UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For quarterly period ended September 30, 1998
------------------
Commission file number 0-15975
-------
LabOne, Inc.
------------
10310 West 84th Terrace
Lenexa, Kansas 66214
(913) 888-1770
Incorporated in Delaware
I.R.S. Employer Identification Number: 48-0952323
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes /X/ No / /
Number of shares outstanding of the only class of Registrant's common
stock, $.01 par value, as of November 1, 1998 - 13,311,450 shares net of
1,688,550 shares held as treasury stock.
Page 1 of 221
<TABLE> PART I. FINANCIAL INFORMATION
ITEM 1 - Financial Statements
LabOne, Inc. and Subsidiary
Consolidated Balance Sheets
<S> <C> <C>
September 30, December 31,
1998 1997
ASSETS ------------ ------------
Current assets:
Cash and cash equivalents $21,175,673 18,284,672
Short-term investments 500,209 1,204,638
Accounts receivable-trade, net of allowance for doubtful
accounts of $1,886,098 in 1998 and $968,295 in 1997 17,596,220 12,604,687
Income taxes receivable 752,365 508,704
Inventories 1,537,379 2,203,471
Real estate available for sale 3,515,000 3,515,000
Prepaid expenses and other current assets 2,603,491 2,279,619
Deferred income taxes 3,775,732 3,299,387
---------- ----------
Total current assets 51,456,069 43,900,178
Property, plant and equipment 58,778,165 43,956,571
Less accumulated depreciation 34,762,000 33,515,280
---------- ----------
Net property, plant and equipment 24,016,165 10,441,291
Other assets:
Intangible assets, net of accumulated amortization 4,804,124 5,229,708
Deferred income taxes - noncurrent 252,505 321,799
Deposits and other assets 53,869 80,497
---------- ----------
Total assets $80,582,732 59,973,473
========== ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 4,258,495 3,326,451
Bonds payable - current 1,850,000 -
Deferred income taxes payable 21,033 -
Accrued payroll and benefits 4,144,319 4,530,235
Other accrued expenses 614,804 423,396
Other current liabilities 240,086 194,148
---------- ----------
Total current liabilities 11,128,737 8,474,230
Bonds payable - noncurrent 18,050,758 -
Deferred income taxes - noncurrent 331,176 -
---------- ----------
Total liabilities 29,510,671 8,474,230
Stockholders' equity:
Preferred stock, $.01 par value per share;
1,000,000 shares authorized, none issued - -
Common stock, $.01 par value per share; 40,000,000 shares
authorized, 15,000,000 shares issued 150,000 150,000
Additional paid-in capital 13,829,993 13,723,250
Equity adjustment from foreign currency translation (883,707) (666,927)
Retained earnings 59,907,841 60,259,272
---------- ----------
73,004,127 73,465,595
Less treasury stock of 1,857,435 shares in
1998 and 1,874,706 shares in 1997 21,932,066 21,966,352
---------- ----------
Total stockholders' equity 51,072,061 51,499,243
---------- ----------
Total liabilities and stockholders' equity $80,582,732 59,973,473
========== ==========
See accompanying notes to consolidated financial statements and management's
discussion and analysis of financial condition and results of operations.
Page 2
</TABLE>
<TABLE>
LabOne, Inc. and Subsidiary
Consolidated Statements of Earnings
<S> <C> <C> <C> <C>
Three months ended September 30, Nine Months Ended September 30,
1998 1997 1998 1997
---------- ---------- ---------- ----------
Sales $ 25,834,181 19,728,262 74,929,877 57,775,736
Cost of sales 14,529,055 10,664,417 41,319,906 30,750,771
---------- ---------- ---------- ----------
Gross profit 11,305,126 9,063,845 33,609,971 27,024,965
Selling, general and administrative expenses 7,806,049 6,742,060 22,981,153 20,160,880
---------- ---------- ---------- ----------
Earnings from operations 3,499,077 2,321,785 10,628,818 6,864,085
Other income 131,390 281,017 532,186 878,919
---------- ---------- ---------- ----------
Earnings before income taxes 3,630,467 2,602,802 11,161,004 7,743,004
Income tax expense 1,403,763 1,066,682 4,417,930 3,160,902
---------- ---------- ---------- ----------
Net earnings $ 2,226,704 1,536,120 6,743,074 4,582,102
========== ========== ========== ==========
Basic and diluted earnings per common share $ 0.17 0.12 $ 0.51 0.34
====== ====== ===== =====
Dividends per common share $ 0.18 0.18 $ 0.54 0.54
====== ====== ===== =====
Basic weighted average common shares outstanding 13,142,447 13,113,808 13,138,125 13,100,304
========== ========== ========== ==========
Diluted weighted average common shares outstanding 13,236,865 13,321,213 13,292,928 13,325,123
========== ========== ========== ==========
</TABLE>
See accompanying notes to consolidated financial statements and management's
discussion and analysis of financial condition and results of operations.
Page 3
LabOne, Inc. and Subsidiary
Consolidated Statement of Stockholders' Equity
Nine Months Ended September 30, 1998
<TABLE>
<CAPTION>
Accumulated
Additional other Total
Common paid-in comprehensive Retained Treasury stockholders' Comprehensive
stock capital income earnings stock equity income
<S> <C> <C> <C> <C> <C> <C> <C>
Balance at
December 31, 1997 $150,000 13,723,250 (666,927) 60,259,272 (21,966,352) 51,499,243
Comprehensive income:
Net earnings 6,743,074 6,743,074 6,743,074
Equity adjustment
from foreign
currency translation (216,780) (216,780) (216,780)
---------
Comprehensive income 6,526,294
=========
Cash dividends
($0.54 per share) (7,094,505) (7,094,505)
Stock options
exercised, net
(13,379 shares) 81,932 (9,499) 72,433
Directors' stock issued
(3,892 shares) 24,811 43,785 68,596
-------- ---------- -------- ---------- ----------- ----------
Balance at
Sept. 30, 1998 $150,000 13,829,993 (883,707) 59,907,841 (21,932,066) 51,072,061
======== ========== ======== ========== =========== ==========
</TABLE>
See accompanying notes to consolidated financial statements and management's
discussion and analysis of financial condition and results of operations.
Page 4
LabOne, Inc. and Subsidiary
Consolidated Statements of Cash Flows
Nine months ended September 30,
1998 1997
--------- ---------
Cash provided by (used for) operations:
Net earnings $ 6,743,074 4,582,102
Adjustments to reconcile net earnings
to net cash provided by operations:
Depreciation and amortization 3,072,638 3,306,525
Loss (gain) on disposal of property
and equipment 6,009 (118,771)
Directors' stock compensation 68,597 69,584
Provision for deferred taxes (69,258) (204,568)
Changes in:
Accounts receivable (4,991,533) (3,631,691)
Income taxes (243,661) 20,522
Inventories 666,092 (820,808)
Prepaid expenses and other current assets (323,872) 212,172
Accounts payable 932,044 58,768
Accrued payroll & benefits (385,916) 959,370
Accrued expenses 191,408 258,960
Other current liabilities 45,938 13,644
---------- ----------
Net cash provided by operations 5,711,561 4,705,809
---------- ----------
Cash provided by (used for) investment transactions:
Purchases of investments held to maturity (5,461,090) (15,893,902)
Proceeds from maturities of investments held
to maturity 6,201,894 13,485,062
Property, plant and equipment, net (16,100,453) (3,242,256)
Acquisition of intangible assets, net (167,173) (4,128,275)
Other 26,628 (58,634)
---------- ----------
Net cash used for investment transactions (15,500,194) (9,838,005)
---------- ----------
Cash provided by (used for) financing transactions:
Issuance of treasury stock, net of proceeds
from the exercise of stock options 72,435 256,807
Proceeds from issuance of bonds 19,900,000 -
Cash dividends (7,094,506) (7,074,887)
---------- ----------
Net cash provided by (used for)
financing transactions 12,877,929 (6,818,080)
---------- ----------
Effect of foreign currency translation (198,294) (28,456)
---------- ----------
Net increase (decrease) in cash and
cash equivalents 2,891,001 (11,978,732)
Cash and cash equivalents - beginning of period 18,284,672 28,647,378
---------- ----------
Cash and cash equivalents - end of period $21,175,673 16,668,646
========== ==========
Supplemental disclosures of cash flow information:
Cash paid during the period for:
Interest $ 106,462 -
Income Taxes $ 4,711,053 3,541,775
========== ==========
See accompanying notes to consolidated financial statements and management's
discussion and analysis of financial condition and results of operations.
Page 5
LabOne, Inc. and Subsidiary
Notes to Consolidated Financial Statements
September 30, 1998 and 1997
The accompanying consolidated financial statements include the accounts of
LabOne, Inc. and its wholly- owned subsidiary Lab One Canada Inc. (a Canadian
corporation). All significant intercompany transactions have been eliminated
in consolidation.
The financial information furnished herein as of September 30, 1998 and for
the periods ended September 30, 1998 and 1997 is unaudited; however, in the
opinion of management, it reflects all adjustments, consisting of normal
recurring adjustments, which are necessary to fairly state the Company's
financial position and the results of its operations and cash flows. The
balance sheet information as of December 31, 1997 has been derived from the
audited financial statements as of that date. The financial statements have
been prepared in conformity with generally accepted accounting principles
appropriate in the circumstances, and included in the financial statements are
certain amounts based on management's estimates and judgments.
The financial information herein is not necessarily representative of a full
year's operations because levels of sales, capital additions and other factors
fluctuate throughout the year. These same considerations apply to all year-
to-year comparisons. See the Company's Annual Report on Form 10-K for the
year ended December 31, 1997, for additional information not required by this
report on Form 10-Q.
Forward Looking Statements
- --------------------------
This Quarterly report on Form 10-Q may contain "forward-looking statements,"
including projections, statements of plans and objectives, statements of
future economic performance and statements of assumptions underlying such
statements. Forward-looking statements involve known and unknown risks and
uncertainties. Many factors could cause actual results to differ materially
from those that may be expressed or implied in such forward-looking
statements, including, but not limited to, the volume and pricing of
laboratory tests performed by the Company, competition, the extent of market
acceptance of the Company's testing services in the healthcare and substance
abuse testing industries, general economic conditions and other factors
detailed from time to time in the Company's reports and registration
statements filed with the Securities and Exchange Commission, including the
Company's Current Report on Form 8-K dated October 22, 1998.
Business Segment Information
- ----------------------------
The company operates in three lines of business: insurance risk appraisal
testing, clinical diagnostic testing and substance abuse testing. The
following table presents selected financial information for each segment:
Page 6
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
1998 1997 1998 1997
---- ---- ---- ----
<S> <C> <C> <C> <C>
Sales:
Insurance $ 16,676,602 15,206,406 51,070,849 45,531,918
Clinical 5,045,806 1,803,678 13,422,977 5,465,056
Substance abuse testing 4,111,773 2,718,178 10,436,051 6,778,762
---------- ---------- ---------- ----------
Total sales $ 25,834,181 19,728,262 74,929,877 57,775,736
========== ========== ========== ==========
Operating income (loss):
Insurance $ 4,840,576 4,637,451 15,626,247 13,683,324
Clinical (1,431,106) (2,161,954) (4,875,551) (6,161,014)
Substance abuse testing 128,409 (117,104) (10,213) (624,592)
General corporate income (expense) (38,802) (36,608) (111,665) (33,633)
--------- --------- ---------- ---------
Total earnings from operations 3,499,077 2,321,785 10,628,818 6,864,085
Other income (expense) 131,390 281,017 532,186 878,919
--------- --------- --------- ---------
Earnings before income taxes $ 3,630,467 2,602,802 11,161,004 7,743,004
========= ========= ========= =========
</TABLE>
The assets classified as corporate increased significantly due to bond
proceeds and construction of the new facility. There were no material
changes in assets in the other segments, or in the basis of segmentation
or measurement of segment operating income or loss.
ITEM 2 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.
- ----------------------
SELECTED FINANCIAL DATA
<TABLE>
Three Months Ended Nine Months Ended
September 30, September 30,
1998 1997 % Increase 1998 1997 %Increase
----------- ----------- ---------- ---------- ---------- ---------
<S> <C> <C> <C> <C> <C> <C>
Sales $25,834,181 19,728,262 31% $74,929,877 57,775,736 30%
Net earnings 2,226,704 1,536,120 45% 6,743,074 4,582,102 47%
Earnings per common share $0.17 0.12 $0.51 0.34
Cash dividends per common share $0.18 0.18 $0.54 0.54
</TABLE>
The Company provides high-quality laboratory testing services to insurance
companies, physicians and employers.
LabOne provides risk-appraisal laboratory services to the insurance industry.
The tests performed by the Company are specifically designed to assist an
insurance company in objectively evaluating the mortality and morbidity risks
posed by policy applicants. The majority of the testing is performed on
specimens of individual life insurance policy applicants. The Company also
provides testing services on specimens of individuals applying for individual
and group medical and disability policies.
Page 7
LabOne's clinical testing services are provided to the healthcare industry to
aid in the diagnosis and treatment of patients. LabOne operates only one
highly automated and centralized laboratory, which the Company believes has
significant economic advantages over other conventional laboratory
competitors. LabOne markets its clinical testing services to the payers of
healthcare--insurance companies and self-insured groups. The Company does
this through Lab Card(, a Laboratory Benefits Management (LBM) program.
The Lab Card Program provides laboratory testing at reduced rates as compared
to traditional laboratories. It uses a unique benefit design that shares the
cost savings with the patient, creating an incentive for the patient to help
direct laboratory work to LabOne. Under the Program, the patient incurs no
out-of-pocket expense when the Lab Card is used, and the insurance company or
self-insured group receives substantial savings on its laboratory charges.
Additionally, BlueCross BlueShield of Tennessee selected LabOne to provide
routine outpatient laboratory testing services for BlueCare members throughout
Tennessee effective February 1, 1998. BlueCare is BlueCross BlueShield of
Tennessee's plan for Tenncare participants and covers approximately 480,000
members. The Company's LBM programs, including BlueCare and the Lab Card
Program, have approximately 2.1 million lives enrolled.
LabOne is certified by the Substance Abuse and Mental Health Services
Administration (SAMHSA) to perform substance abuse testing services for
federally regulated employers and is currently marketing these services
throughout the country to both regulated and nonregulated employers. The
Company's rapid turnaround times and multiple testing options help clients
reduce downtime for affected employees and meet mandated drug screening
guidelines.
THIRD QUARTER ANALYSIS
Net sales increased 31% to $25.8 million in the third quarter 1998 from $19.7
million in the third quarter 1997 due to increases in all business segments.
Insurance segment revenue increased to $16.7 million during the third quarter
1998 as compared to $15.2 million in the same quarter last year. The increase
was due to an increase in market share and an increase in oral fluid testing
on applicants applying for smaller face-amount policies. The total number of
insurance applicants tested in the third quarter 1998 increased by 10% as
compared to the same quarter last year. Average revenue per applicant
decreased 3% during the same periods due to competitive pricing pressures.
Insurance kit and container revenue increased, due primarily to an increase in
the number of blood and oral fluid kits sold.
Clinical (diagnostic) laboratory revenue increased 180% from $1.8 million in
the third quarter 1997 to $5.0 million in 1998 due to an 117% increase in
testing volumes and a 29% increase in the average revenue per patient.
Substance abuse testing (SAT) revenue increased 51% from $2.7 million in the
third quarter 1997 to $4.1 million in 1998 primarily due to increased testing
volumes.
Cost of sales increased $3.9 million in the third quarter 1998 as compared to
the prior year, due primarily to increases in supplies, inbound freight and
outside laboratory testing and collection services. Laboratory supplies
increased due to the increased specimen volumes tested in each segment.
Insurance kit supplies increased due to the higher volume of kits sold.
Inbound freight and outside laboratory testing and collection services
increased primarily due to the increased specimen volumes in the clinical and
Page 8
SAT segments. Clinical cost of sales expenses were $3.7 million as compared
to $2.2 million in the third quarter 1997. SAT cost of sales expenses were
$2.5 million as compared to $2.0 million in the third quarter 1997.
As a result of the above factors, gross profit for the quarter increased $2.2
million (25%) from $9.1 million in 1997 to $11.3 million in 1998. Clinical
gross profit increased to $1.3 million in the third quarter 1998 from a loss
of $0.4 million in the third quarter 1997. SAT gross profit increased to $1.3
million in the third quarter 1998 from $0.8 million last year.
Selling, general and administrative expenses increased $1.0 million (16%) in
the third quarter 1998 as compared to the prior year, due primarily to
increases in payroll expenses and bad debt accruals. These were partially
offset by a decrease in depreciation expense. Clinical expenses, including
allocated overhead, were $2.8 million as compared to $1.8 million in 1997.
SAT expenditures, including allocations, were $1.2 million as compared to $0.9
million last year. The overhead allocation to the clinical and SAT testing
segments for the third quarter 1998 was $1.5 million as compared to an
allocation of $0.9 million in 1997.
Operating income increased from $2.3 million in the third quarter 1997 to $3.5
million in 1998. The insurance segment increased $0.2 million. The clinical
segment improved $0.7 million to an operating loss of $1.4 million for the
quarter. The SAT segment improved $0.2 million from an operating loss of $0.1
million in the third quarter 1997 to an operating gain of $0.1 million in
1998.
Investment income decreased $0.1 million due primarily to less funds available
for investment. The effective income tax rate declined to 39% in 1998 from
41% in 1997.
The combined effect of the above factors resulted in net earnings of $2.2
million or $0.17 per share in the third quarter 1998 as compared to $1.5
million or $0.12 per share, in the same period last year.
YEAR-TO-DATE ANALYSIS
Net sales in the nine month period ended September 30, 1998 were $74.9 million
as compared to $57.8 million in the same period last year. The increase of
$17.2 million is due to increases in clinical laboratory revenue of $8.0
million, insurance laboratory revenue of $3.6 million, SAT revenue of $3.7
million and kit revenue of $2.0 million.
The total number of insurance applicants tested in the nine month period
increased by 13% as compared to last year, while average revenue per applicant
declined 3%. Kit and container revenue increased $2.0 million due primarily
to an increase in the number of oral fluid and full blood kits sold.
Clinical laboratory revenue increased from $5.5 million during the first nine
months of 1997 to $13.4 million for the same period in 1998 due to increased
testing volumes and higher revenue per patient. SAT revenue increased from
$6.8 million in 1997 to $10.4 million in 1998 due to a 51% increase in testing
volumes.
Cost of sales increased $10.6 million year to date as compared to the prior
year. This increase is due primarily to increases in laboratory and kit
supplies, payroll expenses, inbound freight and outside laboratory services.
Lab supplies increased 26%, and payroll increased 19% due to the larger volume
Page 9
of all specimen types processed. Insurance kit expense increased due to the
higher volume of kits sold. Freight and outside testing increased primarily
due to the substantial growth in clinical and SAT specimen volumes. Clinical
cost of sales expenses were $10.7 million as compared to $6.1 million during
the first nine months of 1997. SAT cost of sales expenses were $7.2
million as compared to $5.1 million during 1997.
As a result of the above factors, gross profit for the first nine months
increased from $27.0 million in 1997 to $33.6 million in 1998. Clinical gross
profit improved from a loss of $0.7 million in 1997 to a gain of $2.8 million
in 1998. SAT gross profit increased to $3.2 million in the first nine months
of 1998 from $1.7 million last year.
Selling, general and administrative expenses increased $2.8 million (14%) in
the nine month period ended September 30, 1998 as compared to the prior year
due primarily to increases in payroll expenses and bad debt accruals. Payroll
expense increased primarily due to an 18% increase in headcount and increased
benefit expenses. These were partially offset by a decrease in depreciation
expense. Clinical expenditures were $7.6 million as compared to $5.5 million
in 1997. SAT expenses increased from $2.3 million in 1997 to $3.2 million in
1998. The overhead allocation to the clinical and SAT segments for the period
was $3.9 million as compared to an allocation of $2.4 million in 1997.
Operating income increased from $6.9 million in the first nine months of 1997
to $10.6 million in 1998, primarily due to an increase in the insurance
segment operating income of $1.9 million. The clinical segment had an
operating loss of $4.9 million for the nine month period ended September 30,
1998 as compared to an operating loss of $6.2 million in 1997. The SAT
segment improved from an operating loss of $0.6 million in 1997 to a loss of
$10,000 in 1998.
Investment income decreased $0.3 million primarily due to less funds available
for investment. The effective income tax rate declined from 41% in 1997 to
40% in 1998.
The combined effect of the above factors resulted in net earnings of $6.7
million or $0.51 per share in the nine month period ended September 30, 1998
as compared to $4.6 million or $0.34 per share in the same period last year.
FINANCIAL POSITION, LIQUIDITY AND CAPITAL RESOURCES
- ---------------------------------------------------
LabOne's working capital position increased by $4.9 million to $40.3 million
at September 30, 1998, from $35.4 million at December 31, 1997. This increase
is primarily due to bond proceeds and cash provided by operations before
changes in working capital exceeding capital additions and dividends paid.
Cash flow from operations before changes in working capital increased by $2.2
million year to date as compared to 1997. The increase is primarily
attributable to the increase in net earnings.
Trade accounts receivable increased $5.0 million or 40% from December 31,
1997, due to the continuing increase in revenues. Net additions to
property, plant and equipment in the first nine months of 1998 were $16.1
million, as compared to $3.2 million in 1997. The increase is primarily
related to construction of the new facility.
The new facility project is expected to cost approximately $33 million and is
being financed with an industrial revenue bond (IRB) approved by the City of
Page 10
Lenexa (Kansas), and signed during the third quarter 1998. Interest on the
bond is based on a taxable seven day variable rate. The $33 million IRB is
split into three series. Series A consists of $20 million which has been sold
publicly. Series B and C consists of $13 million which has been purchased by
LabOne. The company expects to repay Series A over 11 years at approximately
$1.85 million per year plus interest. Interest expense is based on a taxable
seven day variable rate and is currently less than 6.5%, including all
financing costs. Debt restrictions include, but are not limited to, a net
worth covenant and an operating cash flow covenant. As of September 30,
1998, total capital expenditures for this project were $17.1 million.
In August 1998, LabOne's Board of Directors declared the regular quarterly
dividend of $0.18 per common share. This dividend was paid on September 1,
1998, to stockholders of record as of August 25, 1998, and totaled
approximately $2.4 million. The board will review the dividend payment policy
on a periodic basis. There are currently no restrictions that would limit the
Company's ability to make future dividend payments.
The total number of shares held in treasury at September 30, 1998 was
approximately 1.9 million at a total cost of $21.9 million or $11.78 per
share. The Company had no short-term borrowings in the third quarter 1998.
The Company expects to fund operations and future dividend payments, from a
combination of cash flows from operations and cash reserves. At September 30,
1998, LabOne had total cash and investments of $21.6 million as compared to
$19.5 million at December 31, 1997.
YEAR 2000
- ---------
LabOne is actively addressing Year 2000 computer concerns. The company has
established an oversight committee which includes management from all parts of
the Company and meets periodically to review progress. The Company's
laboratory operating systems and its business processing systems were
completely rewritten in the past ten years and were brought into compliance
with Year 2000 date standards at that time. Non-IT systems, which include
security systems, time clocks and heating and cooling systems, are being
replaced with certified compliant systems as part of construction of the new
facility. The Company expects to complete all remaining internal Year 2000
objectives by the end of the first quarter, 1999.
Ongoing remediation efforts include regularly scheduled software upgrades and
replacement of personal computers and associated equipment, and are not unique
to the Year 2000 efforts. LabOne is assessing the Year 2000 preparation and
contingency plans of the Company's clients and vendors. LabOne has material
relationships and dependencies with its primary telecommunications provider,
Sprint Corp., its inbound shipping provider, Airborne Express, and municipal
services providers. In the event of a service interruption, the Company has
the ability to switch telecommunications services to AT&T at any time, and
maintains backup electrical generators capable of meeting its electrical
needs. LabOne currently tracks and controls routing of its inbound specimens
and can use USPS, airlines and other common carriers or express delivery
services in the event of delivery problems with Airborne Express. The Company
currently maintains approximately 8 weeks supply of most laboratory supplies,
and does not expect significant problems in obtaining supplies. The Company
continues to review the Year 2000 plans of these providers, and does not
currently expect significant problems in these areas, however, there can be no
assurance that the systems of clients and vendors will be converted to address
Year 2000 problems in a timely and effective manner or that such conversions
will be compatible with the Company's computer systems.
Page 11
Resources dedicated to the remaining effort are expected to cost less than
$0.3 million over the next 18 months and are not considered a material expense
to the Company. These efforts have not caused delay to the Company's other
ongoing information systems projects. LabOne has not hired any outside
consultants or other independent validation provider at this time, and does
not expect to do so.
There can be no assurance that the Company's adjustments to its computer
systems will completely eliminate all Year 2000 problems. Failure to properly
address the Year 2000 problem could have a material adverse effect on the
Company's business, financial condition and results of operations.
PART II. OTHER INFORMATION
Item 2. - Changes in Securities
The City of Lenexa, Kansas, has issued its Taxable Industrial Revenue
Bonds in the amount of $20 million to provide financing for LabOne's
acquisition, construction and equipping if its new 270,000 square foot office,
lab and warehouse facility in Johnson County, Kansas pursuant to a Lease
Agreement between LabOne, Inc. and the City of Lenexa, Kansas. Commerce Bank,
N.A. has provided a direct pay letter of credit to insure payment of the Bonds
pursuant to the Lease Agreement and a Reimbursement Agreement between Commerce
Bank and LabOne, Inc. LabOne is required under the Reimbursement Agreement to
maintain a net worth of $40 million, a tangible net worth of $20 million and a
quarterly debt service coverage of not less than 3 to 1. At September 30,
1998, LabOne's book net worth was $51 million and its book tangible net worth
was $46 million. The above referenced agreements are appended hereto as
Exhibits 4.1 to 4.3.
Item 6. - Exhibits and Reports on Form 8-K
(a) Exhibits
4.1 Trust Indenture dated as of September 1, 1998, between the City
of Lenexa, Kansas and Intrust Bank, N.A. related to the issuance of
Taxable Industrial Revenue Bonds for the LabOne, Inc. Facility
Project.
4.2 Lease Agreement dated as of September 1, 1998, between the City
of Lenexa, Kansas and LabOne, Inc. related to the Trust Indenture
filed as Exhibit 4.1.
4.3 Reimbursement Agreement dated as of September 1, 1998, between
LabOne, Inc. and Commerce Bank, N.A. related to Exhibits 4.1
and 4.2.
27. Financial Data Schedule - as filed electronically by the
Registrant in conjunction with this third quarter 1998 Form 10-Q.
(b) Reports on Form 8-K
A Form 8-K current report dated October 14, 1998, was filed with the
commission reporting under Other Events that LabOne had entered into an
agreement to acquire Systematic Business Services, Inc.
A Form 8-K current report dated October 22, 1998, was filed with the
commission providing under Other Events a cautionary statement in order to
obtain the benefits of the "safe harbor" provisions of the Private Securities
Litigation Reform Act of 1995.
Page 12
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
LabOne, Inc.
Date: November 13, 1998 By /s/ Kurt E. Gruenbacher
-----------------------
Kurt E. Gruenbacher, V.P. Finance, CAO
and Treasurer
Date: November 13, 1998 By /s/ Robert D. Thompson
----------------------
Robert D. Thompson, Executive V.P., Chief
Operating Officer and Chief Financial
Officer
Page 13
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
third quarter 1998 Report on Form 10-Q for LabOne, Inc. and is qualified
in its entirety by reference to such financials.
</LEGEND>
<CIK> 0000816151
<NAME> LABONE, INC.
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> SEP-30-1998
<CASH> 21,175,673
<SECURITIES> 500,209
<RECEIVABLES> 19,482,318
<ALLOWANCES> 1,886,098
<INVENTORY> 1,537,379
<CURRENT-ASSETS> 51,456,069
<PP&E> 58,778,165
<DEPRECIATION> 34,762,000
<TOTAL-ASSETS> 80,582,732
<CURRENT-LIABILITIES> 11,128,737
<BONDS> 18,050,758
0
0
<COMMON> 150,000
<OTHER-SE> 50,922,061
<TOTAL-LIABILITY-AND-EQUITY> 80,582,732
<SALES> 0
<TOTAL-REVENUES> 74,929,877
<CGS> 0
<TOTAL-COSTS> 41,319,906
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 71,005
<INCOME-PRETAX> 11,161,004
<INCOME-TAX> 4,417,930
<INCOME-CONTINUING> 6,743,074
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 6,743,074
<EPS-PRIMARY> 0.51
<EPS-DILUTED> 0.51
</TABLE>
EXHIBIT-4.1
TRUST INDENTURE
between
CITY OF LENEXA, KANSAS
and
INTRUST BANK, N.A.
as Trustee
---------------
Dated as of September 1, 1998
---------------
$20,000,000
City of Lenexa, Kansas
Taxable Industrial Revenue Bonds
(LabOne, Inc. Project)
Series 1998A
and
$5,000,000
City of Lenexa, Kansas
Taxable Subordinate Industrial Revenue Bonds
(LabOne, Inc. Project)
Series 1998B
and
$8,000,000
City of Lenexa, Kansas
Taxable Subordinate Industrial Revenue Bonds
(LabOne, Inc. Project)
Series 1998C
---------------
<PAGE>
TRUST INDENTURE
Page
Recitals.......................................................................1
Granting Clauses...............................................................2
ARTICLE I
DEFINITIONS, CONSTRUCTION AND CERTAIN GENERAL PROVISIONS
Section 101. Definitions of Words and Terms....................................3
Section 102. General Rules of Interpretation..................................15
ARTICLE II
THE BONDS
Section 201. Authorized Amount of Bonds.......................................16
Section 202. Limited Nature of Obligations....................................16
Section 203. Form and Denomination of Bonds...................................17
Section 204. Method and Place of Payment of Bonds; Interest Rights
Preserved........................................................18
Section 205. Execution and Authentication of Bonds............................18
Section 206. Registration, Transfer and Exchange of Bonds.....................19
Section 207. Persons Deemed Owners of Bonds...................................21
Section 208. Issuance and Terms of Bonds......................................22
Section 209. Mutilated, Lost, Stolen or Destroyed Bonds.......................24
Section 210. Cancellation and Destruction of Bonds Upon Payment...............24
Section 211. Authorization of Additional Bonds................................24
ARTICLE III
REDEMPTION AND PURCHASE OF BONDS
Section 301. Limitation on Redemption.........................................26
Section 302. Redemption of the Bonds..........................................27
Section 303. Selection of Bonds to be Redeemed................................32
Section 304. Notice of Redemption.............................................33
Section 305. Effect of Call for Redemption....................................33
Section 306. Purchase at Bondowner Option.....................................34
Section 307. Purchase on Interest Rate Mode Conversion Date or Substitute
Letter of Credit Date............................................35
Section 308. Payment of Purchase Price by Tender Agent........................36
Section 309. Sale of Series 1998A Bonds by Remarketing Agent..................37
Section 310. Delivery of Series 1998A Bonds...................................38
Section 311. Delivery of Proceeds of Sales....................................39
i
<PAGE>
ARTICLE IV
CUSTODY AND APPLICATION OF BOND PROCEEDS; PROJECT FUNDS
Section 401. Creation of Project Funds........................................39
Section 402. Application of Bond Proceeds; Deposit into the Project Funds.....39
Section 403. Disbursements from the Project Funds.............................39
ARTICLE V
REVENUES AND FUNDS
Section 501. Creation of the Bond Funds.......................................40
Section 502. Deposits into the Bond Funds.....................................40
Section 503. Application of Moneys in the Bond Funds and Certain
Other Moneys.....................................................41
Section 504. Letter of Credit.................................................43
Section 505. Payments Due on Days Other Than Business Days....................43
Section 506. Nonpresentment of Bonds..........................................44
Section 507. Payment to the Letter of Credit Provider and the Lessee from
the Project Funds and the Bond Funds.............................44
ARTICLE VI
DEPOSITARIES OF MONEYS, SECURITY FOR DEPOSITS AND
INVESTMENT OF FUNDS
Section 601. Moneys to be Held in Trust.......................................44
Section 602. Investment of Moneys in Funds....................................45
ARTICLE VII
PARTICULAR COVENANTS AND PROVISIONS
Section 701. Payment of Principal, Redemption Premium, if any, and
Interest.........................................................45
Section 702. Authority to Execute Indenture and Issue Bonds...................45
Section 703. Performance of Covenants.........................................45
Section 704. Instruments of Further Assurance.................................45
Section 705. Inspection of Project Books......................................46
Section 706. Enforcement of Rights Under the Lease Agreement..................46
ARTICLE VIII
DEFAULT AND REMEDIES
Section 801. Events of Default................................................46
Section 802. Acceleration.....................................................47
Section 803. Surrender of Possession of Trust Estate; Rights and Duties
of Trustee in Possession.........................................47
Section 804. Appointment of Receivers in Event of Default.....................48
Section 805. Exercise of Remedies by the Trustee..............................48
Section 806. Limitation on Exercise of Remedies by Bondowners.................49
Section 807. Right of Bondowners to Direct Proceedings........................50
ii
<PAGE>
Section 808. Application of Moneys in Event of Default........................50
Section 809. Remedies Cumulative..............................................52
Section 810. Delay or Omission Not Waiver.....................................52
Section 811. Effect of Discontinuance of Proceedings..........................52
Section 812. Waivers of Events of Default.....................................52
Section 813. Opportunity of Lessee and the Letter of Credit Provider to
Cure Defaults....................................................53
Section 814. Letter of Credit Provider to Direct Trustee......................53
Section 815. Rights of Letter of Credit Provider..............................53
Section 816. Surrender of Letter of Credit....................................54
ARTICLE IX
TRUSTEE, REMARKETING AGENT AND TENDER AGENT
Section 901. Acceptance of the Trusts.........................................54
Section 902. Fees, Charges and Expenses of the Trustee........................58
Section 903. Notice to Bondowners, the Issuer and the Letter of Credit
Provider if Default Occurs.......................................58
Section 904. Intervention by the Trustee......................................58
Section 905. Successor Trustee Upon Merger, Consolidation or Sale.............58
Section 906. Resignation of Trustee or Paying Agent...........................59
Section 907. Removal of Trustee or Paying Agent...............................59
Section 908. Appointment of Successor Trustee or Paying Agent.................59
Section 909. Vesting of Trusts in Successor Trustee...........................59
Section 910. Right of Trustee to Pay Taxes and Other Charges..................60
Section 911. Trust Estate May Be Vested in Co-trustee.........................60
Section 912. Annual Accounting................................................61
Section 913. Remarketing Agent................................................61
Section 914. Qualifications of Remarketing Agent..............................61
Section 915. Tender Agent.....................................................62
Section 916. Qualifications of Tender Agent...................................62
ARTICLE X
SUPPLEMENTAL INDENTURES
Section 1001. Supplemental Indentures Not Requiring Consent of Bondowners.....63
Section 1002. Supplemental Indentures Requiring Consent of Bondowners.........64
Section 1003. Consent of the Letter of Credit Provider and the Lessee to
Supplemental Indentures.........................................65
Section 1004. Opinion of Bond Counsel.........................................65
Section 1005. Notice of Supplemental Indenture to Remarketing Agent...........65
ARTICLE XI
SUPPLEMENTAL LEASE AGREEMENTS AND AMENDMENTS
TO THE LETTER OF CREDIT
Section 1101. Supplemental Lease Agreements and Amendments to the Letter
of Credit Not Requiring Consent of Bondowners...................65
Section 1102. Supplemental Lease Agreements and Amendments to the Letter of
Credit Requiring Consent of Bondowners..........................65
Section 1103. Consent of the Letter of Credit Provider to Supplemental Lease
Agreements......................................................66
iii
<PAGE>
Section 1104. Opinion of Bond Counsel.........................................66
Section 1105. Notice of Supplemental Lease to Remarketing Agent...............66
ARTICLE XII
SATISFACTION AND DISCHARGE OF INDENTURE
Section 1201. Satisfaction and Discharge of the Indenture.....................66
Section 1202. Bonds Deemed to be Paid.........................................67
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 1301. Consents and Other Instruments by Bondowners....................68
Section 1302. Limitation of Rights Under the Indenture........................68
Section 1303. Notices.........................................................68
Section 1304. Consent of Subordinate Bondowners Not Applicable................70
Section 1305. Effect of Default of Letter of Credit Provider or Payment
of Parity Bonds.................................................70
Section 1306. Execution in Counterparts.......................................70
Section 1307. Severability....................................................70
Section 1308. Governing Law...................................................70
Exhibit A-1 - Form of Series 1998A Bonds
Exhibit A-2 - Form of Series 1998B Bonds
Exhibit A-3 - Form of Series 1998C Bonds
Exhibit B - Notice of Interest Rate Adjustment
Exhibit C - Bondowner Election Notice
Exhibit D - Notice of Interest Rate Mode Conversion
Exhibit E - Notice of Substitute Letter of Credit
Exhibit F - Written Request for Disbursement Form
iv
<PAGE>
TRUST INDENTURE
THIS TRUST INDENTURE, dated as of September 1, 1998 (the "Indenture"),
between the CITY OF LENEXA, KANSAS, a municipal corporation organized and
existing under the laws of the state of Kansas (the "Issuer"), and INTRUST BANK,
N.A., a national banking association duly organized and existing and authorized
to accept and execute trusts of the character herein set out under the laws of
the United States of America, and having its principal corporate trust office
located in Wichita, Kansas (the "Trustee"). All capitalized terms not otherwise
defined shall have the meanings set forth in Section 101 hereof.
RECITALS:
1. The Issuer is authorized under the provisions of K.S.A. 12-1740 to
12-1749d, inclusive, as amended (the "Act"), to purchase, acquire, construct,
improve and equip certain facilities within its jurisdiction for commercial
purposes, to enter into leases and lease-purchase agreements with any person,
firm or corporation for the facilities, to issue revenue bonds for the purpose
of paying the cost of the facilities, and to pledge the income and revenues to
be derived from the operation of such facilities to secure the payment of the
principal of and interest on such bonds.
2. At the request of LabOne, Inc., a Delaware corporation (the "Lessee"),
the Issuer desires to finance the construction, improvement and equipping of a
commercial facility (the "Project"), by acquiring the Project and leasing the
Project to the Lessee pursuant to the terms of a Lease Agreement dated as of
September 1, 1998 (the "Lease Agreement"), between the Issuer and the Lessee.
3. The Lease Agreement provides for lease payments by the Lessee which
will be sufficient to pay the principal of, redemption premium, if any, purchase
price, and the interest on the Series 1998A Bonds, the Series 1998B Bonds and
Series 1998C Bonds issued by the Issuer under this Indenture for the purpose of
providing funds to finance the Project.
4. Pursuant to the Act, the Issuer has authorized the issuance of
$20,000,000 principal amount of Taxable Industrial Revenue Bonds (LabOne, Inc.
Project) Series 1998A (the "Series 1998A Bonds"), $5,000,000 principal amount of
Taxable Subordinate Industrial Revenue Bonds (LabOne, Inc. Project), Series
1998B (the "Series 1998B Bonds"), and $8,000,000 principal amount of Taxable
Subordinate Industrial Revenue Bonds (LabOne, Inc. Project), Series 1998C (the
"Series 1998C Bonds") under this Indenture (the Series 1998A Bonds, the Series
1998B Bonds, the Series 1998C Bonds and any Additional Bonds as defined herein
are referred to collectively as the "Bonds").
5. The proceeds of the Series 1998A Bonds, the Series 1998B Bonds and the
Series 1998C Bonds will be used to finance the cost of the Project in accordance
with the Act.
6. The execution and delivery of this Indenture, and the issuance of the
Series 1998A Bonds, the Series 1998B Bonds and the Series 1998C Bonds under the
Act have been in all respects duly and validly authorized by an ordinance duly
passed and approved by the Issuer.
7. To support the payment of the principal of and interest on the Series
1998A Bonds and the payment of the purchase price of the Series 1998A Bonds
pursuant to Sections 306 and 307, the Lessee will cause the Letter of Credit,
issued by the Letter of Credit Provider, to be delivered to the Trustee.
<PAGE>
8. All things necessary to make the Series 1998A Bonds, the Series 1998B
Bonds and the Series 1998C Bonds the valid and legally binding obligations of
the Issuer, and to constitute this Indenture a valid and legally binding pledge
and assignment of the Trust Estate herein made for the security of the payment
of the principal of, premium, if any, and interest on the Series 1998A Bonds,
the Series 1998B Bonds and the Series 1998C Bonds issued hereunder, including
the payment of the purchase price thereof in accordance with Sections 306 and
307, and for the security of the payment of the obligations payable to the
Letter of Credit Provider under the Letter of Credit Provider Documents, have
been done and performed, and the execution and delivery of this Indenture and
the execution and issuance of the Series 1998A Bonds, the Series 1998B Bonds and
the Series 1998C Bonds, subject to the terms hereof, have in all respects been
duly authorized.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
GRANTING CLAUSES
That the Issuer, in consideration of the premises, the acceptance by the
Trustee of the trusts hereby created, the purchase and acceptance of the Bonds
by the Owners thereof, and of other good and valuable consideration, the receipt
of which is hereby acknowledged, and in order to secure the payment of the
principal of, purchase price for, premium, if any, and interest on all of the
Bonds issued and Outstanding under this Indenture from time to time according to
their tenor and effect, and to secure the performance and observance by the
Issuer of all the covenants, agreements and conditions in this Indenture and in
the Bonds and to secure the payment of the obligations payable to the Letter of
Credit Provider under the Letter of Credit Provider Documents, pledges and
assigns to the Trustee, and to its successors in trust, and to them and their
assigns forever, the following (the "Trust Estate"):
(a) All right, title and interest of the Issuer in and to the Project
together with the tenements, hereditaments, appurtenances, rights,
privileges and immunities thereunto belonging or appertaining.
(b) All right, title, interest and privileges of the Issuer in, to
and under the Lease Agreement, including, but not limited to, all rents,
revenues and receipts derived by the Issuer from the Project, including
all lease payments payable by the Lessee pursuant to the Lease Agreement
(except the Unassigned Issuer's Rights).
(c) All moneys and securities, including proceeds, from time to time
held by the Trustee under the terms of this Indenture, including all sums
drawn on the Letter of Credit, moneys in the Project Funds and any and all
other real or personal property of every kind and nature from time to time
hereafter, by delivery or by writing of any kind, pledged, assigned or
transferred as and for additional security hereunder by the Issuer or by
anyone in its behalf, or with its written consent, to the Trustee, which
is hereby authorized to receive any and all such property at any and all
times and to hold and apply the same subject to the terms hereof;
provided, however, that sums drawn on the Letter of Credit shall be for
payment of the principal of, purchase price for, premium, if any, and
interest on only the Parity Bonds).
