of sale, with respect to such
portion of the Equipment or Building Improvement to be released or acquired by
the Company. The Company shall provide appropriate descriptions of the property
to be conveyed. Thereafter, the Issuer shall as necessary date, execute and
deliver to the Company the release, the deed(s) or bills of sale, as the case
may be.
ARTICLE XI
THE TRUSTEE AND TRUST FUNDS
Section 11.1. Payment of Trustee's Fees. The Company agrees that it
will pay the Trustee its customary fees for acting as Trustee under the
Indenture and that it will reimburse the Trustee for its ordinary and necessary
expenses incurred in carrying out the terms of the Indenture. Such fees and
reimbursements of expenses shall be paid upon receipt of periodic invoices
therefor.
In the event the Trustee is required by the terms of the Indenture or
otherwise deems it necessary or advisable in fulfillment of its fiduciary
responsibilities thereunder to take actions beyond those which are routinely
performed by corporate trustees under similar indentures, the Company also
agrees that it will pay the Trustee its reasonable fees for its services in such
regard (including but not limited to legal fees and costs) and that it will
reimburse the Trustee for ordinary and necessary expenses incurred in connection
therewith. Such fees and reimbursements of expenses shall be paid upon receipt
of invoices therefor; provided, however, that the Company may dispute (in good
faith and by appropriate proceeding) the reasonableness of any such charges and
during the pendency of any such dispute the Company shall not be deemed in
default of the foregoing covenant by reason of its failure to have paid the
portion of such charges so disputed.
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Section 11.2. Duty To Provide Data. The Company agrees to furnish to
the Trustee, promptly upon receipt of a written request therefor, any documents,
information or data reasonably necessary to enable the Trustee to carry out its
duties and responsibilities under the Indenture or to verify the truth and
accuracy of any representation or statement made on behalf of the Company
herein, in any Company's Certificate or in any Requisition.
Section 11.3. Investment of Trust Funds; Arbitrage. The Company shall
have the exclusive right to direct the investment and reinvestment of Trust Fund
moneys, subject, however, to the following limitations and conditions:
(a) The investment of the Cost of Issuance Fund, the
Construction Fund and Surplus Construction Fund shall be in accordance
with directions from the Company, such directions to be made in a
Company's Certificate or in a writing signed by the Company's
Representative and shall be consistent with the remaining provisions of
this Section 11.3.
(b) The particular investments shall be Qualified
Investments, and, in the case of the investment of moneys in the Bond
Fund, shall be Government Obligations.
(c) No investment shall have a maturity later than the
estimated time when the funds so invested will be needed for the
purposes of the Trust Fund of which they are a part.
(d) In the event of any actual loss realized from any
such investment, the Company shall promptly pay the amount of such loss
to the Trustee for deposit into the applicable Trust Fund.
(e) The Trustee shall sell or otherwise reduce to cash
any investment in the Bond Fund or the Redemption Fund if such action
is necessary to pay the principal of, premium, if any, or interest on a
Bond when due.
(f) Investment of the Surplus Construction Fund shall
comply with Section 604 of the Indenture.
(g) No investment or other use will be made of the
proceeds of the Bonds which would cause any Bond to be classified as an
"arbitrage bond" within the meaning of Section 148 of the Internal
Revenue Code or any proposed, temporary or final regulations issued
thereunder.
(h) In the event the Issuer or the Company is of the
opinion (supported by an opinion of Bond Counsel) that it is necessary
or advisable to restrict or limit the yield on the investment of any
moneys held in any Trust Fund in order to avoid the Bonds being
considered "arbitrage bonds" within the meaning aforesaid, the Issuer
may (and shall if so requested by the Company) issue to the Trustee a
written certificate (copied to the
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Credit Facility Provider) to such effect together with appropriate
written instructions, in which event the Trustee shall take such action
as is necessary so to restrict or limit the yield on such investment in
accordance with such certificate and instructions, irrespective of
whether the Trustee shares such opinion.