TO HAVE AND TO HOLD, all and singular, the Trust Estate with all rights
and privileges hereby pledged and assigned, or agreed or intended so to be, to
the Trustee and its successors in trust and assigns forever;
2
<PAGE>
IN TRUST NEVERTHELESS, upon the terms and subject to the conditions herein
set forth, (a) for the equal and proportionate benefit, protection and security
of all Owners from time to time of the Parity Bonds issued and Outstanding under
this Indenture, without preference, priority or distinction as to lien or
otherwise of any of the Parity Bonds over any other of the Parity Bonds except
as expressly provided in or permitted by this Indenture, (b) to the extent
provided herein, for the benefit, protection and security of the Letter of
Credit Provider in order to secure the obligations owed by the Lessee to the
Letter of Credit Provider under the Letter of Credit Provider Documents, and (c)
on a subordinate basis for the equal and proportionate benefit, protection and
security of all Owners from time to time of the Subordinate Bonds issued and
Outstanding under this Indenture, without preference, priority or distinction as
to lien or otherwise of any of the Subordinate Bonds over any other of the
Subordinate Bonds except as expressly provided in or permitted by this
Indenture;
PROVIDED, HOWEVER, that if the Issuer pays, or causes to be paid, the
principal of, premium, if any, and interest on all the Bonds, at the times and
in the manner mentioned in the Bonds according to the true intent and meaning
thereof, or provides for the payment thereof (as provided in Article XII), and
shall pay or cause to be paid to the Trustee all other sums of money due or to
become due to it in accordance with the terms and provisions hereof, and if the
Lessee has paid in full all amounts owing the Letter of Credit Provider under
the Letter of Credit Provider Documents and returns the Letter of Credit to the
Letter of Credit Provider for cancellation, then upon such final payments this
Indenture and the rights hereby granted shall cease, determine and be void;
otherwise, this Indenture shall be and remain in full force and effect.
THIS INDENTURE FURTHER WITNESSETH, and it is hereby expressly declared,
covenanted and agreed by and between the parties hereto, that all Bonds issued
and secured hereunder are to be issued, authenticated and delivered and that all
the Trust Estate is to be held and applied under, upon and subject to the terms,
conditions, stipulations, covenants, agreements, trusts, uses and purposes as
hereinafter expressed, and the Issuer does hereby agree and covenant with the
Trustee for the benefit of the respective Owners from time to time of the Bonds
and for the benefit of the Letter of Credit Provider, as follows:
ARTICLE I
DEFINITIONS, CONSTRUCTION AND CERTAIN GENERAL PROVISIONS
Section 101. Definitions of Words and Terms. In addition to words and
terms defined in the Lease Agreement and elsewhere in this Indenture, the
following words and terms as used in this Indenture shall have the following
meanings, unless some other meaning is plainly intended:
"Act" means K.S.A. 12-1740 to 12-1749d, inclusive, as amended.
"Additional Bonds" means any Bonds issued pursuant to Section 211 of this
Indenture.
"Additional Payments" means those payments required to be made by the
Lessee pursuant to Section 4.4 of the Lease Agreement.
"Affiliate" means, with respect to any Person, any Person that directly or
indirectly through one or more intermediaries, controls, or is controlled by, or
is under common control with, such first Person or is
3
<PAGE>
treated as a single employer with such first Person under Section 414(b) or (c)
of the United States Bankruptcy Code, and the regulations thereunder.
"Annual Date" means September 1 in each year.
"Annual Mode" means the Interest Rate Mode designated as such for the
Series 1998A Bonds.
"Authorized Issuer Representative" means the Mayor, President of the City
Council or any other person at the time designated to act on behalf of the
Issuer by written certificate furnished to the Lessee, the Letter of Credit
Provider and the Trustee containing the specimen signature of such person and
signed by the Mayor or President of the City Council of the Issuer. Such
certificate may designate an alternate or alternates each of whom shall be
entitled to perform all duties of the Authorized Issuer Representative.
"Authorized Lessee Representative" means the President or any Vice
President of the Lessee, or such other person at the time designated to act on
behalf of the Lessee by written certificate furnished to the Issuer, the Letter
of Credit Provider and the Trustee containing the specimen signature of such
person and signed by the President or any Vice President of the Lessee. Such
certificate may designate an alternate or alternates each of whom shall be
entitled to perform all duties of the Authorized Lessee Representative.
"Authorized Letter of Credit Provider Representative" means the person at
the time designated to act on behalf of the Letter of Credit Provider by written
certificate furnished to the Issuer, the Lessee and the Trustee containing the
specimen signature of such person and signed by a vice president or assistant
vice president of the Letter of Credit Provider. Such certificate may designate
an alternate or alternates each of whom shall be entitled to perform all duties
of the Authorized Letter of Credit Provider Representative.
"Available Moneys" means (i) proceeds from the sale by the Issuer of the
Series 1998A Bonds and proceeds from the resale by the Remarketing Agent of
Series 1998A Bonds delivered for purchase pursuant to Section 306 or 307 and not
remarketed to the Lessee or the Issuer, in each case that have not been
commingled with other funds that do not constitute Available Moneys, and
proceeds from the investment thereof, (ii) moneys that have been on deposit with
the Trustee and with respect to which at the time of deposit therewith and for a
period of at least 124 days thereafter no petition by or against the Lessee or
the Issuer under any bankruptcy act or under any similar act which may be
hereafter enacted has been filed, unless such petition has been dismissed and
such dismissal is final and not subject to appeal, and that have not been
commingled with other funds held by the Trustee that do not constitute Available
Moneys, and proceeds from the investment thereof, provided, however, before
using such moneys, the Trustee shall require and shall have received a
certificate from the Authorized Lessee Representative that no Event of
Bankruptcy shall have occurred as of the date of such certificate and for a
period of at least 124 days prior to the date of such certificate, (iii) moneys
that have been paid to the Trustee pursuant to the Letter of Credit and that
have been held in the Letter of Credit Account and not commingled with other
funds that do not constitute Available Moneys, and proceeds from the investment
thereof, and (iv) moneys made available to the Trustee pursuant to a new series
of bonds or a line of credit or other credit facility in the event the Lessee
delivers to the Trustee an opinion of recognized bankruptcy counsel to the
effect that payments in respect of the Bonds under such credit facility will not
constitute a voidable preference in the event of an Event of Bankruptcy with
respect to the Issuer or the Lessee and provided that in the event the Series
1998A Bonds are rated by Moody's or S&P, such agency shall have confirmed that
the use of such funds shall not adversely effect any rating then in effect on
the Series 1998A Bonds.
4
<PAGE>
"Available Moneys Account" means the account by that name in the Series
1998A Bond Fund created pursuant to Section 501.
"Bond" or "Bonds" means the Series 1998A Bonds, the Series 1998B Bonds,
the Series 1998C Bonds and any Additional Bonds.
"Bond Counsel" means Logan Riley Carson & Kaup, L.C. (or any successor
thereto) or any other attorney or firm of attorneys acceptable to the Issuer,
the Letter of Credit Provider and the Trustee of nationally recognized standing
in matters pertaining to the tax status of interest on bonds issued by states
and their political subdivisions duly admitted to the practice of law before the
highest court of any state of the United States of America or the District of
Columbia.
"Bond Funds" means the Series 1998A Bond Fund, the Series 1998B Bond
Fund and the Series 1998C Bond Fund.
"Bond Pledge Agreement" means the Pledge and Security Agreement dated as
of September 1, 1998, between the Lessee and the Letter of Credit Provider.
"Bond Purchase Agreement" means the Bond Purchase Agreement dated
September 10, 1998, among the Issuer, the Lessee and the Underwriter.
"Bond Register" means the register and all accompanying records kept by
the Bond Registrar evidencing the registration, transfer and exchange of Bonds.
"Bond Registrar" means the Trustee, acting as such, or any other
corporation acting as agent of the Trustee for such purpose or designated by
this Indenture or any Supplemental Indenture as bond registrar hereunder, and
their respective successors or assigns.
"Bondowner" or "Owner" means the person in whose name a Bond is registered
in the Bond Register and does not mean any beneficial owner of Bonds whether
through the book-entry only system or otherwise.
"Bondowner Election Notice" has the meaning set forth in Section 306.
"Business Day" means any day other than (i) a Saturday or Sunday, or (ii)
any day on which banking institutions in the city in which the principal
corporate trust office of the Trustee or the principal corporate trust office of
the Tender Agent or the principal office of the Remarketing Agent or the office
of the Letter of Credit Provider at which demands for payment under the Letter
of Credit are to be presented, is located, are required or authorized by law to
remain closed.
"Calculation Period" means:
(A) in the case of the initial Calculation Period for the Series 1998A
Bonds, the period from and including the date of the initial issuance and
delivery of the Series 1998A Bonds to and including the following Wednesday,
except that if the date of the initial issuance and delivery of the Series 1998A
Bonds is a Wednesday, the initial Calculation Period shall be only such day, and
5
<PAGE>
(B) in the case of each subsequent Calculation Period,
(i) while the Series 1998A Bonds are in the Weekly Mode, each weekly
period from and including Thursday of each week to and including the
following Wednesday,
(ii) while the Series 1998A Bonds are in the Monthly Mode, each
monthly period from and including the first day of each month to and
including the last day of such month,
(iii)while the Series 1998A Bonds are in the Semiannual Mode, each
six-month period from and including a Semiannual Date to and including the
day immediately preceding the next Semiannual Date,
(iv) while the Series 1998A Bonds are in the Annual Mode, each annual
period from and including an Annual Date to and including the day
immediately preceding the next Annual Date, and
(v) while the Series 1998A Bonds are in a Multiyear Mode, each
multiyear period of a duration equal to the number of years of such
Multiyear Mode from and including the Annual Date next following the
expiration of the preceding Calculation Period for such Series 1998A Bond
to and including the last day immediately preceding the first to occur of
the annual anniversary of such Annual Date that corresponds with the
number of years of such Multiyear Mode or the stated maturity for such
Series 1998A Bond; and
(C) if the Interest Rate Mode is changed for the Series 1998A Bonds
on an Interest Rate Mode Conversion Date, the Calculation Period for the
Series 1998A Bonds in effect immediately preceding such Interest Rate Mode
Conversion Date shall end with and include the day immediately preceding
such Interest Rate Mode Conversion Date, and the immediately following
Calculation Period for the Series 1998A Bonds shall be the period from and
including the Interest Rate Mode Conversion Date to and including the day
immediately preceding the first day on which a new Calculation Period may
commence in accordance with this definition (which first day in the case
of any Multiyear Mode shall be the Annual Date immediately preceding the
annual anniversary of such Interest Rate Mode Conversion Date that
corresponds with the number of years of such Multiyear Mode, unless such
annual anniversary occurs on an Annual Date, in which case such first day
shall be such annual anniversary).
"Default" means any event or condition which constitutes, or with the
giving of any requisite notice or upon the passage of any requisite time period
or upon the occurrence of both would constitute, an Event of Default.
"Determination Date" means the first day of each Calculation Period, or if
such day is not a Business Day, then the preceding Business Day.
"Eligible Guarantor" means any "eligible guarantor institution" as defined
by SEC Rule 17Ad-15 (17 CFR 240.17Ad-15).
"Event of Bankruptcy" means, as to the Lessee or the Issuer any of the
following: (a) the commencement by the Lessee or the Issuer of a voluntary case
under the federal bankruptcy laws, as now in effect or hereafter amended, or any
other applicable federal or state bankruptcy, insolvency or similar
6
<PAGE>
laws; (b) the filing of a petition with a court having jurisdiction over the
Lessee or the Issuer, as applicable, to commence an involuntary case against the
Lessee or Issuer, as applicable, under the federal bankruptcy laws, as now in
effect or hereafter amended, or any other applicable federal or state
bankruptcy, insolvency or similar laws that is not dismissed within 60 days; (c)
the Lessee or Issuer shall admit in writing its inability to pay its debts
generally as they become due; (d) a receiver, trustee or liquidator of the
Lessee or Issuer shall be appointed in any proceeding brought against the Lessee
or Issuer, as applicable; (e) assignment by the Lessee or Issuer for the benefit
of its creditors; or (f) the entry by the Lessee or Issuer into an agreement of
composition with its creditors; and as to the Letter of Credit Provider, the
date on which the Letter of Credit Provider notifies the Trustee or the date
that the Trustee otherwise ascertains that a decree or order of a court or
agency or supervisory authority, having jurisdiction in the premises for the
appointment of a conservator or receiver or liquidator of any insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceeding, or for winding up or liquidation of its affairs has been entered
against the Letter of Credit Provider or the Letter of Credit Provider has
consented to the appointment of a conservator or receiver or liquidator in any
such proceedings of or relating to the Letter of Credit Provider or relating to
all or substantially all of its property.
"Event of Default" means (a) with respect to the Indenture, any Event of
Default as defined in Section 801, (b) with respect to the Lease Agreement, any
Event of Default as defined in Section 8.1 of the Lease Agreement, and (c) with
respect to the Letter of Credit Provider Documents, any Event of Default
thereunder.
"Government Securities" means direct obligations of the United States, its
agencies, or United States government sponsored enterprises, or obligations the
payment of the principal of and interest on which are unconditionally guaranteed
by the United States of America or its agencies.
"Indenture" means this Trust Indenture, as from time to time amended and
supplemented by Supplemental Indentures. From and after the date of the
execution and delivery of this Indenture, this Indenture shall be the only
indenture in effect with respect to the Bonds.
"Interest Payment Date" means, (i) with respect to the Series 1998A Bonds
while in the Weekly Mode or the Monthly Mode, the first Business Day of each
month and (ii) with respect to the Series 1998A Bonds while in any other
Interest Rate Mode and with respect to the Series 1998B Bonds and the Series
1998C Bonds, each Semiannual Date. The initial Interest Payment Date for the
Series 1998A Bonds is October 1, 1998, and the initial Interest Payment Date for
the Series 1998B Bonds and the Series 1998C Bonds is March 1, 1999.
"Interest Rate" means (i) with respect to the Series 1998A Bonds, for any
Calculation Period for such Series 1998A Bonds the lesser of (A) the Maximum
Rate, or (B) the rate of interest as to which notice is given to the Trustee by
the Remarketing Agent having due regard for prevailing financial market
conditions, on or before the Determination Date for each Calculation Period for
the Series 1998A Bonds as the minimum rate of interest which, in the opinion of
the Remarketing Agent, would be necessary to sell the Series 1998A Bonds on the
first day of such Calculation Period in a secondary market sale at the principal
amount thereof, plus, if such sale would not be on an Interest Payment Date,
accrued interest. The Interest Rate for the initial Calculation Period for the
Series 1998A Bonds is five and seventy-one hundredths percent (5.71%) per annum.
If for any reason the interest rate cannot be so established or is held to be
invalid or unenforceable by a court of competent jurisdiction for any
Calculation Period, the interest rate applicable to the Calculation Period shall
be equal to the lesser of (A) the Maximum Rate or (B) the Interest Rate Index
applicable to the Series 1998A Bonds for the Calculation Period; and (ii) with
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respect to the Series 1998B Bonds and the Series 1998C Bonds, is the rate set
forth in Section 208(c) of this Indenture.
"Interest Rate Index" means the interest rate index equal to 120% of the
average of the yield evaluations at par, as computed by the Remarketing Agent,
of United States Treasury obligations having the term to maturity closest to the
Calculation Period (without regard to any potential Interest Rate Mode
Conversion Dates in the Calculation Period); provided that for each Calculation
Period for the Weekly Mode or the Monthly Mode such United States Treasury
obligations shall have a term to maturity of 13 weeks.
"Interest Rate Mode" means the interest rate mode from time to time in
effect for the Series 1998A Bonds, which may be the Weekly Mode, the Monthly
Mode, the Semiannual Mode, the Annual Mode or any Multiyear Mode.
"Interest Rate Mode Conversion Date" means any date on which the Interest
Rate Mode for the Series 1998A Bonds is changed pursuant to paragraph (d) of
Section 208.
"Investment Contract" means an agreement to deposit all or any portion of
the proceeds of the sale of the Bonds with a bank, with the deposits to bear
interest at an agreed rate.
"Investment Securities" means any of the following securities, if and to
the extent the same are at the time legal for investment of the funds being
invested:
(i) Government Securities;
(ii) unsecured certificates of deposit which are fully insured by the
Federal Deposit Insurance Corporation ("FDIC") in one or more of the
following institutions: banks, trust companies or savings and loan
associations (including without limitation, the Trustee or any bank
affiliated with the Trustee) organized under the laws of the United States
of America or any state thereof, each bank, trust company or savings and
loan association having a reported capital, surplus and undivided profits
of at least $25,000,000 and the short term obligations of such entity are
rated at least equal to the then current short-term rating on the Parity
Bonds by S&P;
(iii)unsecured and uninsured certificates of deposit in institutions
described in clause (ii) above, provided the short term obligations of
such institution are rated at least equal to the then current short-term
rating on the Parity Bonds by S&P;
(iv) any Investment Contract with institutions described in clause
(ii) above, provided the short term obligations of such institutions are
rated at least equal to the then current short-term rating on the Parity
Bonds by S&P; and
(v) any share in a money market mutual fund provided such shares are
rated AAAm or AAAm-G by S&P.
"Issuer" means the city of Lenexa, Kansas, and its successors and
assigns.
"Lease Agreement" means the Lease Agreement dated as of September 1, 1998,
between the Issuer and the Lessee, as amended.
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"Lease Payment Date" means any Interest Payment Date or any other date on
which the principal of the Bonds is due and payable, whether at the scheduled
maturity thereof or the acceleration of maturity upon an Event of Default or
upon redemption.
"Lease Payments" means the Lease Payments described in Section 4.3 of the
Lease Agreement.
"Lessee" means LabOne, Inc., a Delaware corporation, and its successors
and assigns, and any surviving, resulting or succeeding entity as provided in
Section 2.2(g) of the Lease Agreement.
"Lessee Bond" means any Bond (exclusive of Pledged Bonds) (i) owned or
held and recorded on the Bond Register in the name of the Lessee or the Issuer
or by the Trustee or an agent of the Trustee for the account of the Lessee or
the Issuer or (ii) with respect to which the Lessee or the Issuer has notified
the Trustee, or which the Trustee actually knows, were purchased by another
Person for the account of the Lessee or the Issuer or by an Affiliate of the
Lessee.
"Lessee Documents" means, collectively, the Lease Agreement and the
Letter of Credit Provider Documents.
"Letter of Credit" means the irrevocable direct pay Letter of Credit
issued by the Letter of Credit Provider pursuant to the Reimbursement Agreement
for the account of the Lessee in favor of the Trustee, and any renewal or
extension of the Letter of Credit or any Substitute Letter of Credit.
"Letter of Credit Account" means the account created pursuant to Section
501.
"Letter of Credit Provider" means Commerce Bank, N.A., Kansas City,
Missouri, or the issuer of any Substitute Letter of Credit, and their respective
successors and assigns.
"Letter of Credit Provider Documents" means the Reimbursement Agreement,
the Bond Pledge Agreement and any other agreement or instrument whereunder the
Lessee has agreed to the payment or performance of obligations to the Letter of
Credit Provider in connection with the Letter of Credit.
"Maximum Rate" means 12% per annum; provided that the Maximum Rate may be
increased or decreased to a new Maximum Rate specified in a written request made
by the Lessee if the following are delivered to the Trustee at least five days
prior to the effective date of such new Maximum Rate:
(i) such written request, which shall specify the new Maximum Rate
and the date on which it is to become effective;
(ii) a resolution of the Issuer approving the new Maximum Rate and
the date on which it shall become effective;
(iii)an opinion of Bond Counsel to the effect that increasing or
decreasing the Maximum Rate to the new Maximum Rate is authorized and
permitted under this Indenture and the Act; and
(iv) a Substitute Letter of Credit satisfying the requirements of
Section 4.8 of the Lease Agreement at the new Maximum Rate;
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provided further that the Maximum Rate shall not be increased at any time that
the Series 1998A Bonds are deemed to be paid pursuant to Article XII if, as a
result of such increase, the requirements specified in Article XII for such
Series 1998A Bonds would no longer be met; and provided further that the Maximum
Rate shall in no event exceed the maximum rate of interest permitted by
applicable law.
"Monthly Mode" means the Interest Rate Mode designated as such for the
Series 1998A Bonds in accordance with Section 208.
"Moody's" means Moody's Investors Service, a corporation organized and
existing under the laws of the state of Delaware, its successors and assigns,
and, if such corporation is dissolved or liquidated or no longer performs the
functions of a securities rating agency, "Moody's" shall be deemed to refer to
any other nationally recognized securities rating agency other than S&P
designated by the Lessee by notice to the Trustee and the Letter of Credit
Provider.
"Multiyear Mode" means any Interest Rate Mode designated as such for the
Series 1998A Bonds in accordance with Section 208, where the number of years
used in determining such Multiyear Mode is an integer greater than one but not
greater than the number of Annual Dates remaining to and including the stated
maturity of the Series 1998A Bonds.
"Net Proceeds" means the gross proceeds from the insurance (including
title insurance) or condemnation award with respect to which that term is used
remaining after the payment of all expenses (including reasonable attorneys'
fees and any expenses of the Issuer or the Trustee) incurred in the collection
of such gross proceeds.
"Notice of Interest Rate Adjustment" means the notice of interest rate
adjustment sent by the Trustee pursuant to Section 208 of this Indenture as more
fully described in Exhibit B.
"Organizational Documents" means the Certificate of Incorporation and
Bylaws of the Lessee pursuant to which the Lessee was organized, as amended.
"Outstanding" means, when used with reference to Bonds, as of a particular
date, all Bonds theretofore authenticated and delivered, except:
(i) Bonds theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Bonds whose payment has been provided for in accordance with the
provisions of Article XII;
(iii)Bonds in exchange for or in lieu of which other Bonds have
been authenticated and delivered; and
(iv) any Undelivered Bonds.
For the purpose of determining whether the Owners of the requisite principal
amount of Bonds Outstanding have given any request, demand, authorization,
direction, notice, consent or waiver under this Indenture, Bonds owned by the
Lessee or any affiliate of the Lessee, other than Bonds so owned that are
pledged in good faith to a pledgee that is not the Lessee or any affiliate of
the Lessee if the pledgee
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establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Bonds, shall not be deemed Outstanding; provided that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only Bonds
that are recorded in the Bond Register in the name of the Lessee shall not be
considered to be Outstanding. For purposes of this definition, the word
"affiliate" means any person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Lessee, and "control" means
the power to direct the management and policies of such person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise.
"Owner" means "Bondowner."
"Parity Bonds" means the Series 1998A Bonds and any Additional Bonds
issued on a parity with the Series 1998A Bonds pursuant to Section 211 of this
Indenture.
"Participants" shall mean those institutions for whom the Securities
Depository effects book-entry transfers and pledges of securities deposited with
the Securities Depository, as such listing of Participants exists at the time of
such reference.
"Paying Agent" means the Trustee, acting as such, or any other bank or
trust company acting as agent of the Trustee for such purpose or designated by
this Indenture or any Supplemental Indenture as a paying agent for the payment
of the principal of and redemption premium, if any, and interest on the Bonds,
and their respective successors and assigns.
"Person" means an individual, a corporation, a limited liability company,
a partnership, an association, a trust or any other entity or organization,
including a government or political subdivision or any agency or instrumentality
thereof.
"PILOT Agreement" means the Agreement for Payment in Lieu of Taxes dated
as of September 1, 1998, between the Issuer and the Lessee, as amended.
"Pledged Bonds" means all Series 1998A Bonds which are purchased with
funds drawn under the Letter of Credit and which are held by the Trustee or the
Tender Agent for the benefit of the Letter of Credit Provider pursuant to the
terms of this Indenture and the Bond Pledge Agreement, and in which the Letter
of Credit Provider has a perfected, first priority security interest.
"Principal Office" means the principal office of the Tender Agent
designated in writing to the Trustee and the Owners pursuant to Section 915.
Principal office of the Tender Agent shall mean initially the office of the
Tender Agent located at 105 N. Main Street, Corporate Trust Department, Wichita,
Kansas 67202.
"Project" means the Series 1998A and 1998B Project and the Series 1998C
Project.
"Project Costs" means the Series 1998A and 1998B Project Costs and the
Series 1998C Project Costs.
"Project Funds" means the Series 1998A and 1998B Project Fund and the
Series 1998C Project Fund.
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"Purchase Date" means the date on which a Series 1998A Bond tendered for
purchase pursuant to Section 306 will be purchased as specified in the
applicable Bondowner Election Notice, which Purchase Date, while the Series
1998A Bonds are in the Weekly Mode, shall be any Business Day occurring at least
seven days after the applicable Bondowner Election Notice is received by the
Tender Agent and, while the Series 1998A Bonds are in any other Interest Rate
Mode, shall be the first day of any Calculation Period occurring at least 12
days after the applicable Bondowner Election Notice is received by the Tender
Agent.
"Purchaser" means any purchaser of Series 1998A Bonds pursuant to
paragraph (e) of Section 302.
"Rating Agency" means S&P or Moody's.
"Record Date" means, with respect to any Interest Payment Date while the
Series 1998A Bonds are in the Weekly Mode or the Monthly Mode, 4:30 p.m. Kansas
City, Missouri time on the Business Day immediately preceding such Interest
Payment Date and, with respect to the Series 1998B Bonds and the Series 1998C
Bonds and to any Interest Payment Date while the Series 1998A Bonds are in any
other Interest Rate Mode, 4:30 p.m. Kansas City, Missouri time on the fifteenth
day (whether or not a Business Day) of the calendar month immediately preceding
such Interest Payment Date.
"Reimbursement Agreement" means the Reimbursement Agreement dated as of
the date hereof, between the Lessee and the Letter of Credit Provider, as
amended, and any reimbursement agreement executed in connection with the
delivery of a Substitute Letter of Credit.
"Remarketing Agent" means George K. Baum & Company, Kansas City, Missouri,
or any other remarketing agent appointed as such by the Lessee in accordance
with Section 914 and their respective successors and assigns.
"Remarketing Agreement" means the Remarketing Agreement, dated as of the
date hereof, between the Lessee and the Remarketing Agent, as amended.
"Replacement Bonds" means Bonds issued to the beneficial owners of the
Bonds (or nominee thereof) in accordance with Section 206(g).
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc., a corporation organized and existing under the laws
of the state of New York, its successors and assigns, and, if such corporation
shall be dissolved or liquidated or shall no longer perform the functions of a
securities rating agency, "S&P" shall be deemed to refer to any other nationally
recognized securities rating agency other than Moody's designated by the Lessee
by notice to the Trustee.
"Securities Depository" means, initially, The Depository Trust Company,
New York, New York, and its successors and assigns.
"Semiannual Date" means March 1 and September 1 in each year.
"Semiannual Mode" means the Interest Rate Mode designated as such for the
Series 1998A Bonds.
"Series 1998A and 1998B Project Fund" means the Series 1998A and 1998B
Project Fund created pursuant to Section 401.
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"Series 1998A and 1998B Project" means the buildings, improvements,
fixtures, furnishings, machinery and equipment and related support facilities
described in Exhibit A to the Lease Agreement purchased and constructed with the
proceeds of the Series 1998A Bonds and the Series 1998B Bonds excluding those
furnishings, machinery and equipment described under Series 1998C Project on
Exhibit A to the Lease Agreement, and including any additions, modifications,
equipment, replacements, repairs, reconstruction, restoration or substitutions
made pursuant to Sections 5.1 or 5.6 of the Lease Agreement.
"Series 1998A and 1998B Project Costs" means all costs of acquiring,
construction and equipping the Project, except the Series 1998C Project
Costs, and including the following:
:
(a) the cost of land acquisition and any buildings, improvements,
fixtures, furnishings, machinery and equipment and related support
facilities located on the Project site at the time of such acquisition and
constituting a part of the Project;
(b) all costs and expenses of every nature incurred in the purchase,
renovation, construction and installation of the buildings and
improvements constituting a part of the Project and in the purchase and
installation of the machinery and equipment;
(c) the cost of installing all utility facilities on the Project
site;
(d) any and all expenses incurred by the Lessee, including those
prior to the sale of the Bonds for preliminary plans, surveys, soil
borings and other items necessary to the commencement of construction;
(e) the cost of any insurance related to the Project prior to the
completion date;
(f) all other costs and expenses necessary or incidental to the
purchase, construction and equipping of the Project;
(g) any costs relating to the issuance of the Letter of Credit,
including any counsel fees related thereto; and
(h) any costs of issuing the Series 1998A Bonds and the Series 1998B
Bonds.
"Series 1998A Bond Fund" means the Series 1998A Bond Fund created pursuant
to Section 501.
"Series 1998A Bonds" means the Issuer's Taxable Industrial Revenue Bonds
(LabOne, Inc. Project), Series 1998A, in the original aggregate principal amount
of $20,000,000, issued pursuant to this Indenture.
"Series 1998B Bond Fund" means the Series 1998B Bond Fund created pursuant
to Section 501.
"Series 1998B Bonds" means the Issuer's Taxable Subordinate Industrial
Revenue Bonds (LabOne, Inc. Project), Series 1998B, in the original aggregate
principal amount of $5,000,000, issued pursuant to this Indenture.
"Series 1998C Bond Fund" means the Series 1998C Bond Fund created pursuant
to Section 501.
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"Series 1998C Bonds" means the Issuer's Taxable Subordinate Industrial
Revenue Bonds (LabOne, Inc. Project), Series 1998C, in the original aggregate
principal amount of $8,000,000, issued pursuant to this Indenture.
"Series 1998C Project" means the furnishings, machinery and equipment
described under the caption Series 1998C Project on Exhibit A to the Lease
Agreement and purchased with the proceeds of the Series 1998C Bonds and
including any additions, modifications, replacements, repairs or substitutions
made to the Series 1998C Project pursuant to Sections 5.1 or 5.6 of the Lease
Agreement.
"Series 1998C Project Costs" means all costs of acquiring and installing
the Series 1998C Project including the following:
(a) the cost of any furnishings, machinery and equipment and related
support facilities located on the Project site at the time of such
acquisition and constituting a part of the Series 1998C Project;
(b) all costs and expenses of every nature incurred in the purchase
and installation of the Series 1998C Project;
(c) any costs of issuing the Bonds.
"Series 1998C Project Fund" means the Series 1998C Project Fund created
pursuant to Section 401.
"State" means the state of Kansas.
"Subordinate Bonds" means the Series 1998B Bonds, the Series 1998C Bonds
and any Additional Bonds issued on a subordinate basis to the Series 1998A Bonds
pursuant to Section 211 of this Indenture.
"Substitute Letter of Credit" means any credit and liquidity instrument or
other security provided for in accordance with and satisfying the requirements
of Section 4.8 of the Lease Agreement other than the initial Letter of Credit.
The requirements of Section 4.8 of the Lease Agreement shall be conditions
precedent to the acceptance by the Trustee of a substitute Letter of Credit and
shall be strictly complied with and enforced by the Trustee as if said
requirements were set forth in this Indenture.
"Substitute Letter of Credit Date" means any date on which a Substitute
Letter of Credit becomes effective.
"Supplemental Indenture" means any amendment or supplement to this
Indenture entered into pursuant to Article X.
"Supplemental Lease Agreement" means any amendment or supplement to the
Lease Agreement entered into pursuant to Article XI.
"Tender Agent" means the Trustee or any other tender agent appointed as
such by the Lessee and approved by the Letter of Credit Provider in accordance
with Section 916 and their respective successors and assigns.
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"Trust Estate" means the Trust Estate described in the Granting Clauses of
this Indenture.
"Trustee" means INTRUST Bank, N.A., in Wichita, Kansas, and its successor
or successors and any other corporation which at the time may be substituted in
its place pursuant to and at the time serving as trustee under this Indenture,
and their respective successors and assigns.
"Unassigned Issuer's Rights" means the Issuer's rights to reimbursement
and payment of its costs and expenses under Sections 4.4, 8.2, 8.4 and 8.6 of
the Lease Agreement, its rights to indemnification under Sections 2.2, 6.1 and
10.9 of the Lease Agreement, its rights to exemption from liability under
Sections 10.8 and 10.9 of the Lease Agreement, its rights to receive notices,
reports and other statements and its rights to consent to certain matters.
"Undelivered Bonds" means any Series 1998A Bonds designated as such in
Section 306 or 307 or paragraph (e) of Section 302.
"Weekly Mode" means the Interest Rate Mode designated as such for the
Series 1998A Bonds.
"Written Request" means a request in writing signed by an Authorized
Lessee Representative, or any other officer designated by the Lessee to sign
such Written Requests and approved by an Authorized Letter of Credit Provider
Representative in the form of Exhibit F.
Section 102. General Rules of Interpretation.
(a) Words of the masculine gender shall be deemed and construed to include
correlative words of the feminine and neuter genders.
(b) Unless the context shall otherwise indicate, words importing the
singular number shall include the plural and vice versa, and words importing
person shall include individuals, corporations, limited liability companies,
partnerships, joint ventures, associations, joint-stock companies, trusts,
unincorporated organizations and governments and any agency or political
subdivision thereof.
(c) The words "herein," "hereby," "hereunder," "hereof," "hereto,"
"hereinbefore," "hereinafter" and other equivalent words refer to this Indenture
and not solely to the particular article, section, paragraph or subparagraph
hereof in which such word is used.
(d) Reference herein to a particular article or a particular section shall
be construed to be a reference to the specified article or section hereof unless
the context or use clearly indicates another or different meaning or intent.
Reference herein to a particular schedule or exhibit shall be construed to be a
reference to the specified schedule or exhibit hereto unless the context or use
clearly indicates another or different meaning or intent.
(e) Wherever an item or items are listed after the word "including," such
listing is not intended to be a listing that excludes items not listed.
(f) The table of contents, captions and headings in this Indenture are for
convenience only and in no way define, limit or describe the scope or intent of
any provisions or sections of this Indenture.
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(g) From and after the date of the execution and delivery of this
Indenture, this Indenture shall be the only indenture in effect with respect to
the Bonds.
ARTICLE II
THE BONDS
Section 201. Authorized Amount of Bonds. No Bonds may be issued under this
Indenture except in accordance with this Article. The total principal amount of
Bonds that may be issued is hereby expressly limited to $33,000,000 consisting
of $20,000,000 principal amount of Series 1998A Bonds, $5,000,000 principal
amount of Series 1998B Bonds and $8,000,000 principal amount of Series 1998C
Bonds and the principal amount of any Additional Bonds permitted under the terms
of this Indenture.
Section 202. Limited Nature of Obligations.
(a) The Bonds and the interest thereon shall be limited obligations of the
Issuer payable exclusively out of the Lease Payments, other payments, revenues
and receipts under the Lease Agreement and, in certain circumstances, Bond
proceeds and income from the temporary investment thereof and proceeds from
insurance and condemnation awards. The principal of and interest on the Series
1998A Bonds are also payable from draws on the Letter of Credit and are secured
by a prior pledge and assignment of the Trust Estate to the Trustee in favor of
the Owners of the Parity Bonds and the Letter of Credit Provider, as provided in
this Indenture. The Series 1998B Bonds and the Series 1998C Bonds are secured by
a subordinate pledge and assignment of the Trust Estate to the Trustee in favor
of the Owners of the Subordinate Bonds, as provided in this Indenture. The Bonds
and the interest thereon shall not constitute general obligations of the Issuer
or the State, and neither the Issuer nor the State shall be liable thereon. The
Bonds shall not constitute an indebtedness within the meaning of any
constitutional or statutory debt limitation or restriction, and are not payable
in any manner by taxation.
(b) No covenant, agreement or obligation contained herein shall be deemed
to be a covenant, agreement or obligation of any present or future council
member, officer, employee or agent of the Issuer in his or her individual
capacity, and neither the council members of the Issuer nor any officer thereof
executing the Bonds shall be liable personally on the Bonds or be subject to any
personal liability or accountability by reason of the issuance thereof. No
council member, officer, employee or agent of the Issuer shall incur any
personal liability with respect to any other action taken by him pursuant to
this Indenture or the Act, provided such member, officer, employee or agent acts
in good faith.
(c) No agreements or provisions contained in this Indenture nor any
agreement, covenant or undertaking by the Issuer contained in any document
executed by the Issuer in connection with the Project, or the issuance, sale and
delivery of the Bonds shall give rise to any pecuniary liability of the Issuer
or a charge against its general credit, or shall obligate the Issuer financially
in any way except as may be payable from the Lease Payments by the Lessee under
the Lease Agreement and the proceeds of the Bonds. No failure of the Issuer to
comply with any term, condition, covenant or agreement herein or in any document
executed by the Issuer in connection with the issuance and sale of the Bonds
shall subject the Issuer to liability for any claim for damages, costs or other
financial or pecuniary charge except to the extent that the same can be paid or
recovered from the repayments by the Lessee under the Lease Agreement or
proceeds of the Bonds. Nothing in this Indenture precludes a proper party in
interest from seeking and obtaining, to the extent permitted by law, specific
performance against the Issuer for any failure to comply with any term,
condition, covenant or agreement herein, provided that no costs, expenses
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or other monetary relief will be recoverable from the Issuer except as may be
payable from the repayments by the Lessee under the Lease Agreement or from the
proceeds of the Bonds.
(d) No recourse shall be had for the payment of the principal of or
premium or interest on any of the Bonds or for any claim based thereon or upon
any obligation, covenant or agreement contained in this Indenture against any
past, present or future officer, council member, employee or agent of the
Issuer, or of any successor corporation, as such, either directly or through the
Issuer or any successor corporation, under any rule of law or equity, statute or
constitution or by the enforcement of any assessment or penalty or otherwise,
and all such liability of any such officers, council members, employees or
agents, as such, is hereby expressly waived and released as a condition of, and
consideration for, the execution of this Indenture and the issuance of such
Bonds.
(e) Anything in this Indenture to the contrary notwithstanding, it is
expressly understood and agreed by the parties hereto that (i) the Issuer may
rely conclusively on the truth and accuracy of any certificate, opinion, notice,
or other instrument furnished to the Issuer by the Trustee or the Lessee as to
the existence of any fact or state of affairs required hereunder to be noticed
by the Issuer; (ii) the Issuer shall not be under any obligation hereunder to
perform any record keeping or to provide any legal services; and (iii) none of
the provisions of this Indenture shall require the Issuer to expend or risk its
own funds or otherwise incur financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers under this
Indenture, unless it shall first have been adequately indemnified to its
satisfaction against the cost, expenses, and liability which may be incurred.
Section 203. Form and Denomination of Bonds.
(a) The Bonds shall be issuable as fully registered Bonds without coupons
transferable to subsequent owners only in the Bond Register as hereinafter
provided. Each series of Bonds shall be numbered from 1 upward in order of
issuance.
(b) The Bonds shall be in the following denominations: (i) the Series
1998A Bonds, while in the Weekly Mode or the Monthly Mode, shall be in the
denomination of $100,000 or any integral multiple of $5,000 in excess thereof,
except that minimum denominations may be less than $100,000 as a result of
partial mandatory redemptions; (ii) the Series 1998A Bonds, while in any other
Interest Rate Mode, shall be in the denomination of $5,000 or any integral
multiple thereof; and (iii) the Series 1998B Bonds and the Series 1998C Bonds
shall be in the denomination of $100,000 or any integral multiple of $5,000 in
excess thereof.
(c) The Bonds and the Certificate of Authentication to be endorsed thereon
shall be in substantially the forms set forth in Exhibit A. The Bonds may have
endorsed thereon such legends or text as may be necessary or appropriate to
conform to any applicable rules and regulations of any governmental authority or
any custom, usage or requirement of law with respect thereto.
Section 204. Method and Place of Payment of Bonds; Interest Rights
Preserved.
(a) The Trustee is hereby designated as the Issuer's Paying Agent for the
payment of the principal of, redemption premium, if any, and interest on the
Bonds.
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(b) The principal of, purchase price for, redemption premium, if any, and
interest on the Bonds shall be payable in any coin or currency of the United
States of America which on the respective dates of payment thereof is legal
tender for the payment of public and private debts.
(c) Payment of the purchase price, principal of, and redemption premium,
if any, on each Bond shall be made by check or draft of the Paying Agent upon
the presentation and surrender thereof at maturity, purchase or upon redemption
at the principal corporate trust office of the Paying Agent. Payment of the
interest on each Bond shall be made by the Paying Agent on each Interest Payment
Date to the Owner thereof at the close of business on the Record Date next
preceding said Interest Payment Date by check or draft mailed to such Owner at
such Owner's address as it appears in the Bond Register or in such other manner
as such Owner and the Paying Agent may determine or by electronic transfer of
immediately available funds to any Owner thereof who owns at least $500,000
principal amount of the Bonds at such wire transfer address as such Owner shall
specify. Such Owner shall provide written notice to the Paying Agent not less
than 10 days prior to the Record Date for which any such payment is due
requesting such electronic transfer. Any such written notice shall be signed by
such Owner and shall include the name of the bank (which shall be in the
continental United States), its address, ABA routing number and account number
to which such Registered Owner wishes to have such transfer directed.
(d) Notwithstanding any of the foregoing, any interest on any Bond which
is payable but is not punctually paid or duly provided for on any Interest
Payment Date shall be paid to the person in whose name such Bond is registered
as provided in Article VIII.
(e) Subject to the foregoing provisions of this Section and the provisions
of Section 308 (relating to any portion of the purchase price of an Undelivered
Bond representing accrued interest), each Bond delivered under this Indenture
upon transfer of or in exchange for or in lieu of any other Bond shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Bond.
(f) The Issuer or the Trustee may impose a charge against an Owner for the
reimbursement of any governmental charge required to be paid in the event that
such Owner fails to provide a correct taxpayer identification number to the
Trustee. Such amount may be deducted by the Trustee from amounts otherwise
payable to such Owner hereunder or under the Bonds.
Section 205. Execution and Authentication of Bonds.
(a) The Bonds shall be executed on behalf of the Issuer by the manual or
facsimile signature of its Mayor and the Issuer's seal shall be affixed thereto
or printed thereon and attested by the manual or facsimile signature of its City
Clerk. In case any officer whose signature or facsimile thereof appears on any
Bonds shall cease to be such officer before the delivery of such Bonds, such
signature or facsimile thereof shall nevertheless be valid and sufficient for
all purposes, the same as if such person had remained in office until delivery.
Any Bond may be executed by such persons as shall be the proper officers to
execute such Bond at the actual time of the execution of such Bond although at
the date of such Bond such persons may not have been such officers.
(b) Each Bond shall have endorsed thereon a Certificate of Authentication
substantially in the form set forth in Exhibit A, which shall be manually
executed by the Bond Registrar. No Bond shall be entitled to any security or
benefit under this Indenture or shall be valid or obligatory for any purpose
unless and until such Certificate of Authentication shall have been duly
executed by the Bond Registrar. The executed Certificate of Authentication on
any Bond shall be conclusive evidence that such Bond has been duly authenticated
and delivered under this Indenture. The Certificate of Authentication on any
Bond shall
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be deemed to have been duly executed if signed by any authorized officer or
employee of the Bond Registrar, but it shall not be necessary that the same
officer or employee sign the Certificate of Authentication on all of the Bonds
that may be issued hereunder at any one time.
Section 206. Registration, Transfer and Exchange of Bonds.
(a) The Trustee is hereby appointed Bond Registrar for the purpose of
registering, authenticating, transferring and exchanging Bonds and as such shall
keep the Bond Register as provided in this Indenture. All of the Bonds and all
transfers and all exchanges thereof shall be fully registered as to principal
and interest in the Bond Register.
(b) Bonds other than Undelivered Bonds may be transferred in the Bond
Register only upon surrender thereof to the Bond Registrar duly endorsed for
transfer or accompanied by a written instrument of transfer duly executed by the
Owner thereof or such Owner's attorney or legal representative in such form as
shall be satisfactory to the Bond Registrar. Undelivered Bonds may be
transferred in the Bond Register upon being deemed to have been purchased
pursuant to Section 306 or 307 or paragraph (e) of Section 302. Upon any such
transfer and subject to Section 206(i), the Issuer shall execute and the Bond
Registrar shall authenticate and deliver in exchange for such Bond a new Bond or
Bonds of the same series, registered in the name of the transferee, of any
denomination or denominations authorized by this Indenture in an aggregate
principal amount equal to the principal amount of the surrendered Bond, of the
same maturity and bearing interest at the same rate.
(c) Subject to Section 206(i), Bonds, upon surrender thereof at the
principal corporate trust office of the Bond Registrar, together with a written
instrument of transfer duly executed by the Owner thereof or such Owner's
attorney or legal representative in such form as shall be satisfactory to the
Bond Registrar, may, at the option of the Owner thereof, be exchanged for an
equal aggregate principal amount of Bonds of the same series and maturity, of
any denomination or denominations authorized by this Indenture, and bearing
interest at the same rate.
(d) In all cases in which Bonds are exchanged or transferred hereunder,
the Issuer shall execute and the Bond Registrar shall authenticate and deliver
at the earliest practicable time Bonds in accordance with this Indenture. All
Bonds surrendered in any such exchange or transfer shall forthwith be canceled
by the Bond Registrar. No service charge shall be made to any Bondowner for
registration, transfer or exchange of Bonds, but the Issuer or the Bond
Registrar may make a charge for every such exchange or transfer of Bonds
sufficient to reimburse it for any tax or other governmental charge required to
be paid with respect to such exchange or transfer, and such charge shall be paid
before any such transfer or exchange shall be completed.
(e) Neither the Issuer nor the Bond Registrar shall be required (i) to
issue, transfer or exchange any Bond during a period beginning at the opening of
business 15 days preceding the date of mailing a notice of redemption for Bonds
selected for redemption under Section 303 and ending at the close of business on
the day of such mailing or (ii) to transfer or exchange any Bonds selected for
redemption in whole or in part; provided, however, that this Section shall not
apply to, nor in any way impair, the Owners' ability to exercise their rights
pursuant to Section 306.
(f) The Series 1998A Bonds shall initially be registered to Cede & Co.,
the nominee for the Securities Depository, and no beneficial owner will receive
certificates representing their respective interests in the Series 1998A Bonds,
except in the event the Trustee issues Replacement Bonds as provided
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in paragraph (g) hereof. So long as the Series 1998A Bonds are registered in the
name (including any nominee name) of the Securities Depository, all references
herein to the Owner, Bondowner, bondholder, owner or registered owner shall
refer only to the Securities Depository and not to any beneficial owner or
Participant. It is anticipated that during the term of the Series 1998A Bonds,
the Securities Depository will make book-entry transfers among its Participants
and receive and transmit payment of principal of, premium, if any, and interest
on, the Series 1998A Bonds to the Participants until and unless the Trustee
authenticates and delivers Replacement Bonds to the beneficial owners as
described in paragraph (g).
(g) If:
(1) the Issuer or the Trustee determines (A) that the Securities
Depository is unable to properly discharge its responsibilities, or (B)
that the Securities Depository is no longer qualified to act as a
securities depository and registered clearing agency under the Securities
and Exchange Act of 1934, as amended, or (C) that the continuation of a
book-entry system to the exclusion of any Series 1998A Bonds being issued
to any Owner other than Cede & Co. is no longer in the best interests of
the beneficial owners of the Series 1998A Bonds, or
(2) the Trustee receives written notice from Participants having
interests in not less than 50% of the Outstanding principal amount of the
Series 1998A Bonds, as shown on the records of the Securities Depository
(and certified to such effect by the Securities Depository), that the
continuation of a book-entry system to the exclusion of any Series 1998A
Bonds being issued to any Owner other than Cede & Co. is no longer in the
best interests of the beneficial owners of the Series 1998A Bonds,
then the Trustee shall notify the Owners by first class mail to the names and
addresses provided by the Securities Depository of such determination or such
notice and of the availability of certificates to Owners requesting the same,
and the Trustee shall register in the name of and authenticate and deliver
Replacement Bonds to the beneficial owners or their nominees in principal
amounts and maturity amounts representing the interest of each, making such
adjustments as it may find necessary or appropriate as to accrued interest and
previous calls for redemption; provided, that in the case of a determination
under (1)(A) or (1)(B) in this Section 206(g), the Issuer, with the consent of
the Trustee and the Lessee, may select a successor securities depository in
accordance with paragraph (h) of this Section to effect book-entry transfers. In
such event, all references to the Securities Depository herein shall relate to
the period of time when the Securities Depository is the Owner of at least one
Series 1998A Bond. Upon the issuance of Replacement Bonds, all references herein
to obligations imposed upon or to be performed by the Securities Depository
shall be deemed to be imposed upon and performed by the Trustee, to the extent
applicable and reasonably possible with respect to such Replacement Bonds. If
the Securities Depository is replaced in accordance with paragraph (h) of this
Section, then the Trustee shall authenticate and cause delivery of Replacement
Bonds to Owners, as provided herein. The Trustee may rely on information from
the Securities Depository and its Participants as to the names of the beneficial
owners of the Series 1998A Bonds. The reasonable cost of printing Replacement
Bonds and expenses of the Trustee shall be paid for by the Lessee as an
Additional Payment.
(h) In the event the Securities Depository resigns or is no longer
qualified to act as a securities depository and registered clearing agency under
the Securities and Exchange Act of 1934, as amended, the Issuer or the Trustee,
with the consent of the Lessee, may appoint a successor Securities Depository
provided the Trustee receives written evidence satisfactory to the Trustee with
respect to the ability of the successor Securities Depository to discharge its
responsibilities. Any such successor Securities Depository
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shall be a securities depository which is a registered clearing agency under the
Securities and Exchange Act of 1934, as amended, or other applicable statute or
regulation that operates a securities depository upon reasonable and customary
terms. The Trustee upon its receipt of a Series 1998A Bond or Bonds for
cancellation shall cause the delivery of Series 1998A Bonds to the successor
Securities Depository in appropriate denominations and form as provided herein.
(i) The Series 1998B Bonds and the Series 1998C Bonds may only be held by
or transferred (1) to the Issuer or the Lessee, (2) pursuant to a registration
statement which has been declared effective under the Securities Act of 1933
(the "1933 Act"), or (3) to institutional "accredited investors" as defined in
Rule 501(a) under the 1933 Act, or "qualified institutional buyers" ("QIBs") as
defined in Rule 144A under the 1933 Act. By its acceptance of a Series 1998B
Bond or a Series 1998C Bond, each purchaser (other than the Issuer or the
Lessee) of such Bond will be deemed to (A) have represented that it is (i) an
institutional accredited investor or a fiduciary or agent (other that a United
States bank or savings and loan association) that is acting on behalf of an
institutional accredited investor and that such Bond is being acquired for
investment and not with a view to distribution, or (ii) a QIB acting on behalf
of itself or another QIB (and, if it is a QIB, acknowledges that it is aware
that the seller may rely on an exemption from the provisions of Section 5 of the
1933 Act pursuant to Rule 144A), and (B) agreed that any resale of the such Bond
will be made only in a transaction exempt from registration under the 1933 Act
and only to an institutional accredited investor or to a QIB in a transaction
made pursuant to Rule 144A under the 1933 Act, to the Issuer or the Lessee or
pursuant to an effective registration statement filed under the 1933 Act or
pursuant to another available exemption from the registration requirements under
the 1933 Act. Each Series 1998B Bond and each Series 1998C Bond will bear a
legend containing substantially the information set forth in this paragraph. In
addition to the requirements set forth in this paragraph, while the Series 1998A
Bonds are Outstanding, the Series 1998B Bonds and the Series 1998C Bonds may
only be transferred with the written consent of the Letter of Credit Provider.
The Trustee and the Lessee shall have the right prior to any offer, sale
or transfer of the Series 1998B Bonds and the Series 1998C Bonds other than to
the Issuer or the Lessee, to require the delivery of an opinion of counsel,
certifications or other information satisfactory to each of them with respect to
such offer, sale or transfer.
Section 207. Persons Deemed Owners of Bonds. The person in whose name any
Bond is registered on the Bond Register shall be deemed and regarded by the
Issuer, the Trustee, the Bond Registrar, the Paying Agent, the Lessee and the
Letter of Credit Provider as the absolute owner thereof, whether such Bond is
overdue or not, for the purpose of receiving payment thereof or on account
thereof and for all other purposes, and neither the Issuer, the Trustee, the
Bond Registrar, the Paying Agent, the Lessee nor the Letter of Credit Provider
shall be affected by notice to the contrary. Payment of or on account of the
principal of, redemption premium, if any, and interest on any Bond shall be made
only to or upon the written order of the Owner thereof or his legal
representative. All such payments shall be valid and effective to satisfy and
discharge the liability upon such Bond, including the redemption premium, if
any, and interest thereon, to the extent of the sum or sums so paid.
Section 208. Issuance and Terms of Bonds.
(a) There shall be issued and secured by this Indenture three series of
bonds in the aggregate principal amount of $33,000,000 for the purpose of
providing funds to finance the Project Costs. One series of bonds in the
aggregate principal amount of $20,000,000 shall be designated "Taxable
Industrial
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Revenue Bonds (LabOne, Inc. Project), Series 1998A." The second series of bonds
in the aggregate principal amount of $5,000,000 shall be designated "Taxable
Subordinate Industrial Revenue Bonds (LabOne, Inc. Project), Series 1998B." The
third series of bonds in the aggregate principal amount of $8,000,000 shall be
designated "Taxable Subordinate Industrial Revenue Bonds (LabOne, Inc. Project),
Series 1998C." The Bonds shall be dated the date of the initial issuance and
delivery thereof by the Issuer and shall mature on September 1, 2009 (subject to
prior redemption as provided in Article III).
(b) The Bonds shall bear interest from their date or from the most recent
Interest Payment Date to which interest has been paid in full. Interest on the
Bonds shall be payable on each Interest Payment Date. Interest on the Series
1998A Bonds while they are in the Weekly Mode or the Monthly Mode shall be
computed on the basis of a year of 365 or 366 days, as appropriate, for the
actual number of days elapsed, and interest on the Series 1998A Bonds while they
are in any other Interest Rate Mode and interest on the Series 1998B Bonds and
the Series 1998C Bonds shall be computed on the basis of a 360-day year of
twelve 30-day months.
(c) The Series 1998A Bonds shall bear interest at the Interest Rate
applicable to the Calculation Period at the time in effect for the Series 1998A
Bonds. Not more than 30 nor less than 20 days prior to each Determination Date
for the Series 1998A Bonds that immediately precedes a Calculation Period during
which the Series 1998A Bonds are to be in the Semiannual Mode, the Annual Mode
or any Multiyear Mode, the Trustee shall send to each Owner of Series 1998A
Bonds a Notice of Interest Rate Adjustment substantially in the form attached as
Exhibit B, with such changes therein as the Trustee may in its discretion
approve. Such Notice of Interest Rate Adjustment shall state a rate of interest
as determined by the Remarketing Agent that the Series 1998A Bonds would bear if
the date of the notice was a Determination Date. Promptly after each
Determination Date for the Series 1998A Bonds, the Trustee shall send a written
notice to each Owner of Series 1998A Bonds stating the Interest Rate for the
Series 1998A Bonds, which may be less than, equal to or greater than the rate
stated in the Notice of Interest Rate Adjustment. In the event sufficient funds
are not deposited with the Tender Agent to pay the purchase price of any Series
1998A Bond tendered for purchase or deemed to be purchased pursuant to Section
306 or 307 on any Purchase Date or Interest Rate Mode Conversion Date, such
Series 1998A Bonds shall bear interest at the Interest Rate in effect on the
first day of the most recent Calculation Period immediately preceding such
Purchase Date or Interest Rate Mode Conversion Date. The Series 1998B Bonds
shall bear interest at the rate of 7.125%, and the Series 1998C Bonds shall bear
interest at the rate of 7.125%.
(d) The initial Interest Rate Mode for the Series 1998A Bonds shall be the
Weekly Mode. The Interest Rate Mode for the Series 1998A Bonds may be converted
from time to time at the option of the Lessee, with the prior written consent of
the Letter of Credit Provider, exercised as provided in this paragraph, to
another Interest Rate Mode on such date (an "Interest Rate Mode Conversion
Date") as the Lessee shall select, which date must be an Interest Payment Date
on which the Series 1998A Bonds are subject to redemption pursuant to paragraph
(a) of Section 302 at a redemption price equal to the principal amount thereof,
plus accrued interest, without premium; provided that no such conversion shall
occur unless (i) the Trustee shall have received, with the written notice from
the Lessee described below, an opinion of Bond Counsel stating that such
conversion is authorized and permitted by this Indenture and the Act, (ii) the
Trustee shall have received a like opinion of Bond Counsel on the Interest Rate
Mode Conversion Date, and (iii) the Letter of Credit Provider shall have fully
honored any conforming draw on the Letter of Credit made in connection with the
related Interest Rate Mode Conversion Date pursuant to Section 504. The Lessee
may exercise such option at any time by giving written notice not more than 60
nor less than 45 days prior to the Interest Rate Mode Conversion Date to the
Issuer, the Trustee, the
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Remarketing Agent and the Letter of Credit Provider stating its election to
convert the Interest Rate Mode for the Series 1998A Bonds to another Interest
Rate Mode, which notice shall specify the new Interest Rate Mode and the
Interest Rate Mode Conversion Date. Upon any exercise of such option by the
Lessee, the Trustee shall send, at least 35 days prior to the Interest Rate Mode
Conversion Date, a Notice of Interest Rate Mode Conversion in substantially the
form attached hereto as Exhibit D to each Owner of Series 1998A Bonds, and, in
the event of a conversion to a Weekly Mode or a Monthly Mode from any other
Interest Rate Mode, a Bondowner Election Notice in substantially the form
attached hereto as Exhibit C.
(e) Prior to or simultaneously with the issuance of the Bonds and
concurrently with the delivery of the Letter of Credit, the following items
shall be filed with the Trustee:
(i) An original executed copy or a copy, certified by the City Clerk
of the Issuer, of the ordinance passed by the governing body of the Issuer
authorizing the execution and delivery of the Bonds, this Indenture and
the Lease Agreement;
(ii) An original executed counterpart of this Indenture;
(iii)An original executed counterpart of the Lease Agreement;
(iv) An original executed counterpart of the Remarketing Agreement;
(v) The executed Letter of Credit;
(vi) An opinion of Bond Counsel to the effect that the Bonds have
been validly issued and are binding obligations of the Issuer, and the
interest thereon is exempt from Kansas income taxation;
(vii)An opinion of Bond Counsel to the effect that the Bonds are
exempt from registration under the Securities Act of 1933, as amended, and
this Indenture is exempt from qualification under the Trust Indenture Act
of 1939, as amended; and
(viii) Such other certificates, statements, receipts, opinions and
documents as the Trustee shall reasonably require for the delivery of the
Bonds.
(f) When the documents mentioned in paragraph (e) of this Section have
been filed with the Trustee, and when the Bonds have been executed,
authenticated and registered as required by this Indenture, the Trustee shall
deliver the Bonds to or upon the order of the Underwriter upon payment to the
Trustee of the purchase price of the Bonds for deposit and application as
provided in Article IV.
Section 209. Mutilated, Lost, Stolen or Destroyed Bonds. If any Bond is
mutilated, lost, stolen or destroyed, the Issuer shall execute and the Bond
Registrar shall authenticate and deliver a new Bond of like date and tenor as
the Bond mutilated, lost, stolen or destroyed; provided that, in the case of any
mutilated Bond, such mutilated Bond shall first be surrendered to the Bond
Registrar, and in the case of any lost, stolen or destroyed Bond, there shall be
first furnished to the Issuer, the Bond Registrar and the Letter of Credit
Provider evidence of such loss, theft or destruction satisfactory to the Issuer,
the Bond Registrar and the Letter of Credit Provider, together with indemnity
satisfactory to them to save each of them harmless. If any such Bond has matured
or been called for redemption, instead of issuing a new Bond the Issuer may pay
or authorize the payment of the same without surrender thereof. Upon the
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issuance of any new Bond, the Issuer and the Bond Registrar may require the
payment of an amount sufficient to reimburse the Issuer and the Bond Registrar
for any tax or other governmental charge that may be imposed in relation thereto
and any other reasonable fees and expenses incurred in connection therewith. The
provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment
of mutilated, lost, stolen or destroyed Bonds.
Section 210. Cancellation and Destruction of Bonds Upon Payment. All Bonds
that have been paid, surrendered for transfer or exchange or otherwise
surrendered to the Bond Registrar for cancellation under this Indenture, either
at or before maturity, shall be canceled by the Bond Registrar. All Bonds
canceled under any of the provisions of this Indenture shall be destroyed by the
Bond Registrar. The Bond Registrar shall execute a certificate in quadruplicate
describing the Bonds so canceled and shall file executed counterparts of such
certificate with the Issuer, the Lessee and the Letter of Credit Provider.
Section 211. Authorization of Additional Bonds.
(a) Additional Bonds may be issued under this Indenture at any time
and from time to time, upon compliance with the conditions provided in this
Section, for any of the following purposes:
(1) To provide funds to pay all or any part of the costs of
repairing, replacing or restoring the Project in the event of its damage,
destruction or condemnation.
(2) To provide funds to pay all or any part of the costs of
acquisition, construction or installation of such additional land or
improvements as the Lessee may deem necessary or desirable and as will not
impair the nature of the Project as a "facility" within the meaning and
purposes of the Act.
(3) To provide funds for refunding all or any part of the Bonds of
any series then Outstanding, including the payment of any premium and
interest to accrue to the designated redemption date and any expenses in
connection with such refunding.
(b) Before any Additional Bonds shall be issued under the provisions
of this Section, the Lessee shall request the issuance of such Additional Bonds
and the Letter of Credit Provider shall provide written consent to the issuance
of such Additional Bonds, and the Issuer's governing body shall enact an
ordinance (i) authorizing the issuance of such Additional Bonds, fixing the
amount and terms thereof and describing the purpose or purposes for which such
Additional Bonds are being issued or describing the Bonds to be refunded, (ii)
authorizing the Issuer to enter into a Supplemental Indenture for the purpose of
providing for the issuance of and securing such Additional Bonds and, if
required, (iii) authorizing the Issuer to enter into a supplemental lease with
the Lessee to provide for rental payments at least sufficient to pay the
principal of, premium, if any, and interest on the Bonds then to be Outstanding
(including the Additional Bonds to be issued) as the same become due, for the
acquisition, purchase, construction or installation of additional improvements
to the Project, for the inclusion of any such addition, expansion or
modification as a part of the Project, and for such other matters as are
appropriate because of the issuance of the Additional Bonds proposed to be
issued which, in the judgment of the Issuer, is not to the prejudice of the
Issuer or the Bondowners previously issued.
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(c) Such Additional Bonds shall bear such series designation, shall
be dated, shall be stated to mature, shall bear interest at such rate or rates
not exceeding the maximum rate then permitted by law, shall be Parity Bonds or
Subordinate Bonds, and shall be redeemable at such times and prices (subject to
the provisions of Article III of this Indenture), all as may be provided by the
Supplemental Indenture authorizing the issuance of such Additional Bonds. If
such Additional Bonds are Parity Bonds, such Additional Bonds shall be on a
parity with and shall be entitled to the same benefit and security of this
Indenture as the Series 1998A Bonds and any other Parity Bonds Outstanding at
the time of the issuance of such Additional Bonds (except as to any difference
in the date, the maturity or maturities, the rate or rates of interest or the
provisions for redemption). If such Additional Bonds are Subordinate Bonds, such
Additional Bonds shall be on a parity with and shall be entitled to the same
benefit and security of this Indenture as the Series 1998B Bonds, the Series
1998C Bonds and any other Subordinate Bonds Outstanding at the time of the
issuance of such Additional Bonds (except as to any difference in the date, the
maturity or maturities, the rate or rates of interest or the provisions for
redemption).
(d) Such Additional Bonds shall be substantially in the form
described in and executed in the manner set forth in this Article of this
Indenture and certificates representing such Bonds shall be deposited with the
Trustee for authentication, but prior to or simultaneously with the
authentication and delivery of such Bond certificates by the Trustee, there
shall be filed with the Trustee the following:
(i) An original executed copy or a copy, certified by the City Clerk
of the Issuer, of the ordinance passed by the governing body of the Issuer
authorizing the execution and delivery of the Additional Bonds, the
Supplemental Indenture and the appropriate amendments or supplements to
the Lease Agreement;
(ii) An original executed counterpart of the Supplemental Indenture;
(iii)An original executed counterpart of the appropriate amendments
or supplements to the Lease Agreement;
(iv) If Parity Bonds, an original executed counterpart of a
remarketing agreement or an original executed counterpart of an executed
amendment or supplement to the Remarketing Agreement;
(v) If Parity Bonds, an executed letter of credit or an executed
amendment or supplement to the Letter of Credit that complies with the
requirements of Section 4.8 of the Lease Agreement;
(vi) The written consent of the Letter of Credit Provider;
(vii)An opinion of Bond Counsel to the effect that the Additional
Bonds have been validly issued and are binding obligations of the Issuer,
are authorized under the terms of this Indenture and the interest thereon
is exempt from Kansas income taxation;
(viii) An opinion of Bond Counsel to the effect that the Additional
Bonds are exempt from registration under the Securities Act of 1933, as
amended, and this Indenture is exempt from qualification under the Trust
Indenture Act of 1939, as amended; and
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(ix) In the event that any series of the Bonds are rated by a Rating
Agency, such Rating Agency shall have confirmed that the issuance of the
Additional Bonds shall not adversely effect any rating then in effect on
such Bonds.
(x) Such other certificates, statements, receipts, opinions and
documents as the Trustee shall reasonably require for the delivery of the
Additional Bonds.
(xi) In the case of Additional Bonds being issued to refund
Outstanding Bonds, such additional documents as shall be reasonably
required by the Trustee to establish that provision has been made for the
payment of all of the Bonds to be refunded in accordance with the
provisions of Article XII of this Indenture.
(e) When the documents mentioned in subsection (d) of this Section
shall have been filed with the Trustee, and when such Additional Bonds shall
have been executed and authenticated as required by this Indenture, the Trustee
shall deliver such Additional Bonds to or upon the order of the purchasers
thereof, but only upon payment to the Trustee of the purchase price of such
Additional Bonds.
ARTICLE III
REDEMPTION AND PURCHASE OF BONDS
Section 301. Limitation on Redemption. The Bonds shall be subject to
redemption only as provided in this Article. Bonds may not be redeemed during
the period after a Record Date and prior to the related Interest Payment Date
and, to the extent that Bonds would otherwise be redeemed during such period,
they shall be redeemed on such Interest Payment Date; provided, however, that
Bonds to be redeemed pursuant to the provisions of Section 302(d) shall be
redeemed at the earliest practicable date but in no event later than seven
calendar days following the event causing such redemption. In the event of any
redemption of Bonds pursuant to Section 302 on any date other than an Interest
Payment Date, accrued interest on said Bonds to the redemption date shall be
paid along with the applicable redemption price described in Section 302. In the
event of any redemption of Bonds on an Interest Payment Date, such accrued
interest shall be paid as provided in Section 204.
Section 302. Redemption of the Bonds.
(a) Optional Redemption.
(i) The Series 1998A Bonds while in the Weekly Mode or Monthly Mode
are subject to redemption by the Issuer, at the option of and upon written
instructions from the Lessee, with the prior written consent of the Letter
of Credit Provider, unless the Lessee has deposited with the Trustee at
least 30 days prior to the date set for redemption sufficient Available
Moneys to effect such redemption, in which case the consent of the Letter
of Credit Provider shall not be required, in whole or in part on any
Business Day, at the principal amount thereof, plus accrued interest, if
any, to the redemption date, without premium.
(ii) The Series 1998A Bonds while in the Semiannual Mode or the
Annual Mode are subject to redemption by the Issuer, at the option of and
upon written instructions from the Lessee, with the prior written consent
of the Letter of Credit Provider (unless the Lessee has deposited with the
Trustee sufficient Available Moneys to effect such redemption in which
case the consent
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of the Letter of Credit Provider shall not be required), in whole or in
part on the first day of any Calculation Period at the principal amount
thereof, without premium.
(iii)The Series 1998A Bonds while in a Multiyear Mode will not be
subject to redemption by the Issuer at the option of and upon written
instructions from the Lessee.
(iv) The Series 1998B Bonds and the Series 1998C Bonds are subject to
redemption by the Issuer, at the option of and upon written instructions
from the Lessee, in whole or in part at any time at the principal amount
thereof, without premium. In addition, while any Series 1998A Bonds are
Outstanding, the Series 1998B Bonds and the Series 1998C Bonds shall not
be redeemed pursuant to this paragraph without the prior written consent
of the Letter of Credit Provider.
(v) Any provision herein to the contrary notwithstanding, no Series
1998A Bond may be redeemed pursuant to this paragraph (a) unless
sufficient Available Moneys in an amount equal to any redemption premium
are available and have been irrevocably deposited with the Trustee prior
to the mailing of any notice in accordance with Section 304.
(b) Redemption in Event of Condemnation, Deficiency of Title, Fire or
Other Casualty, or Change in Law or Circumstances. The Bonds are subject to
redemption by the Issuer, at the option of and upon written instructions from
the Lessee with the prior written consent of the Letter of Credit Provider as
provided in Section 5.6 of the Lease Agreement, (i) in whole or in part, at the
principal amount thereof, without premium, at any time upon the occurrence of a
"condemnation," "loss of title" or "casualty loss" as provided in Section 5.6 of
the Lease Agreement to the extent of funds provided therefor as set forth in
Section 5.6 of the Lease Agreement, or (ii) in whole, at the principal amount
thereof, without premium, at any time in the event that, due to "condemnation,"
"loss of title," "casualty loss," as provided in Section 5.6 of the Lease
Agreement or as a result of changes in any state or federal law, or an act of a
federal agency, or by reason of any action instituted in any court, the Lease
Agreement shall become void or unenforceable, or impossible of performance
without unreasonable delay, or in any other way, by reason of such change of
circumstances, unreasonable burdens or excessive liabilities are imposed on the
Lessee or the Issuer.
(c) Redemption Upon Expiration of Letter of Credit. The Series 1998A Bonds
are subject to mandatory redemption by the Issuer in whole (except to the extent
purchased in lieu of redemption as provided in paragraph (e) of this Section
302) on the Interest Payment Date immediately preceding the expiration date of
the Letter of Credit at the principal amount thereof, without premium, if the
Lessee fails to provide a Substitute Letter of Credit in accordance with the
provisions of Section 4.8 of the Lease Agreement to the Trustee or obtain a
renewal or amendment which extends the term of the Letter of Credit on or before
the 46th day prior to the Interest Payment Date which precedes such expiration
date.
(d) Redemption Upon a Default Under the Letter of Credit Provider
Documents. The Series 1998A Bonds are subject to mandatory redemption by the
Issuer in whole (except to the extent purchased in lieu of redemption as
provided in paragraph (e) of this Section 302), at the principal amount thereof,
without premium, as soon as practicable (but in no event later than seven
calendar days) after (i) the Trustee has received a written notice from the
Letter of Credit Provider stating that an Event of Default has occurred under
the Letter of Credit Provider Documents and that the Letter of Credit will
expire pursuant to the terms of such written notice or (ii) the Trustee has
received a written notice from the Letter of Credit Provider stating that the
interest portion of the Letter of Credit will not be reinstated.
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(e) Purchase of Series 1998A Bonds in Lieu of Certain Redemptions.
(i) The Series 1998A Bonds, upon being called for redemption pursuant
to paragraph (a), (c) or (d) of this Section 302, may be purchased, in
lieu of redemption, in whole but not in part by the Lessee or its designee
or the Letter of Credit Provider or its designee (the "Purchaser"), if (A)
written notice to that effect is given to the Trustee and S&P (if the
Bonds are then rated by S&P), by the Purchaser not later than 3:00 p.m.
Kansas City, Missouri time, on the third Business Day preceding the date
scheduled for redemption, which notice shall state the identity of the
Purchaser and the reason for such purchase in lieu of redemption, and (B)
the conditions set forth in subparagraph (ii) of this Section 302(e) are
satisfied.
(ii) To the extent the Purchaser has deposited in a separate trust
account designated by the Trustee for such purpose Available Moneys with
the Trustee in an amount equal to or greater than the aggregate principal
amount of Series 1998A Bonds called for redemption pursuant to paragraph
(a), (c) or (d) of this Section 302, plus redemption premium, if any, and
accrued interest thereon to the date scheduled for redemption, not later
than 10:00 a.m. Kansas City, Missouri time, on the third Business Day
preceding the date scheduled for redemption, then any Series 1998A Bonds
presented to the Trustee on or before the close of business on the date
scheduled for redemption or purchase shall be purchased, and not redeemed,
with moneys so deposited in said account at a purchase price for each
Series 1998A Bond equal to the principal amount thereof, plus accrued
interest thereon to the date scheduled for redemption. Any Series 1998A
Bond to be purchased in lieu of such redemption that is not presented to
the Trustee on or before the date scheduled for redemption shall become an
Undelivered Bond and shall be deemed to have been purchased on such date.
(iii)The purchase price of any Undelivered Bond described in
subparagraph (ii) of this Section 302(e) shall be paid by the Trustee when
it is surrendered for payment at the principal corporate trust office of
the Trustee. On the date scheduled for redemption pursuant to paragraph
(a), (c) or (d) of this Section 302, the Bond Registrar shall authenticate
(and the Issuer shall execute, if necessary) a replacement Bond for such
Undelivered Bond. The Owner of such Undelivered Bond shall not be entitled
to receive any further interest thereon and shall have no further rights
under this Indenture except to receive such purchase price so deposited
with the Trustee, without interest thereon, upon such surrender.
(iv) Promptly, and in no event more than seven Business Days, after
any date scheduled for redemption pursuant to paragraph (a), (c) or (d) of
this Section 302, the Trustee shall give notice by first-class mail to
each Owner of an Undelivered Bond deemed to be purchased on such
redemption date, which notice shall state that interest on such
Undelivered Bond ceased to accrue on such redemption date and that moneys
representing the purchase price of such Undelivered Bond are available
against surrender thereof as aforesaid.
(v) Moneys deposited by the Purchaser in the separate trust account
described in subparagraph (ii) of this Section 302(e) shall be invested,
at the direction of the Letter of Credit Provider, in Government
Securities maturing as to principal and interest at such time and in such
amounts as is sufficient to make timely payment of the purchase price of
Series 1998A Bonds to be purchased under the provisions of this paragraph
(e) (which, in the case of Undelivered Bonds, shall be the next Business
Day). Any earnings from the investment of such moneys shall be retained by
the Trustee to the extent necessary to assure the amount so held in trust
is sufficient to pay the purchase price of Series 1998A Bonds to be
purchased under the provisions of this
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paragraph (e) and, to the extent not necessary for such purpose, shall be
paid to the Letter of Credit Provider to the extent of sums owed. Any
funds remaining in such trust account after payment of the purchase price
of Series 1998A Bonds pursuant to this paragraph (e) and payment of any
sums owed the Letter of Credit Provider shall be paid to the Lessee.
(vi) All Series 1998A Bonds purchased as herein provided shall be
registered by the Bond Registrar for transfer and redelivery to such
person or persons as shall be designated by the Purchaser.
(f) Redemption from Moneys Remaining in the Project Funds. Subject to the
notice requirement set forth in Section 304, the Bonds are subject to redemption
in part by the Issuer, at the option of and upon written instructions from the
Lessee, with the prior written consent of the Letter of Credit Provider, at the
principal amount thereof, without premium, from Available Moneys remaining in
the Project Funds following completion of the acquisition and construction of
the Project. The date of redemption pursuant to this Section 302(f) shall be the
next succeeding date upon which Bonds may be redeemed and for which the required
redemption notice may be given following the date of completion of the
acquisition and construction of the Project and payment of all Project Costs.
(g) Mandatory Sinking Fund Redemption.
(i) The Series 1998A Bonds will be subject to mandatory redemption
and payment prior to their stated maturity pursuant to the mandatory
redemption requirements of this paragraph (g), on September 1 in each year
in accordance with the redemption schedule set out in this Section
302(g)(i), at 100% of the principal amount thereof, plus accrued interest
to the redemption date, without premium.
PRINCIPAL
YEAR AMOUNT
---- ------
1999 $1,850,000
2000 1,850,000
2001 1,850,000
2002 1,850,000
2003 1,800,000
2004 1,800,000
2005 1,800,000
2006 1,800,000
2007 1,800,000
2008 1,800,000
(Leaving $1,800,000 to mature on September 1, 2009)
(ii) The Series 1998B Bonds will be subject to mandatory redemption
and payment prior to their stated maturity pursuant to the mandatory
redemption requirements of this paragraph (g), on September 1 of each year
in accordance with the redemption schedule set out in this Section
302(g)(ii), at 100% of the principal amount thereof, plus accrued interest
to the redemption date, without premium.
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PRINCIPAL
YEAR AMOUNT
---- -------
1999 $455,000
2000 455,000
2001 455,000
2002 455,000
2003 455,000
2004 455,000
2005 455,000
2006 455,000
2007 455,000
2008 455,000
(Leaving $450,000 to mature on September 1, 2009)
(iii)The Series 1998C Bonds will be subject to mandatory redemption
and payment prior to their stated maturity pursuant to the mandatory
redemption requirements of this paragraph (g), on September 1 of each year
in accordance with the redemption schedule set out in this Section
302(g)(iii), at 100% of the principal amount thereof, plus accrued
interest to the redemption date, without premium.
<PAGE>
PRINCIPAL
YEAR AMOUNT
---- -------
1999 $730,000
2000 730,000
2001 730,000
2002 730,000
2003 730,000
2004 725,000
2005 725,000
2006 725,000
2007 725,000
2008 725,000
(Leaving $725,000 to mature on September 1, 2009)
(iv) The Trustee shall each year in which Bonds are to be redeemed
pursuant to the terms of this paragraph (g) make timely selection of Bonds
or portions of Bonds to be so redeemed in accordance with Section 303 and
shall give notice thereof as provided in Section 304 without further
instructions from the Issuer, the Lessee or the Letter of Credit Provider.
(v) The Trustee may, upon the receipt of written instructions from
the Letter of Credit Provider delivered on or before the forty-fifth day
next preceding any date on which Bonds are scheduled for redemption
pursuant to this paragraph (g), use moneys on deposit in the Available
Moneys Account of the Series 1998A Bond Fund (but only to the extent of
excess moneys as described in Section 503(d)) at any time using its best
efforts, to the extent as may be practical, to
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purchase Bonds of the maturity subject to mandatory redemption on the next
Annual Date in the open market at a price not in excess of their principal
amount. Bonds purchased pursuant to this Section 302(g)(v) shall be
cancelled by the Trustee and applied as a credit against future redemption
obligations.
(vi) At the option of the Lessee with (if credit is sought against
the obligations created by Section302(g)(ii) or (iii) hereof) the written
consent of the Letter of Credit Provider, to be exercised on or before the
forty-fifth day next preceding any date on which Bonds are scheduled to be
redeemed pursuant to this paragraph (g), the Lessee may deliver to the
Trustee (A) for cancellation Bonds in any aggregate principal amount
desired; (B) funds, together with appropriate instructions, for the
purpose of purchasing any Bonds from any Owner thereof, whereupon the
Trustee shall expend such funds for such purpose using its best efforts to
such extent as may be practical; or (C) receive a credit in respect to the
mandatory redemption obligation of the Issuer under this paragraph (g) for
any Bonds that prior to such date have been redeemed or purchased (other
than through the operation of the requirements of this paragraph (g) and
canceled by the Trustee and not theretofore applied as a credit against
any redemption obligation under this paragraph (g). Each Bond so delivered
or previously purchased or redeemed pursuant to either of the two
preceding sentences shall be credited at 100% of the principal amount
thereof against the obligation of the Issuer to redeem Bonds on any
mandatory redemption date or dates as specified in writing by the Lessee.
If the Lessee intends to exercise the option granted by clauses (A), (B)
or (C) in this Section 302(g)(vi), the Lessee shall, on or before the
forty-fifth day next preceding any date on which Bonds are scheduled to be
redeemed pursuant to this paragraph (g), furnish the Trustee a certificate
signed by the Lessee, indicating to what extent said clauses (A), (B) or
(C) are to be complied with in respect to such mandatory redemption
requirement and deliver all Bonds to be canceled pursuant to such clause
(A).
Section 303. Selection of Bonds to be Redeemed.
(a) Series 1998A Bonds in the Weekly Mode or the Monthly Mode shall be
redeemed in the principal amount of $100,000 or any integral multiple of $5,000
in excess thereof. Series 1998A Bonds in any other Interest Rate Mode shall be
redeemed in the principal amount of $5,000 or any integral multiple thereof. The
Series 1998A Bonds to be redeemed shall be selected by the Trustee as follows:
(i) First, from Pledged Bonds,
(ii) Second, from all other Series 1998A Bonds being redeemed (other
than Pledged Bonds and Lessee Bonds), and
(iii)Third, from Lessee Bonds.
Except for the order set forth above, selection of Bonds or portions of Bonds to
be redeemed shall be by such method as the Trustee shall deem equitable,
provided that for this purpose Bonds of a denomination larger than the minimum
authorized denomination or integral multiples thereof provided for in Section
203 shall be treated on the same basis as if they were the appropriate number of
Bonds of such minimum authorized denomination. The portions of the principal of
Outstanding Bonds so selected for partial redemption shall be equal to such
minimum authorized denomination or integral multiples thereof. Any Bond which is
to be redeemed only in part shall be submitted to the Paying Agent and delivered
to the Trustee who shall authenticate and deliver to the Owner of such Bond,
without service charge, a new Bond
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or Bonds, of any authorized denomination as requested by such Owner in an
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Bonds so surrendered. If the Owner of any such Bond of a
denomination greater than the minimum authorized denomination for such Bond
fails to present such Bond to the Paying Agent for payment and exchange as
aforesaid, such Bond shall, nevertheless, become due and payable on the
redemption date to the extent of the principal amount of such Bond called for
redemption (and to that extent only).
Series 1998B Bonds and Series 1998C Bonds shall be redeemed in the
principal amount of $5,000 or any integral multiple of $5,000; provided no
partial redemption shall result in any Series 1998B Bond or any Series 1998C
Bond remaining Outstanding in a principal amount less than $100,000.
(b) In the case of any optional redemption of Bonds pursuant to paragraph
(a), (b) or (f) of Section 302, the Trustee shall call Bonds for redemption as
herein provided upon receipt by the Trustee at least 45 days prior to the
redemption date of a written request of the Lessee together with the written
consent of the Letter of Credit Provider, if required. Such request shall
specify the principal amounts of Bonds to be called for redemption, the series
of Bonds to be redeemed, the date such Bonds are to be redeemed, the applicable
redemption price or prices and the provision or provisions of this Indenture
pursuant to which such Bonds are to be called for redemption. The foregoing
provisions of this paragraph shall not apply in the case of any mandatory
redemption of Bonds pursuant to paragraphs (c), (d) and (g) of Section 302, and
Bonds shall be called by the Trustee for redemption pursuant to such mandatory
redemption requirements without the necessity of any action by the Issuer, the
Lessee or the Letter of Credit Provider and whether or not at the time of
mailing the notice of redemption the Trustee holds in the Available Moneys
Account of the Series 1998A Bond Fund moneys available for and sufficient to
effect the required redemption.
Section 304. Notice of Redemption.
(a) Whenever the Trustee shall call any of the Bonds for redemption the
Trustee shall give written notice in the name of the Issuer of its intention to
redeem and pay such Bonds by first class mail, postage prepaid, mailed not more
than 45 nor less than 30 days (not more than 7 nor less than 5 days in the case
of a redemption described in Section 302(d)) prior to the redemption date, to
each Owner of Bonds to be redeemed at such Owner's address appearing on the Bond
Register and, if any Series 1998A Bonds are being called for redemption, to the
Remarketing Agent.
(b) All notices of redemption shall state: (i) the redemption date; (ii)
the redemption price; (iii) if less than all Outstanding Bonds are to be
redeemed, the maturity date and the identification numbers (and, in the case of
partial redemption, the respective principal amounts) of the Bonds to be
redeemed; (iv) that on the redemption date, the redemption price will become due
and payable upon each such Bond, and that interest thereon shall cease to accrue
from and after said date; and (v) the place where such Bonds are to be
surrendered for payment of the redemption price (which shall be the principal
corporate trust office of the Paying Agent).
(c) In addition, any notice of a redemption pursuant to paragraph (a), (c)
or (d) of Section 302 shall state that any Bond called for redemption may be
purchased at the option of the Lessee or its designee or the Letter of Credit
Provider or its designee in lieu of redemption on the date scheduled for
redemption, that the Bonds called for redemption shall be surrendered to the
Trustee on or before the date scheduled for redemption, duly endorsed in blank
for transfer, with all signatures guaranteed by an Eligible Guarantor (together,
with, if such date is prior to an Interest Payment Date for such Bond and after
the related Record
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Date, a due-bill in form satisfactory to the Trustee for interest due on such
Bond on such Interest Payment Date in the event such Bond is purchased in lieu
of redemption), and that from and after such date interest on such Bond shall
cease to accrue and such Bond shall no longer be Outstanding and shall have no
further rights under the Indenture except to receive the principal amount
thereof, plus accrued interest to such date, regardless of whether such Bond is
presented to the Trustee on such date.
(d) Neither the failure of the Owner of any Bond to be so redeemed to
receive written notice mailed as herein provided nor any defect in any such
notice shall affect or invalidate the redemption of said Bond.
(e) In addition to the foregoing notice, the Trustee shall also comply
with any requirements or guidelines, published by the Securities and Exchange
Commission relating to providing notices of redemption. The failure of the
Trustee to comply with any such requirements shall not affect or invalidate the
redemption of said Bonds.
Section 305. Effect of Call for Redemption. Prior to any date fixed for
redemption, there shall be deposited with the Trustee Available Moneys
sufficient to pay the principal of the Bonds called for redemption and accrued
interest thereon to the redemption date and the redemption premium, if any. Upon
the happening of the above conditions, and notice having been given as provided
in Section 304, the Bonds or the portions of the principal amount of Bonds thus
called for redemption shall cease to bear interest on their redemption date,
provided funds or such securities sufficient for the payment of principal of and
redemption premium, if any, and accrued interest on such Bonds are on deposit at
the place of payment at that time, and such Bonds shall no longer be entitled to
the protection, benefit or security of this Indenture and shall not be deemed to
be Outstanding under this Indenture.
Section 306. Purchase at Bondowner Option.
(a) Series 1998A Bonds shall be purchased pursuant to the procedure set
forth in this Section, but solely from the sources described in Section 308, at
the option of the Owner thereof, on the Purchase Date specified by such Owner as
described below at the purchase price equal to the principal amount thereof
plus, if such Purchase Date is not an Interest Payment Date, accrued interest to
the Purchase Date. Except as provided in the immediately following sentence, in
order to exercise such option with respect to any Series 1998A Bond, the Owner
of such Series 1998A Bond must:
(i) while the Series 1998A Bonds are in the Weekly Mode or the
Monthly Mode, deliver to the Tender Agent at its Principal Office an
irrevocable Bondowner Election Notice substantially in the form attached
as Exhibit C, which Bondowner Election Notice must be received by the
Tender Agent at least seven days prior to the Purchase Date specified in
such Bondowner Election Notice and pursuant to which Bondowner Election
Notice such Owner shall agree to deliver such Series 1998A Bond, duly
endorsed in blank for transfer, with all signatures guaranteed by an
Eligible Guarantor (together with, in the case of any Series 1998A Bond
with a specified Purchase Date prior to an Interest Payment Date and after
the related Record Date, a due-bill in form satisfactory to the Paying
Agent for interest due on such Series 1998A Bond on such Interest Payment
Date), to the Tender Agent at its Principal Office on or prior to 11:00
a.m., Kansas City, Missouri time, on or prior to the Business Day
preceding such Purchase Date, or
(ii) while the Series 1998A Bonds are in any other Interest Rate
Mode, deliver to the Tender Agent at its Principal Office an irrevocable
Bondowner Election Notice, in the form
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included as a portion of the Notice of Rate Adjustment, which Bondowner
Election Notice must be delivered at least 12 calendar days prior to the
Purchase Date specified in such Bondowner Election Notice and must be
accompanied by such Series 1998A Bond, duly endorsed in blank for
transfer, with all signatures guaranteed by an Eligible Guarantor.