Section 11.4. Bond Fund and Redemption Fund. Except as expressly
provided in the Indenture, moneys in the Bond Fund and Redemption Fund shall be
used in accordance with the Indenture solely for the payment of the principal
of, premium, if any, and interest on the Bonds as the same become due at
maturity, upon redemption prior to maturity, or upon acceleration of maturity.
Section 11.5. Surplus Construction Fund. Moneys in the Surplus
Construction Fund shall be applied to such one or more of the authorized
purposes specified in the Indenture.
Section 11.6. Excess Trust Fund Moneys. Following full and final
payment of the Bonds (or provision therefor having been made to the satisfaction
of the Trustee in accordance with the Indenture) and any fees, costs and
expenses due to the Trustee, the Remarketing Agent and any paying agents under
the Indenture, any excess moneys remaining in the Trust Funds shall be paid
promptly to the Credit Facility Provider to the extent of any amounts due it
pursuant to the Credit Facility Reimbursement Agreement, and thereafter to the
Company.
ARTICLE XII
DEFAULT PROVISIONS
Section 12.1. Defaults; Events of Default. If any one or more of the
following events occur, it is hereby defined as and declared to be and to
constitute an "Event of Default" under and for purposes of this Agreement:
(a) Default in the due and punctual payment of any
installment of Rental Payments;
(b) Default in the performance or observance of any other
of the covenants, agreements or conditions on the part of the Company
in this Agreement contained and the continuance thereof for a period of
30 days after receipt by the Company of written notice (from the
Issuer, the Trustee or the Owners of at least 10% in aggregate
principal amount of the Bonds at the time Outstanding) specifying such
default and requesting that it be cured; provided, however, that if the
default is capable of being cured, but not within such 30 day period,
such default shall not become an Event of Default if the Company
institutes reasonable corrective action within such period and pursues
such action diligently until such default is cured;
(c) The Company shall: (i) become insolvent; or (ii) be
unable, or admit in writing its inability, to pay its debts as they
mature; or (iii) make a general assignment
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for the benefit of creditors or to an agent authorized to liquidate any
substantial amount of its property; or (iv) have a court order relief
against it under the United States Bankruptcy Code; or (v) file a
petition with respect to itself as debtor under Chapter 7 or 11 of the
United States Bankruptcy Code; or (vi) have a petition under Chapter 7
or 11 of the United States Bankruptcy Code filed against it as debtor
and fail to have such petition vacated or discharged within 60 days
following the filing thereof; or (vii) file an answer to a creditor's
petition, admitting the material allegations thereof, for liquidation,
reorganization or to effect a plan or other arrangement with creditors;
or (viii) apply to a court for the appointment of a receiver for any of
its assets; or (ix) have a receiver appointed for any of its assets
(with or without the consent of the Company) and such receiver shall
not be discharged within 60 days after its appointment; or
(d) An "event of default" (as defined therein) shall
have occurred under the Indenture.
Section 12.2. Acceleration. If an Event of Default shall occur, the
Trustee may with the written consent of the Credit Facility Provider, and shall
upon the written request of the Credit Facility Provider or if the Bonds have
been accelerated pursuant to Section 1002 of the Indenture, by written notice to
the Company and the Credit Facility Provider, declare the entire outstanding
principal balance of the Rental Payments to be immediately due and payable.
Section 12.3. Remedies. If an Event of Default shall occur, the Issuer
or the Trustee may, with the written consent of the Credit Facility Provider,
pursue any available remedy at law or in equity to realize the payment of Rental
Payments.
Section 12.4. Disposition of Amounts Collected. Any amounts collected
pursuant to action taken under this Article XII shall be paid to the Trustee and
applied in accordance with the provisions of Section 1006 of the Indenture or,
if the Bonds have been fully paid (or provision for payment thereof has been
made in accordance with the provisions of the Indenture), shall be paid to the
Credit Facility Provider to the extent of any amount due under the Credit
Facility Reimbursement Agreement, and otherwise to the Company.