(b) If a Registered Owner delivers a properly completed Bondowner Election
Notice with respect to any Series 1998A Bond and such Series 1998A Bond is not
delivered to the Tender Agent by 11:00 a.m., Kansas City, Missouri time, on the
date it is to be purchased in accordance with this Section, such Series 1998A
Bond shall become an Undelivered Bond and shall be deemed to have been purchased
on such date and shall cease to bear interest on such date.
(c) On or before the first Business Day after the Tender Agent receives
from any Owner of any Series 1998A Bond a properly completed Bondowner Election
Notice delivered pursuant to this Section, the Tender Agent shall notify the
Trustee, the Lessee, the Letter of Credit Provider and the Remarketing Agent by
telephone, promptly confirmed in writing, of such receipt, specifying the
contents thereof. Upon delivery by such Owner pursuant to this Section of the
Series 1998A Bond which is the subject of such purchase, the Tender Agent shall
hold such Series 1998A Bond in trust for the benefit of such Owner until payment
shall have been made for such Series 1998A Bond pursuant to Section 308 and
thereafter for the benefit of the person to whom the delivery of such Series
1998A Bond is to be made pursuant to Section 310 until such delivery is made.
Section 307. Purchase on Interest Rate Mode Conversion Date or
Substitute Letter of Credit Date.
(a) The Series 1998A Bonds are subject to mandatory tender and purchase on
any Interest Rate Mode Conversion Date or on any Substitute Letter of Credit
Date. Such Series 1998A Bonds shall be purchased at a purchase price equal to
the principal amount thereof plus, if the Purchase Date is not an Interest
Payment Date, accrued interest to the Purchase Date; provided that there shall
not be so purchased any Series 1998A Bond or portion thereof with respect to
which the Trustee shall have received directions not to so purchase the same
from the Owner thereof in accordance with paragraph (c) below.
(b) At least 35 days prior to any Interest Rate Mode Conversion Date or
Substitute Letter of Credit Date, the Trustee shall send to the Owner of each
Series 1998A Bond a Notice of Interest Rate Mode Conversion or a Notice of
Substitute Letter of Credit, as appropriate, substantially in the form of
Exhibit D or Exhibit E, respectively. Copies of the notice shall also be sent by
the Trustee to the Lessee, the Remarketing Agent and the Letter of Credit
Provider. In addition, the Trustee shall send a copy of such notice to any Owner
of each Series 1998A Bond who becomes an Owner of such Series 1998A Bond during
the period between the giving of such notice and the Interest Rate Mode
Conversion Date or Substitute Letter of Credit Date, such notice to be sent at
the time that the Bond Registrar makes a registration of transfer of such Series
1998A Bond in the name of such Owner; provided that, if the Trustee has
previously received during such period relating to an Interest Rate Mode
Conversion Date or Substitute Letter of Credit Date directions not to so
purchase the same in accordance with paragraph (c) below, such notice to such
new Owner shall state that such directions have been received by the Trustee and
are binding upon such new Owner.
(c) The Owner of any Series 1998A Bond as to which a Notice of Interest
Rate Mode Conversion has been given and of a denomination not less than the
minimum authorized denomination to be effective for such Series 1998A Bond on
the Interest Rate Mode Conversion Date stated in said notice,
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or of any Series 1998A Bond as to which a Notice of Substitute Letter of Credit
has been given, may direct that all or any portion of such Series 1998A Bond
(which portion shall be in a principal amount equal to the minimum authorized
denomination of Series 1998A Bonds on the Interest Rate Mode Conversion Date or
the Substitute Letter of Credit Date, as the case may be, or any integral
multiple thereof) not be purchased by delivering to the Trustee at its principal
corporate trust office at least 12 calendar days prior to the relevant Interest
Rate Mode Conversion Date or Substitute Letter of Credit Date the portion of the
Notice of Interest Rate Mode Conversion or the Notice of Substitute Letter of
Credit, as the case may be, entitled "Bondowner Direction Not to Purchase." Any
Series 1998A Bond or portion thereof with respect to which a valid Bondowner
Direction Not to Purchase has been delivered in accordance with this paragraph
(c) shall not be purchased on such Interest Rate Mode Conversion Date or
Substitute Letter of Credit Date. Any Bondowner Direction Not to Purchase
delivered to the Trustee in accordance with this paragraph (c) shall be
irrevocable with respect to the purchase for which such instrument was delivered
and shall be binding upon subsequent Owners of the Series 1998A Bond with
respect to which such instrument was delivered, including Series 1998A Bonds
issued in exchange therefor or upon the registration of transfer thereof.
(d) Any Series 1998A Bond to be purchased pursuant to this Section 307
shall be purchased solely from the funds specified in Section 308, unless the
Owner of such Series 1998A Bond delivers a valid Bondowner Direction Not to
Purchase with respect thereto in accordance with paragraph (c) above.
(e) On the Business Day following the 12th calendar day prior to any
Interest Rate Mode Conversion Date or Substitute Letter of Credit Date, the
Trustee shall give notice by telephone, promptly confirmed in writing, to the
Tender Agent, the Lessee, the Letter of Credit Provider and the Remarketing
Agent as to the aggregate principal amount of such Series 1998A Bonds with
respect to which the Trustee has received a valid Bondowner Direction Not to
Purchase.
(f) The Owner of any Series 1998A Bond or portion thereof purchased
pursuant to this Section will be required to surrender such Series 1998A Bond on
or before 9:00 a.m. Kansas City, Missouri time, on the date it is to be
purchased at the Principal Office of the Tender Agent, duly endorsed in blank,
with all signatures guaranteed by an Eligible Guarantor. If not so surrendered
by such time, such Series 1998A Bond or portion thereof shall become an
Undelivered Bond, shall be deemed to have been purchased on such Interest Rate
Mode Conversion Date or Substitute Letter of Credit Date, and shall no longer be
entitled to the benefits of this Indenture, except for the purpose of payment of
the purchase price therefor.
Section 308. Payment of Purchase Price by Tender Agent.
(a) On each Purchase Date, Interest Rate Mode Conversion Date or
Substitute Letter of Credit Date, the Tender Agent shall pay, but only from the
funds described below, the purchase price of Series 1998A Bonds delivered to it
for purchase on such date and Undelivered Bonds deemed to be purchased on such
date pursuant to Section 306 or 307. Such purchase price shall be equal to the
principal amount of said Series 1998A Bonds, plus, if such date is not an
Interest Payment Date, accrued interest to such date. Funds for the payment of
such purchase price shall be derived from the following sources in the following
order of priority:
(i) Moneys furnished to the Tender Agent by the Remarketing Agent
representing the proceeds of the sale of Series 1998A Bonds in accordance
with Section 309 to the extent such moneys constitute Available Moneys;
and
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(ii) Moneys furnished to the Tender Agent representing the proceeds
of a drawing under the Letter of Credit to the extent such moneys
constitute Available Moneys.
If the Tender Agent is unable to pay the purchase price of any Series 1998A Bond
delivered for purchase pursuant to Section 306 or 307 because sufficient funds
are not on deposit therefor from the sources indicated above, such Series 1998A
Bond shall be returned by the Tender Agent to its Owner.
(b) The purchase price of Undelivered Bonds specified in Section 306 or
307 shall be paid by the Tender Agent when they are surrendered for payment at
the Principal Office of the Tender Agent provided that such Series 1998A Bonds
are duly endorsed in blank for transfer with all signatures guaranteed by an
Eligible Guarantor. On any date an Undelivered Bond is deemed to be purchased
pursuant to Section 306 or 307, the Bond Registrar shall authenticate (and the
Issuer shall execute, if necessary) a replacement Series 1998A Bond for such
Undelivered Bond. The Owner of such Undelivered Bond shall not be entitled to
receive any further interest thereon and shall have no further rights under this
Indenture except to receive such purchase price so deposited with the Tender
Agent, without interest thereon, upon such surrender.
(c) Promptly after any date an Undelivered Bond is deemed to be purchased
pursuant to Section 306 or 307, the Trustee shall give notice by mail to each
Owner of an Undelivered Bond deemed to be purchased on such date, which notice
shall state that interest on such Undelivered Bond ceased to accrue on such
date, and that moneys representing such purchase price of such Undelivered Bond
are available against surrender thereof as aforesaid.
(d) Moneys furnished to the Tender Agent to pay the purchase price of
Series 1998A Bonds pursuant to Section 306 or 307 shall be held in a separate
trust account and invested, at the direction of the Letter of Credit Provider,
in Government Securities maturing as to principal and interest at such times and
in such amounts as is sufficient to make timely payment of such purchase price
(which in the case of Undelivered Bonds, shall be on the next Business Day). Any
earnings from the investment of such moneys shall be retained by the Tender
Agent to the extent necessary to assure the amount so held in trust is
sufficient to pay such purchase price and to the extent not necessary for such
purpose shall be applied or distributed as provided in paragraph (e) below.
(e) Immediately after paying the purchase price for all Series 1998A Bonds
(other than any Undelivered Bonds) to be purchased on any Purchase Date pursuant
to Section 306 or 307, the Tender Agent shall apply or disburse any remaining
moneys furnished to it to purchase Series 1998A Bonds on such date and any
earnings from the investment thereof as follows:
(i) First, to hold in the separate trust account described in
paragraph (d) above the purchase price for any Undelivered Bonds deemed to
have been purchased on such date; and
(ii) Second, to pay to the Letter of Credit Provider in immediately
available funds the remaining amounts. To the extent the Letter of Credit
Provider has been reimbursed, the Letter of Credit Provider shall pay such
moneys to the Lessee.
(f) The Tender Agent shall promptly return any Bondowner Election Notice
delivered pursuant to Section 306 (together with the Series 1998A Bond or Series
1998A Bonds submitted therewith) that are incomplete or improperly completed or
not delivered within the times required by
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Section 306 to the Owner submitting such Bondowner Election Notice and Series
1998A Bond or Series 1998A Bonds upon surrender of the receipt, if any, issued
therefor. The Tender Agent's determination of whether a Bondowner Election
Notice delivered pursuant to Section 306 is properly completed or delivered on a
timely basis shall be binding on the Lessee, the Letter of Credit Provider and
the Owner submitting such Bondowner Election Notice.
Section 309. Sale of Series 1998A Bonds by Remarketing Agent.
(a) Upon notification of the receipt by the Tender Agent of a Bondowner
Election Notice, the Remarketing Agent shall offer for sale and use its best
efforts to sell all Series 1998A Bonds specified for purchase in such Bondowner
Election Notice on the Purchase Date specified in such Bondowner Election
Notice, or, if such Series 1998A Bonds cannot be sold on such Purchase Date, as
soon thereafter as practicable, at a purchase price equal to the principal
amount thereof, plus, if the date of purchase is not an Interest Payment Date,
accrued interest on such Series 1998A Bonds to such date of purchase. In
addition, the Remarketing Agent shall offer for sale and use its best efforts to
sell any Series 1998A Bonds to be purchased pursuant to Section 307 on the
applicable Interest Rate Mode Conversion Date or Substitute Letter of Credit
Date, or, if such Series 1998A Bonds cannot be sold on such Interest Rate Mode
Conversion Date or Substitute Letter of Credit Date, as the case may be, as soon
thereafter as practicable, at a purchase price equal to the principal amount
thereof, plus, if the date of purchase is not an Interest Payment Date, accrued
interest on such Series 1998A Bonds to such date of purchase.
(b) By 9:00 a.m., Kansas City, Missouri time, on the Purchase Date,
Interest Rate Mode Conversion Date or Substitute Letter of Credit Date, the
Remarketing Agent shall give notice by telephone, promptly confirmed in writing,
to the Trustee, the Bond Registrar (if not the Trustee), the Tender Agent, the
Letter of Credit Provider and the Lessee specifying the principal amount of
Series 1998A Bonds, if any, sold by it pursuant to paragraph (a) above, the
amount of remarketing proceeds on hand at that time, the names, addresses and
tax identification numbers of those in whose names such Series 1998A Bonds are
to be registered and the denominations of such Series 1998A Bonds.
(c) Subject to paragraph (d) below, the Remarketing Agent shall offer for
sale and use its best efforts to sell any Pledged Bonds held by the Tender Agent
pursuant to Section 310, at the maximum price obtainable if, concurrent with or
prior to any sale of Pledged Bonds, the Letter of Credit Provider has reinstated
the principal component of the Letter of Credit to cover such Series 1998A Bonds
in the manner required by the Letter of Credit and Section 310. No Series 1998A
Bond shall be sold at a price less than the principal amount thereof plus
interest accrued thereon without the prior written approval of the Letter of
Credit Provider. Prior to any sale of Pledged Bonds, the Remarketing Agent shall
give notice by telephone, promptly confirmed in writing, to the Trustee, the
Tender Agent, the Letter of Credit Provider and the Lessee of the date of sale
of such Pledged Bonds.
(d) Any provision contained in this Section to the contrary
notwithstanding, the Remarketing Agent shall not sell, or offer for sale or
deliver (i) any Series 1998A Bonds at any time with respect to which the
Remarketing Agent has actual knowledge or has been notified that an Event of
Default exists pursuant to paragraph (a), (b), (c), (f) or (g) of Section 801,
or (ii) any Series 1998A Bonds that have been purchased pursuant to paragraph
(e) of Section 302 in lieu of redemption pursuant to paragraphs (a), (c) or (d)
of Section 302 unless there has been delivered to the Remarketing Agent and the
Trustee prior to such sale, an opinion of counsel satisfactory to the
Remarketing Agent and the Trustee stating that such sale complies with all
applicable federal and state securities laws.
Section 310. Delivery of Series 1998A Bonds.
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(a) To effectuate the delivery of the Series 1998A Bonds sold by the
Remarketing Agent pursuant to Section 309, upon receipt of the notice provided
in Section 309(b), the Bond Registrar shall prepare new Series 1998A Bonds which
shall be registered by the Bond Registrar in the names of the purchasers thereof
and delivered to the Tender Agent for redelivery to such purchasers upon payment
by such purchasers to the Tender Agent in immediately available funds of the
purchase price therefor specified in Section 308.
(b) Pledged Bonds shall be registered by the Bond Registrar in the name of
the Lessee and shall be delivered to the Tender Agent who shall hold the same
for the account of and subject to the security interest in favor of the Letter
of Credit Provider. Upon direction from the Letter of Credit Provider, the
Trustee shall promptly register any Pledged Bond in the name of the Letter of
Credit Provider or its designee. Pledged Bonds shall be released only upon
receipt by the Trustee and the Tender Agent of written notice or telephonic
notice (promptly confirmed in writing) from the Remarketing Agent that the
Pledged Bonds have been remarketed pursuant to Section 309(c) and written notice
from the Letter of Credit Provider that the Letter of Credit has been reinstated
as to such Pledged Bonds.
Section 311. Delivery of Proceeds of Sales.
(a) The proceeds of the sale by the Remarketing Agent of any Series 1998A
Bonds pursuant to Section 309(a) shall be promptly paid on the Purchase Date to
the Tender Agent in immediately available funds and used as set forth in Section
308(a). The proceeds of any sale by the Remarketing Agent of any Series 1998A
Bonds pursuant to Section 309(c) shall be promptly paid to the Letter of Credit
Provider.
(b) Prior to 9:30 a.m., Kansas City Time on the Purchase Date, Interest
Rate Mode Conversion Date or Substitute Letter of Credit Date, the Tender Agent
shall notify the Trustee, the Lessee and the Letter of Credit Provider
specifying the amount of proceeds from the remarketing of tendered Series 1998A
Bonds on deposit with the Tender Agent. Not later than 10:00 a.m. Kansas City
Time on each Purchase Date, Interest Rate Mode Conversion Date or Substitute
Letter of Credit Date, the Trustee shall make a demand for payment under the
Letter of Credit in accordance with Section 504(a)(ii) in an amount equal to the
purchase price of all Series 1998A Bonds to be purchased on such date, less the
amounts furnished to the Tender Agent pursuant to Section 308(a)(i). The Trustee
shall cause the proceeds of the payment under the Letter of Credit to be
delivered to the Tender Agent for purchase of Series 1998A Bonds as described in
Section 308(a)(ii).
ARTICLE IV
CUSTODY AND APPLICATION OF BOND PROCEEDS; PROJECT FUNDS
Section 401. Creation of Project Funds. There is hereby created and
ordered to be established in the custody of the Trustee two special trust funds
to be designated "City of Lenexa, Kansas, Series 1998A and 1998B Project Fund
LabOne, Inc. Project" ("Series 1998A and 1998B Project Fund"), and "City of
Lenexa, Kansas, Series 1998C Project Fund LabOne, Inc. Project" ("Series 1998C
Project Fund").
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Section 402. Application of Bond Proceeds; Deposit into the Project Funds.
The proceeds from the sale of the Series 1998A Bonds and the Series 1998B Bonds
shall be delivered to the Trustee and shall be deposited by the Trustee into the
Series 1998A and 1998B Project Fund. The proceeds from the sale of the Series
1998C Bonds shall be delivered to the Trustee and shall be deposited by the
Trustee into the Series 1998C Project Fund.
Section 403. Disbursements from the Project Funds.
(a) The Trustee shall pay out of the Project Funds upon receipt of Written
Requests amounts equal to the amount certified in the Written Requests to be
payable for any Project Costs and other fees and expenses incurred or to be
incurred by or on behalf of the Issuer or the Lessee in connection with or as an
incident to the issuance and sale of the Bonds; provided, however, that only
Series 1998A and 1998B Project Costs shall be payable from the Series 1998A and
1998B Project Fund and only Series 1998C Project Costs shall be payable from the
Series 1998C Project Fund.
(b) The Lessee is required by Section 3.4(b) of the Lease Agreement to
deliver to the Trustee, the Issuer and the Letter of Credit Provider, within 90
days after the completion of the Project, a certificate of an Authorized Lessee
Representative.
(c) On payment by the Trustee of all Written Requests tendered to the
Trustee under the provisions of paragraph (a) and receipt by the Trustee of the
certificate described in paragraph (b), any moneys remaining in the Project
Funds will be deposited in the Available Moneys Account of the Series 1998A Bond
Fund and used to pay the principal of or interest on the Series 1998A Bonds as
they become due unless the Trustee is directed by the Lessee with the prior
written consent of the Letter of Credit Provider to use such funds to the extent
possible to redeem Bonds pursuant to Section 302(f), in which case such funds
will be deposited in the Available Moneys Account of the Series 1998A Bond Fund
(if the funds are to be used to redeem the Series 1998A Bonds), deposited in the
Series 1998B Bond Fund (if the funds are to be used to redeem the Series 1998B
Bonds) or deposited in the Series 1998C Bond Fund (if the funds are to be used
to redeem the Series 1998C Bonds).
(d) Subject to the provisions of Section 602, moneys at any time on
deposit in the Project Funds shall be invested or reinvested by the Trustee in
Investment Securities maturing at such time or times so that the Trustee will be
able to pay costs of the Project from time to time upon the order of the Lessee
as herein provided. The Trustee is entitled to rely upon a schedule of
anticipated payments of costs of the Project approved by an Authorized Lessee
Representative in scheduling such investments. Any interest or profit on
investments shall be credited to the applicable Project Fund. Any loss on such
investments shall be charged to the applicable Project Fund. The Trustee shall
not be obligated to invest any moneys held by it hereunder except as directed by
the Lessee, pursuant to Section 602 but shall, at least once each quarter,
inform the Issuer and the Lessee of amounts that remain uninvested but are
eligible for investment in Investment Securities. The Trustee may sell or
present for redemption any obligations so purchased whenever it is necessary in
order to provide moneys to meet any payment pursuant to this Section 403 and the
Trustee shall not be liable or responsible for any loss resulting from such
investments.
ARTICLE V
REVENUES AND FUNDS
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Section 501. Creation of the Bond Funds. There is hereby created and
ordered established in the custody of the Trustee three special trust funds in
the name of the Issuer to be designated "City of Lenexa, Kansas, Series 1998A
Bond Fund LabOne, Inc. Project" (herein called the "Series 1998A Bond Fund"),
"City of Lenexa, Kansas, Series 1998B Bond Fund LabOne, Inc. Project" (herein
called the "Series 1998B Bond Fund") and "City of Lenexa, Kansas, Series 1998C
Bond Fund LabOne, Inc. Project" (herein called the "Series 1998C Bond Fund").
There are hereby created and ordered established in the Series 1998A Bond Fund
three separate accounts, to be designated the Available Moneys Account, the
Letter of Credit Account and the Unavailable Moneys Account. Moneys in the
Series 1998A Bond Fund (other than moneys on deposit in the Letter of Credit
Account) that constitute Available Moneys shall be held in the Available Moneys
Account. All other moneys in the Series 1998A Bond Fund (other than moneys on
deposit in the Letter of Credit Account) shall be held in the Unavailable Moneys
Account until such time as such moneys constitute Available Moneys, at which
time such moneys shall be transferred to and held in the Available Moneys
Account.
Section 502. Deposits into the Bond Funds.
(a) The Trustee shall deposit into the Series 1998A Bond Fund, as and when
received, (i) all accrued interest on the Series 1998A Bonds, if any, paid by
the original purchaser of the Series 1998A Bonds; (ii) all Lease Payments
received pursuant to the Lease Agreement and allocated to the Series 1998A Bond
Fund; (iii) the amounts to be deposited in the Series 1998A Bond Fund pursuant
to Section 5.6 of the Lease Agreement; (iv) all interest earned and profits
realized from investments required to be deposited in the Series 1998A Bond Fund
as provided in Section 602; (v) all other moneys received by the Trustee
pursuant to the Lease Agreement when accompanied by directions from the person
depositing such moneys that such moneys are to be paid into the Series 1998A
Bond Fund; (vi) the amounts to be deposited in the Series 1998A Bond Fund
pursuant to Section 403(c) of this Indenture; and (vii) amounts drawn by the
Trustee under the Letter of Credit.
(b) The Trustee shall deposit into the Series 1998B Bond Fund, as and when
received, (i) all accrued interest on the Series 1998B Bonds, if any, paid by
the original purchaser of the Series 1998B Bonds; (ii) all Lease Payments
received pursuant to the Lease Agreement and allocated to the Series 1998B Bond
Fund; (iii) the amounts to be deposited in the Series 1998B Bond Fund pursuant
to Section 5.6 of the Lease Agreement; (iv) all interest earned and profits
realized from investments required to be deposited in the Series 1998B Bond Fund
as provided in Section 602; (v) the amounts to be deposited in the Series 1998B
Bond Fund pursuant to Section 403(c) of this Indenture; and (vi) all other
moneys received by the Trustee pursuant to the Lease Agreement when accompanied
by directions from the person depositing such moneys that such moneys are to be
paid into the Series 1998B Bond Fund.
(c) The Trustee shall deposit into the Series 1998C Bond Fund, as and when
received, (i) all accrued interest on the Series 1998C Bonds, if any, paid by
the original purchaser of the Series 1998C Bonds; (ii) all Lease Payments
received pursuant to the Lease Agreement and allocated to the Series 1998C Bond
Fund; (iii) the amounts to be deposited in the Series 1998C Bond Fund pursuant
to Section 5.6 of the Lease Agreement; (iv) all interest earned and profits
realized from investments required to be deposited in the Series 1998C Bond Fund
as provided in Section 602; (v) the amounts to be deposited in the Series 1998C
Bond Fund pursuant to Section 403(c) of this Indenture; and (vi) all other
moneys received by the Trustee pursuant to the Lease Agreement when accompanied
by directions from the person depositing such moneys that such moneys are to be
paid into the Series 1998C Bond Fund.
Section 503. Application of Moneys in the Bond Funds and Certain Other
Moneys.
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(a) Except as provided in this Section and in Sections 504, 506, 507 and
808, moneys in the Bond Funds shall be expended solely for the payment of the
principal of and redemption premium, if any, on the applicable series of Bonds
as the same mature and become due, or upon the redemption thereof prior to
maturity, the interest on the applicable series of Bonds on the Interest Payment
Dates or upon the redemption thereof prior to maturity.
(b) The Issuer hereby authorizes and directs the Trustee to withdraw
moneys from the Bond Funds to pay the principal of, redemption premium, if any,
and interest on the applicable series of Bonds as the same become due and
payable and to make said funds so withdrawn available to the Paying Agent for
the purpose of paying such principal, redemption premium, if any, and interest.
(c) The Trustee shall make funds available from the Bond Funds to the
Paying Agent for the purpose of paying the principal of and interest on the
Series 1998A Bonds as the same become due and payable in the following order of
priority:
(i) Amounts held in the Available Moneys Account of the Series
1998A Bond Fund;
(ii) Amounts drawn by the Trustee under the Letter of Credit and held
in the Letter of Credit Account, and proceeds from the investment thereof;
(iii)Amounts held in the Unavailable Moneys Account of the Series
1998A Bond Fund that do not constitute Available Moneys; and
(iv) Amounts held in the Series 1998B Bond Fund and the Series 1998C
Bond Fund.
(d) The Trustee shall make funds available from the Series 1998B Bond Fund
to the Paying Agent for the purpose of paying the principal of and interest on
the Series 1998B Bonds as the same become due and payable.
(e) The Trustee shall make funds available from the Series 1998C Bond Fund
to the Paying Agent for the purpose of paying the principal of and interest on
the Series 1998C Bonds as the same become due and payable.
(f) Whenever the amount of moneys in the Available Moneys Account of the
Series 1998A Bond Fund is sufficient to redeem all of the Series 1998A Bonds
Outstanding and to pay interest to accrue thereon prior to such redemption, the
Issuer, upon request of the Lessee, shall take and cause to be taken the
necessary steps to redeem all such Series 1998A Bonds on the next succeeding
date upon which the Series 1998A Bonds may be redeemed pursuant to paragraph
Section 302(a) for which the required redemption notice may be given or on such
later redemption date as may be specified by the Lessee. Any moneys in the
Available Moneys Account of the Series 1998A Bond Fund may be used to redeem
Bonds if the Lessee is not in default with respect to any payments under the
Lease Agreement and to the extent the moneys are in excess of the amount
required for payment of Series 1998A Bonds theretofore matured or called for
redemption and past due interest in all cases when such Series 1998A Bonds have
not been presented for payment.
(g) Whenever the amount of moneys in the Series 1998B Bond Fund is
sufficient to redeem all of the Series 1998B Bonds Outstanding and to pay
interest to accrue thereon prior to such redemption, the Issuer, upon request of
the Lessee with the written consent of the Letter of Credit Provider, shall take
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and cause to be taken the necessary steps to redeem all such Series 1998B Bonds
on the next succeeding date upon which the Series 1998B Bonds may be redeemed
pursuant to paragraph Section 302(a) for which the required redemption notice
may be given or on such later redemption date as may be specified by the Lessee.
Any moneys in the Series 1998B Bond Fund may be used to redeem Series 1998B
Bonds if the Lessee is not in default with respect to any payments under the
Lease Agreement and to the extent the moneys are in excess of the amount
required for payment of Series 1998B Bonds theretofore matured or called for
redemption and past due interest in all cases when such Series 1998B Bonds have
not been presented for payment.
(h) Whenever the amount of moneys in the Series 1998C Bond Fund is
sufficient to redeem all of the Series 1998C Bonds Outstanding and to pay
interest to accrue thereon prior to such redemption, the Issuer, upon request of
the Lessee with the written consent of the Letter of Credit Provider, shall take
and cause to be taken the necessary steps to redeem all such Series 1998C Bonds
on the next succeeding date upon which the Series 1998C Bonds may be redeemed
pursuant to paragraph Section 302(a) for which the required redemption notice
may be given or on such later redemption date as may be specified by the Lessee.
Any moneys in the Series 1998C Bond Fund may be used to redeem Series 1998C
Bonds if the Lessee is not in default with respect to any payments under the
Lease Agreement and to the extent the moneys are in excess of the amount
required for payment of Series 1998C Bonds theretofore matured or called for
redemption and past due interest in all cases when such Series 1998C Bonds have
not been presented for payment.
Section 504. Letter of Credit.
(a) The Issuer hereby authorizes and directs the Trustee to draw under the
Letter of Credit in accordance with its terms and to transfer such moneys at
such times and in such amounts as to enable the Paying Agent or the Tender
Agent, as the case may be, to (i) make full and timely payment of the principal
of, redemption premium, if any, and interest on the Series 1998A Bonds becoming
due and payable on any date (whether such amounts shall become due by scheduled
payment, interest on an Interest Payment Date, maturity, redemption,
acceleration or otherwise) to the extent moneys described in Section 503(c)(i)
are not available for such payment in accordance with the provisions of Section
503, and (ii) make full and timely payment of the purchase price of all Series
1998A Bonds delivered for purchase on such date and Undelivered Bonds deemed to
be purchased on such date pursuant to Section 306 or 307 to the extent moneys
described in Section 308(a)(i) are not available for such payment. The Trustee
shall, to the extent that any interest due and payable on the Series 1998A Bonds
on any such Interest Payment Date, Purchase Date, Interest Rate Mode Conversion
Date, Substitute Letter of Credit Date or other date cannot be determined, draw
moneys under the Letter of Credit in an amount sufficient to pay such interest
as if the Maximum Rate was in effect.
(b) If the principal of all Bonds at the time Outstanding and the interest
accrued thereon has been declared immediately due and payable, the Issuer hereby
authorizes and directs the Trustee to immediately draw on the Letter of Credit
if and to the extent moneys described in Section 503(c)(i) and (ii) are not
sufficient for such purpose and deposit the proceeds of such draw into the
Letter of Credit Account of the Series 1998A Bond Fund.
(c) During any period in which moneys drawn or otherwise obtained under
the Letter of Credit are held by the Trustee pending payment, the Trustee shall
hold such moneys in the Letter of Credit Account of the Series 1998A Bond Fund
established and maintained for that purpose and shall apply moneys in such
account solely for the payment of the principal of and interest on the Series
1998A Bonds
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as provided in Section 503(c). Moneys so held in the Letter of Credit Account
shall be invested, at the written direction of the Letter of Credit Provider, in
Investment Securities that mature or are subject to redemption at par by the
holder thereof within the earlier of 35 days or on or prior to the date that
such funds will be needed to make full and timely payment of the amounts
described above. Such moneys and any earnings from the investment of such moneys
shall be retained by the Trustee to the extent necessary to assure the amount so
held in the Letter of Credit Account is sufficient to make such timely payment
and to the extent not necessary for such purpose shall be paid to the Letter of
Credit Provider on the Business Day following the timely payment thereof.
Section 505. Payments Due on Days Other Than Business Days. In any case
when the date fixed for payment of the principal of, redemption premium, if any,
or interest on any Bond (including without limitation any date fixed for
redemption) is not a Business Day, then payment of such principal, redemption
premium, if any, or interest need not be made on such due date but may be made
on the next succeeding Business Day with the same force and effect as if made on
such due date, and no interest shall accrue for the period after such due date
with respect to such payment.
Section 506. Nonpresentment of Bonds. If any Bond is not presented for
payment when the principal thereof becomes due, either at its maturity or
otherwise, or at the date fixed for redemption thereof, if funds sufficient to
pay such Bond have been made available to the Paying Agent, all liability of the
Issuer to the Owner thereof for the payment of such Bond shall forthwith cease,
determine and be completely discharged. Thereupon it shall be the duty of the
Paying Agent to hold such fund or funds, uninvested and without liability for
interest thereon, for the benefit of the Owner of such Bond who shall thereafter
be restricted exclusively to such fund or funds for any claim of whatever nature
on his part under this Indenture or on, or with respect to, said Bond, subject
to any unclaimed property laws of the State and in reliance upon an opinion of
counsel. If any Bond is not presented for payment within five years following
the date when such Bond becomes due, whether by maturity or otherwise, the funds
theretofore held by the Paying Agent for payment of such Bond shall be paid
first to the Letter of Credit Provider to the extent that the Paying Agent has
been notified in writing by the Letter of Credit Provider of any amounts owed to
it under the Letter of Credit Provider Documents, and then to the Lessee, and
such Bond shall, subject to the defense of any applicable statute of limitation,
thereafter be an unsecured obligation of the Lessee, and the Owner thereof shall
be entitled to look only to the Lessee for payment, and then only to the extent
of the amount so repaid, and neither the Paying Agent nor the Lessee shall be
liable for any interest thereon nor shall they be regarded as a trustee of such
money.
Section 507. Payment to the Letter of Credit Provider and the Lessee from
the Project Funds and the Bond Funds. After payment in full of the principal of
and redemption premium, if any, and interest on the Parity Bonds (or after
provision has been made for the payment thereof as provided in this Indenture),
and the reasonable fees, charges and expenses of the Trustee, the Bond
Registrar, the Paying Agent, the Remarketing Agent and the Tender Agent and any
other amounts required to be paid under this Indenture and the Lease Agreement,
all amounts remaining in the Project Funds and the Bond Funds upon the
expiration or sooner termination of the Lease Agreement shall be paid as
follows:
(a) First to the Letter of Credit Provider to the extent that the Trustee
has been notified in writing by the Letter of Credit Provider of any amounts
owed to it under the Letter of Credit Provider Documents.
(b) Second, if the Subordinate Bonds are outstanding, to the payment of
the principal of and interest on the Subordinate Bonds.
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(c) Third, to the Lessee.
ARTICLE VI
DEPOSITORIES OF MONEYS, SECURITY FOR DEPOSITS AND INVESTMENT OF FUNDS
Section 601. Moneys to be Held in Trust. All moneys deposited with or paid
to the Trustee for account of any fund or account established under this
Indenture, and all moneys deposited with or paid to the Paying Agent or the
Tender Agent under this Indenture, shall be held by the Trustee, Paying Agent,
or Tender Agent in trust and shall be applied only in accordance with this
Indenture and the Lease Agreement, and shall constitute part of the Trust Estate
and be subject to the lien hereof. Neither the Trustee, Paying Agent nor Tender
Agent shall be under any liability for interest on any moneys received hereunder
except such as may be earned pursuant to Section 602.
Section 602. Investment of Moneys in Funds.
(a) Moneys held in the Bond Funds (except for moneys deposited in the
Letter of Credit Account, the investment of which is governed by Section 504)
and the Project Funds shall be invested and reinvested by the Trustee pursuant
to written direction of the Lessee, signed by an Authorized Lessee
Representative, in Investment Securities that mature or are subject to
redemption at par by the holder thereof on or prior to the date that the
invested funds will be needed for payment or, in the case of Investment
Securities held in the Bond Funds, within 90 days, whichever is earlier;
provided that moneys held in the Project Funds may also be invested in
certificates of deposit or an Investment Contract of the Letter of Credit
Provider that are not fully secured or insured as described in clauses (iii),
(iv) and (v), as the case may be, of the definition of Investment Securities in
Section 101; provided, further, that moneys held in the Available Moneys Account
of the Series 1998A Bond Fund shall be invested only in Government Securities.
(b) The Trustee shall sell and reduce to cash a sufficient amount of such
Investment Securities held by the Trustee in any fund hereunder whenever the
cash balance in such fund is insufficient for the purpose of such fund. Any such
Investment Securities shall be held by or under the control of the Trustee and
shall be deemed at all times a part of the fund in which such moneys are
originally held, and the interest accruing thereon and any profit realized from
such Investment Securities shall be credited to such fund, and any loss
resulting from such Investment Securities shall be charged to such fund.
(c) The Trustee may make any and all investments permitted by this Section
through its own bond department or short-term investment department or with an
affiliate of the Trustee.
ARTICLE VII
PARTICULAR COVENANTS AND PROVISIONS
Section 701. Payment of Principal, Redemption Premium, if any, and
Interest. The Issuer will deposit or cause to be deposited in the Bond Funds
sufficient sums from the rents, revenues and receipts derived by the Issuer
pursuant to the Lease Agreement promptly to meet and pay the principal of,
redemption premium, if any, and interest on the Bonds as the same become due and
payable at the place,
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on the dates and in the manner provided herein and in the Bonds according to the
true intent and meaning thereof.
Section 702. Authority to Execute Indenture and Issue Bonds. The Issuer is
duly authorized under the constitution and laws of the State to execute this
Indenture, to issue the Bonds and to pledge and assign the Trust Estate in the
manner and to the extent herein set forth. All action on the part of the Issuer
for the execution and delivery of this Indenture and the issuance of the Bonds
has been duly and effectively taken and the Bonds in the hands of the Owners
thereof are and will be valid and binding obligations of the Issuer according to
the import thereof.
Section 703. Performance of Covenants. The Issuer will faithfully perform
at all times any and all covenants, agreements, undertakings, stipulations and
provisions contained in this Indenture and the Bonds.
Section 704. Instruments of Further Assurance. The Issuer will do,
execute, acknowledge and deliver, or cause to be done, executed, acknowledged
and delivered, such Supplemental Indentures and such further acts, instruments,
financing statements and other documents as the Trustee may reasonably require
for the better assuring, pledging and assigning unto the Trustee the property
and revenues herein described to the payment of the principal of and redemption
premium, if any, and interest on the Bonds. Except as provided in this Indenture
and the Lease Agreement, the Issuer will not sell, convey, mortgage, encumber or
otherwise dispose of any part of the Trust Estate. Nothing contained herein
shall prevent the Issuer from creating a lien on the Trust Estate junior to the
lien of this Indenture with the express written consent of the Lessee and the
Letter of Credit Provider.
Section 705. Inspection of Project Books. All books and documents in the
Issuer's possession relating to the Project and the payments, revenues and
receipts derived by the Issuer pursuant to the Lease Agreement shall at all
times be open to inspection by such accountants or other agencies as the Trustee
or the Letter of Credit Provider may from time to time designate.
Section 706. Enforcement of Rights Under the Lease Agreement. Subject to
the provisions of Section 814, the Issuer or the Trustee, as the case may be,
will enforce all of its rights and all of the obligations of the Lessee (at the
expense of the Lessee) under the Lease Agreement to the extent necessary to
preserve the Project in good order and repair, and to protect the rights of the
Trustee and the Bondowners under this Indenture with respect to the pledge and
assignment of the Trust Estate. The Trustee, as assignee of the Lease Agreement,
in its name or in the name of the Issuer, may enforce all rights of the Issuer
and all obligations of the Lessee under and pursuant to the Lease Agreement for
and on behalf of the Bondowners, whether or not the Issuer is in default under
this Indenture. The Issuer shall cooperate with the Trustee in enforcing the
payment of all amounts under the Lease Agreement and shall require the Lessee to
perform all of its obligations under the Lease Agreement.
ARTICLE VIII
DEFAULT AND REMEDIES
Section 801. 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":
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(a) Default in the due and punctual payment of any interest on any Bond;
provided, however, that delinquent payments of interest on any Subordinate Bonds
shall only constitute a Default if the Letter of Credit Provider provides
written instruction to the Trustee, the Lessee and the Issuer that such
delinquency is to be deemed an Event of Default under this Indenture;
(b) Default in the due and punctual payment of the principal of, or
redemption premium, if any, on any Bond, whether at the maturity thereof, or
upon proceedings for redemption thereof; provided, however, that delinquent
payments of the principal of or redemption premium on any Subordinate Bonds
shall only constitute an Event of Default if the Letter of Credit Provider
provides written instruction to the Trustee, the Lessee and the Issuer that such
delinquency is to be deemed an Event of Default under this Indenture;
(c) Failure to pay the purchase price of any Parity Bond on the Purchase
Date, Interest Rate Mode Conversion Date or Substitute Letter of Credit Date as
provided in Section 306 or 307;
(d) Default in the performance or observance of any other of the
covenants, agreements or conditions on the part of the Issuer contained in this
Indenture or in the Bonds, and the continuance thereof for a period of 60 days
after written notice given to the Issuer, the Lessee and the Letter of Credit
Provider by the Trustee or to the Trustee, the Lessee, the Issuer and the Letter
of Credit Provider by the Owners of not less than 25% in aggregate principal
amount of the Bonds then Outstanding, provided, however, if the failure stated
in the notice cannot be corrected within said 60-day period, the Trustee may
consent in writing to an extension of such time prior to its expiration and the
Trustee will not unreasonably withhold its consent to such an extension if
corrective action is instituted by the Issuer, the Lessee or the Letter of
Credit Provider within the 60-day period and diligently pursued to completion
and if such consent, in its judgment, does not materially adversely affect the
interests of the Bondowners;
(e) The occurrence of an Event of Bankruptcy with respect to the Issuer;
(f) Failure by the Letter of Credit Provider to pay to the Trustee, after
proper demand in accordance with the terms of the Letter of Credit, any amount
payable thereunder in respect of the principal of and interest on, or the
purchase price of, the Parity Bonds; or
(g) The occurrence of an Event of Bankruptcy with respect to the Letter of
Credit Provider.
Section 802. Acceleration.
(a) If an Event of Default described in clause (a), (b), (c), (f) or (g)
of Section 801 has occurred and is continuing, the Trustee shall, by notice in
writing delivered to the Issuer, the Lessee and the Letter of Credit Provider,
declare the principal of all Bonds then Outstanding and the interest accrued
thereon immediately due and payable, and such principal and interest shall
thereupon become and be immediately due and payable, and the Trustee shall
provide for payment of the principal of and interest on the Bonds as provided in
Section 504.
(b) Subject to the provisions of Section 814, if an Event of Default
described in clause (d) or (e) of Section 801 has occurred and is continuing,
the Trustee may, and upon the written request of the Owners of not less than 25%
in aggregate principal amount of the Bonds then Outstanding or the Letter of
Credit Provider shall, by notice in writing delivered to the Issuer, the Lessee
and the Letter of Credit Provider declare the principal of all Bonds then
Outstanding and the interest accrued thereon immediately
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due and payable, and such principal and interest shall thereupon become and
be immediately due and payable.
(c) On the date of acceleration of payment pursuant to the provisions of
this Section, interest shall cease to accrue on the Bonds Outstanding.
Section 803. Surrender of Possession of Trust Estate; Rights and
Duties of Trustee in Possession.
(a) Subject to Section 814, if an Event of Default has occurred and is
continuing, the Issuer, upon demand of the Trustee (subject to the rights of the
Trustee under Article IX, including its receipt of indemnity acceptable to it
pursuant to Section 901), shall forthwith surrender the possession of, and it
shall be lawful for the Trustee, by such officer or agent as it may appoint, to:
(i) take possession of all or any part of the Trust Estate, together
with the books, papers and accounts of the Issuer pertaining thereto, and
including the rights and the position of the Issuer under the Lease
Agreement, and to hold, operate and manage the same,
(ii) from time to time make all needful repairs and improvements as
shall be deemed wise by the Trustee;
(iii)lease the Project or any part thereof, in the name and for
account of the Issuer, and collect, receive and sequester the rents,
revenues and receipts therefrom, and out of the same and any moneys
received from any receiver of any part thereof pay, and set up proper
reserves for the payment of all proper costs and expenses of so taking,
holding and managing the same, including without limitation (A) reasonable
compensation to the Trustee, its agents and counsel, (B) any reasonable
charges of the Trustee hereunder, (C) any taxes and assessments and other
charges prior to the lien of this Indenture, which the Trustee may deem it
wise to pay, and (D) all expenses of such repairs and improvements, and
the Trustee shall apply the remainder of the moneys so received in
accordance with Section 808.
(b) If an Event of Default has occurred and is continuing, and upon the
filing of a suit or other commencement of judicial proceedings to enforce the
rights of the Trustee and of the Bondowners under this Indenture, the Trustee
shall be entitled, as a matter of right, to the appointment of a receiver or
receivers of the Trust Estate or any part thereof, pending such proceedings,
with such powers as the court making such appointment shall confer.
(c) Whenever all that is due upon the Bonds shall have been paid and all
defaults made good, the Trustee shall surrender possession of the Trust Estate
to the Issuer, its successors or assigns, the same right of entry, however, to
exist upon any subsequent Event of Default.
(d) While in possession of the Trust Estate, the Trustee shall render
annually to the Issuer, the Lessee and the Letter of Credit Provider a
summarized statement of receipts and expenditures in connection therewith.
Section 804. Appointment of Receivers in Event of Default. Subject to
Section 814, if an Event of Default has occurred and is continuing, and upon the
filing of a suit or other commencement of judicial proceedings to enforce the
rights of the Trustee and of the Bondowners and Letter of Credit
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Provider under this Indenture, the Trustee shall be entitled, as a matter of
right, to the appointment of a receiver or receivers of the Trust Estate and of
the earnings, income, products and profits thereof, pending such proceedings,
with such powers as the court making such appointment shall confer.
Section 805. Exercise of Remedies by the Trustee.
(a) Subject to Section 814, if an Event of Default has occurred and is
continuing, the Trustee may pursue any available remedy at law or equity by
suit, action, mandamus or other proceeding to enforce the payment of the
principal of and redemption premium, if any, and interest on the Bonds then
Outstanding, and to enforce and compel the performance of the duties and
obligations of the Issuer as herein set forth.
(b) Subject to Section 814, if an Event of Default has occurred and is
continuing, and if requested so to do by the Owners of not less than 25% in
aggregate principal amount of the Bonds then Outstanding and indemnified as
provided in Section 901(l), the Trustee shall be obligated to exercise such one
or more of the rights and powers conferred by this Article as the Trustee, being
advised by counsel, deems most expedient in the interests of the Bondowners.
(c) All rights of action under this Indenture or under any of the Bonds
may be enforced by the Trustee without the possession of any of the Bonds or the
production thereof in any trial or other proceedings relating thereto, and any
such suit or proceeding instituted by the Trustee shall be brought in its name
as Trustee without the necessity of joining as plaintiffs or defendants any
Bondowner, and any recovery or judgment shall, subject to Section 808, be for
the equal benefit of all the Owners of the Outstanding Bonds.
Section 806. Limitation on Exercise of Remedies by Bondowners.
(a) Subject to Section 814, no Bondowner or beneficial owner thereof shall
have any right to institute any suit, action or proceeding in equity or at law
for the enforcement of this Indenture or for the execution of any trust
hereunder or for the appointment of a receiver or any other remedy hereunder,
unless:
(i) a default has occurred of which the Trustee has been notified as
provided in subparagraph (h) of Section 901 or of which by said
subparagraph the Trustee is deemed to have notice, and
(ii) such default has become an Event of Default, and
(iii)the Owners of not less than 25% in aggregate principal amount of
the Bonds then Outstanding have made written request to the Trustee, have
offered it reasonable opportunity either to proceed to exercise the powers
hereinbefore granted or to institute such action, suit or proceeding in
its own name, and have offered to the Trustee indemnity as provided in
Section 901(l), and
(iv) the Trustee thereafter fails or refuses to exercise the powers
herein granted or to institute such action, suit or proceeding in its own
name;
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and such notification, request and offer of indemnity are hereby declared in
every case, at the option of the Trustee, to be conditions precedent to the
execution of the powers and trusts of this Indenture, and to any action or cause
of action for the enforcement of this Indenture, or for the appointment of a
receiver or for any other remedy hereunder, it being understood and intended
that no one or more Bondowners shall have any right in any manner whatsoever to
affect, disturb or prejudice this Indenture by its, his or their action or to
enforce any right hereunder except in the manner herein provided, and that all
proceedings at law or in equity shall be instituted, had and maintained in the
manner herein provided and, subject to the Section 808, for the equal benefit of
the Owners of all Bonds then Outstanding.
(b) Nothing in this Indenture, however, shall affect or impair the right
of any Bondowner to payment of the principal of, redemption premium, if any, and
interest on any Bond at and after its maturity or the obligation of the Issuer
to pay the principal of, redemption premium, if any, purchase price and interest
on each of the Bonds to the respective Owners thereof at the time, place, from
the source and in the manner herein and in such Bond expressed.
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Section 807. Right of Bondowners to Direct Proceedings. Subject to Section
814 and any other provision in this Indenture to the contrary notwithstanding,
the Owners of a majority in aggregate principal amount of the Bonds then
Outstanding shall have the right, at any time, by an instrument or instruments
in writing executed and delivered to the Trustee, to direct the time, method and
place of conducting all proceedings to be taken in connection with the
enforcement of this Indenture, or for the appointment of a receiver or any other
proceedings hereunder; provided that such direction shall not be otherwise than
in accordance with the provisions of law and of this Indenture, and provided,
further, that the Trustee shall have the right to decline to follow any such
direction if the Trustee in good faith determines that the proceeding so
directed would involve it in personal liability.
Section 808. Application of Moneys in Event of Default.
(a) Upon an Event of Default all moneys held or received by the Trustee
pursuant to this Indenture, the Lease Agreement, the Letter of Credit or
pursuant to any right given or action taken under this Article shall, after
payment of the reasonable fees, costs and expenses of the Trustee and the Issuer
in connection with the proceedings resulting in the collection of such moneys be
deposited in the Bond Funds and all moneys so deposited in the Bond Funds shall
be applied as follows:
(i) If the principal of all the Bonds has not become or has not been
declared due and payable, all such moneys shall be applied:
First: To the payment to the persons entitled thereto of all
installments of interest then due and payable on the Parity Bonds
(excluding Lessee Bonds), in the order in which such installments of
interest became due and payable, with interest thereon at the rate or
rates specified in the respective Parity Bonds to the extent
permitted by law, and, if the amount available is not sufficient to
pay in full any particular installment, then to the payment ratably,
according to the amounts due on such installment, to the persons
entitled thereto, without any discrimination or privilege.
Second: To the payment to the persons entitled thereto of the
unpaid principal of and redemption premium, if any, on any of the
Parity Bonds (other than Lessee Bonds) that have become due and
payable (other than Parity Bonds called for redemption for the
payment of which moneys or securities are held pursuant to this
Indenture), in the order of their due date, with interest on such
principal and redemption premium, if any, at the rate or rates
specified in the respective Parity Bonds (other than Lessee Bonds)
from the respective dates upon which they became due and payable,
and, if the amount available is not sufficient to pay in full such
principal and redemption premium, if any, due on any particular date,
together with such interest, then to the payment ratably, according
to the amounts of principal and redemption premium, if any, due on
such date, to the persons entitled thereto without any discrimination
or privilege.
Third: To the payment of the reasonable expenses, liabilities
and advances incurred or made by the Trustee.
Fourth: To the payment of all amounts due to the Letter of
Credit Provider under the Letter of Credit Documents.
Fifth: To the payment of all amounts due with respect to
Lessee Bonds.
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Sixth: To the payment to the persons entitled thereto of all
installments of interest then due and payable on the Subordinate
Bonds, in the order in which such installments of interest became due
and payable, with interest thereon at the rate or rates specified in
the respective Subordinate Bonds to the extent permitted by law, and,
if the amount available is not sufficient to pay in full any
particular installment, then to the payment ratably, according to the
amounts due on such installment, to the persons entitled thereto,
without any discrimination or privilege.
Seventh: To the payment to the persons entitled thereto of the
unpaid principal of and redemption premium, if any, on any of the
Subordinate Bonds that have become due and payable (other than
Subordinate Bonds called for redemption for the payment of which
moneys or securities are held pursuant to this Indenture), in the
order of their due date, with interest on such principal and
redemption premium, if any, at the rate or rates specified in the
respective Subordinate Bonds from the respective dates upon which
they became due and payable, and, if the amount available is not
sufficient to pay in full such principal and redemption premium, if
any, due on any particular date, together with such interest, then to
the payment ratably, according to the amounts of principal and
redemption premium, if any, due on such date, to the persons entitled
thereto without any discrimination or privilege.
(ii) If the principal of all the Bonds has become due or has been
declared due and payable, all such moneys shall be applied first to the
payment of the principal, redemption premium, if any, and interest then
due and unpaid on all of the Parity Bonds (except the Lessee Bonds), with
interest on such principal and redemption premium, if any, and, to the
extent permitted by law, on such interest, at the rate or rates specified
in the respective Parity Bonds, without preference or priority of
principal, redemption premium or interest over principal, redemption
premium or interest or of any installment of interest over any other
installment of interest or of any Parity Bond over any other Parity Bond,
ratably, according to the amounts due respectively for principal,
redemption premium, if any, and interest, to the persons entitled thereto,
without any discrimination or privilege. The principal of, redemption
premium, if any, and interest due and unpaid on all Lessee Bonds shall
only be paid upon payment in full of all the Parity Bonds Outstanding
(other than Lessee Bonds) and payment of all amounts due to the Letter of
Credit Provider under the Letter of Credit Documents.
(iii)If the principal of all the Bonds has become due or has been
declared due and payable and all payments specified under Section 808
(a)(ii) have been made, all such moneys shall be applied next to the
payment of the principal, redemption premium, if any, and interest then
due and unpaid on all of the Subordinate Bonds, with interest on such
principal and redemption premium, if any, and, to the extent permitted by
law, on such interest, at the rate or rates specified in the respective
Subordinate Bonds, without preference or priority of principal, redemption
premium or interest over principal, redemption premium or interest or of
any installment of interest over any other installment of interest or of
any Subordinate Bond over any other Subordinate Bond, ratably, according
to the amounts due respectively for principal, redemption premium, if any,
and interest, to the persons entitled thereto, without any discrimination
or privilege. The principal of, redemption premium, if any, and interest
due and unpaid on all Subordinate Bonds shall only be paid upon payment in
full of all the Parity Bonds Outstanding and payment of all amounts due to
the Letter of Credit Provider under the Letter of Credit Documents.
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(iv) If the principal of all the Bonds has been declared due and payable,
and if such declaration thereafter has been rescinded and annulled under this
Article then, subject to subparagraphs (a)(ii) and (a) (iii) of this Section, in
the event that the principal of all the Bonds later becomes due or is declared
due and payable, the moneys shall be applied in accordance with subparagraph
(a)(i) of this Section.
(b) Whenever moneys are to be applied pursuant to this Section, such
moneys shall be applied at such times and from time to time as the Trustee shall
determine, having due regard to the amount of such moneys available and which
may become available for such application in the future. Whenever the Trustee
shall apply such moneys, it shall fix the date (which shall be an Interest
Payment Date unless the Trustee shall deem another date more suitable) upon
which such application is to be made and upon such date interest on the amounts
of principal to be paid on such dates shall cease to accrue. The Trustee shall
give the Owners notice of the proposed payment of any defaulted interest and
shall give such other notice as it may deem appropriate of the deposit with it
of any such moneys and of the fixing of any such date and shall not be required
to make payment to the Owner of any Bond until such Bond shall be presented to
the Trustee for appropriate endorsement or for cancellation if fully paid.
(c) Whenever all of the Bonds and interest thereon have been paid under
this Section, and all fees, expenses and charges of the Trustee have been paid,
any balance remaining in the Bond Funds shall be paid to the Letter of Credit
Provider or the Lessee as provided in Section 507.
(d) Nothing in this Section is intended to authorize or permit the Trustee
to draw on the Letter of Credit for payment of the Trustee's fees or expenses,
the Tender Agent's fees or expenses or the payment of any amount due with
respect to the Subordinate Bonds or to use any amount drawn under the Letter of
Credit for payment of the Trustee's fees or expenses, the Tender Agent's fees or
expenses or the payment of any amount due with respect to the Subordinate Bonds.
Section 809. Remedies Cumulative. No remedy conferred by this Indenture
upon or reserved to the Trustee or to the Bondowners is intended to be exclusive
of any other remedy, but each and every such remedy shall be cumulative and
shall be in addition to any other remedy given to the Trustee or to the
Bondowners hereunder or now or hereafter existing at law or in equity or by
statute.
Section 810. Delay or Omission Not Waiver. No delay or omission to
exercise any right, power or remedy accruing upon any default or Event of
Default shall impair any such right, power or remedy or shall be construed to be
a waiver of any such default or Event of Default or acquiescence therein, and
every such right, power or remedy may be exercised from time to time and as
often as may be deemed expedient.
Section 811. Effect of Discontinuance of Proceedings. If the Trustee has
proceeded to enforce any right under this Indenture by the appointment of a
receiver, by entry, or otherwise, and such proceedings have been discontinued or
abandoned for any reason, or have been determined adversely, then and in every
such case the Issuer, the Lessee, the Trustee, the Letter of Credit Provider and
the Bondowners shall be restored to their former positions and rights hereunder,
and all rights, remedies and powers of the Trustee shall continue as if no such
proceedings had been taken.
Section 812. Waivers of Events of Default. Subject to Section 814, the
Trustee shall waive any Event of Default and its consequences and rescind any
declaration of maturity of principal upon the written request of the Owners of a
majority in aggregate principal amount of the Bonds then Outstanding;
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provided that there shall not be waived without the consent of the Owners of all
the Bonds Outstanding (a) any Event of Default in the payment of the principal
of any Outstanding Bonds at their maturity, (b) any Event of Default in the
payment of the purchase price of any Outstanding Bonds, or (c) any Event of
Default in the payment when due of the interest on any such Bonds unless, prior
to such waiver or rescission, all arrears of interest, with interest (to the
extent permitted by law) at the rate borne by the Bonds on overdue installments
of interest in respect of which such default shall have occurred, or all arrears
of payments of principal when due, as the case may be, and all fees, charges and
expenses of the Trustee in connection with such Event of Default shall have been
paid or provided for; and, provided further, the Trustee shall not waive an
Event of Default described in Section 801(g) unless the Trustee has received
written notification from the Letter of Credit Provider consenting to such
waiver and stating that the Event of Bankruptcy has been discharged or dismissed
and that the Letter of Credit has been reinstated in full. In case of any such
waiver or rescission, or in case any proceeding taken by the Trustee on account
of any such Event of Default has been discontinued or abandoned or determined
adversely, then and in every such case the Issuer, the Lessee, the Trustee, the
Bondowners and the Letter of Credit Provider shall be restored to their former
positions, rights and obligations hereunder, respectively, but no such waiver or
rescission shall extend to any subsequent or other default, or impair any right
consequent thereon.
Section 813. Opportunity of Lessee and the Letter of Credit Provider to
Cure Defaults. With regard to any alleged default concerning which notice is
given to the Lessee and the Letter of Credit Provider under Section 801(d), the
Issuer hereby grants the Lessee and the Letter of Credit Provider full authority
on behalf of the Issuer to perform any covenant, agreement or obligation, the
nonperformance of which is alleged in said notice to constitute a default, in
the name and stead of the Issuer, with full power to do any and all things and
acts to the same extent that the Issuer could do and perform any such things and
acts in order to remedy such default.
Section 814. Letter of Credit Provider to Direct Trustee. Any provision in
this Article to the contrary notwithstanding, if an Event of Default described
in subparagraph (a), (b), (c), (f) or (g) of Section 801 has occurred and is
continuing, the Letter of Credit Provider has no right to direct the Trustee in
exercising its remedies under this Indenture. Upon an Event of Default described
in subparagraph (d) or (e) of Section 801, the Trustee (a) shall exercise the
remedies provided for under this Indenture only if and as directed in writing by
the Letter of Credit Provider and (b) shall not waive any Event of Default or
rescind any declaration of maturity of principal without the prior written
consent of the Letter of Credit Provider. Any direction from the Letter of
Credit Provider must be in accordance with the provisions of law and of this
Indenture. The Trustee shall have the right to decline to follow any direction
if the Trustee in good faith determines that the proceeding so directed would
involve it in personal liability.
Section 815. Rights of Letter of Credit Provider. As long as the Letter of
Credit is in effect, no Event of Default described in subparagraphs (a), (b),
(c), (f) or (g) of Section 801 has occurred and is continuing and the Letter of
Credit Provider is not insolvent, the Letter of Credit Provider shall be deemed
to be the Owner of all Bonds that are secured by the Letter of Credit, all
Pledged Bonds and all Lessee Bonds for all purposes of this Article following
the occurrence of an Event of Default under this Indenture.
If (i) an Event of Default shall occur and be continuing under this
Indenture, or (ii) the Trustee shall draw under the Letter of Credit in
connection with the redemption or mandatory tender in whole of the Bonds, and in
either such case the Letter of Credit Provider shall have provided the Trustee
with funds pursuant to the Letter of Credit for the payment in full of principal
or redemption price, if any, of and the interest on the Bonds, then, and in such
event, the Letter of Credit Provider shall be subrogated to all rights
theretofore possessed under the Indenture by the Trustee and the Owners in
respect of which such principal
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or redemption price, if any, and interest shall have been paid with funds
provided by the Letter of Credit Provider and not fully reimbursed to the Letter
of Credit Provider. After the payment in full of all bonds owned by the Owners,
any reference herein to the holders of the Bonds or to the Owners shall mean the
Letter of Credit Provider to the extent of those subrogation rights resulting
from the payments made pursuant to the Letter of Credit.
Section 816. Surrender of Letter of Credit. If at any time a Substitute
Letter of Credit is delivered to the Trustee, together with the other documents
and opinions required by this Indenture, then the Trustee shall accept such
Substitute Letter of Credit and concurrently with the acceptance thereof, the
Trustee shall surrender the Letter of Credit previously in effect to the issuer
thereof, in accordance with the terms thereof. If at any time there shall cease
to be any Parity Bonds Outstanding under this Indenture, or if the Letter of
Credit expires in accordance with the terms of such Letter of Credit, the
Trustee shall surrender the Letter of Credit to the issuer thereof for
cancellation. The Trustee shall comply with any procedures set forth in the
Letter of Credit relating to the termination thereof.
ARTICLE IX
TRUSTEE, REMARKETING AGENT AND TENDER AGENT
Section 901. Acceptance of the Trusts. The Trustee hereby accepts the
trusts imposed upon it by this Indenture and the Letter of Credit, the Bond
Pledge Agreement, the Lease Agreement and any and all other documents executed
in connection with the Bonds (the "Related Documents"), and agrees to perform
said trusts exercising the same degree of care and skill as a prudent corporate
trustee ordinarily would exercise under the circumstances, but only upon and
subject to the following express terms and conditions, and no implied covenants
or obligations shall be read into this Indenture and the Related Documents
against the Trustee:
(a) The Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and the Related
Documents. If any Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and the Related Documents, and shall use the same degree of care
and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of his affairs.
(b) The Trustee may execute any of the trusts or powers or perform
any duties hereunder or under the Related Documents either directly or
through agents, attorneys or receivers and shall not be responsible for
any misconduct or negligence on the part of any agent, attorney or
receiver appointed or chosen by it with due care, and the Trustee shall be
entitled to act and shall be protected in acting or relying upon the
opinion or advice of counsel, who may be counsel to the Issuer, to the
Lessee or to the Letter of Credit Provider, concerning all matters of
trust hereof, the duties hereunder and the duties under the Related
Documents, and may in all cases pay such reasonable compensation to all
such agents, attorneys and receivers as may reasonably be employed in
connection with the trusts hereof. The Trustee shall not be responsible
for any loss or damage resulting from any action or nonaction by it taken
or omitted to be taken in good faith in reliance upon such opinion or
advice of counsel.
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(c) The Trustee shall not be responsible for any recital herein, the
Related Documents or in the Bonds (except with respect to the Certificate
of Authentication executed by the Trustee), or for insuring the Project or
collecting any insurance moneys, or for the validity of the execution by
the Issuer of this Indenture or of any Supplemental Indentures or
instruments of further assurance, or for the sufficiency of the security
for the Bonds. The Trustee shall not be responsible or liable for any loss
suffered in connection with any investment of funds made by it in
accordance with Article VI.
(d) The Trustee shall not be accountable for the use of any Bonds
authenticated and delivered hereunder. The Trustee, in its individual or
any other capacity, may become the owner or pledgee of Bonds with the same
rights which it would have if it were not Trustee.
(e) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
affidavit, letter, telegram or other paper or document provided for under
this Indenture or the Related Documents reasonably believed by it to be
genuine and correct and to have been signed, presented or sent by the
proper person or persons.
(f) As to the existence or nonexistence of any fact or as to the
sufficiency or validity of any instrument, paper or proceeding, or
whenever in the administration of the trust created under this Indenture
and the Related Documents the Trustee shall deem it desirable that a
matter be proved or established prior to taking, suffering or omitting any
action thereunder, the Trustee shall be entitled to rely upon a
certificate signed by the Authorized Issuer Representative, the Authorized
Lessee Representative or the Authorized Letter of Credit Provider
Representative, as the case may be, as sufficient evidence of the facts
therein contained, and prior to the occurrence of a default of which the
Trustee has been notified as provided in subparagraph (h) of this Section
or of which by said subparagraph it is deemed to have notice, the Trustee
shall also be at liberty to accept a similar certificate to the effect
that any particular dealing, transaction or action is necessary or
expedient, but may at its discretion secure such further evidence deemed
necessary or advisable, but shall in no case be bound to secure the same.
(g) The permissive right of the Trustee to do things enumerated in
this Indenture and the Related Documents shall not be construed as a duty,
and the Trustee shall not be answerable for other than its negligence or
willful misconduct.
(h) The Trustee shall not be required to take notice or be deemed to
have notice of any default hereunder or under the Related Documents except
for Events of Default under subparagraphs (a), (b), (c) or (f) of Section
801, unless the Trustee is specifically notified in writing of such
default by the Issuer, by the Owners of at least 25% in aggregate
principal amount of all Bonds then Outstanding or by the Letter of Credit
Provider.
(i) At any and all reasonable times the Trustee and its duly
authorized agents, attorneys, experts, engineers, accountants and
representatives shall have the right, but shall not be required, to
inspect any and all of the property herein and in the Related Documents
conveyed, including all books, papers and records of the Issuer pertaining
to the Project and the Bonds, and to take such memoranda from and in
regard thereto as may be desired.
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(j) The Trustee shall not be required to give any bond or surety in
respect of the execution of its trusts and powers hereunder or under the
Related Documents or otherwise in respect of the Project.
(k) The Trustee shall have the right, but shall not be required, to
demand, in respect of the authentication of any Bonds, the withdrawal of
any cash, the release of any property or any action whatsoever within the
purview of this Indenture, any showings, certificates, opinions,
appraisals or other information or corporate action or evidence thereof,
in addition to that by the terms hereof required, as a condition of such
action by the Trustee deemed desirable for the purpose of establishing the
right of the Issuer to the authentication of any Bonds, the withdrawal of
any cash, the release of any property or the taking of any other action by
the Trustee.
(l) Before taking any action under this Indenture or the Related
Documents, the Trustee may require that satisfactory indemnity be
furnished to it for the reimbursement of all reasonable fees, costs and
expenses to which it may be put and to protect it against all liability it
may incur in or by reason of such action including, without limitation,
liability in connection with environmental contamination and the cleanup
thereof, except liability which is adjudicated to have resulted from its
negligence or willful misconduct by reason of any action so taken;
provided, however, the Trustee may not require indemnity before making
payments or principal and interest when due on the Bonds from Available
Moneys on deposit in the Series 1998A Bond Fund or making draws on the
Letter of Credit as required by the terms of this Indenture or
accelerating the Bonds in accordance with the terms hereof.
(m) The Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture or the Related Documents.
(n) The Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the
direction of the Owner of a majority in principal amount of the
Outstanding Bonds relating to the time, method and place of conducting any
proceedings for any remedy available to the Trustee under this Indenture
or Related Documents.
(o) No provision of this Indenture or the Related Documents shall
require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder or
in the exercise of any of its rights or powers, if there is reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
(p) Any request or direction of the Issuer, the Letter of Credit
Provider or the Lessee mentioned herein shall, unless other evidence is
specifically provided for, be sufficiently evidenced by a document signed
by, respectively, an Authorized Issuer Representative, an Authorized
Letter of Credit Provider Representative, or an Authorized
Lessee Representative.
(q) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture or other paper or document, but the Trustee in its
discretion may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be
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entitled to examine the books, records and premises of the Lessee,
personally or by agent or attorney.
(r) The Trustee shall be under no duty, obligation or responsibility
to verify any insurance policy, audit, schedule, statement, report, surety
bond or other instrument required or directed to be delivered or filed
with it by any of the provisions hereof nor shall it be under any duty of
any other character with respect thereto; except to review such document
to verify compliance with the Indenture or the Lease Agreement or exhibit
such documents as it may have in its possession or give the same from time
to time during reasonable business hours to any Registered Owner desiring
to make any inspection thereof.
(s) The Trustee will not be liable for any error of judgment made in
good faith by an officer director or employee of the Trustee, unless it is
proved that the Trustee was negligent in ascertaining the pertinent facts.
(t) The Trustee may elect not to proceed in accordance with the
directions of the Owners without incurring any liability to the Owner if
in the opinion of the Trustee such direction may result in environmental
or other liability to the Trustee, in its capacity as trustee or in an
individual capacity for which the Trustee has not received indemnity
pursuant to subparagraph (l) from the Owners. The Trustee may rely upon an
opinion of counsel addressed to the Issuer and the Trustee in determining
whether any action directed by the Owners may result in such liability.
(u) Notwithstanding anything to the contrary contained in this
Indenture, in the event the Trustee is entitled or required to commence an
action or otherwise exercise remedies to acquire control or possession of
any or all of the Project, the Trustee shall not be required to commence
any such action or exercise any such remedy if the Trustee has determined
in good faith that it may incur liability under an Environmental Law (as
defined below) as the result of the presence at, or release on or from the
Project of any Hazardous Material (as defined below) unless the Trustee
has received security or indemnity, from a person, in an amount and in a
form all satisfactory to the Trustee in its sole discretion, protecting
the Trustee from all such liability. The term "Hazardous Materials" as
used herein shall mean any flammable explosives, radon, radioactive
materials, asbestos, urea formaldehyde foam insulation, polychlorinated
biphenyls, petroleum, petroleum-based products, methane, hazardous
materials, hazardous wastes, hazardous or toxic substances or related
materials as set forth in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. Sections
9601, et seq.), the Hazardous Materials Transportation Act, as amended (49
U.S.C. Section 1801, et seq.), the Resource Conservation and Recovery Act,
as amended (42 U.S.C. Sections 6901, et seq.), the Toxic Substances
Control Act, as amended (15 U.S.C. Sections 2601, et seq.), or any other
applicable Environmental Law and the regulations promulgated thereunder.
The term "Environmental Laws" shall mean all federal, state and local
environmental, land use, zoning, health, chemical use, safety and
sanitation laws, statutes, ordinances and codes relating to the protection
of the environment or governing the use, storage, treatment, generation,
transportation, processing, handling, production or disposal of Hazardous
Materials and the rules, regulations, policies, guidelines,
interpretations, decisions, orders and directives of federal, state and
local governmental agencies and authorities with respect thereto.
(v) Notwithstanding any other provision of this Indenture to the
contrary, any provision intended to provide authority to act, right to
payment of fees and expenses, protection,
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immunity and indemnification to the Trustee shall be interpreted to
include any action of the Trustee whether it is deemed to be in its
capacity as Trustee, Bond Registrar or Paying Agent.
Section 902. Fees, Charges and Expenses of the Trustee. The Trustee shall
be entitled to payment of and/or reimbursement for reasonable fees for its
ordinary services rendered under this Indenture and all advances, agent and
counsel fees and other ordinary expenses reasonably and necessarily made or
incurred by the Trustee in connection with such ordinary services and, if it
becomes necessary that the Trustee perform extraordinary services, it shall be
entitled to reasonable extra compensation therefor and to reimbursement for
reasonable and necessary extraordinary expenses in connection therewith;
provided that if such extraordinary services or extraordinary expenses are
occasioned by the negligence or willful misconduct of the Trustee it shall not
be entitled to compensation or reimbursement therefor. The Trustee shall be
entitled to payment and reimbursement for the reasonable fees and charges of the
Trustee as Paying Agent for the Bonds and as Bond Registrar. Pursuant to Section
4.4 of the Lease Agreement, the Lessee has agreed to pay to the Trustee all
fees, charges and expenses of the Trustee under this Indenture. The Trustee
agrees that the Issuer shall have no liability for any fees, charges and
expenses of the Trustee and that no fees, charges or expenses of the Trustee
shall be paid from moneys drawn under the Letter of Credit, and the Trustee
agrees to look only to the Lessee for the payment of all fees, charges and
expenses of the Trustee, the Paying Agent and the Bond Registrar as provided in
the Lease Agreement; provided, however, upon the occurrence of an Event of
Default and during its continuance and subject to the Letter of Credit Provider
Documents so long as the Letter of Credit Provider has honored all properly
presented and conforming draws on the Letter of Credit, the Trustee shall have a
first lien with right of payment prior to payment on account of principal of,
redemption premium, if any, or interest on any Bond, upon all moneys in its
possession except from moneys received from drawings under the Letter of Credit,
under any provision hereof for the foregoing advances, fees, costs and expenses
incurred.
Section 903. Notice to Bondowners, the Issuer and the Letter of Credit
Provider if Default Occurs. If an Event of Default occurs of which the Trustee
is by subparagraph (h) of Section 901 required to take notice or if notice of an
Event of Default is given as provided in subparagraph (h), then the Trustee
shall give immediate written notice thereof as provided in Section 1303 to the
Issuer and the Letter of Credit Provider and shall give written notice promptly
thereafter by first class mail, postage prepaid, to the Owners of all Bonds then
Outstanding at their respective addresses appearing on the Bond Register.
Section 904. Intervention by the Trustee. In any judicial proceeding to
which the Issuer is a party and which, in the opinion of the Trustee and its
counsel, has a substantial bearing on the interests of the Bondowners or the
Letter of Credit Provider, the Trustee may intervene on behalf of Bondowners and
the Letter of Credit Provider and shall do so if requested in writing by the
Owners of at least 25% in aggregate principal amount of the Bonds then
Outstanding or the Letter of Credit Provider, provided that the Trustee shall
first have been offered such reasonable indemnity as it may require against the
costs, expenses and liabilities which it may incur in or by reason of such
proceeding.
Section 905. Successor Trustee Upon Merger, Consolidation or Sale. Any
corporation or association into which the Trustee may be merged or converted or
with or into which it may be consolidated, or to which it may sell or transfer
its corporate trust business and assets as a whole or substantially as a whole,
or any corporation or association resulting from any merger, conversion, sale,
consolidation or transfer to which it is a party, shall be and become successor
Trustee hereunder and shall be vested with all the trusts, powers, rights,
obligations, duties, remedies, immunities and privileges hereunder as was its
predecessor, without the execution or filing of any instrument or any further
act on the part of any of the parties hereto.
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Section 906. Resignation of Trustee or Paying Agent. The Trustee or Paying
Agent may at any time resign from the trusts hereby created by giving at least
30 days written notice to the Issuer, the Lessee, the Remarketing Agent, the
Letter of Credit Provider and the Bondowners, but such resignation shall not
take effect until the appointment of a successor Trustee or Paying Agent by the
Bondowners or by the Issuer pursuant to Section 908 and the acceptance of such
appointment pursuant to Section 909.
Section 907. Removal of Trustee or Paying Agent. The Trustee or Paying
Agent may be removed at any time by an instrument or concurrent instruments in
writing delivered to the Trustee, the Paying Agent (if different from the
Trustee), the Issuer, the Remarketing Agent, the Letter of Credit Provider and
the Lessee and signed by the Issuer (as long as no Event of Default has occurred
and is continuing or no event which, with the giving of notice or passage of
time, would constitute an Event of Default) or the Owners of a majority in
aggregate principal amount of the Bonds then Outstanding, but such removal shall
not take effect until the appointment of a successor Trustee or Paying Agent by
the Bondowners or by the Issuer pursuant to Section 908 and the acceptance of
such appointment pursuant to Section 909.
Section 908. Appointment of Successor Trustee or Paying Agent. If the
Trustee or Paying Agent resigns or is removed, or otherwise becomes incapable of
acting hereunder, or if it is taken under the control of any state or federal
court or administrative body, public officer or officers or of a receiver
appointed by a court, a successor may be appointed by the Owners of a majority
in aggregate principal amount of the Bonds then Outstanding, with the consent of
the Issuer and the Letter of Credit Provider, by an instrument or concurrent
instruments in writing; provided that, in case of such vacancy, the Issuer, by
an instrument executed and signed by its President or Vice President and
attested by its Secretary or Assistant Secretary under its seal, with the
consent of the Letter of Credit Provider, may appoint a temporary Trustee or
Paying Agent to fill such vacancy until a successor Trustee or Paying Agent is
appointed by the Bondowners in the manner above provided; provided further, if
no successor has been appointed within 30 days after notice of the resignation
or removal is given, the Trustee or Paying Agent may petition a court of
competent jurisdiction to appoint a successor. Any such temporary Trustee or
Paying Agent so appointed by the Issuer shall immediately and without further
acts be superseded by the successor Trustee or Paying Agent so appointed by such
Bondowners and consented to by the Issuer and the Letter of Credit Provider.
Every such Trustee or Paying Agent appointed pursuant to this Section shall be a
trust company or bank in good standing and qualified to accept such trusts
having a reported combined capital stock, undivided profits and surplus of not
less than $25,000,000.
Section 909. Vesting of Trusts in Successor Trustee. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to its
predecessors, the Issuer, the Remarketing Agent, the Lessee and the Letter of
Credit Provider an instrument in writing accepting such appointment hereunder,
and thereupon such successor shall become fully vested with all the trusts,
powers, rights, obligations, duties, remedies, immunities and privileges of its
predecessor; but such predecessor nevertheless, on the written request of the
Issuer, shall execute and deliver such instruments as are necessary or desirable
to transfer to such successor Trustee all the trusts, powers, rights,
obligations, duties, remedies, immunities and privileges of its predecessor, and
the duties and obligations of the predecessor hereunder shall cease and
terminate. Every predecessor Trustee shall deliver all securities and moneys
held by it as Trustee hereunder to its successor. Should any instrument in
writing from the Issuer be required by any successor Trustee for more fully and
certainly vesting in such successor the trusts, powers, rights, obligations,
duties, remedies, immunities and privileges hereby vested in the predecessor,
any and all such instruments in writing shall, on request, be executed,
acknowledged and delivered by the Issuer.
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Section 910. Right of Trustee to Pay Taxes and Other Charges. If case any
tax, assessment or governmental or other charge upon, or insurance premium with
respect to, any part of the Project is not paid as required herein or in the
Lease Agreement, the Trustee may pay such tax, assessment or governmental charge
or insurance premium without prejudice to any rights of the Trustee or the
Bondowners or the Letter of Credit Provider hereunder arising in consequence of
such failure; but the Trustee shall be under no obligation to make any such
payment unless it has been requested to do so by the Owners of at least 25% in
aggregate principal amount of the Bonds then Outstanding or the Letter of Credit
Provider and has been provided adequate funds for the purpose of such payment.
Any amount at any time so paid under this Section, with interest thereon from
the date of payment at 2% over the prime rate of interest announced from time to
time by the Trustee, shall become an additional obligation secured by this
Indenture, and the same shall be given a preference in payment over any payment
of principal of or redemption premium, if any, or interest on the Bonds, and
shall be paid out of the proceeds of rents, revenues and receipts derived by the
Issuer pursuant to the Lease Agreement, if not otherwise caused to be paid. In
no event shall such amounts be payable from the proceeds of any draw under the
Letter of Credit.
Section 911. Trust Estate May Be Vested in Co-trustee.
(a) It is a purpose of this Indenture that there shall be no violation of
any law of any jurisdiction (including particularly the State) denying or
restricting the right of banking corporations or associations to transact
business as trustee in such jurisdiction. It is recognized that in case of
litigation under this Indenture or the Lease Agreement and in particular in case
of the enforcement hereof or thereof upon default, or in case the Trustee deems
that by reason of any present or future law of any jurisdiction it may not
exercise any of the powers, rights or remedies herein granted to the Trustee, or
take any other action which may be desirable or necessary in connection
therewith, it may be necessary or desirable that the Trustee appoint, with the
prior written consent of the Letter of Credit Provider, an additional individual
or institution as a co-trustee or separate trustee, and the Trustee is hereby
authorized to appoint, with the prior written consent of the Letter of Credit
Provider, such co-trustee or separate trustee.
(b) If the Trustee appoints and the Letter of Credit Provider consents to
an additional individual or institution as a co-trustee or separate trustee,
each and every remedy, power, right, claim, demand, cause of action, immunity,
title, interest and lien expressed or intended by this Indenture to be exercised
by the Trustee with respect thereto shall be exercisable by such co-trustee or
separate trustee but only to the extent necessary to enable such co-trustee or
separate trustee to exercise such powers, rights and remedies, and every
covenant, agreement and obligation necessary to the exercise thereof by such
co-trustee or separate trustee shall run to and be enforceable by either of
them.
(c) Should any deed, conveyance or instrument in writing from the Issuer
be required by the co-trustee or separate trustee so appointed by the Trustee
for more fully and certainly vesting in and confirming to him or it such
properties, rights, powers, trusts, duties and obligations, any and all such
deeds, conveyances and instruments in writing shall, on request, be executed,
acknowledged and delivered by the Issuer.
(d) If any co-trustee or separate trustee dies, becomes incapable of
acting, resigns or is removed, all the properties, rights, powers, trusts,
duties and obligations of such co-trustee or separate trustee, so far as
permitted by law, shall vest in and be exercised by the Trustee until the
appointment of a successor to such co-trustee or separate trustee.
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Section 912. Annual Accounting. The Trustee shall render an annual
accounting to the Issuer, the Lessee, the Letter of Credit Provider and to any
Bondowner requesting the same, at the cost of such Bondowner, showing in
reasonable detail all financial transactions relating to the Trust Estate during
the accounting period and the balance in any funds created by this Indenture as
of the beginning and close of such accounting period.
Section 913. Remarketing Agent. The Issuer hereby appoints George K. Baum
& Company, Kansas City, Missouri, as the Remarketing Agent under this Indenture.
The Remarketing Agent shall designate to the Trustee, the Tender Agent, the
Lessee and the Letter of Credit Provider its principal office (if different from
the office designated in Section 1303) and signify its acceptance of the duties
and obligations imposed upon it hereunder by entering into the Remarketing
Agreement, under which the Remarketing Agent acknowledges its qualifications and
authority to act as Remarketing Agent under this Indenture and agrees as
follows:
(a) to hold all moneys delivered to it hereunder for the purchase of
Series 1998A Bonds in trust for the benefit of the person which shall have
so delivered such moneys until the Series 1998A Bonds purchased with such
moneys shall have been delivered to or for the account of such person, and
not to commingle such moneys with its general funds;
(b) to keep such books and records as shall be consistent with
prudent industry practice and to make such books and records available for
inspection by the Issuer, the Trustee and the Letter of Credit Provider at
all reasonable times; and
(c) to perform and satisfy all other duties and obligations of the
Remarketing Agent under this Indenture and the Remarketing Agreement.
Section 914. Qualifications of Remarketing Agent.
(a) The Remarketing Agent shall be a financial institution or a member of
the National Association of Securities Dealers, Inc. and shall be authorized by
law to perform all the duties imposed upon it by this Indenture. The Remarketing
Agent may at any time resign and be discharged of its duties hereunder by giving
at least 60 days' notice to the Issuer, the Letter of Credit Provider, the
Lessee, the Tender Agent, the Trustee and the Owners of the Series 1998A Bonds.
The Remarketing Agent may be removed at any time by an instrument signed by the
Lessee and reasonably approved by the Letter of Credit Provider and filed with
the Letter of Credit Provider, the Lessee, the Tender Agent, the Trustee and the
Owners of the Series 1998A Bonds; provided that such resignation or removal
shall not be effective unless and until a successor Remarketing Agent has been
appointed by the Lessee and reasonably approved by the Letter of Credit
Provider.
(b) In the event of the resignation or removal of the Remarketing Agent,
the Remarketing Agent shall pay over, assign and deliver any moneys and Series
1998A Bonds held by it in such capacity to its successor or, if there be no
successor, to the Trustee.
(c) If the Lessee fails to appoint a Remarketing Agent hereunder, or if
the Remarketing Agent resigns or is removed, or is dissolved, or if the property
or affairs of the Remarketing Agent are taken under the control of any state or
federal court or administrative body because of bankruptcy or insolvency, or for
any other reason, and the Lessee has not appointed its successor as Remarketing
Agent, the Tender Agent, upon receipt of written notice from the Lessee and
notwithstanding the provisions of the first paragraph of this Section 914, shall
ipso facto be deemed to be the Remarketing Agent for all purposes of
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this Indenture until the appointment by the Lessee of the successor Remarketing
Agent and approval thereof by the Letter of Credit Provider; provided that the
Tender Agent, in its capacity as Remarketing Agent, shall not be required to
sell Series 1998A Bonds or determine the interest rate on the Series 1998A Bonds
pursuant to the provisions hereof and provided further that the Tender Agent
may, with the approval of the Letter of Credit Provider, appoint a Remarketing
Agent which meets the qualifications set forth in this Section until the
appointment of a successor Remarketing Agent by the Lessee.
Section 915. Tender Agent. The Issuer hereby appoints the Trustee as the
initial Tender Agent under this Indenture, and the Trustee agrees to carry out
its responsibilities described herein. If the Tender Agent is other than the
Trustee, the Tender Agent shall designate to the Trustee, the Remarketing Agent,
the Lessee and the Letter of Credit Provider its Principal Office and signify
its acceptance of the duties and obligations imposed upon it hereunder by
entering into the Tender Agreement, a copy of which shall be delivered to the
Issuer, under which the Tender Agent acknowledges its qualifications and
authority to act as Tender Agent under this Indenture and will agree as follows:
(a) to hold all moneys delivered to it hereunder for the purchase of
Series 1998A Bonds in trust for the benefit of the person which shall have
so delivered such moneys until the Series 1998A Bonds purchased with such
moneys shall have been delivered to or for the account of such person, and
not to commingle such moneys with its general funds;
(b) to hold all Series 1998A Bonds delivered to it hereunder in trust
for the benefit of the respective Bondowners which shall have so delivered
such Series 1998A Bonds until such Series 1998A Bonds are required to be
delivered;
(c) to hold all Pledged Bonds purchased with moneys representing the
proceeds of a drawing on the Letter of Credit pursuant to Section 308 to
be held pursuant to Section 310 as agent and bailee;
(d) to keep such books and records as shall be consistent with
prudent industry practice and to make such books and records available for
inspection at all reasonable times by the Issuer, the Trustee, the
Remarketing Agent and the Letter of Credit Provider; and
(e) to perform and satisfy all other duties and obligations of the
Tender Agent under this Indenture and the Tender Agreement.
Section 916. Qualifications of Tender Agent.
(a) The Tender Agent shall be a bank, shall have a capitalization of at
least $25,000,000 and shall be authorized by law to perform all the duties
imposed upon it by this Indenture. The Tender Agent may at any time resign and
be discharged of its duties hereunder by giving at least sixty (60) calendar
days' notice to the Issuer, the Letter of Credit Provider, the Lessee, the
Remarketing Agent, the Trustee and the Owners. The Tender Agent may be removed
at any time by an instrument signed by the Lessee and reasonably approved by the
Letter of Credit Provider and filed with the Issuer, the Remarketing Agent, the
Letter of Credit Provider, the Trustee and the Owners; provided that neither
such resignation nor such removal shall be effective unless and until a
successor Tender Agent has been appointed by the Lessee and reasonably approved
by the Letter of Credit Provider.