Section 12.5. Payment of Costs and Expenses. If the Company defaults
under any provisions of this Agreement and the Issuer or the Trustee, or both,
employ attorneys or incur other expenses for the collection of payments due or
for the enforcement of performance or observance of any other obligation or
agreement on the part of the Company herein contained, the Company agrees that
it will on demand therefor pay to the Issuer or the Trustee, as the case may be,
the reasonable fees of such attorneys and such other reasonable expenses so
incurred by the Issuer or the Trustee.
Section 12.6. Limitation on Waivers. If 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 the same, any other or any future breach hereunder on any
other occasion. No remedy herein conferred upon
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or reserved to the Issuer or Trustee 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 given under this Agreement or now
or hereafter existing at law or in equity or by virtue of other contracts. No
delay or omission to exercise any right or power occurring upon any Event of
Default shall impair any such right or power or shall be construed to be a
waiver thereof, but any such right or power may be exercised from time to time
and as often as may be deemed expedient. To entitle the Issuer or the Trustee to
exercise any remedy reserved or available to it, it shall not be necessary to
give any notice other than such notice as may be herein expressly required.
Section 12.7. Performance by Third Parties. The Issuer agrees that,
with the written consent of the Company, third parties may perform any and all
acts or take such action as may be necessary for and on behalf of the Company to
prevent or correct any Event of Default hereunder, and the Issuer agrees that
the Trustee shall take or accept such performance as performance by the Company
in such event. The acceptance by the Issuer or the Trustee of any such
performance by third parties shall not in any way diminish or absolve the
Company of primary liability hereunder.
Section 12.8. Performance for Issuer Under Indenture. The Issuer agrees
that the Company and the Credit Facility Provider or either of them may, but
shall not be obligated to, perform any such acts and do all such things in the
place and stead of the Issuer as the Company or the Credit Facility Provider, as
the case may be, shall deem necessary to prevent or correct any default or
"event of default" caused or about to be caused by the Issuer under the
Indenture.
ARTICLE XIII
MISCELLANEOUS
Section 13.1. Amendments. This Agreement shall not be effectively
amended, changed, modified, altered or terminated without the written consent of
the Trustee, the Company, the Issuer and the Credit Facility Provider, and no
modification, alteration or amendment to this Agreement shall be binding upon
either party hereto until such modification, alteration or amendment is reduced
to writing and executed by both parties hereto.
Section 13.2. Successors. Except as limited or conditioned by the
express provisions hereof, the provisions of this Agreement shall inure to the
benefit of and be binding upon the successors and assigns of the parties hereto.
Section 13.3. Governing Law. The laws of the State of Nebraska shall
govern this Agreement.
Section 13.4. Captions. The captions or headings in this Agreement are
for convenience only and in no way define, limit or describe the scope or intent
of any of the provisions of this Agreement.
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Section 13.5. Counterparts. This Agreement may be signed in any number
of counterparts with the same effect as if the signatures thereto and hereto
were on the same instrument.
Section 13.6. Notices. All notices, certificates or other
communications hereunder shall be sufficiently given and shall be deemed given
when hand delivered or when mailed by certified or registered mail, postage
prepaid, or by prepaid telegram addressed as follows: (a) if to the Issuer, at
the Issuer's Address, and (b) if to the Company, at the Company's Address.
A duplicate copy of each notice, certificate or other communication
given hereunder by either the Issuer or the Company shall also be concurrently
given to the Trustee at the Trustee's Address, to the Credit Facility Provider
at the Credit Facility Provider's Address, and to the Remarketing Agent at the
Remarketing Agent's Address.