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(b) In the event of the resignation or removal of the Tender Agent, the
Tender Agent shall pay over, assign and deliver any moneys and Series 1998A
Bonds held by it in such capacity to its successor or, if there be no successor,
to the Trustee. Any successor Tender Agent shall designate to the Trustee, the
Remarketing Agent, the Lessee, the Owners and the Letter of Credit Provider its
Principal Office and signify its acceptance of the duties and obligations
imposed upon it hereunder by entering into a tender agreement or other written
agreement satisfactory to the Trustee, the Remarketing Agent, the Lessee and the
Letter of Credit Provider, a copy of which shall be delivered to the Issuer,
under which the successor Tender Agent acknowledges its qualifications and
authority to act as Tender Agent under this Indenture and agrees to the
provisions set forth in subparagraphs (a), (b), (c), (d) and (e) of Section 915.
(c) If the Lessee fails to appoint a Tender Agent hereunder, or if the
Tender Agent resigns or is removed, or is dissolved, or if the property or
affairs of the Tender Agent are taken under the control of any state or federal
court or administrative body because of bankruptcy or insolvency, or for any
other reason, and the Lessee has not appointed its successor as Tender Agent,
the Trustee, upon receipt of written notice from the Lessee and notwithstanding
the provisions of paragraph (a), shall ipso facto be deemed to be the Tender
Agent for all purposes of this Indenture until the appointment by the Lessee of
the successor Tender Agent and approval thereof by the Letter of Credit
Provider.
ARTICLE X
SUPPLEMENTAL INDENTURES
Section 1001. Supplemental Indentures Not Requiring Consent of Bondowners.
Subject to the provisions of Section 1003, the Issuer and the Trustee may from
time to time, without the consent of or notice to any of the Bondowners, enter
into any Supplemental Indenture as may be required for any one or more of the
following purposes:
(a) To cure any ambiguity or formal defect or omission in this
Indenture or to correct or supplement any provision herein which may be
inconsistent with any other provision of this Indenture;
(b) To grant to or confer upon the Trustee for the benefit of the
Bondowners any additional rights, remedies, or authority that may lawfully
be granted to or conferred upon the Bondowners or the Trustee or either of
them;
(c) To more precisely identify the Project or to substitute or add
additional property thereto;
(d) To subject to this Indenture additional revenues, properties or
collateral;
(e) To evidence the appointment of a separate trustee or the
succession of a new Trustee;
(f) To comply with the requirements of the Trust Indenture Act of
1939, as amended;
(g) To extend or renew the Letter of Credit;
(h) To make any other change (except any change described in clauses
(i), (ii), (iii), (iv) or (v) of Section 1002) which, in the sole judgment
of the Trustee, is not prejudicial to the Trustee or the Bondowners;
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(i) To make any other change (except any change described in clauses
(i), (ii), (iii), (iv) or (v) of Section 1002) that would become effective
on an Interest Rate Mode Conversion Date or Substitute Letter of Credit
Date if the related Notice of Interest Rate Mode Conversion, or Notice of
Substitute Letter of Credit, as the case may be, sets forth the nature of
the proposed Supplemental Indenture and states that copies thereof are on
file at the principal corporate trust office of the Trustee for inspection
by all Bondowners; or
(j) To issue Additional Bonds in accordance with Section 211 of this
Indenture.
Section 1002. Supplemental Indentures Requiring Consent of Bondowners.
(a) Exclusive of Supplemental Indentures covered by Section 1001 and
subject to the provisions of Section 1003, the Owners of not less than a
majority in aggregate principal amount of the Bonds at the time Outstanding
shall have the right, from time to time, to consent to and approve the execution
by the Issuer and the Trustee of such other Supplemental Indenture or
Supplemental Indentures as shall be deemed necessary and desirable by the Issuer
for the purpose of modifying, amending, adding to or rescinding, in any
particular, any of the terms or provisions contained in this Indenture or in any
Supplemental Indenture; provided that the consent of all of the Owners of the
Bonds then Outstanding shall be required for (i) an extension of the maturity of
the principal of or the interest on any Bond, (ii) a reduction in the principal
amount of any Bond, the rate of interest or the premium thereon or the purchase
price thereof, (iii) a privilege or priority of any Bond or Bonds over any other
Bond or Bonds (except as otherwise provided herein), (iv) a reduction in the
aggregate principal amount of Bonds the Owners of which are required for consent
to any such Supplemental Indenture, or (v) any change which, in the sole
judgment of the Trustee, adversely affects the rights of the Owners to tender
their Parity Bonds in accordance with Section 306 and 307.
(b) If at any time the Issuer shall request the Trustee to enter into any
such Supplemental Indenture for any of the purposes of this Section, the Trustee
shall cause notice of the proposed execution of such Supplemental Indenture to
be mailed by first class mail, postage prepaid, to each Bondowner at his address
as shown by the Bond Register. Such notice shall briefly set forth the nature of
the proposed Supplemental Indenture, shall state that copies thereof are on file
at the principal corporate trust office of the Trustee for inspection by all
Bondowners and shall state that such Supplemental Indenture shall not become
effective until not less than 51% or 100%, as the case may be, of the Bondowners
have consented thereto. If within 60 days but not exceeding one year following
the mailing of such notice, the Owners of not less than the requisite aggregate
principal amount of the Bonds Outstanding at the time of the execution of any
such Supplemental Indenture shall have consented to and approved the execution
thereof as herein provided, no Owner of any Bond shall have any right to object
to any of the terms and provisions contained therein, or the operation thereof,
or in any manner to question the propriety of the execution thereof, or to
enjoin or restrain the Trustee or the Issuer from executing the same or from
taking any action pursuant to the provisions thereof. Nothing in this Section
contained shall permit or be construed as permitting the modification of the
rights, duties or immunities of the Trustee without the written consent of the
Trustee.
Section 1003. Consent of the Letter of Credit Provider and the Lessee to
Supplemental Indentures. A Supplemental Indenture shall not become effective
unless and until the Letter of Credit Provider and the Lessee shall have
consented in writing to the execution and delivery of such Supplemental
Indenture. In this regard, the Trustee shall cause notice of the proposed
execution and
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delivery of any Supplemental Indenture together with a copy of the proposed
Supplemental Indenture to be mailed to the Letter of Credit Provider and the
Lessee at least 15 days prior to the proposed date of execution and delivery of
such Supplemental Indenture.
Section 1004. Opinion of Bond Counsel. No Supplemental Indenture under
this Article X shall become effective until Bond Counsel has delivered an
opinion to the Issuer, the Trustee, the Remarketing Agent and the Letter of
Credit Provider to the effect that the proposed Supplemental Indenture is
authorized under the Act and the Indenture.
Section 1005. Notice of Supplemental Indenture to Remarketing Agent. The
Trustee shall provide notice to the Remarketing Agent of any proposed
Supplemental Indentures under this Article X.
ARTICLE XI
SUPPLEMENTAL LEASE AGREEMENTS AND AMENDMENTS TO
THE LETTER OF CREDIT
Section 1101. Supplemental Lease Agreements and Amendments to the Letter
of Credit Not Requiring Consent of Bondowners. Subject to the provisions of
Section 1103, the Trustee shall, without the consent of or notice to the
Bondowners, consent to the execution of any Supplemental Lease Agreement or any
amendment to the Letter of Credit as may be required (i) by the Lease Agreement
or this Indenture, (ii) for the purpose of curing any ambiguity or formal defect
or omission, (iii) so as to more precisely identify the Project or substitute or
add additional property thereto, (iv) in connection with any other change
therein which, in the judgment of the Trustee, is not prejudicial to the
Trustee, the Bondowners or the Letter of Credit Provider; (v) in connection with
an extension or renewal of the Letter of Credit, (vi) in connection with the
issuance of Additional Bonds in accordance with Section 211, or (vii) in
connection with any other change therein (except any change described in clauses
(a) or (b) of Section 1102) that would become effective on an Interest Rate Mode
Conversion Date or Substitute Letter of Credit Date if the related Notice of
Interest Rate Mode Conversion or Notice of Substitute Letter of Credit, as the
case may be, sets forth the nature of the proposed Supplemental Lease Agreement
or amendment to the Letter of Credit and states that copies thereof are on file
at the principal corporate trust office of the Trustee for inspection by all
Bondowners.
Section 1102. Supplemental Lease Agreements and Amendments to the Letter
of Credit Requiring Consent of Bondowners. Except for Supplemental Lease
Agreements or amendments to the Letter of Credit covered in Section 1101 and
subject to the provisions of Section 1103, the Trustee shall not consent to the
execution of any Supplemental Lease Agreement or any amendment to the Letter of
Credit without the mailing of notice and the obtaining of the written approval
or consent of the Owners of not less than a majority in aggregate principal
amount of the Bonds at the time Outstanding given and obtained as provided in
Section 1002; provided that the consent of all of the Owners of the Bonds then
Outstanding shall be required for (a) a reduction or extension in the payment of
Lease Payments under the Lease Agreement, or (b) a reduction in the aggregate
principal amount of Bonds the Owners of which are required to consent to any
Supplemental Lease Agreement or amendment to the Letter of Credit. If at any
time the Issuer and the Lessee shall request the consent of the Trustee to any
such proposed Supplemental Lease Agreement or amendment to the Letter of Credit,
the Trustee shall cause notice of such proposed Supplemental Lease Agreement or
amendment to the Letter of Credit to be mailed in the same manner as provided in
Section 1002 with respect to Supplemental Indentures. Such notice shall briefly
set forth the
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nature of such proposed Supplemental Lease Agreement or amendment to the Letter
of Credit and shall state that copies of the same are on file at the principal
corporate trust office of the Trustee for inspection by all Bondowners.
Section 1103. Consent of the Letter of Credit Provider to Supplemental
Lease Agreements. A Supplemental Lease Agreement shall not become effective
unless and until the Letter of Credit Provider shall have consented in writing
to the execution and delivery of such Supplemental Lease Agreement. In this
regard, the Trustee shall cause notice of the proposed execution and delivery of
any Supplemental Lease Agreement together with a copy of the proposed
Supplemental Lease Agreement to be mailed to the Letter of Credit Provider at
least 15 days prior to the proposed date of execution and delivery of such
Supplemental Lease Agreement.
Section 1104. Opinion of Bond Counsel. No Supplemental Lease Agreement
under this Article XI shall become effective until Bond Counsel has delivered an
opinion to the Issuer, the Remarketing Agent, the Trustee and the Letter of
Credit Provider to the effect that the proposed Supplemental Lease Agreement is
authorized under the Act and the Indenture.
Section 1105. Notice of Supplemental Lease to Remarketing Agent. The
Trustee shall provide notice to the Remarketing Agent of any proposed
Supplemental Lease under this Article XI.
ARTICLE XII
SATISFACTION AND DISCHARGE OF INDENTURE
Section 1201. Satisfaction and Discharge of the Indenture.
(a) When (i) all of the Bonds are deemed to be paid as provided in Section
1202, (ii) provision has been made for paying all other sums payable hereunder,
including the reasonable fees and expenses of the Trustee, the Issuer, the
Paying Agent, the Bond Registrar, the Remarketing Agent and the Tender Agent to
the date of retirement of the Bonds, and (iii) provision has been made for
paying all obligations owed to the Letter of Credit Provider under the Letter of
Credit Provider Documents, then the right, title and interest of the Trustee in
respect hereof shall thereupon cease, determine and be void. Thereupon, the
Trustee shall cancel, discharge and release the lien of this Indenture and shall
execute, acknowledge and deliver to the Issuer such instruments of satisfaction
and discharge or release as shall be necessary to evidence such release and the
satisfaction and discharge of the lien of this Indenture, and shall assign and
deliver to the Issuer any property and revenues at the time subject to this
Indenture that may then be in its possession, except amounts in the Bond Funds
required to be paid to the Letter of Credit Provider and the Lessee under
Section 507 and except funds or securities held by the Trustee for the payment
of the principal of and redemption premium, if any, and interest on the Bonds or
the purchase price of any Undelivered Bonds.
(b) The Issuer is hereby authorized to accept a certificate by the Trustee
that all amounts payable under clauses (a)(i), (ii) and (iii) have been paid or
such payment has been provided for in accordance with Section 1202 as evidence
of satisfaction of this Indenture.
Section 1202. Bonds Deemed to be Paid.
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(a) Parity Bonds which are in an Interest Rate Mode other than a Weekly
Mode or a Monthly Mode shall be deemed to be paid within the meaning of this
Article when the interest rate on the Parity Bonds has been fixed to maturity
(or a redemption date established as provided herein) and payment of the
principal of, the applicable redemption premium, if any, on such Parity Bonds,
and interest thereon to the due date or redemption date thereof (whether such
due date is by reason of maturity or upon redemption, or otherwise), either (i)
has been made or caused to be made in accordance with the terms thereof, or (ii)
has been provided for by depositing with the Trustee, in trust and irrevocably
set aside exclusively for such payment (1) Available Moneys sufficient to make
such payment or (2) Government Securities purchased with Available Moneys
maturing as to principal and interest in such amount and at such times as will
insure the availability of sufficient moneys to make such payment. Subordinate
Bonds shall be deemed to be paid within the meaning of this Article when payment
of the principal of, the applicable redemption premium, if any, on such
Subordinate Bonds, and interest thereon to the due date or redemption date
thereof (whether such due date is by reason of maturity or upon redemption, or
otherwise), either (i) has been made or caused to be made in accordance with the
terms thereof, or (ii) has been provided for by depositing with the Trustee, in
trust and irrevocably set aside exclusively for such payment Government
Securities maturing as to principal and interest in such amount and at such
times as will insure the availability of sufficient moneys to make such payment.
At such time as a Bond is deemed to be paid hereunder, as aforesaid, it shall no
longer be secured by or entitled to the benefits of this Indenture, except for
the purposes of any such payment from such moneys or Government Securities.
(b) If the maturity date or redemption date referred to in the preceding
paragraph is more than 90 days from the date such Bonds are to be deemed paid,
the Bonds shall only be deemed paid pursuant to the preceding paragraph if the
Trustee and the Letter of Credit Provider have received from a nationally
recognized independent certified public accountant or accounting firm selected
by the Lessee and satisfactory to the Letter of Credit Provider a certification,
satisfactory in form and substance to the Trustee and the Letter of Credit
Provider, to the effect that the principal of and interest on the Government
Securities to be held together with any other money to be held hereunder, will
be sufficient to pay all remaining principal of, redemption premium, if any, and
interest on the Bonds pursuant to the preceding paragraph.
(c) Notwithstanding the foregoing, in the case of Bonds which by their
terms may be redeemed prior to the stated maturities thereof, no deposit under
clauses (a)(ii) of this Section shall be deemed a payment of such Bonds as
aforesaid until, as to all such Bonds which are to be redeemed prior to their
respective stated maturities, proper notice of such redemption has been given in
accordance with Article III or irrevocable instructions have been given to the
Trustee to give such notice.
(d) Notwithstanding any other provision of this Indenture, all moneys or
Government Securities set aside and held in trust pursuant to this Section for
the payment of Bonds (including redemption premium thereon, if any) shall be
applied to and used solely for the payment of the particular Bonds (including
redemption premium thereon, if any) with respect to which such moneys and
Government Securities have been so set aside in trust.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 1301. Consents and Other Instruments by Bondowners. Any
consent, request, direction, approval, objection or other instrument required
by this Indenture to be signed and executed by
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the Bondowners may be in any number of concurrent writings of similar tenor and
may be signed or executed by such Bondowners in person or by agent appointed in
writing. Proof of the execution of any such instrument (other than the
assignment of the ownership of any Bond) or of the writing appointing any such
agent and of the ownership of Bonds, if made in the following manner, shall be
sufficient for any of the purposes of this Indenture, and shall be conclusive in
favor of the Trustee with regard to any action taken, suffered or omitted under
any such instrument, namely:
(a) The fact and date of the execution by any person of any such
instrument may be proved by the certificate of any officer in any
jurisdiction who by law has power to take acknowledgments within such
jurisdiction that the person signing such instrument acknowledged before
him the execution thereof, or by affidavit of any witness to such
execution.
(b) The fact of ownership of Bonds and the amount or amounts, numbers
and other identification of such Bonds and the date of holding the same
shall be proved by the Bond Register. Any action taken by the Trustee
pursuant to this Indenture upon the request or Issuer or consent of any
person who, at the time of making such request or giving such authority or
consent is the Owner of any Bond, shall be conclusive and binding upon all
future Owners of the same Bond and upon Bonds issued in exchange therefor
or upon transfer or in place thereof.
Section 1302. Limitation of Rights Under the Indenture. With the exception
of rights herein expressly conferred, nothing expressed or mentioned in or to be
implied from this Indenture or the Bonds is intended or shall be construed to
give any person, other than the parties hereto, the Bondowners and the Letter of
Credit Provider, any right, remedy or claim under or in respect to this
Indenture, this Indenture being intended to be and being for the sole and
exclusive benefit of the parties hereto, the Bondowners and the Letter of Credit
Provider as herein provided.
Section 1303. Notices.
(a) Except as otherwise provided in this Indenture, it shall be sufficient
service of any notice, request, complaint, demand or other paper required by
this Indenture to be given or filed with the Issuer, the Trustee, the Lessee,
the Letter of Credit Provider, the Remarketing Agent or the Tender Agent if the
same shall be duly mailed by registered or certified mail, return receipt
requested, with postage prepaid addressed to each such party at the following
addresses; provided that any communication required by this Indenture to be
given to any such party by telephone, facsimile, telex or other
telecommunication device shall be delivered to each such party at the following
telecommunication numbers and shall be deemed to be sufficiently served only
when received by such party:
Issuer: City of Lenexa, Kansas
12350 West 87th Street Parkway
Lenexa, Kansas 66215
Attention: City Clerk
Facsimile: (913) 477-7504
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Trustee: INTRUST Bank, N.A.
105 N. Main Street
Wichita, Kansas 67202
Attention: Corporate Trust Department
Facsimile: (316) 383-5848
Lessee: LabOne, Inc.
10310 W. 84th Terrace
Lenexa, Kansas 66214
Attention: Kurt E. Gruenbacher
Facsimile: (913) 888-0771
Letter of
Credit Provider: Commerce Bank, N.A.
Post Office Box 419248
Kansas City, Missouri 64141-6248
Attention: Commercial Loan Department
Facsimile: (816) 234-8648
Remarketing Agent: George K. Baum & Company
120 West 12th Street
Twelve Wyandotte Plaza
Kansas City, Missouri 64105
Attention: Public Finance Dept.
Facsimile: (816) 283-5326
Tender Agent: INTRUST Bank, N.A.
Post Office Box 47070
Wichita, Kansas 67201
Attention: Corporate Trust Department
Facsimile: (316) 383-5848
(b) It shall be sufficient service of any notice, request, complaint,
demand or other paper required by this Indenture to be given or filed with the
Bondowners if the same is duly mailed by first class mail, postage prepaid,
addressed to each of the Owners of Bonds at the time Outstanding at his address
as shown by the Bond Register.
(c) A duplicate copy of each notice, certificate or other communication
given hereunder to any of the parties mentioned in this Section shall be given
to the Trustee, the Lessee, the Remarketing Agent and the Letter of Credit
Provider. The parties mentioned in the first paragraph of this Section may, by
notice given hereunder, designate any further or different addresses or
telecommunication numbers to which subsequent notices, certificates or other
communications shall be sent to it.
(d) If the Bonds are rated by Moody's or S&P, the Trustee shall notify
Moody's or S&P, as the case may be, in writing prior to the occurrence of any of
the following events: (i) any change in the Trustee; (ii) the execution and
delivery of any Supplemental Indenture or Supplemental Lease Agreement, (iii)
the execution of any document amending or extending the Letter of Credit, (iv)
if it has knowledge of
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any change, the execution of any document providing for any material changes to
the Reimbursement Agreement, (v) the occurrence of a defeasance in accordance
with Article XII, (vi) the payment in full of the principal of the Bonds, (vii)
any termination or expiration of the Letter of Credit, (viii) the delivery of
any Substitute Letter of Credit, (ix) any change in the Remarketing Agent, and
(x) any conversion of the Interest Rate Mode for the Bonds. All such notices to
S&P shall be mailed to: Standard & Poor's Ratings Services, 25 Broadway, New
York, New York 10004, Attention: Surveillance, or at such other address as S&P
may designate. All such notices to Moody's shall be mailed to: Moody's Investors
Services, Inc., 99 Church Street, New York, New York 10007, Attention: Public
Finance Department, or at such other address as Moody's may designate.
Section 1304. Consent of Subordinate Bondowners Not Applicable. Anything
contained in this Indenture to the contrary notwithstanding, the Outstanding
principal amount of Subordinate Bonds shall not be counted for the purposes of
obtaining the requisite percentages of Bondowner's consent, approval or
authorizations.
Section 1305. Effect of Default of Letter of Credit Provider or Payment of
Parity Bonds. Notwithstanding anything contained to the contrary in this
Indenture, any and all rights given to the Letter of Credit Provider under the
Indenture including, but not limited to, the giving of consents or approvals or
the direction of proceedings, shall be null and void (a) during any time that an
Event of Default has occurred and is continuing under Section 801(f) or (g) of
the Indenture, and (b) if the Parity Bonds have been paid in full or provision
has been made for the payment of all Parity Bonds in accordance with Article XII
of the Indenture and all obligations owing the Letter of Credit Provider under
the Letter of Credit Documents have been paid or provision has been made for
payment of such obligations.
Section 1306. Execution in Counterparts. This Indenture may be
simultaneously executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same instrument.
Section 1307. Severability. If any provision of this Indenture is held or
deemed to be invalid, 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 of this
Indenture or any constitution or statute or rule of public policy, or for any
other reason, such circumstances 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 Indenture
contained shall not affect the remaining portions of this Indenture or any part
thereof.
Section 1308. Governing Law. This Indenture shall be governed by and
construed in accordance with the laws of the State.
IN WITNESS WHEREOF, the Issuer has caused this Indenture to be signed in
its name and behalf and attested by its duly authorized officers, and to
evidence its acceptance of the trusts hereby created, the Trustee has caused
this Indenture to be signed in its name and behalf by its duly authorized
officers and its corporate seal to be hereunto affixed and attested by one of
its duly authorized officers.
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CITY OF LENEXA, KANSAS
[SEAL]
By: /s/ Joan Bowman
-----------------------
Joan Bowman, Mayor
ATTEST:
By: /s/ Sandra Howell
---------------------------
Sandra Howell, City Clerk
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INTRUST BANK, N.A.
as Trustee
By: /s/J. Steve Larigan
------------------------------
J. Steven Larigan, Vice President
[SEAL]
ATTEST:
By: /s/ Bonnie Mosher
-----------------------------
Bonnie Mosher, Assistant Vice President
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EXHIBIT A-1
(FORM OF SERIES 1998A BONDS)
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to Issuer or
its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by
an authorized representative of DTC) ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
R-__ $_____________
UNITED STATES OF AMERICA
STATE OF KANSAS
CITY OF LENEXA, KANSAS
TAXABLE INDUSTRIAL REVENUE BOND
(LABONE, INC. PROJECT)
SERIES 1998A
Rate of Interest: Maturity Date: Dated Date: CUSIP No.
----------------- -------------- ----------- ---------
Variable as
Described ________ __, 19___
Herein
Registered Owner: CEDE & CO.
Principal Amount: _____________________________________DOLLARS
The CITY OF LENEXA, KANSAS, a municipal corporation of the State of Kansas
(the "Issuer"), for value received, hereby promises to pay, solely out of the
revenues hereinafter specified, to the Registered Owner identified above, or
registered assigns, the Principal Amount identified above on the Maturity Date
set forth above, except as the provisions hereinafter set forth with respect to
redemption prior to maturity may become applicable hereto, and to pay to such
Registered Owner hereof interest on such principal sum from the Dated Date or
from the most recent Interest Payment Date (as hereinafter defined) to which
interest has been paid to the Interest Payment Date at the Interest Rate (as
hereinafter defined). Interest on this Series 1998A Bond while it is in the
Weekly Mode or the Monthly Mode (as
A-1(1)
<PAGE>
hereinafter defined) shall be computed on the basis of a year of 365 or 366
days, as appropriate, for the actual number of days elapsed, and interest on
this Series 1998A Bond while it is in any other Interest Rate Mode shall be
computed on the basis of a 360-day year of twelve 30-day months, payable as
described herein until the said principal sum shall have been paid. Upon
maturity the principal of this Series 1998A Bond is payable by check or draft
upon presentation of such Series 1998A Bond at the principal office of INTRUST
Bank, N.A., in the City of Wichita, Kansas (the "Trustee" and "Paying Agent") or
at the duly designated office of any successor Trustee or Paying Agent appointed
under the Indenture. Payment of the interest on this Series 1998A Bond shall be
made by the Paying Agent on each Interest Payment Date to the Owner thereof at
the close of business on the Record Date (as hereinafter defined) next preceding
said Interest Payment Date by check or draft mailed to such Owner at the Owner's
address as it appears in the Bond Register or in such other manner as such Owner
and the Paying Agent may determine or upon written request by wire transfer of
immediately available funds to any Owner thereof who owns at least $500,000
principal amount of the Series 1998A Bonds at such wire transfer address as such
Owner shall specify if such Owner provides written notice to the Paying Agent
not less than 10 days prior to the Record Date for which any such payment is due
requesting such electronic transfer. Any such written notice shall be signed by
such Owner and shall include the name of the bank (which shall be in the
continental United States), its address, ABA routing number and account number
to which such Registered Owner wishes to have such transfer directed. The Issuer
or the Trustee may impose a charge again an Owner for the reimbursement of any
governmental charge required to be paid in the event that such Owner fails to
provide a correct taxpayer identification number to the Trustee. Such amount may
be deducted by the Trustee from amounts otherwise payable to such Owner
hereunder or under the Series 1998A Bonds.
THIS SERIES 1998A BOND is one of a duly authorized series of Bonds of the
Issuer designated "Taxable Industrial Revenue Bonds (LabOne, Inc. Project)
Series 1998A," in the aggregate principal amount of $20,000,000 (the "Series
1998A Bonds"), issued for the purpose of financing the construction, improvement
and equipping of a commercial facility including real estate, buildings,
improvements and equipment (the "Project"), for LabOne, Inc., a Delaware
corporation (the "Lessee"). The Project will be acquired by the Issuer and
leased to the Lessee pursuant to the terms of a Lease Agreement dated as of
September 1, 1998, between the Issuer and the Lessee, (as amended and
supplemented from time to time in accordance with the provisions thereof and the
Indenture, the "Lease Agreement"), all pursuant to and in conformity with the
provisions, restrictions and limitations of the Constitution and statutes of the
State of Kansas, including particularly K.S.A. 12-1740 et seq., as amended (the
"Act"), and pursuant to proceedings duly had by the governing body of the
Issuer.
THIS SERIES 1998A BOND is issued under and is equally and ratably secured
and entitled to the protection given by a Trust Indenture dated as of September
1, 1998 (as amended and supplemented from time to time in accordance with the
provisions thereof, the "Indenture"), between the Issuer and the Trustee.
Subject to the terms and conditions set forth therein, the Indenture permits the
Issuer to issue Additional Bonds (as defined therein) secured by the Indenture
ratably and on a parity with the Series 1998A Bonds. Reference is hereby made to
the Indenture for a description of the provisions, among others, with respect to
the nature and extent of the security for this Series 1998A Bond, the rights,
duties and obligations of the Issuer, the Trustee and the Registered Owner of
this Series 1998A Bond, and the terms upon which this Series 1998A Bond is
issued and secured. The Series 1998A Bonds are superior with respect to the
pledge of revenues from the Project provided under the Indenture and in all
other respects to the Issuer's Taxable Subordinate Revenue Bonds (LabOne, Inc.
Project), Series 1998B, in the
A-1(2)
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aggregate principal amount of $5,000,000 and the Issuer's Taxable Subordinate
Revenue Bonds (LabOne, Inc. Project), Series 1998C, in the aggregate principal
amount of $8,000,000.
DEFINITIONS
"Business Day" means any day other than (i) a Saturday or Sunday, or (ii)
any day on which banking institutions in the city in which the principal
corporate trust office of the Trustee or the principal corporate trust office of
the Tender Agent or the principal office of the Remarketing Agent or the office
of the Letter of Credit Provider at which demands for payment under the Letter
of Credit are to be presented is located, are required or authorized by law to
remain closed.
"Calculation Period" means
(A) in the case of the initial Calculation Period for the Series 1998A
Bonds, the period from and including the date of the initial issuance and
delivery of the Series 1998A Bonds to and including the following Wednesday,
except that if the date of the initial issuance and delivery of the Series 1998A
Bonds is a Wednesday, the initial Calculation Period shall be only such day, and
(B) in the case of each subsequent Calculation Period,
(i) while the Series 1998A Bonds are in the Weekly Mode, each weekly
period from and including Thursday of each week to and including the
following Wednesday,
(ii) while the Series 1998A Bonds are in the Monthly Mode, each
monthly period from and including the first day of each month to and
including the last day of such month,
(iii)while the Series 1998A Bonds are in the Semiannual Mode, each
six-month period from and including a Semiannual Date to and including the
day immediately preceding the next Semiannual Date,
(iv) while the Series 1998A Bonds are in the Annual Mode, each annual
period from and including an Annual Date to and including the day
immediately preceding the next Annual Date, and
(v) while the Series 1998A Bonds are in a Multiyear Mode, each
multiyear period of a duration equal to the number of years of such
Multiyear Mode from and including the Annual Date next following the
expiration of the preceding Calculation Period for such Series 1998A Bond
to and including the last day immediately preceding the first to occur of
the annual anniversary of such Annual Date that corresponds with the
number of years of such Multiyear Mode or the stated maturity for such
Series 1998A Bond; and
(C) if the Interest Rate Mode is changed for the Series 1998A Bonds
on an Interest Rate Mode Conversion Date, the Calculation Period for the
Series 1998A Bonds in effect immediately preceding such Interest Rate Mode
Conversion Date shall end with and include the day immediately preceding
such Interest Rate Mode Conversion Date, and the immediately following
Calculation Period for the Series 1998A Bonds shall be the period from and
including
A-1(3)
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the Interest Rate Mode Conversion Date to and including the day
immediately preceding the first day on which a new Calculation Period may
commence in accordance with this definition (which first day in the case
of any Multiyear Mode shall be the Annual Date immediately preceding the
annual anniversary of such Interest Rate Mode Conversion Date that
corresponds with the number of years of such Multiyear Mode, unless such
annual anniversary occurs on an Annual Date, in which case such first day
shall be such annual anniversary).
"Determination Date" means the first day of each Calculation Period, or if
such day is not a Business Day, then the preceding Business Day.
"Interest Payment Date" means, with respect to the Weekly Mode or the
Monthly Mode, the first Business Day of each month and, with respect to any
other Interest Rate Mode, each Semiannual Date; provided that the initial
Interest Payment Date shall be October 1, 1998.
"Interest Rate" for any Calculation Period for the Series 1998A Bonds
means the lesser of (i) the Maximum Rate, or (ii) the rate of interest as to
which notice is given to the Trustee by the Remarketing Agent having due regard
for prevailing financial market conditions, on or before the Determination Date
for each Calculation Period for the Series 1998A Bonds as the minimum rate of
interest which, in the opinion of the Remarketing Agent, would be necessary to
sell the Series 1998A Bonds on the first day of such Calculation Period in a
secondary market sale at the principal amount thereof, plus, if such sale would
not be on an Interest Payment Date, accrued interest. If for any reason the
interest rate cannot be so established or is held to be invalid or unenforceable
by a court of competent jurisdiction for any Calculation Period, the interest
rate applicable to the Calculation Period shall be equal to the lesser of (i)
the Maximum Rate or (ii) the Interest Rate Index applicable to the Series 1998A
Bonds for the Calculation Period.
"Interest Rate Index" means the interest rate index equal to 120% of the
average of the yield evaluations at par, as computed by the Remarketing Agent,
of United States Treasury obligations having the term to maturity closest to the
Calculation Period (without regard to any potential Interest Rate Mode
Conversion Dates in the Calculation Period); provided that for each Calculation
Period for the Weekly Mode or the Monthly Mode such United States Treasury
obligations shall have a term to maturity of 13 weeks.
"Interest Rate Mode" means the interest rate mode from time to time in
effect for the Series 1998A Bonds, which may be the Weekly Mode, the Monthly
Mode, the Semiannual Mode, the Annual Mode or any Multiyear Mode.
"Letter of Credit Provider" means initially Commerce Bank, N.A., Kansas
City, Missouri, or the issuer of any Substitute Letter of Credit, and their
respective successors and assigns.
"Maximum Rate" means 12% per annum; provided that the Maximum Rate may be
increased or decreased to a new Maximum Rate specified in a written request made
by the Lessee if the following are delivered to the Trustee at least five days
prior to the effective date of such new Maximum Rate:
(i) such written request, which shall specify the new Maximum Rate
and the date on which it is to become effective;
A-1(4)
<PAGE>
(ii) a resolution or ordinance of the Issuer approving the new
Maximum Rate and the date on which it shall become effective;
(iii)an opinion of Bond Counsel to the effect that increasing, or
decreasing the Maximum Rate to the new Maximum Rate is authorized and
permitted under the Indenture and the Act; and
(iv) a Substitute Letter of Credit satisfying the requirements of the
Lease Agreement at the new Maximum Rate.
The Maximum Rate shall not be increased at any time that the Series 1998A Bonds
are deemed to be paid pursuant to the Indenture, if, as a result of such
increase, the requirements specified in the Indenture for such Series 1998A
Bonds would no longer be met; and provided further that the Maximum Rate shall
in no event exceed the maximum rate of interest permitted by applicable law.
"Principal Office" means the principal office of the Tender Agent
designated in writing to the Trustee pursuant to the Indenture. Principal office
of the Tender Agent shall mean initially the office of the Tender Agent located
at 105 N. Main Street, Corporate Trust Department, Wichita, Kansas 67202.
"Purchase Date" means the date on which a Series 1998A Bond tendered for
purchase as described herein and in the Indenture will be purchased as specified
in the applicable Bondowner Election Notice, which Purchase Date, while the
Series 1998A Bonds are in the Weekly Mode, shall be any Business Day occurring
at least seven days after the applicable Bondowner Election Notice is received
by the Tender Agent and, while the Series 1998A Bonds are in any other Interest
Rate Mode, shall be the first day of any Calculation Period occurring at least
12 days after the applicable Bondowner Election Notice is received by the Tender
Agent.
"Record Date" means, with respect to any Interest Payment Date while the
Series 1998A Bonds are in the Weekly Mode or the Monthly Mode, 5:00 p.m. Kansas
City, Missouri time on the Business Day immediately preceding such Interest
Payment Date and, with respect to any Interest Payment Date while the Series
1998A Bonds are in any other Interest Rate Mode, 5:00 p.m. Kansas City, Missouri
time on the fifteenth day (whether or not a Business Day) of the calendar month
immediately preceding such Interest Payment Date.
"Substitute Letter of Credit Date" means any date on which a Substitute
Letter of Credit becomes effective.
"Tender Agent" means the Trustee or any other tender agent appointed as
such by the Lessee and approved by the Letter of Credit Provider in accordance
with the Indenture, and their respective successors and assigns.
A-1(5)
<PAGE>
INTEREST RATE PROVISIONS
This Series 1998A Bond shall bear interest at the Interest Rate applicable
to the Calculation Period at the time in effect for the Series 1998A Bonds. Not
more than 30 nor less than 20 days prior to each Determination Date for the
Series 1998A Bonds that immediately precedes a Calculation Period during which
the Series 1998A Bonds are to be in the Semiannual Mode, the Annual Mode or any
Multiyear Mode, the Trustee shall send to each Owner of Series 1998A Bonds a
Notice of Interest Rate Adjustment. Such Notice of Interest Rate Adjustment
shall establish a minimum rate of interest the Series 1998A Bonds are to bear.
Promptly after each Determination Date for the Series 1998A Bonds, the Trustee
shall send a written notice to each Owner of Series 1998A Bonds stating the
Interest Rate for the Series 1998A Bonds. In the event any Series 1998A Bond
tendered for purchase or deemed to be purchased pursuant to the provisions
hereof and as set forth in the Indenture is not purchased on any Purchase Date
or Interest Rate Mode Conversion Date, such Series 1998A Bonds shall bear
interest at the Interest Rate in effect on the first day of the most recent
Calculation Period immediately preceding such Purchase Date or Interest Rate
Mode Conversion Date.
The Interest Rate Mode for the Series 1998A Bonds may be converted from
time to time at the option of the Lessee, with the written consent of the Letter
of Credit Provider, to another Interest Rate Mode on such date (an "Interest
Rate Mode Conversion Date") as the Lessee shall select, which date must be an
Interest Payment Date on which the Series 1998A Bonds are subject to redemption
pursuant to the terms of the Optional Redemption provisions hereof at a
redemption price equal to the principal amount thereof, plus accrued interest,
without premium. Upon any exercise of such option by the Lessee, the Trustee
shall send a Notice of Interest Rate Mode Conversion to each Owner of Series
1998A Bonds, and, in the event of a conversion to a Weekly Mode or a Monthly
Mode from any other Interest Rate Mode, a Bondowner Election Notice.
REDEMPTION PROVISIONS
The Series 1998A Bonds are subject to redemption prior to their stated
maturity as follows:
Series 1998A Bonds may not be redeemed during the period after a Record
Date and prior to the related Interest Payment Date and, to the extent that
Series 1998A Bonds would otherwise be redeemed during such period, they shall be
redeemed on such Record Date. To the extent that the redemption provisions
hereof include the phrase "at any time," such phrase shall be construed to
include such exception. In the event of any redemption of Series 1998A Bonds on
any date other than an Interest Payment Date, accrued interest on said Series
1998A Bonds to the redemption date shall be paid along with the applicable
redemption price described herein. In the event of any redemption of Series
1998A Bonds on an Interest Payment Date, such accrued interest shall be paid as
set forth herein.
Optional Redemption.
Weekly Mode or Monthly Mode. The Series 1998A Bonds while in the Weekly
Mode or the Monthly Mode are subject to redemption by the Issuer, at the option
of and upon written instructions from the Lessee given to the Issuer and the
Trustee, with the written consent of the Letter of Credit Provider, unless the
Lessee has deposited with the Trustee at least 30 days prior to the date set for
redemption, sufficient Available Moneys to effect such redemption in which case
the consent of the Letter of Credit
A-1(6)
<PAGE>
Provider shall not be required, in whole or in part on any Business Day at the
principal amount thereof, plus accrued interest, if any, to the redemption date,
without premium.
Semiannual Mode or Annual Mode. The Series 1998A Bonds while in the
Semiannual Mode or the Annual Mode are subject to redemption by the Issuer, at
the option of and upon written instructions from the Lessee, with the written
consent of the Letter of Credit Provider, unless the Lessee has deposited with
the Trustee sufficient Available Moneys to effect such redemption in which case
the consent of the Letter of Credit Provider shall not be required, in whole or
in part on the first day of any Calculation Period at the principal amount
thereof, without premium.
Multiyear Mode. The Series 1998A Bonds while in a Multiyear Mode are not
subject to redemption by the Issuer at the option of and upon written
instructions from the Lessee.
Redemption in Event of Condemnation, Deficiency of Title, Fire or Other
Casualty, or Change in Law or Circumstances. The Series 1998A Bonds are subject
to redemption by the Issuer, at the option of and upon written instructions from
the Lessee with the prior written consent of the Letter of Credit Provider, as
provided in the Lease Agreement, (i) in whole or in part, at the principal
amount thereof, without premium, at any time upon the occurrence of a
"condemnation," "loss of title" or "casualty loss" to the extent of funds
provided therefor, or (ii) in whole, at the principal amount thereof, without
premium, at any time in the event that, due to "condemnation," "loss of title,"
"casualty loss," or as a result of changes in any state or federal law, or an
act of a federal agency, or by reason of any action instituted in any court, or
the Lease Agreement shall become void or unenforceable, or impossible of
performance without unreasonable delay, or in any other way, by reason of such
change of circumstances, unreasonable burdens or excessive liabilities are
imposed on the Lessee or the Issuer.
Redemption upon Expiration of Letter of Credit. The Series 1998A Bonds are
subject to mandatory redemption by the Issuer in whole (except to the extent
purchased in lieu of redemption as provided below) on the Interest Payment Date
immediately preceding the expiration date of the Letter of Credit at the
principal amount thereof, without premium, if the Lessee fails to provide a
Substitute Letter of Credit in accordance with the provisions of the Lease
Agreement to the Trustee or obtain a renewal or amendment which extends the term
of the Letter of Credit on or before the 46th day prior to the Interest Payment
Date which precedes such expiration date.
Redemption Upon a Default Under the Letter of Credit Provider Documents.
The Series 1998A Bonds shall be subject to mandatory redemption by the Issuer in
whole (except to the extent purchased in lieu of redemption as provided in the
paragraph below) as soon as practicable (but in no event later than seven
calendar days) after (i) the Trustee has received a written notice from the
Letter of Credit Provider stating that an Event of Default has occurred under
the Letter of Credit Provider Documents and that the Letter of Credit will
expire pursuant to the terms of such written notice or (ii) the Trustee has
received a written notice from the Letter of Credit Provider stating that the
interest portion of the Letter of Credit will not be reinstated. The Series
1998A Bonds redeemed pursuant to this paragraph shall be redeemed at the
principal amount thereof, without premium
Purchase of Series 1998A Bonds in Lieu of Certain Redemptions. The
Series 1998A Bonds, upon being called for redemption pursuant to Optional
Redemption, Redemption Upon Expiration of Letter of Credit or Redemption Upon
a Default Under the Letter of Credit Provider Documents above, may be
A-1(7)
<PAGE>
purchased, in lieu of redemption, in whole but not in part by the Lessee or its
designee or the Letter of Credit Provider or its designee in accordance with the
terms of the Indenture. Any Series 1998A Bond to be purchased in lieu of such
redemption that is not presented to the Trustee on or before the date scheduled
for redemption shall become an Undelivered Bond and shall be deemed to have been
purchased on such date. The purchase price of any Undelivered Bond described in
this paragraph shall be paid by the Trustee when it is surrendered for payment
at the principal corporate trust office of the Trustee. The Owner of such
Undelivered Bond shall not be entitled to receive any further interest thereon
and shall have no further rights under the Indenture except to receive the
purchase price deposited with the Trustee, without interest thereon, upon such
surrender. Promptly, and in no event more than seven Business Days after any
date scheduled for redemption pursuant to Optional Redemption, Redemption Upon
Expiration of Letter of Credit or Redemption Upon a Default Under the Letter of
Credit Provider Documents above, the Trustee shall give notice by mail to each
Owner of an Undelivered Bond deemed to be purchased on such date, which notice
shall state that interest on such Undelivered Bond ceased to accrue on such date
and that moneys representing the purchase price of such Undelivered Bond are
available against surrender thereof as aforesaid.
Redemption from Moneys Remaining in the Project Funds. At the option of
and upon written instructions from the Lessee, with the written consent of the
Letter of Credit Provider, the Series 1998A Bonds are subject to redemption in
part by the Issuer, at the principal amount thereof, without premium, from any
moneys remaining in the Project Funds upon completion of the Project. The date
for such redemption shall be the next succeeding date upon which any Series
1998A Bonds may be redeemed and for which the required redemption notice may be
given following completion of the Project and payment of the Project Costs.
Mandatory Sinking Fund Redemption. The Series 1998A Bonds will be subject
to mandatory redemption and payment prior to their stated maturity on September
1 of each year, at 100% of the principal amount thereof, plus accrued interest
to the redemption date, without premium, in accordance with the terms of the
Indenture.
Selection of Series 1998A Bonds to be Redeemed. Series 1998A Bonds in the
Weekly Mode or the Monthly Mode shall be redeemed in the principal amount of
$100,000 or any integral multiple of $5,000 in excess thereof. Series 1998A
Bonds in any other Interest Rate Mode shall be redeemed in the principal amount
of $5,000 or any integral multiple thereof. The Series 1998A Bonds to be
redeemed shall be selected by the Trustee first from Series 1998A Bonds
registered in the name of or for the account of or pledged as security to the
Letter of Credit Provider, next from all other Series 1998A Bonds (other than
Series 1998A Bonds registered in the name of or for the account of the Lessee
other than Series 1998A Bonds pledged as security to the Letter of Credit
Provider), and then, from Series 1998A Bonds registered in the name of or for
the account of the Lessee.
Except for the order set forth above, selection of Series 1998A Bonds or
portions of Series 1998A Bonds to be redeemed shall be by such method as the
Trustee shall deem equitable, provided that for this purpose Series 1998A Bonds
of a denomination larger than the minimum authorized denomination or integral
multiples thereof shall be treated on the same basis as if they were the
appropriate number of Series 1998A Bonds of such minimum authorized
denomination. The portions of the principal of outstanding Series 1998A Bonds so
selected for partial redemption shall be equal to such minimum authorized
denomination or integral multiples thereof. Any Series 1998A Bond which is to be
redeemed
A-1(8)
<PAGE>
only in part shall be submitted to the Paying Agent and delivered to the Trustee
who shall authenticate and deliver to the Owner of such Series 1998A Bond,
without service charge, a new Series 1998A Bond or Series 1998A Bonds, of any
authorized denomination as requested by such Owner in an aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Series 1998A Bonds so surrendered. If the Owner of any such Series 1998A
Bond of a denomination greater than the minimum authorized denomination for such
Series 1998A Bond fails to present such Series 1998A Bond to the Paying Agent
for payment and exchange as aforesaid, such Series 1998A Bond shall,
nevertheless, become due and payable on the redemption date to the extent of the
principal amount of such Series 1998A Bond called for redemption (and to that
extent only).
Notice of Redemption. Whenever the Trustee shall call any of the Series
1998A Bonds for redemption the Trustee shall give written notice in the name of
the Issuer of its intention to redeem and pay such Series 1998A Bonds by first
class mail, postage prepaid, mailed not more than 45 nor less than 30 days (not
more than 7 days nor less than 5 days in the case of a Redemption Upon a Default
Under the Letter of Credit Provider Documents) prior to the redemption date, to
each Owner of Series 1998A Bonds to be redeemed at such Owner's address
appearing on the Bond Register. From and after such redemption date, interest on
such Series 1998A Bond shall cease to accrue and such Series 1998A Bond shall no
longer be outstanding and shall have no further rights under the Indenture
except to receive the principal amount thereof, plus accrued interest to such
date, regardless of whether such Series 1998A Bond is presented to the Trustee
on such date. Neither the failure of the Owner of any Series 1998A Bond to be so
redeemed to receive written notice mailed as herein provided nor any defect in
any such notice shall affect or invalidate the redemption of said Series 1998A
Bond.
PURCHASE OF SERIES 1998A BONDS AT BONDOWNER OPTION
Series 1998A Bonds shall be purchased pursuant to the procedure set forth
herein and in the Indenture, but solely from the sources set forth in the
Indenture, at the option of the Owner thereof, on the Purchase Date specified by
such Owner as described below at the purchase price equal to the principal
amount thereof plus, if such Purchase Date is not an Interest Payment Date,
accrued interest to the Purchase Date. Except as provided in the immediately
following sentence, in order to exercise such option with respect to any Series
1998A Bond, the Owner of such Series 1998A Bond must (a) while the Series 1998A
Bonds are in the Weekly Mode or the Monthly Mode, deliver to the Tender Agent at
its Principal Office an irrevocable Bondowner Election Notice in the form set
forth in the Indenture, which Bondowner Election Notice must be received by the
Tender Agent at least seven days prior to the Purchase Date specified in such
Bondowner Election Notice and (b) must be accompanied by such Series 1998A Bond,
duly endorsed in blank for transfer, with all signatures guaranteed by an
Eligible Guarantor. If a Registered Owner delivers a Bondowner Election Notice
with respect to any Series 1998A Bond and such Series 1998A Bond is not
delivered to the Tender Agent by 11:00 a.m., Kansas City, Missouri time, on the
date it is to be purchased in accordance with the Indenture, such Series 1998A
Bond shall become an Undelivered Bond and shall be deemed to have been purchased
on such date and shall cease to bear interest on such date.
PURCHASE ON INTEREST RATE MODE CONVERSION DATE OR
SUBSTITUTE LETTER OF CREDIT DATE
A-1(9)
<PAGE>
The Series 1998A Bonds shall be subject to mandatory tender and purchase
on any Interest Rate Mode Conversion Date or on any Substitute Letter of Credit
Date. Such Series 1998A Bonds shall be purchased at a purchase price equal to
the principal amount thereof plus, if such purchase date is not an Interest
Payment Date, accrued interest to such purchase date; provided that there shall
not be so purchased any Series 1998A Bond or portion thereof with respect to
which the Trustee shall have received directions not to so purchase the same
from the Owner thereof in accordance with the provisions herein and in the
Indenture.
At least 35 days prior to any Interest Rate Mode Conversion Date or
Substitute Letter of Credit Date, the Trustee shall send to the Owner of each
Series 1998A Bond a Notice of Interest Rate Mode Conversion or Notice of
Substitute Letter of Credit, as appropriate. In addition, the Trustee shall send
a copy of such notice to any Owner of each Series 1998A Bond who becomes an
Owner of each Series 1998A Bond during the period between the giving of such
notice and the Interest Rate Mode Conversion Date or Substitute Letter of Credit
Date, as the case may be, such notice to be sent at the time that the Trustee
makes a registration of transfer of such Series 1998A Bond in the name of such
Owner; provided that, if the Trustee has previously received during such period
directions not to so purchase the same, such directions shall be binding upon
such new Owner.
The Owner of any Series 1998A Bond as to which a Notice of Interest Rate
Mode Conversion has been given and of a denomination not less than the minimum
authorized denomination to be effective for such Series 1998A Bond on the
Interest Rate Mode Conversion Date stated in said notice, or of any Series 1998A
Bond as to which a Notice of Substitute Letter of Credit has been given, may
direct that all or any portion of such Series 1998A Bond (which portion shall be
in a principal amount equal to the minimum authorized denomination of Series
1998A Bonds on the Interest Rate Mode Conversion Date or the Substitute Letter
of Credit Date, as the case may be, or any integral multiple thereof) not be
purchased by delivering to the Trustee at its principal corporate trust office
at least 12 calendar days prior to the relevant Interest Rate Mode Conversion
Date or Substitute Letter of Credit Date the portion of the Notice of Interest
Rate Mode Conversion or the Notice of Substitute Letter of Credit, as the case
may be, entitled "Bondowner Direction Not to Purchase." Any Series 1998A Bond or
portion thereof with respect to which a valid Bondowner Direction Not to
Purchase has been delivered in accordance with the provisions hereof and of the
Indenture shall not be purchased on such Interest Rate Mode Conversion Date or
Substitute Letter of Credit Date. Any Bondowner Direction Not to Purchase
delivered to the Trustee shall be irrevocable with respect to the purchase for
which such instrument was delivered and shall be binding upon subsequent Owners
of the Series 1998A Bond with respect to which such instrument was delivered,
including Series 1998A Bonds issued in exchange therefor or upon the
registration of transfer thereof.
The Owner of any Series 1998A Bond or portion thereof purchased pursuant
to this section is required to surrender such Series 1998A Bond on or before
9:00 a.m. Kansas City, Missouri time, on the date it is to be purchased at the
Principal Office of the Tender Agent, duly endorsed in blank, with all
signatures guaranteed by an Eligible Guarantor and, if not so surrendered by
such time, such Series 1998A Bond or portion thereof shall become an Undelivered
Bond and shall be deemed to have been purchased on such Interest Rate Mode
Conversion Date or Substitute Letter of Credit Date.
A-1(10)
<PAGE>
OTHER PROVISIONS
THE SERIES 1998A BONDS ARE LIMITED OBLIGATIONS OF THE ISSUER PAYABLE
SOLELY FROM REVENUES AND FUNDS PLEDGED THEREFOR UNDER THE INDENTURE. NO HOLDER
OF THIS SERIES 1998A BOND SHALL EVER HAVE THE RIGHT TO COMPEL THE EXERCISE OF
THE TAXING POWER OF THE ISSUER OR THE STATE OF KANSAS (THE "STATE") OR ANY
POLITICAL SUBDIVISION THEREOF TO PAY THE PRINCIPAL OF THIS SERIES 1998A BOND OR
THE INTEREST HEREON OR ANY OTHER COST INCIDENT HERETO, OR TO ENFORCE PAYMENT
HEREOF AGAINST ANY PROPERTY OF THE STATE OR ANY POLITICAL SUBDIVISION THEREOF.
THE SERIES 1998A BONDS ARE NOT A GENERAL OBLIGATION OF THE ISSUER, ARE NOT
PAYABLE IN ANY MANNER FROM TAXATION AND DO NOT CONSTITUTE A PLEDGE OF THE FAITH
AND CREDIT OF THE ISSUER. THE ISSUANCE OF THE SERIES 1998A BONDS WILL NOT,
DIRECTLY, INDIRECTLY OR CONTINGENTLY, OBLIGATE THE ISSUER TO LEVY ANY FORM OF
TAXATION THEREFOR OR TO MAKE ANY APPROPRIATION FOR THEIR PAYMENT. THE ISSUER
WILL NOT IN ANY EVENT BE LIABLE FOR THE PAYMENT OF THE PRINCIPAL OR PURCHASE
PRICE OF, PREMIUM, IF ANY, OR INTEREST ON THE SERIES 1998A BONDS OR FOR THE
PERFORMANCE OF ANY PLEDGE, OBLIGATION OR AGREEMENT OF ANY KIND WHATSOEVER WHICH
MAY BE UNDERTAKEN BY THE ISSUER, EXCEPT OUT OF THE PAYMENTS DERIVED BY THE
ISSUER UNDER THE LEASE AGREEMENT AND THE INDENTURE. NO BREACH BY THE ISSUER OF
ANY SUCH PLEDGE, OBLIGATION OR AGREEMENT MAY IMPOSE ANY LIABILITY, PECUNIARY OR
OTHERWISE, UPON THE ISSUER OR ANY CHARGE UPON ITS GENERAL CREDIT OR AGAINST ITS
TAXING POWER.
NO RECOURSE SHALL BE HAD FOR THE PAYMENT OF THE PRINCIPAL OF OR PREMIUM OR
INTEREST ON THIS SERIES 1998A BOND AGAINST ANY PAST, PRESENT OR FUTURE OFFICER,
MEMBER, EMPLOYEE OR AGENT OF THE ISSUER, OR OF ANY SUCCESSOR TO THE ISSUER, AS
SUCH, EITHER DIRECTLY OR THROUGH THE ISSUER OR ANY SUCCESSOR TO THE ISSUER,
UNDER ANY RULE OF LAW OR EQUITY, STATUTE OR CONSTITUTION OR BY THE ENFORCEMENT
OF ANY ASSESSMENT OR PENALTY OR OTHERWISE, AND ALL SUCH LIABILITY OF ANY SUCH
OFFICERS, MEMBERS, EMPLOYEES OR AGENTS, AS SUCH, IS HEREBY EXPRESSLY WAIVED AND
RELEASED AS A CONDITION OF, AND CONSIDERATION FOR, THE EXECUTION AND ISSUANCE OF
THIS SERIES 1998A BOND.
The Owner of this Series 1998A Bond shall have no right to enforce the
provisions of the Indenture or to institute action to enforce the covenants
therein, or to take any action with respect to any Event of Default under the
Indenture, or to institute, appear in or defend any suit or other proceedings
with respect thereto, except as provided in the Indenture. In certain events, on
the conditions, in the manner and with the effect set forth in the Indenture,
the principal of all the Series 1998A Bonds issued under the Indenture and then
outstanding may become or may be declared due and payable before the stated
maturity thereof, together with interest accrued thereon. Modifications or
alterations of this Series 1998A Bond or the Indenture may be made only to the
extent and in the circumstances permitted by the Indenture.
THIS SERIES 1998A BOND is transferable, as provided in the Indenture, only
upon the registration books of the Issuer kept for that purpose at the
above-mentioned office of the Trustee as "Bond
A-1(11)
<PAGE>
Registrar" by the registered Owner hereof in person or by such Owner's duly
authorized attorney or representative, upon surrender of this Series 1998A Bond
together with a written instrument of transfer satisfactory to the Trustee duly
executed by the registered Owner or such Owner's duly authorized attorney, and
thereupon a new Series 1998A Bond or Series 1998A Bonds, in the same aggregate
principal amount, shall be issued to the transferee in exchange therefor as
provided in the Indenture, and upon payment of the charges therein prescribed;
provided, however, if this Series 1998A Bond is an Undelivered Bond as herein
defined, this Series 1998A Bond may be transferred upon being deemed to have
been purchased as set forth herein and in the Indenture. The Issuer, the Bond
Registrar, the Paying Agent, the Lessee, the Letter of Credit Provider and the
Trustee may deem and treat the person in whose name this Series 1998A Bond is
registered on the Bond Register as the absolute Owner hereof for the purpose of
receiving payment of, or on account of, the principal or redemption price hereof
and interest due hereon and for all other purposes.
THE SERIES 1998A BONDS are issuable only as fully registered bonds without
coupons in the denomination of $100,000 or any integral multiple thereof while
the Series 1998A Bonds are in the Weekly Mode or the Monthly Mode (except that
Series 1998A Bonds in the Weekly Mode or Monthly Mode may be issued in
denominations of $5,000 as a result of any mandatory sinking fund redemption)
and in the denomination of $5,000 or any integral multiple thereof while the
Series 1998A Bonds are in any other Interest Rate Mode. The Owner of any Series
1998A Bonds may surrender the same at the above-mentioned office of the Trustee
in exchange for an equal aggregate principal amount of Series 1998A Bonds of any
of the authorized denominations, in the manner, subject to the conditions and
upon the payment of the charges provided in the Indenture. In like manner,
subject to such conditions and upon the payment of such charges, the Owner of
any Series 1998A Bond or Series 1998A Bonds may surrender the same (together
with a written instrument of transfer satisfactory to the Trustee duly executed
by the registered Owner or such registered Owner's duly authorized attorney or
representative) in exchange for an equal aggregate principal amount of Series
1998A Bonds of any other authorized denominations.
THE INDENTURE may be modified, amended or supplemented only to the extent
and in the circumstances permitted by, and subject to the terms and conditions
of, the Indenture.
THIS SERIES 1998A BOND shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the Indenture until the
Certificate of Authentication hereon has been executed by the Trustee.
IT IS HEREBY CERTIFIED AND DECLARED that all acts, conditions and things
required to exist, happen and be performed precedent to and in the execution and
delivery of the Indenture and the issuance of this Series 1998A Bond do exist,
have happened and have been performed in due time, form and manner as required
by law.
IN WITNESS WHEREOF, the City of Lenexa, Kansas has caused this Series
1998A Bond to be executed with the facsimile or manual signature of its Mayor
and attested by facsimile or manual signature of its City Clerk, and has caused
this Series 1998A Bond to be dated as of the Dated Date shown above.
A-1(12)
<PAGE>
CITY OF LENEXA, KANSAS
Attest:
By--------------------------
Mayor
By--------------------
City Clerk
CERTIFICATE OF AUTHENTICATION
This Series 1998A Bond is one of the Series 1998A Bonds described in the
within mentioned Indenture.
Date of Authentication: ________________
INTRUST Bank, N.A., as Bond Registrar
By---------------------------
Authorized Signature
A-1(13)
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
- --------------------------------------------------------------------------------
Print or Type Name, Address and Social Security Number
or other Taxpayer Identification Number of Transferee
the within Series 1998A Bond and all rights thereunder, and hereby irrevocably
constitutes and appoints _________________________ attorney to transfer the
within Series 1998A Bond on the books kept by the Trustee for the registration
and transfer of Series 1998A Bonds, with full power of substitution in the
premises.
Dated _______________ ____________________________________
NOTICE: The signature to this assignment
must correspond with the name as it
appears upon the face of the within
Series 1998A Bond in every particular.
Signature Guaranteed By:
[Seal of Bank] ____________________________________
(Name of Eligible Guarantor Institution,
as defined by SEC Rule 17Ad-15
(17 CFR 240.17Ad-15))
By___________________________________
Title________________________________
A-1(14)
<PAGE>
LEGAL OPINION
The following is a true and correct copy of the approving legal opinion of
Logan Riley Carson & Kaup, L.C., Bond Counsel, which was dated and issued as of
the date of original issuance and delivery of such Series 1998A Bonds:
A-1(15)
<PAGE>
EXHIBIT A-2
(FORM OF SERIES 1998B BONDS)
THE HOLDER OF THIS BOND BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH BOND EXCEPT (A) TO THE ISSUER OR THE LESSEE, (B)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), (C) FOR SO LONG AS THE SERIES
1998 BONDS ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPHS (a) (1),
(2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE
SECURITY FOR ITS OWN ACCOUNT FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE LESSEE'S AND THE
TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE
(D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (ii) IN EACH OF THE
FOREGOING CASES (CLAUSES (A) THROUGH (E)), TO REQUIRE THAT A CERTIFICATE OF
TRANSFER IN FORM AND SUBSTANCE ACCEPTABLE TO THE LESSEE AND THE TRUSTEE TO
COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE AND THE LESSEE.
R-__ $_____________
UNITED STATES OF AMERICA
STATE OF KANSAS
CITY OF LENEXA, KANSAS
TAXABLE SUBORDINATE INDUSTRIAL REVENUE BOND
(LABONE, INC. PROJECT)
SERIES 1998B
- ---------------------------------------------------------------
Rate of Maturity Date: Dated Date: CUSIP No.
Interest:
- ---------------------------------------------------------------
- ---------------------------------------------------------------
7.125% September 1, 2009
- ---------------------------------------------------------------
- ---------------------------------------------------------------
------ --,19___
- ---------------------------------------------------------------
Registered Owner:
Principal Amount: __________________________________DOLLARS
A-2(1)
<PAGE>
The CITY OF LENEXA, KANSAS, a municipal corporation of the State of Kansas
(the "Issuer"), for value received, hereby promises to pay, solely out of the
revenues hereinafter specified, to the Registered Owner identified above, or
registered assigns, the Principal Amount identified above on the Maturity Date
set forth above, except as the provisions hereinafter set forth with respect to
redemption prior to maturity may become applicable hereto, and to pay to such
Registered Owner hereof interest on such principal sum from the Dated Date or
from the most recent Interest Payment Date (as hereinafter defined) to which
interest has been paid to the Interest Payment Date at the Rate of Interest set
forth above. Interest on this Series 1998B Bond shall be computed on the basis
of a 360-day year of twelve 30-day months, payable semiannually on March 1 and
September 1 beginning on March 1, 1999 (the "Interest Payment Dates"), until the
said principal sum shall have been paid. Upon maturity the principal of this
Series 1998B Bond is payable by check or draft upon presentation of such Series
1998B Bond at the principal office of INTRUST Bank, N.A., in the City of
Wichita, Kansas (the "Trustee" and "Paying Agent") or at the duly designated
office of any successor Trustee or Paying Agent appointed under the Indenture.
Payment of the interest on this Series 1998B Bond shall be made by the Paying
Agent on each Interest Payment Date to the Owner thereof at the close of
business on the Record Date (as hereinafter defined) next preceding said
Interest Payment Date by check or draft mailed to such Owner at the Owner's
address as it appears in the Bond Register or in such other manner as such Owner
and the Paying Agent may determine or upon written request by wire transfer of
immediately available funds to any Owner thereof who owns at least $500,000
principal amount of the Series 1998B Bonds at such wire transfer address as such
Owner shall specify if such Owner provides written notice to the Paying Agent
not less than 10 days prior to the Record Date for which any such payment is due
requesting such electronic transfer. Any such written notice shall be signed by
such Owner and shall include the name of the bank (which shall be in the
continental United States), its address, ABA routing number and account number
to which such Registered Owner wishes to have such transfer directed. The Issuer
or the Trustee may impose a charge against an Owner for the reimbursement of any
governmental charge required to be paid in the event that such Owner fails to
provide a correct taxpayer identification number to the Trustee. Such amount may
be deducted by the Trustee from amounts otherwise payable to such Owner
hereunder. "Record Date" means 5:00 p.m. Kansas City, Missouri time on the
fifteenth day (whether or not a business day) of the calendar month immediately
preceding such Interest Payment Date.
THIS SERIES 1998B BOND is one of a duly authorized series of Bonds of the
Issuer designated "Taxable Subordinate Industrial Revenue Bonds (LabOne, Inc.
Project) Series 1998B," in the aggregate principal amount of $5,000,000 (the
"Series 1998B Bonds"), issued for the purpose of financing the construction,
improvement and equipping of a commercial facility including real estate,
buildings, improvements and equipment (the "Project"), for LabOne, Inc., a
Delaware corporation (the "Lessee"). The Project will be acquired by the Issuer
and leased to the Lessee pursuant to the terms of a Lease Agreement dated as of
September 1, 1998, between the Issuer and the Lessee, (as amended and
supplemented from time to time in accordance with the provisions thereof and the
Indenture, the "Lease Agreement"), all pursuant to and in conformity with the
provisions, restrictions and limitations of the Constitution and statutes of the
State of Kansas, including particularly K.S.A. 12-1740 et seq., as amended (the
"Act"), and pursuant to proceedings duly had by the governing body of the
Issuer.
THIS SERIES 1998B BOND is issued under and is equally and ratably secured
and entitled to the protection given by a Trust Indenture dated as of September
1, 1998 (as amended and supplemented from time to time in accordance with the
provisions thereof, the "Indenture"), between the Issuer and the
A-2(2)
<PAGE>
Trustee. Subject to the terms and conditions set forth therein, the Indenture
permits the Issuer to issue Additional Bonds (as defined therein) secured by the
Indenture ratably and on a parity with or prior to the Series 1998B Bonds.
Reference is hereby made to the Indenture for a description of the provisions,
among others, with respect to the nature and extent of the security for this
Series 1998B Bond, the rights, duties and obligations of the Issuer, the Trustee
and the Registered Owner of this Series 1998B Bond, and the terms upon which
this Series 1998B Bond is issued and secured. The Series 1998B Bonds stand on a
parity with respect to the pledge of revenues from the Project provided under
the Indenture and in all other respects to the Issuer's Taxable Subordinate
Revenue Bonds (LabOne, Inc. Project), Series 1998C, in the aggregate principal
amount of $8,000,000 (the "Series 1998C Bonds"). The Series 1998B Bonds and the
Series 1998C Bonds are subordinate and junior with respect to the pledge of
revenues from the Project provided under the Indenture and in all other respects
to the Issuer's Taxable Revenue Bonds (LabOne, Inc., Project), Series 1998A, in
the aggregate principal amount of $20,000,000 (the "Series 1998A Bonds").
REDEMPTION PROVISIONS
The Series 1998B Bonds are subject to redemption prior to their stated
maturity as follows:
Series 1998B Bonds may not be redeemed during the period after a Record
Date and prior to the related Interest Payment Date and, to the extent that
Series 1998B Bonds would otherwise be redeemed during such period, they shall be
redeemed on such Record Date. To the extent that the redemption provisions
hereof include the phrase "at any time," such phrase shall be construed to
include such exception. In the event of any redemption of Series 1998B Bonds on
any date other than an Interest Payment Date, accrued interest on said Series
1998B Bonds to the redemption date shall be paid along with the applicable
redemption price described herein. In the event of any redemption of Series
1998B Bonds on an Interest Payment Date, such accrued interest shall be paid as
set forth herein.
Optional Redemption. The Series 1998B Bonds are subject to redemption by
the Issuer, at the option of and upon written instructions from the Lessee, with
the written consent of the Letter of Credit Provider (as defined in the
Indenture) for the Series 1998A Bonds, in whole or in part at any time at the
principal amount thereof, without premium.
Redemption in Event of Condemnation, Deficiency of Title, Fire or Other
Casualty, or Change in Law or Circumstances. The Series 1998B Bonds are subject
to redemption by the Issuer, at the option of and upon written instructions from
the Lessee with the prior written consent of the Letter of Credit Provider, as
provided in the Lease Agreement, (i) in whole or in part, at the principal
amount thereof, without premium, at any time upon the occurrence of a
"condemnation," "loss of title" or "casualty loss" to the extent of funds
provided therefor, or (ii) in whole, at the principal amount thereof, without
premium, at any time in the event that, due to "condemnation," "loss of title,"
"casualty loss," or as a result of changes in any state or federal law, or an
act of a federal agency, or by reason of any action instituted in any court, or
the Lease Agreement shall become void or unenforceable, or impossible of
performance without unreasonable delay, or in any other way, by reason of such
change of circumstances, unreasonable burdens or excessive liabilities are
imposed on the Lessee or the Issuer.
A-2(3)
<PAGE>
Redemption from Moneys Remaining in the Project Funds. At the option of
and upon written instructions from the Lessee, with the written consent of the
Letter of Credit Provider, the Series 1998B Bonds are subject to redemption in
part by the Issuer, at the principal amount thereof, without premium, from any
Available Moneys remaining in the Project Funds upon completion of the Project.
The date for such redemption shall be the next succeeding date upon which any
Series 1998B Bonds may be redeemed and for which the required redemption notice
may be given following completion of the Project and payment of the Project
Costs.
Mandatory Sinking Fund Redemption. The Series 1998B Bonds will be subject
to mandatory redemption and payment prior to their stated maturity on September
1 of each year, at 100% of the principal amount thereof, plus accrued interest
to the redemption date, without premium, in accordance with the Indenture.
Selection of Series 1998B Bonds to be Redeemed. Series 1998B Bonds shall
be redeemed in the principal amount of $5,000 or any integral multiple of $5,000
in excess thereof; provided no partial redemption shall result in any Series
1998B Bond remaining Outstanding in a principal amount less than $100,000.
Series 1998B Bonds shall be redeemed(by such method as the Trustee shall deem
equitable, provided that for this purpose Series 1998B Bonds of a denomination
larger than the minimum authorized denomination or integral multiples thereof
shall be treated on the same basis as if they were the appropriate number of
Series 1998B Bonds of such minimum authorized denomination. The portions of the
principal of outstanding Series 1998B Bonds so selected for partial redemption
shall be equal to such minimum authorized denomination or integral multiples
thereof. Any Series 1998B Bond which is to be redeemed only in part shall be
submitted to the Paying Agent and delivered to the Trustee who shall
authenticate and deliver to the Owner of such Series 1998B Bond, without service
charge, a new Series 1998B Bond or Series 1998B Bonds, of any authorized
denomination as requested by such Owner in an aggregate principal amount equal
to and in exchange for the unredeemed portion of the principal of the Series
1998B Bonds so surrendered. If the Owner of any such Series 1998B Bond of a
denomination greater than the minimum authorized denomination for such Series
1998B Bond fails to present such Series 1998B Bond to the Paying Agent for
payment and exchange as aforesaid, such Series 1998B Bond shall, nevertheless,
become due and payable on the redemption date to the extent of the principal
amount of such Series 1998B Bond called for redemption (and to that extent
only).
Notice of Redemption. Whenever the Trustee shall call any of the Series
1998B Bonds for redemption the Trustee shall give written notice in the name of
the Issuer of its intention to redeem and pay such Series 1998B Bonds by first
class mail, postage prepaid, mailed not more than 45 nor less than 30 days prior
to the redemption date, to each Owner of Series 1998B Bonds to be redeemed at
such Owner's address appearing on the Bond Register. From and after such
redemption date, interest on such Series 1998B Bond shall cease to accrue and
such Series 1998B Bond shall no longer be outstanding and shall have no further
rights under the Indenture except to receive the principal amount thereof, plus
accrued interest to such date, regardless of whether such Series 1998B Bond is
presented to the Trustee on such date. Neither the failure of the Owner of any
Series 1998B Bond to be so redeemed to receive written notice mailed as herein
provided nor any defect in any such notice shall affect or invalidate the
redemption of said Series 1998B Bond.
A-2(4)
<PAGE>
OTHER PROVISIONS
THE SERIES 1998B BONDS ARE LIMITED OBLIGATIONS OF THE ISSUER PAYABLE
SOLELY FROM REVENUES AND FUNDS PLEDGED THEREFOR UNDER THE INDENTURE. NO HOLDER
OF THIS SERIES 1998B BOND SHALL EVER HAVE THE RIGHT TO COMPEL THE EXERCISE OF
THE TAXING POWER OF THE ISSUER OR THE STATE OF KANSAS (THE "STATE") OR ANY
POLITICAL SUBDIVISION THEREOF TO PAY THE PRINCIPAL OF THIS SERIES 1998B BOND OR
THE INTEREST HEREON OR ANY OTHER COST INCIDENT HERETO, OR TO ENFORCE PAYMENT
HEREOF AGAINST ANY PROPERTY OF THE STATE OR ANY POLITICAL SUBDIVISION THEREOF.
THE SERIES 1998B BONDS ARE NOT A GENERAL OBLIGATION OF THE ISSUER, ARE NOT
PAYABLE IN ANY MANNER FROM TAXATION AND DO NOT CONSTITUTE A PLEDGE OF THE FAITH
AND CREDIT OF THE ISSUER. THE ISSUANCE OF THE SERIES 1998B BONDS WILL NOT,
DIRECTLY, INDIRECTLY OR CONTINGENTLY, OBLIGATE THE ISSUER TO LEVY ANY FORM OF
TAXATION THEREFOR OR TO MAKE ANY APPROPRIATION FOR THEIR PAYMENT. THE ISSUER
WILL NOT IN ANY EVENT BE LIABLE FOR THE PAYMENT OF THE PRINCIPAL OR PURCHASE
PRICE OF, PREMIUM, IF ANY, OR INTEREST ON THE SERIES 1998B BONDS OR FOR THE
PERFORMANCE OF ANY PLEDGE, OBLIGATION OR AGREEMENT OF ANY KIND WHATSOEVER WHICH
MAY BE UNDERTAKEN BY THE ISSUER, EXCEPT OUT OF THE PAYMENTS DERIVED BY THE
ISSUER UNDER THE LEASE AGREEMENT AND THE INDENTURE. NO BREACH BY THE ISSUER OF
ANY SUCH PLEDGE, OBLIGATION OR AGREEMENT MAY IMPOSE ANY LIABILITY, PECUNIARY OR
OTHERWISE, UPON THE ISSUER OR ANY CHARGE UPON ITS GENERAL CREDIT OR AGAINST ITS
TAXING POWER.
NO RECOURSE SHALL BE HAD FOR THE PAYMENT OF THE PRINCIPAL OF OR PREMIUM OR
INTEREST ON THIS SERIES 1998B BOND AGAINST ANY PAST, PRESENT OR FUTURE OFFICER,
MEMBER, EMPLOYEE OR AGENT OF THE ISSUER, OR OF ANY SUCCESSOR TO THE ISSUER, AS
SUCH, EITHER DIRECTLY OR THROUGH THE ISSUER OR ANY SUCCESSOR TO THE ISSUER,
UNDER ANY RULE OF LAW OR EQUITY, STATUTE OR CONSTITUTION OR BY THE ENFORCEMENT
OF ANY ASSESSMENT OR PENALTY OR OTHERWISE, AND ALL SUCH LIABILITY OF ANY SUCH
OFFICERS, MEMBERS, EMPLOYEES OR AGENTS, AS SUCH, IS HEREBY EXPRESSLY WAIVED AND
RELEASED AS A CONDITION OF, AND CONSIDERATION FOR, THE EXECUTION AND ISSUANCE OF
THIS SERIES 1998B BOND.
The Owner of this Series 1998B Bond shall have no right to enforce the
provisions of the Indenture or to institute action to enforce the covenants
therein, or to take any action with respect to any Event of Default under the
Indenture, or to institute, appear in or defend any suit or other proceedings
with respect thereto, except as provided in the Indenture. In certain events, on
the conditions, in the manner and with the effect set forth in the Indenture,
the principal of all the Series 1998B Bonds issued under the Indenture and then
outstanding may become or may be declared due and payable before the stated
maturity thereof, together with interest accrued thereon. Modifications or
alterations of this Series 1998B Bond or the Indenture may be made only to the
extent and in the circumstances permitted by the Indenture.
A-2(5)
<PAGE>
THIS SERIES 1998B BOND is transferable, as provided in the Indenture, only
upon the registration books of the Issuer kept for that purpose at the
above-mentioned office of the Trustee as "Bond Registrar" by the registered
Owner hereof in person or by such Owner's duly authorized attorney or
representative, upon surrender of this Series 1998B Bond together with a written
instrument of transfer satisfactory to the Trustee duly executed by the
registered Owner or such Owner's duly authorized attorney, and thereupon a new
Series 1998B Bond or Series 1998B Bonds, in the same aggregate principal amount,
shall be issued to the transferee in exchange therefor as provided in the
Indenture, and upon payment of the charges therein prescribed. The Issuer, the
Bond Registrar, the Paying Agent, the Lessee, the Letter of Credit Provider and
the Trustee may deem and treat the person in whose name this Series 1998B Bond
is registered on the Bond Register as the absolute Owner hereof for the purpose
of receiving payment of, or on account of, the principal or redemption price
hereof and interest due hereon and for all other purposes.
THE SERIES 1998B BONDS are issuable only as fully registered bonds without
coupons in the denomination of $100,000 or any integral multiple of $5,000 in
excess thereof, except that Series 1998B Bonds may be issued in denominations of
$5,000 as a result of any mandatory sinking fund redemption . The Owner of any
Series 1998B Bonds may surrender the same at the above-mentioned office of the
Trustee in exchange for an equal aggregate principal amount of Series 1998B
Bonds of any of the authorized denominations, in the manner, subject to the
conditions and upon the payment of the charges provided in the Indenture. In
like manner, subject to such conditions and upon the payment of such charges,
the Owner of any Series 1998B Bond or Series 1998B Bonds may surrender the same
(together with a written instrument of transfer satisfactory to the Trustee duly
executed by the registered Owner or such registered Owner's duly authorized
attorney or representative) in exchange for an equal aggregate principal amount
of Series 1998B Bonds of any other authorized denominations.
THE INDENTURE may be modified, amended or supplemented only to the extent
and in the circumstances permitted by, and subject to the terms and conditions
of, the Indenture.
THIS SERIES 1998B BOND shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the Indenture until the
Certificate of Authentication hereon has been executed by the Trustee.
IT IS HEREBY CERTIFIED AND DECLARED that all acts, conditions and things
required to exist, happen and be performed precedent to and in the execution and
delivery of the Indenture and the issuance of this Series 1998B Bond do exist,
have happened and have been performed in due time, form and manner as required
by law.
IN WITNESS WHEREOF, the City of Lenexa, Kansas has caused this Series
1998B Bond to be executed with the facsimile or manual signature of its Mayor
and attested by facsimile or manual signature of its City Clerk, and has caused
this Series 1998B Bond to be dated as of the Dated Date shown above.
CITY OF LENEXA, KANSAS
Attest:
By__________________________________
Mayor
A-2(6)
<PAGE>
By_________________________
City Clerk
CERTIFICATE OF AUTHENTICATION
This Series 1998B Bond is one of the Series 1998B Bonds described in the
within mentioned Indenture.
Date of Authentication: ________________
INTRUST Bank, N.A., as Bond Registrar
By_____________________________________
Authorized Signature
A-2(7)
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
- --------------------------------------------------------------------------------
Print or Type Name, Address and Social Security Number
or other Taxpayer Identification Number of Transferee
the within Series 1998B Bond and all rights thereunder, and hereby irrevocably
constitutes and appoints _________________________ attorney to transfer the
within Series 1998B Bond on the books kept by the Trustee for the registration
and transfer of Series 1998B Bonds, with full power of substitution in the
premises.
Dated _______________ ____________________________________
NOTICE: The signature to this assignment
must correspond with the name as it
appears upon the face of the within
Series 1998B Bond in every particular.
Signature Guaranteed By:
[Seal of Bank] ____________________________________
(Name of Eligible Guarantor Institution,
as defined by SEC Rule 17Ad-15
(17 CFR 240.17Ad-15))
By
Title
A-2(8)
<PAGE>
LEGAL OPINION
The following is a true and correct copy of the approving legal opinion of
Logan Riley Carson & Kaup, L.C., Bond Counsel, which was dated and issued as of
the date of original issuance and delivery of such Series 1998B Bonds:
A-2(9)
<PAGE>
EXHIBIT A-3
(FORM OF SERIES 1998C BONDS)
THE HOLDER OF THIS BOND BY ITS ACCEPTANCE HEREOF AGREES TO NOT OFFER, SELL OR
OTHERWISE TRANSFER SUCH BOND EXCEPT (A) TO THE ISSUER OR THE LESSEE, (B)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), (C) FOR SO LONG AS THE SERIES
1998 BONDS ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPHS (a) (1),
(2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE
SECURITY FOR ITS OWN ACCOUNT FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE LESSEE'S AND THE
TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE
(D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (ii) IN EACH OF THE
FOREGOING CASES (CLAUSES (A) THROUGH (E)), TO REQUIRE THAT A CERTIFICATE OF
TRANSFER IN FORM AND SUBSTANCE ACCEPTABLE TO THE LESSEE AND THE TRUSTEE TO
COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE AND THE LESSEE.
R-__ $_____________
UNITED STATES OF AMERICA
STATE OF KANSAS
CITY OF LENEXA, KANSAS
TAXABLE SUBORDINATE INDUSTRIAL REVENUE BOND
(LABONE, INC. PROJECT)
SERIES 1998C
Rate of Maturity Date: Dated Date: CUSIP No.
Interest:
7.125% September 1, 2009
-------- --, 19___
Registered Owner:
Principal Amount: ______________________________DOLLARS
A-3(1)
<PAGE>
The CITY OF LENEXA, KANSAS, a municipal corporation of the State of Kansas
(the "Issuer"), for value received, hereby promises to pay, solely out of the
revenues hereinafter specified, to the Registered Owner identified above, or
registered assigns, the Principal Amount identified above on the Maturity Date
set forth above, except as the provisions hereinafter set forth with respect to
redemption prior to maturity may become applicable hereto, and to pay to such
Registered Owner hereof interest on such principal sum from the Dated Date or
from the most recent Interest Payment Date (as hereinafter defined) to which
interest has been paid to the Interest Payment Date at the Rate of Interest set
forth above. Interest on this Series 1998C Bond shall be computed on the basis
of a 360-day year of twelve 30-day months, payable semiannually on March 1 and
September 1 beginning on March 1, 1999 (the "Interest Payment Dates"), until the
said principal sum shall have been paid. Upon maturity the principal of this
Series 1998C Bond is payable by check or draft upon presentation of such Series
1998C Bond at the principal office of INTRUST Bank, N.A., in the City of
Wichita, Kansas (the "Trustee" and "Paying Agent") or at the duly designated
office of any successor Trustee or Paying Agent appointed under the Indenture.
Payment of the interest on this Series 1998C Bond shall be made by the Paying
Agent on each Interest Payment Date to the Owner thereof at the close of
business on the Record Date (as hereinafter defined) next preceding said
Interest Payment Date by check or draft mailed to such Owner at the Owner's
address as it appears in the Bond Register or in such other manner as such Owner
and the Paying Agent may determine or upon written request by wire transfer of
immediately available funds to any Owner thereof who owns at least $500,000
principal amount of the Series 1998C Bonds at such wire transfer address as such
Owner shall specify if such Owner provides written notice to the Paying Agent
not less than 10 days prior to the Record Date for which any such payment is due
requesting such electronic transfer. Any such written notice shall be signed by
such Owner and shall include the name of the bank (which shall be in the
continental United States), its address, ABA routing number and account number
to which such Registered Owner wishes to have such transfer directed. The Issuer
or the Trustee may impose a charge against an Owner for the reimbursement of any
governmental charge required to be paid in the event that such Owner fails to
provide a correct taxpayer identification number to the Trustee. Such amount may
be deducted by the Trustee from amounts otherwise payable to such Owner
hereunder. "Record Date" means 5:00 p.m. Kansas City, Missouri time on the
fifteenth day (whether or not a business day) of the calendar month immediately
preceding such Interest Payment Date.
THIS SERIES 1998C BOND is one of a duly authorized series of Bonds of the
Issuer designated "Taxable Subordinate Industrial Revenue Bonds (LabOne, Inc.
Project) Series 1998C," in the aggregate principal amount of $8,000,000 (the
"Series 1998C Bonds"), issued for the purpose of financing the construction,
improvement and equipping of a commercial facility including real estate,
buildings, improvements and equipment (the "Project"), for LabOne, Inc., a
Delaware corporation (the "Lessee"). The Project will be acquired by the Issuer
and leased to the Lessee pursuant to the terms of a Lease Agreement dated as of
September 1, 1998, between the Issuer and the Lessee, (as amended and
supplemented from time to time in accordance with the provisions thereof and the
Indenture, the "Lease Agreement"), all pursuant to and in conformity with the
provisions, restrictions and limitations of the Constitution and statutes of the
State of Kansas, including particularly K.S.A. 12-1740 et seq., as amended (the
"Act"), and pursuant to proceedings duly had by the governing body of the
Issuer.
A-3(2)
<PAGE>
THIS SERIES 1998C BOND is issued under and is equally and ratably secured
and entitled to the protection given by a Trust Indenture dated as of September
1, 1998 (as amended and supplemented from time to time in accordance with the
provisions thereof, the "Indenture"), between the Issuer and the Trustee.
Subject to the terms and conditions set forth therein, the Indenture permits the
Issuer to issue Additional Bonds (as defined therein) secured by the Indenture
ratably and on a parity with or prior to the Series 1998C Bonds. Reference is
hereby made to the Indenture for a description of the provisions, among others,
with respect to the nature and extent of the security for this Series 1998C
Bond, the rights, duties and obligations of the Issuer, the Trustee and the
Registered Owner of this Series 1998C Bond, and the terms upon which this Series
1998C Bond is issued and secured. The Series 1998C Bonds stand on a parity with
respect to the pledge of revenues from the Project provided under the Indenture
and in all other respects to the Issuer's Taxable Subordinate Revenue Bonds
(LabOne, Inc. Project), Series 1998B, in the aggregate principal amount of
$5,000,000 (the "Series 1998B Bonds"). The Series 1998B Bonds and the Series
1998C Bonds are subordinate and junior with respect to the pledge of revenues
from the Project provided under the Indenture and in all other respects to the
Issuer's Taxable Revenue Bonds (LabOne, Inc., Project), Series 1998A, in the
aggregate principal amount of $20,000,000 (the "Series 1998A Bonds").
REDEMPTION PROVISIONS
The Series 1998C Bonds are subject to redemption prior to their stated
maturity as follows:
Series 1998C Bonds may not be redeemed during the period after a Record
Date and prior to the related Interest Payment Date and, to the extent that
Series 1998C Bonds would otherwise be redeemed during such period, they shall be
redeemed on such Record Date. To the extent that the redemption provisions
hereof include the phrase "at any time," such phrase shall be construed to
include such exception. In the event of any redemption of Series 1998C Bonds on
any date other than an Interest Payment Date, accrued interest on said Series
1998C Bonds to the redemption date shall be paid along with the applicable
redemption price described herein. In the event of any redemption of Series
1998C Bonds on an Interest Payment Date, such accrued interest shall be paid as
set forth herein.