Section 13.7. Severability. If any provisions of this Agreement shall
be held or deemed to be or shall, in fact, be inoperative or unenforceable as
applied in any particular case in any jurisdiction or jurisdictions or in all
jurisdictions, or in all cases because it conflicts with any other provision or
provisions hereof or any constitution or statute or rule of public policy, or
for any other reason, such circumstance shall not have the effect of rendering
the provision in question inoperative or unenforceable in any other case or
circumstance, or of rendering any other provision or provisions herein contained
invalid, inoperative, or unenforceable to any extent whatever. The invalidity of
any one or more phrases, sentences, clauses or Sections in this Agreement
contained, shall not affect the remaining portions of this Agreement, or any
part thereof.
Section 13.8. Limited Liability of Issuer. Any obligations of the
Issuer created by, arising out of, or entered into in contemplation of this
Agreement, including the Bonds, shall not impose a debt or pecuniary liability
upon the Issuer, the State of Nebraska or any political subdivision thereof or
constitute a charge upon the general credit or taxing powers of any of the
foregoing including, but not limited to (a) liability for failure to investigate
or negligence in the investigation of the financial position or prospects of the
Company, a user of the Project or any other person or for failure to consider,
or negligence concerning, the adequacy of terms of, or collateral security for,
the Bonds or any related agreement to protect interests of holders of the Bonds;
and (b) any liability in connection with the issuance or sale of the Bonds. Any
such obligation shall be payable solely out of the revenues and any other moneys
derived hereunder and under the Indenture, except, as provided in the Indenture
and in this Agreement, to the extent it shall be paid out of moneys attributable
to the proceeds of the Bonds or the income from the temporary investment
thereof. In addition, this Agreement shall not give rise to any personal
liability of any member of the Issuer's Governing Body or of any officers,
agents, employees or officials of the Issuer on the Bonds or for any act or
omission related to the authorization or issuance of the Bonds.
[Remainder of this page intentionally left blank.]
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IN WITNESS WHEREOF, the Issuer has caused this Agreement to be executed
in its name and behalf, and the Company has executed this Agreement all as of
the Dated Date.
[SEAL] COUNTY OF DODGE, NEBRASKA
Attest:
By /s/ Dean T. Lux
----------------------------------
Chairman, Board of Supervisors
/s/ Fred Whytty
-----------------------------
County Clerk
THE OILGEAR COMPANY
By /s/ T.J. Price
----------------------------------
Vice President-Finance
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ACKNOWLEDGMENT
STATE OF NEBRASKA )
) ss.
COUNTY OF DODGE )
On this 22nd day of October, 1997 before me, a Notary Public duly
commissioned, qualified and acting, within and for the County and State
aforesaid, appeared in person the within named Dean T. Lux and Fred Mytty,
Chairman of the Board of Supervisors and County Clerk, respectively, of the
County of Dodge, Nebraska, a political subdivision of the State of Nebraska, to
me personally known, who stated that they were duly authorized in their
capacities to execute the foregoing instrument for and in the name of the County
of Dodge, Nebraska, and further stated and acknowledged that they had signed,
executed and delivered the foregoing instrument for the consideration, uses and
purposes therein mentioned and set forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal on
the date and year first written above.
/s/ Nancy L. Bohlen
------------------------------
Notary Public
My commission expires:
September 21, 2001
----------------------------------
[SEAL]
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ACKNOWLEDGMENT
STATE OF WISCONSIN )
) ss.
COUNTY OF MILWAUKEE )
On this 29th day of October, 1997, before me, a Notary Public duly
commissioned, qualified and acting within and for the County and State
aforesaid, appeared in person the within named Thomas J. Price, Vice President,
Finance, of The Oilgear Company, a Wisconsin corporation, to me personally
known, who stated that they were duly authorized in his capacity to execute the
foregoing instrument for and in the name and behalf of The Oilgear Company, and
further stated and acknowledged that he had so signed, executed and delivered
the foregoing instrument for the consideration, uses and purposes therein
mentioned and set forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal on
the date and year first written above.
/s/ Ann M. Murphy
----------------------
Ann M. Murphy
Notary Public, State of Wisconsin
My commission is permanent.
[SEAL]
31