Optional Redemption. The Series 1998C Bonds are subject to redemption by
the Issuer, at the option of and upon written instructions from the Lessee, with
the written consent of the Letter of Credit Provider (as defined in the
Indenture) for the Series 1998A Bonds, in whole or in part at any time at the
principal amount thereof, without premium.
Redemption in Event of Condemnation, Deficiency of Title, Fire or Other
Casualty, or Change in Law or Circumstances. The Series 1998C Bonds are subject
to redemption by the Issuer, at the option of and upon written instructions from
the Lessee with the prior written consent of the Letter of Credit Provider, as
provided in the Lease Agreement, (i) in whole or in part, at the principal
amount thereof, without premium, at any time upon the occurrence of a
"condemnation," "loss of title" or "casualty loss" to the extent of funds
provided therefor, or (ii) in whole, at the principal amount thereof, without
premium, at any time in the event that, due to "condemnation," "loss of title,"
"casualty loss," or as a result of changes in any state or federal law, or an
act of a federal agency, or by reason of any action instituted in any court, or
A-3(3)
<PAGE>
the Lease Agreement shall become void or unenforceable, or impossible of
performance without unreasonable delay, or in any other way, by reason of such
change of circumstances, unreasonable burdens or excessive liabilities are
imposed on the Lessee or the Issuer.
Redemption from Moneys Remaining in the Project Funds. At the option of
and upon written instructions from the Lessee, with the written consent of the
Letter of Credit Provider, the Series 1998C Bonds are subject to redemption in
part by the Issuer, at the principal amount thereof, without premium, from any
Available Moneys remaining in the Project Funds upon completion of the Project.
The date for such redemption shall be the next succeeding date upon which any
Series 1998C Bonds may be redeemed and for which the required redemption notice
may be given following completion of the Project and payment of the Project
Costs.
Mandatory Sinking Fund Redemption. The Series 1998C Bonds will be subject
to mandatory redemption and payment prior to their stated maturity on September
1 of each year, at 100% of the principal amount thereof, plus accrued interest
to the redemption date, without premium, in accordance with the Indenture.
Selection of Series 1998C Bonds to be Redeemed. Series 1998C Bonds shall
be redeemed in the principal amount of $5,000 or any integral multiple of $5,000
in excess thereof; provided no partial redemption shall result in any Series
1998B Bond remaining Outstanding in a principal amount less than $100,000.
Series 1998C Bonds shall be redeemed(by such method as the Trustee shall deem
equitable, provided that for this purpose Series 1998C Bonds of a denomination
larger than the minimum authorized denomination or integral multiples thereof
shall be treated on the same basis as if they were the appropriate number of
Series 1998C Bonds of such minimum authorized denomination. The portions of the
principal of outstanding Series 1998C Bonds so selected for partial redemption
shall be equal to such minimum authorized denomination or integral multiples
thereof. Any Series 1998C Bond which is to be redeemed only in part shall be
submitted to the Paying Agent and delivered to the Trustee who shall
authenticate and deliver to the Owner of such Series 1998C Bond, without service
charge, a new Series 1998C Bond or Series 1998C Bonds, of any authorized
denomination as requested by such Owner in an aggregate principal amount equal
to and in exchange for the unredeemed portion of the principal of the Series
1998C Bonds so surrendered. If the Owner of any such Series 1998C Bond of a
denomination greater than the minimum authorized denomination for such Series
1998C Bond fails to present such Series 1998C Bond to the Paying Agent for
payment and exchange as aforesaid, such Series 1998C Bond shall, nevertheless,
become due and payable on the redemption date to the extent of the principal
amount of such Series 1998C Bond called for redemption (and to that extent
only).
Notice of Redemption. Whenever the Trustee shall call any of the Series
1998C Bonds for redemption the Trustee shall give written notice in the name of
the Issuer of its intention to redeem and pay such Series 1998C Bonds by first
class mail, postage prepaid, mailed not more than 45 nor less than 30 days prior
to the redemption date, to each Owner of Series 1998C Bonds to be redeemed at
such Owner's address appearing on the Bond Register. From and after such
redemption date, interest on such Series 1998C Bond shall cease to accrue and
such Series 1998C Bond shall no longer be outstanding and shall
A-3(4)
<PAGE>
have no further rights under the Indenture except to receive the principal
amount thereof, plus accrued interest to such date, regardless of whether such
Series 1998C Bond is presented to the Trustee on such date. Neither the failure
of the Owner of any Series 1998C Bond to be so redeemed to receive written
notice mailed as herein provided nor any defect in any such notice shall affect
or invalidate the redemption of said Series 1998C Bond.
OTHER PROVISIONS
THE SERIES 1998C BONDS ARE LIMITED OBLIGATIONS OF THE ISSUER PAYABLE
SOLELY FROM REVENUES AND FUNDS PLEDGED THEREFOR UNDER THE INDENTURE. NO HOLDER
OF THIS SERIES 1998C BOND SHALL EVER HAVE THE RIGHT TO COMPEL THE EXERCISE OF
THE TAXING POWER OF THE ISSUER OR THE STATE OF KANSAS (THE "STATE") OR ANY
POLITICAL SUBDIVISION THEREOF TO PAY THE PRINCIPAL OF THIS SERIES 1998C BOND OR
THE INTEREST HEREON OR ANY OTHER COST INCIDENT HERETO, OR TO ENFORCE PAYMENT
HEREOF AGAINST ANY PROPERTY OF THE STATE OR ANY POLITICAL SUBDIVISION THEREOF.
THE SERIES 1998C BONDS ARE NOT A GENERAL OBLIGATION OF THE ISSUER, ARE NOT
PAYABLE IN ANY MANNER FROM TAXATION AND DO NOT CONSTITUTE A PLEDGE OF THE FAITH
AND CREDIT OF THE ISSUER. THE ISSUANCE OF THE SERIES 1998C BONDS WILL NOT,
DIRECTLY, INDIRECTLY OR CONTINGENTLY, OBLIGATE THE ISSUER TO LEVY ANY FORM OF
TAXATION THEREFOR OR TO MAKE ANY APPROPRIATION FOR THEIR PAYMENT. THE ISSUER
WILL NOT IN ANY EVENT BE LIABLE FOR THE PAYMENT OF THE PRINCIPAL OR PURCHASE
PRICE OF, PREMIUM, IF ANY, OR INTEREST ON THE SERIES 1998C BONDS OR FOR THE
PERFORMANCE OF ANY PLEDGE, OBLIGATION OR AGREEMENT OF ANY KIND WHATSOEVER WHICH
MAY BE UNDERTAKEN BY THE ISSUER, EXCEPT OUT OF THE PAYMENTS DERIVED BY THE
ISSUER UNDER THE LEASE AGREEMENT AND THE INDENTURE. NO BREACH BY THE ISSUER OF
ANY SUCH PLEDGE, OBLIGATION OR AGREEMENT MAY IMPOSE ANY LIABILITY, PECUNIARY OR
OTHERWISE, UPON THE ISSUER OR ANY CHARGE UPON ITS GENERAL CREDIT OR AGAINST ITS
TAXING POWER.
NO RECOURSE SHALL BE HAD FOR THE PAYMENT OF THE PRINCIPAL OF OR PREMIUM OR
INTEREST ON THIS SERIES 1998C BOND AGAINST ANY PAST, PRESENT OR FUTURE OFFICER,
MEMBER, EMPLOYEE OR AGENT OF THE ISSUER, OR OF ANY SUCCESSOR TO THE ISSUER, AS
SUCH, EITHER DIRECTLY OR THROUGH THE ISSUER OR ANY SUCCESSOR TO THE ISSUER,
UNDER ANY RULE OF LAW OR EQUITY, STATUTE OR CONSTITUTION OR BY THE ENFORCEMENT
OF ANY ASSESSMENT OR PENALTY OR OTHERWISE, AND ALL SUCH LIABILITY OF ANY SUCH
OFFICERS, MEMBERS, EMPLOYEES OR AGENTS, AS SUCH, IS HEREBY EXPRESSLY WAIVED AND
RELEASED AS A CONDITION OF, AND CONSIDERATION FOR, THE EXECUTION AND ISSUANCE OF
THIS SERIES 1998C BOND.
The Owner of this Series 1998C Bond shall have no right to enforce the
provisions of the Indenture or to institute action to enforce the covenants
therein, or to take any action with respect to any
A-3(5)
<PAGE>
Event of Default under the Indenture, or to institute, appear in or defend any
suit or other proceedings with respect thereto, except as provided in the
Indenture. In certain events, on the conditions, in the manner and with the
effect set forth in the Indenture, the principal of all the Series 1998C Bonds
issued under the Indenture and then outstanding may become or may be declared
due and payable before the stated maturity thereof, together with interest
accrued thereon. Modifications or alterations of this Series 1998C Bond or the
Indenture may be made only to the extent and in the circumstances permitted by
the Indenture.
THIS SERIES 1998C BOND is transferable, as provided in the Indenture, only
upon the registration books of the Issuer kept for that purpose at the
above-mentioned office of the Trustee as "Bond Registrar" by the registered
Owner hereof in person or by such Owner's duly authorized attorney or
representative, upon surrender of this Series 1998C Bond together with a written
instrument of transfer satisfactory to the Trustee duly executed by the
registered Owner or such Owner's duly authorized attorney, and thereupon a new
Series 1998C Bond or Series 1998C Bonds, in the same aggregate principal amount,
shall be issued to the transferee in exchange therefor as provided in the
Indenture, and upon payment of the charges therein prescribed. The Issuer, the
Bond Registrar, the Paying Agent, the Lessee, the Letter of Credit Provider and
the Trustee may deem and treat the person in whose name this Series 1998C Bond
is registered on the Bond Register as the absolute Owner hereof for the purpose
of receiving payment of, or on account of, the principal or redemption price
hereof and interest due hereon and for all other purposes.
THE SERIES 1998C BONDS are issuable only as fully registered bonds without
coupons in the denomination of $100,000 or any integral multiple of $5,000 in
excess thereof, except that Series 1998C Bonds may be issued in denominations of
$5,000 as a result of any mandatory sinking fund redemption . The Owner of any
Series 1998C Bonds may surrender the same at the above-mentioned office of the
Trustee in exchange for an equal aggregate principal amount of Series 1998C
Bonds of any of the authorized denominations, in the manner, subject to the
conditions and upon the payment of the charges provided in the Indenture. In
like manner, subject to such conditions and upon the payment of such charges,
the Owner of any Series 1998C Bond or Series 1998C Bonds may surrender the same
(together with a written instrument of transfer satisfactory to the Trustee duly
executed by the registered Owner or such registered Owner's duly authorized
attorney or representative) in exchange for an equal aggregate principal amount
of Series 1998C Bonds of any other authorized denominations.
THE INDENTURE may be modified, amended or supplemented only to the extent
and in the circumstances permitted by, and subject to the terms and conditions
of, the Indenture.
THIS SERIES 1998C BOND shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the Indenture until the
Certificate of Authentication hereon has been executed by the Trustee.
IT IS HEREBY CERTIFIED AND DECLARED that all acts, conditions and things
required to exist, happen and be performed precedent to and in the execution and
delivery of the Indenture and the
A-3(6)
<PAGE>
issuance of this Series 1998C Bond do exist, have happened and have been
performed in due time, form and manner as required by law.
IN WITNESS WHEREOF, the City of Lenexa, Kansas has caused this Series
1998C Bond to be executed with the facsimile or manual signature of its Mayor
and attested by facsimile or manual signature of its City Clerk, and has caused
this Series 1998C Bond to be dated as of the Dated Date shown above.
CITY OF LENEXA, KANSAS
Attest:
By__________________________________
Mayor
By____________________________
City Clerk
CERTIFICATE OF AUTHENTICATION
This Series 1998C Bond is one of the Series 1998C Bonds described in the
within mentioned Indenture.
Date of Authentication: ________________
INTRUST Bank, N.A., as Bond Registrar
By_____________________________
Authorized Signature
A-3(7)
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
- --------------------------------------------------------------------------------
Print or Type Name, Address and Social Security Number
or other Taxpayer Identification Number of Transferee
the within Series 1998C Bond and all rights thereunder, and hereby irrevocably
constitutes and appoints _________________________ attorney to transfer the
within Series 1998C Bond on the books kept by the Trustee for the registration
and transfer of Series 1998C Bonds, with full power of substitution in the
premises.
Dated _______________ ____________________________________
NOTICE: The signature to this assignment
must correspond with the name as it
appears upon the face of the within
Series 1998C Bond in every particular.
Signature Guaranteed By:
[Seal of Bank] ____________________________________
(Name of Eligible Guarantor Institution,
as defined by SEC Rule 17Ad-15
(17 CFR 240.17Ad-15))
By_________________________
Title_____________________
A-3(8)
<PAGE>
LEGAL OPINION
The following is a true and correct copy of the approving legal opinion of
Logan Riley Carson & Kaup, L.C., Bond Counsel, which was dated and issued as of
the date of original issuance and delivery of such Series 1998C Bonds:
A-3(9)
<PAGE>
EXHIBIT B
NOTICE OF INTEREST RATE ADJUSTMENT
NOTICE TO BONDOWNERS
(For use upon a conversion from any Interest Rate Mode
into or while the Series 1998A Bonds
remain in a Semiannual Mode, Annual Mode or any Multiyear Mode)
This notice is being sent pursuant to the provisions of the Trust
Indenture dated as of September 1, 1998 (the "Indenture"), between the City of
Lenexa, Kansas (the "Issuer") and INTRUST Bank, N.A., as Trustee (the
"Trustee"). Capitalized terms used in this notice shall have the same meanings
as in the Series 1998A Bond, unless otherwise defined. You are hereby notified
as follows:
1. The interest rate on the Issuer's Taxable Industrial Revenue Bonds
(LabOne, Inc. Project) Series 1998A (the ASeries 1998A Bonds@) will be adjusted
on _______________ (the "Adjustment Date"). You may demand that your Series
1998A Bond be purchased in full on the Adjustment Date, at a price of 100% of
the principal amount thereof.
2. In order to demand that all or any portion of your Series 1998A Bond
(which portion shall be $5,000 or an integral multiple thereof) be purchased,
you must deliver to INTRUST Bank, N.A., at its principal corporate trust office
at INTRUST Bank, N.A., Wichita, Kansas, on or prior to the 12th calendar day
preceding such date (i) the following portion of this notice entitled "Bondowner
Election Notice" and (ii) your Series 1998A Bond, duly endorsed in blank for
transfer (with all signatures guaranteed by a member of a registered national
securities exchange or of the National Association of Securities Dealers, Inc.,
or by a commercial bank or trust company having an office in the United States
of America).
3. The Remarketing Agent has notified the Trustee that the Series 1998A
Bonds would bear interest at a rate of _____%, if the date hereof were a
Determination Date as provided in the Indenture.
4. On the Adjustment Date, the interest on your Series 1998A Bond will be
established at a new Interest Rate, which may be less than, equal to or greater
than the rate set forth in paragraph 3. The interest on your Series 1998A Bond
will be payable at such newly established Interest Rate for the interest
Calculation Period commencing on the Adjustment Date.
INTRUST BANK, N.A.
By
Title
B-1
<PAGE>
BONDOWNER ELECTION NOTICE
(For use upon a conversion from any Interest Rate Mode
into or while the Series 1998A Bonds
remain in a Semiannual Mode, Annual Mode or any Multiyear Mode)
INTRUST Bank, N.A.
105 N. Main Street
Wichita, Kansas 67202
as Tender Agent, under the Trust Indenture,
dated as September 1, 1998 (the "Indenture")
Attention: Corporate Trust Department
Re: City of Lenexa, Kansas, Taxable Industrial Revenue Bonds (LabOne,
Inc. Project) Series 1998A
Ladies and Gentlemen:
This Bondowner Election Notice is being delivered to you pursuant to the
provisions of the Trust Indenture, dated as of September 1, 1998 (the
"Indenture"), between the City of Lenexa, Kansas and INTRUST Bank, N.A., as
Trustee. Capitalized terms used in this notice shall have the same meaning as in
the Series 1998A Bond.
The undersigned hereby irrevocably request(s) that the following Series
1998A Bond(s) or portion(s) thereof (which must be in a principal amount of
$5,000 or any integral multiple thereof), which is one (or more) Series 1998A
Bonds of the issue referred to above, be purchased on the Purchase Date pursuant
to Section 306 of the Indenture:
1.
Portion of
Serial Number Principal Amount Principal Amount
of Series 1998A of Series 1998A to be Purchased
Bond Bond
_______________ $______________ $________________
_______________ $______________ $________________
2. Purchase Date on which Series 1998A Bond(s) shall be purchased (which date
must be the first day of a Calculation Period occurring at least 12 days
following the date of delivery of this notice to the Tender Agent):
---------------
3. Name(s) of registered owner(s): _______________
B-2
<PAGE>
4. Name to the order of which payment for such Series 1998A Bond(s) or
portion(s) thereof is to be made (if payment is to be made other than to
the order of the registered owner(s) of such Series 1998A Bond(s), the
Substitute Form W-9 set forth below must be completed and signed by such
payee and failure to do so may result in backup withholding as required by
law or regulation):
-------------------------
5. Address to which payment is to be mailed: _______________
6. Such Series 1998A Bond(s) is (are) attached hereto, duly endorsed in blank
for transfer, with all signature(s) guaranteed by an Eligible Guarantor
Institution.
IN WITNESS WHEREOF, the undersigned registered owner(s) or the duly
appointed attorney(s)-in-fact thereof has (have) executed this Bondowner
Election Notice as of the date set forth below.
Dated: _______________ Name(s):_________________________
(Please print)
Signature(s):______________________
PAYER'S NAME: INTRUST Bank, N.A.
[Substitute Form W-9 to be Set Forth Here]
B-3
<PAGE>
EXHIBIT C
BONDOWNER ELECTION NOTICE
(For Use for Series 1998A Bonds in the Weekly or Monthly Mode)
INTRUST Bank, N.A.
Corporate Trust Department
105 N. Main Street
Wichita, Kansas 67202
as Tender Agent, under the Trust Indenture,
dated as September 1, 1998 (the "Indenture")
Fax No. (316) 383-5848
Re: City of Lenexa, Kansas, Taxable Industrial Revenue Bonds (LabOne,
Inc. Project) Series 1998A
Ladies and Gentlemen:
This Bondowner Election Notice is being delivered to you pursuant to the
provisions of the Trust Indenture dated as of September 1, 1998 (the
"Indenture"), between the City of Lenexa, Kansas and INTRUST Bank, N.A., as
Trustee. Capitalized terms used in this notice shall have the same meaning as in
your Series 1998A Bond.
The undersigned hereby irrevocably request(s) that the following Series
1998A Bonds(s) or portions(s) thereof (which must be in a principal amount of
$100,000 or any multiple of $5,000 in excess thereof), which is one (or more)
Series 1998A Bonds of the issue referred to above, be purchased on the Purchase
Date specified below pursuant to Section 306 of the Indenture:
1.
Portion of
Serial Number Principal Amount Principal Amount
of Series 1998A of Series 1998A to be Purchased
Bond Bond
_______________ $______________ $________________
_______________ $______________ $________________
2. The Purchase Date (which date must be a Business Day at least seven days
following the date of receipt of this notice by the Tender Agent):
.
C-1
<PAGE>
3. Name(s) of registered owner(s):__________________
4. Name to the order of which payment for such Series 1998A Bond(s) or
potion(s) thereof is to be made (if payment is to be made other than to
the order of the registered owner(s) of such Series 1998A Bond(s), the
Substitute Form W-9 set forth below must be completed and signed by such
payee and failure to do so may result in backup withholding as required by
law or regulation):
___________________________
5. Address to which payment is to be mailed:
6. If payment for the Series 1998A Bond(s) to be purchased is to be made by
wire transfer (rather than by check), the bank, its ABA number and account
number to which payment is to be made:
Bank:______________________________
Address: _________________________
ABA Number:________________________
Account Number:____________________
7. The undersigned hereby agree(s) that such Series 1998A Bond(s), duly
endorsed in blank for transfer with all signature(s) guaranteed by an
Eligible Guarantor Institution, together with, if the Purchase Date
specified above is prior to an Interest Payment Date and after the
related Record Date, a due-bill in form satisfactory to the Trustee for
interest due on such Series 1998A Bond(s) on such Interest Payment Date,
will be delivered to the Tender Agent at its office set forth above at
or prior to 11:00 a.m., Kansas City, Missouri time, on the Purchase Date.
8. The undersigned hereby agrees that if the undersigned fail(s) to deliver
such Series 1998A Bond(s) in accordance with item 7 above, such Series
1998A Bond(s) or portion(s) thereof shall nevertheless be deemed
purchased on the Purchase Date specified above and shall thereafter be
Undelivered Bond(s) within the meaning of the Indenture and the
undersigned shall in such event not be entitled to receive any further
interest thereon and shall have no further interest thereon and shall
have no further rights under the Indenture except to payment of the
purchase price held for such Series 1998A Bond(s).
C-2
<PAGE>
IN WITNESS WHEREOF, the undersigned registered owner(s) or the duly
appointed attorney(s)-in-fact thereof has (have) executed this Bondowner
Election Notice as of the date set forth below.
Dated:__________ Name(s):_____________________
Signature(s):_____________________________
PAYER'S NAME: INTRUST Bank, N.A.
C-3
<PAGE>
EXHIBIT D
NOTICE OF INTEREST RATE MODE CONVERSION
NOTICE TO BONDOWNERS
This notice is being sent pursuant to the provisions of the Trust
Indenture dated as of September 1, 1998 (the "Indenture"), between the City of
Lenexa, Kansas (the "Issuer"), and INTRUST Bank, N.A., as Trustee. Capitalized
terms used in this notice shall have the same meanings as in the Indenture.
You are hereby notified as follows:
1. An option has been exercised to convert the Interest Rate Mode
applicable to the Issuer's Taxable Industrial Revenue Bonds (LabOne, Inc.
Project) Series 1998A (the "Series 1998A Bonds"), from a(n)
[Weekly/Monthly/Semiannual/Annual/ -Year] Mode to a(n)
[Weekly/Monthly/Semiannual/Annual/ -Year] Mode on (the "Interest Rate Mode
Conversion Date"). Unless you deliver a Bondowner Direction Not to Purchase as
described below, your Series 1998A Bond will be purchased on the Purchase Date
at a price of 100% of the principal amount thereof.
2. If your Series 1998A Bond or any portion thereof is so purchased,
payment therefor will be made on or after the Purchase Date thereof upon
presentation and surrender of such Series 1998A Bond at the principal corporate
trust office of the Trustee at INTRUST Bank, N.A., 105 N. Main Street, Corporate
Trust Department, Wichita, Kansas 67202, duly endorsed in blank for transfer
(with all signatures guaranteed by an Eligible Guarantor Institution).
3. In addition, you are further notified that:
(A) Interest will no longer accrue to you on your Series 1998A Bond
on and after the Purchase Date thereof unless the Trustee has received
directions from you not to so purchase your Series 1998A Bond as herein
provided, and, other than the right to receive payment of the purchase
price for your Series 1998A Bond, you shall then cease to have further
rights under the Indenture;
(B) You have the right to direct the Trustee not to purchase all or
any portion of your Series 1998A Bond, which portion shall be $ (the
minimum authorized denomination for the new Interest Rate Mode) or any
multiple of $5,000 in excess thereof, if you deliver the following portion
of this Notice entitled "Bondowner Direction Not to Purchase" to the
Trustee at its address above on or before [the date occurring 12 days
prior to the Interest Date Mode Conversion Date]; and
(C) If you properly file a Bondowner Direction Not to Purchase, the
following will occur:
D-1
<PAGE>
(i) After the Interest Rate Mode Conversion Date, the interest
rate on the portion of your Series 1998A Bond not purchased will be
determined in accordance with the [Weekly/Monthly/Semiannual/Annual/
-Year] Mode, with interest being paid on [the first Business Day of
each month] [ 1 and 1 of each year];
(ii) The interest on the portion of your Series 1998A Bond not
purchased will be established at the Interest Rate for the
[Weekly/Monthly/Semiannual/Annual/ -Year] Mode on the Interest Rate
Mode Conversion Date, which new Interest Rate will be determined by
the Remarketing Agent and will be not less than % nor more than %;
(iii)The Trustee will inform you of the Interest Rate on the
portion of your Series 1998A Bond not purchased, on or soon after the
Interest Rate Mode Conversion Date; and
(iv) After the Interest Rate Mode Conversion Date, [you may
require the portion of your Series 1998A Bond not previously
purchased to be purchased pursuant to Section 306 of the Indenture on
a Purchase Date specified by you as further described in the
Indenture and the applicable Bondowner Election Notice.] [your Series
1998A Bond will no longer be subject to purchase pursuant to the
Indenture.]
(D) The current rating on the Series 1998A Bonds provided by Standard
& Poor's Ratings Services may be reduced or withdrawn due to the Interest
Rate Mode Conversion.
Date:___________________
INTRUST BANK, N.A.,
as Trustee
By
Title
D-2
<PAGE>
BONDOWNER DIRECTION NOT TO PURCHASE
Re: City of Lenexa, Kansas, Taxable Industrial Revenue Bonds (LabOne,
Inc. Project) Series 1998A
INTRUST Bank, N.A.
105 N. Main Street
Wichita, Kansas 67202
as Trustee, under the Trust Indenture,
dated as September 1, 1998 (the "Indenture")
Attention: Corporate Trust Department
Ladies and Gentlemen:
Pursuant to the provisions of the Indenture and in response to your
Notice of Interest Rate Mode Conversion dated , the
undersigned hereby irrevocably request(s) that the Series 1998A Bond
described below not be purchased:
1. The Series 1998A Bond is one of the Series 1998A Bonds, numbered , the
principal amount of which is $ . The portion of the Series 1998A Bond not to be
purchased is $ (being a principal amount which is $ or any multiple of $5,000 in
excess thereof).
2. The name(s) of the registered owner(s) is (are) ; such person(s) was
(were) the registered owner(s) of such Series 1998A Bond on the date that the
Notice of Interest Rate Mode Conversion was given.
3. The address of the registered owner(s) referred to above is:
__________________________
__________________________
__________________________
4. I am aware the current rating on the Series 1998A Bonds provided by
Standard & Poor's Ratings Services may be reduced or withdrawn due to the
Interest Rate Mode Conversion.
5. This direction is irrevocable and binding on any subsequent Owner of
such Series 1998A Bond.
D-3
<PAGE>
IN WITNESS WHEREOF, the undersigned owner(s) or his (her/its/their) duly
authorized attorney(s) in fact has (have) executed this Bondowner Direction Not
to Purchase as of the date set forth below.
Dated:_________ Name(s):___________________________________
(Please print)
Signature(s):_____________________________
Signature(s) Guaranteed:
(Name of Eligible Guarantor Institution, as
defined by SEC Rule 17Ad-15
(17 CFR 240.17Ad-15))
D-4
<PAGE>
EXHIBIT E
NOTICE OF SUBSTITUTE LETTER OF CREDIT
NOTICE TO BONDOWNERS
This notice is being sent pursuant to the provisions of the Trust
Indenture, dated as of September 1, 1998 (the "Indenture"), between the City of
Lenexa, Kansas (the "Issuer"), and INTRUST Bank, N.A., as Trustee. Capitalized
terms used in this notice shall have the same meanings as in the Indenture.
You are hereby notified as follows:
1. A Substitute Letter of Credit consisting of a
issued by and relating to the
Issuer's Taxable Industrial Revenue Bonds (LabOne, Inc. Project) Series 1998A
(the "Series 1998A Bonds"), will become effective on (the "Substitute Letter of
Credit Date"). Unless you deliver a Bondowner Direction Not to Purchase as
described below, your Series 1998A Bond will be purchased on the Substitute
Letter of Credit Date at a price of 100% of the principal amount thereof plus
accrued interest. A copy of the proposed form of [Substitute Letter of Credit]
and certain financial information relating to the issuer thereof are on file at
the office of the Trustee and are available for inspection at your request, or a
copy will be forwarded to you upon your written request.
2. If your Series 1998A Bond or any portion thereof is so purchased,
payment therefor will be made on or after the purchase date thereof upon
presentation and surrender of such Series 1998A Bond at the principal corporate
trust office of the Trustee at INTRUST Bank, N.A., 105 N. Main Street, Corporate
Trust Department, Wichita, Kansas 67202, duly endorsed in blank for transfer
(with all signatures guaranteed by an Eligible Guarantor Institution).
3. In addition, you are further notified that:
(A) Interest will no longer accrue to you on your Series 1998A Bond
on and after the purchase date thereof unless the Trustee has received
directions from you not to so purchase your Series 1998A Bond as herein
provided, and, other than the right to receive payment of the purchase
price for your Series 1998A Bond, you shall then cease to have further
rights under the Indenture; and
(B) You have the right to direct the Trustee not to purchase all or
any portion of your Series 1998A Bond, which portion shall be $ (the
minimum authorized denomination for the Interest Rate Mode to be in effect
on the Substitute Letter of Credit Date) or any multiple of $5,000 in
excess thereof, if you deliver the following portion of this Notice
entitled "Bondowner Direction Not to Purchase" to the Trustee at its
address above on or before _______________ [the date occurring 12 days
prior to the Substitute Letter of Credit Date].
E-1
<PAGE>
(C) The current rating on the Series 1998A Bonds provided by Standard
& Poor's Ratings Services may be reduced or withdrawn due to the
substitution of the Letter of Credit.
Dated:_______________
INTRUST BANK, N.A.,
as Trustee
By_______________________________
Title
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Notice of Substitute Letter of Credit
Notice to Bondowners
BONDOWNER DIRECTION NOT TO PURCHASE
Re: City of Lenexa, Kansas, Taxable Industrial Revenue Bonds (LabOne,
Inc. Project) Series 1998A
INTRUST Bank, N.A.
105 N. Main Street
Wichita, Kansas 67202
as Trustee, under the Trust Indenture
dated as September 1, 1998 (the "Indenture")
Attention: Corporate Trust Department
Ladies and Gentlemen:
Pursuant to the provisions of the Indenture and in response to your Notice
of Substitute Letter of Credit dated , the undersigned hereby irrevocably
request(s) that the Series 1998A Bond described below not be purchased:
1. The Series 1998A Bond is one of the Series 1998A Bonds, numbered , the
principal amount of which is $ . The portion of the Series 1998A Bond not to be
purchased is $ (being a principal amount which is $ or any multiple of $5,000 in
excess thereof).
2. The name(s) of the registered owner(s) is (are) ; such person(s) was
(were) the registered owner(s) of such Series 1998A Bond on the date that the
Notice of Substitute Letter of Credit was given.
3. The address of the registered owner(s) referred to above is:
4. I am aware the current rating on the Series 1998A Bonds provided by
Standard & Poor's Ratings Services may be reduced or withdrawn due to the
substitution of the Letter of Credit.
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IN WITNESS WHEREOF, the undersigned owner(s) or his (her/its/their) duly
authorized attorney(s) in fact has (have) executed this Bondowner Direction Not
to Purchase as of the date set forth below.
Dated:___________ Name(s):_____________________________
(Please print)
Signature(s):________________________
Signature(s) Guaranteed:
(Name of Eligible Guarantor Institution, as
defined by SEC Rule 17Ad-15
(17 CFR 240.17Ad-15))
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EXHIBIT F
Request No.________________ Date:____________
WRITTEN REQUEST FOR DISBURSEMENT FORM
CITY OF LENEXA, KANSAS
---------------
LABONE, INC.
PROJECT FUNDS
To: INTRUST BANK, N.A.
Attention: Corporate Trust Department
as Trustee under the Trust Indenture, dated as of September 1, 1998,
between the City of Lenexa, Kansas (the AIndenture@), and said Trustee
Pursuant to Section 3.4 of the Lease Agreement, dated as of September 1,
1998 (the "Lease Agreement"), between the Issuer and LabOne, Inc. (the
"Lessee"), and Section 403 of the Indenture, the Lessee hereby requests payment
from (check applicable fund) the [____] LabOne, Inc. Series 1998A and Series
1998B Project Fund/the [____] LabOne, Inc. Series 1998C Project Fund in
accordance with this request and said Section 3.4 and hereby states and
certifies as follows:
1. The date and number of this request are as set forth above.
2. All terms in this request shall have and are used with the meanings
specified in the Lease Agreement.
3. The names of the persons, firms or corporations to whom the payments
requested hereby are due, the amounts to be paid and the general
classification and description of the (check applicable Project)
[____] Series 1998A and 1998B Project Costs/[____] Series 1998C
Project Costs for which each obligation requested to be paid hereby
was incurred are as set forth on Attachment I hereto.
4. Such (check applicable Project) [____] Series 1998A and 1998B
Project Costs/[____] Series 1998C Project Costs have been made or
incurred by the Lessee and have been paid by the Lessee, if payment
to the Lessee is requested, or, if payment to the Lessee is not
requested, are presently due to the persons to whom payment is
requested, are valid (check applicable Project) [____] Series 1998A
and 1998B Project Costs[____] Series 1998C Project Costs under the
Lease Agreement and proper charges against the (check applicable
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fund) [____] LabOne, Inc. Series 1998A and Series 1998B Project
Fund[____] LabOne, Inc. Series 1998C Project Fund and no part thereof
was included in any other request previously filed with the Trustee
under the provisions thereof.
5. Except for Project Costs for which payment is requested hereby and
except as set forth below, there are no outstanding statements
which are now due and payable for labor, wages, materials, supplies
or services in connection with the acquisition, construction and
equipping of the Project which, if unpaid, might become the basis
of a vendors', mechanics', laborers' or materialmen's statutory or
other similar lien upon the Project or any part thereof. Set forth
below is a description of (1) all disputed statements and the
reasons for such disputes, and (2) all statements in process but
not yet presented to the Trustee for payment.
6. With regard to any machinery and equipment with respect to which any
payment is requested hereby a reasonably complete description of all
such items and the purchase price and installation cost thereof are
set forth on Attachment II hereto.
7. Except with respect to down payments, all machinery, equipment,
furnishings and other personal property described on Attachment II
hereto is in place or has been delivered and will be installed.
8. Invoices, statements, vouchers or bills for the amounts requested are
attached hereto.
LABONE, INC.
By________________________
Authorized Lessee Representative
The Letter of Credit Provider hereby approves the above Written Request.
COMMERCE BANK, N.A.
By____________________________________
Authorized Letter of Credit Provider
Representative
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ATTACHMENT I
TO WRITTEN REQUEST FOR DISBURSEMENT FORM
CITY OF LENEXA, KANSAS
---------------
LABONE, INC.
PROJECT FUNDS
REQUEST NO. DATED , 19 .
---------- --------------- ---- ----
-------------------------
SCHEDULE OF PAYMENTS REQUESTED
General classification
and
description of the
Project Costs
for which the
obligation
Payee (1) Amount to be paid was
incurred(2)
(1) May be the Lessee if it has previously made such payment. May be the
Trustee for deposit in the Bond Funds if the Project Cost is interest on
the Bonds accruing prior to the Completion Date.
(2) For each obligation this should include the lower case letter category of
Series 1998A and 1998B Project Costs or Series 1998C Project Costs (see
the definitions of such terms in Section 101 of the Indenture) which
describes the related Series 1998A and 1998B Project Costs or Series 1998C
Project Cost and a brief description of the nature of such Series 1998A
and 1998B Project Costs or Series 1998C Project Cost (for example, land,
construction, machinery and equipment, Bond printing, etc.).
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ATTACHMENT II
TO WRITTEN REQUEST FOR DISBURSEMENT FORM
CITY OF LENEXA, KANSAS
---------------
LABONE, INC.
PROJECT FUNDS
REQUEST NO. DATED , 19 .
---------- ------------------ ---- ----
-------------------------
PERSONAL PROPERTY FOR WHICH PAYMENT IS REQUESTED
Reasonably complete description
of all such items of machinery, Purchase price
equipment, furnishings and and installation
other personal property cost thereof
F-4
EXHIBIT 4.2
LEASE AGREEMENT
between
CITY OF LENEXA, KANSAS
and
LABONE, INC.
---------------
Dated as of September 1, 1998
---------------
$20,000,000
City of Lenexa, Kansas
Taxable Industrial Revenue Bonds
(LabOne, Inc. Project)
Series 1998A
and
$5,000,000
City of Lenexa, Kansas
Taxable Subordinate Industrial Revenue Bonds
(LabOne, Inc. Project)
Series 1998B
and
$8,000,000
City of Lenexa, Kansas
Taxable Subordinate Industrial Revenue Bonds
(LabOne, Inc. Project)
Series 1998C
---------------
CERTAIN OF THE RIGHTS, TITLE AND INTEREST OF THE CITY OF LENEXA, KANSAS, TO THIS
LEASE AGREEMENT HAVE BEEN ASSIGNED TO INTRUST BANK, N.A., AS TRUSTEE UNDER THE
TRUST INDENTURE DATED AS OF SEPTEMBER 1, 1998, BETWEEN THE CITY AND THE TRUSTEE.
<PAGE>
TABLE OF CONTENTS
Page
Parties.................................................................1
Recitals................................................................1
ARTICLE I
DEFINITIONS, CONSTRUCTION AND CERTAIN GENERAL PROVISIONS
Section 1.1 Definitions..............................................1
Section 1.2 Rules of Interpretation..................................1
ARTICLE II
REPRESENTATIONS
Section 2.1 Representations by the Issuer............................2
Section 2.2 Representations by the Lessee............................3
ARTICLE III
CONVEYANCE AND CONSTRUCTION OF THE PROJECT, PROJECT FUNDS
Section 3.1 Conveyance of Project to Issuer..........................5
Section 3.2 Use of Proceeds of the Bonds.............................5
Section 3.3 Agreement to Complete Construction of the Project........5
Section 3.4 Operation of the Project Funds...........................5
Section 3.5 Right of Entry by Issuer.................................6
ARTICLE IV
GRANTING PROVISIONS, LEASE PAYMENTS AND OTHER PAYMENTS,
AND ASSIGNMENTS OF ISSUER'S RIGHTS, ETC.
Section 4.1 Grant of Leasehold Estate................................6
Section 4.2 Possession and Use of Project............................7
Section 4.3 Lease Payments...........................................7
Section 4.4 Additional Payments......................................8
Section 4.5 Obligations of Lessee Unconditional......................9
Section 4.6 Lessee's Remedies........................................9
Section 4.7 Assignment of Issuer's Rights............................9
Section 4.8 Letter of Credit.........................................9
Section 4.9 Net Lease...............................................10
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ARTICLE V
MAINTENANCE; MODIFICATIONS; INSURANCE; ASSIGNMENT OF PROJECT;
LOSS OF OR DAMAGE TO PROJECT
Section 5.1 Maintenance and Modification of Project by Lessee........11
Section 5.2 Assignment or Sublease by Lessee.........................12
Section 5.3 Taxes, Assessments and Other Charges.....................12
Section 5.4 Granting of Easements....................................13
Section 5.5 Insurance and Bonds Required.............................13
Section 5.6 Damage, Destruction, Condemnation or Loss of Title.......14
Section 5.7 Utilities................................................15
Section 5.8 Depreciation and Investment Tax Credit...................15
Section 5.9 Ad Valorem Taxes.........................................16
ARTICLE VI
PARTICULAR COVENANTS
Section 6.1 Indemnification..........................................16
Section 6.2 Further Assurances and Corrective Instruments............17
Section 6.3 Recording and Filing of Documents........................17
Section 6.4 Litigation Notice........................................17
Section 6.5 Covenant to Enter into Agreement or Contract
to Provide Ongoing Disclosure.........................17
ARTICLE VII
ASSIGNMENT OF ISSUER'S RIGHTS UNDER LEASE AGREEMENT
Section 7.1 Assignment by the Issuer.................................18
Section 7.2 Restriction on Transfer of Issuer's Rights...............18
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
Section 8.1 Events of Default Defined................................18
Section 8.2 Remedies on Default......................................19
Section 8.3 No Remedy Exclusive......................................22
Section 8.4 Agreement to Pay Attorneys' Fees and Expenses............22
Section 8.5 Issuer and Lessee to Give Notice of Default..............22
Section 8.6 Performance of Lessee's Obligations......................22
Section 8.7 Remedial Rights Assigned to the Trustee..................23
Section 8.8 Letter of Credit Provider to Direct Trustee..............23
ARTICLE IX
PREPAYMENT AND ACCELERATION OF LEASE PAYMENTS; PURCHASE OF PROJECT
Section 9.1 Prepayment at the Option of the Lessee...................23
Section 9.2 Optional Prepayment Upon Certain Events..................23
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Section 9.3 Mandatory Prepayment Upon Certain Events.................23
Section 9.4 Purchase of Project; Required Prepayment.................24
Section 9.5 Notice of Prepayment.....................................25
Section 9.6 Precedence of this Article...............................25
ARTICLE X
MISCELLANEOUS
Section 10.1 Authorized Representatives...............................25
Section 10.2 Term of Lease Agreement..................................26
Section 10.3 Notices..................................................26
Section 10.4 Performance Date Not a Business Day......................26
Section 10.5 Binding Effect...........................................26
Section 10.6 Amendments, Changes and Modifications....................26
Section 10.7 Execution in Counterparts................................26
Section 10.8 No Pecuniary Liability...................................27
Section 10.9 Extent of Covenants of the Issuer; No Personal
or Pecuniary Liability.................................27
Section 10.10 Effect of Default of Letter of Credit Provider
or Payment of Parity Bonds.............................28
Section 10.11 Severability.............................................28
Section 10.12 Governing Law............................................28
Signatures and Seals
Exhibit A - Description of Project
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LEASE AGREEMENT
THIS LEASE AGREEMENT dated as of September 1, 1998 (this "Agreement" or
"Lease Agreement"), between the CITY OF LENEXA, KANSAS, a municipal corporation
organized and existing under the laws of the state of Kansas (the "Issuer"), and
LABONE, INC., a Delaware corporation (the "Lessee"). Capitalized terms not
defined elsewhere herein shall have the meaning set forth in the Indenture as
more fully described in Section 1.1.
RECITALS:
1. The Issuer is authorized under the provisions of K.S.A. 12-1740 to
12-1749d, inclusive, as amended (the "Act"), to purchase, acquire, construct,
improve and equip certain facilities within its jurisdiction for commercial
purposes, to enter into leases and lease-purchase agreements with any person,
firm or corporation for the facilities, to issue revenue bonds for the purpose
of paying the cost of the facilities, and to pledge the income and revenues to
be derived from the operation of such facilities to secure the payment of the
principal of and interest on such bonds.
2. The Lessee has requested that the Issuer finance the acquisition,
construction and equipping of a commercial facility as more fully described on
Exhibit A to this Lease Agreement (the "Project"), by the Issuer's acquisition
of the Project and the lease of the Project to the Lessee pursuant to the terms
of this Lease Agreement.
3. Pursuant to the Act and the Indenture, the Issuer has issued its Series
1998A Bonds and Series 1998B Bonds for the above-stated purpose.
4. Concurrently with the issuance and delivery of the Bonds, the Lessee
will cause to be delivered to the Trustee the Letter of Credit issued by the
Letter of Credit Provider which can be drawn upon to pay the principal of (upon
redemption, acceleration or maturity), the purchase price and up to 57 days'
interest on the Series 1998A Bonds.
5. Under the terms of this Lease Agreement, the Lessee has agreed to make
rental payments in amounts and at the times sufficient to timely pay the
principal of and premium, if any, and interest on the Bonds.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein set forth, the Issuer and the Lessee do hereby covenant
and agree as follows:
ARTICLE I
DEFINITIONS, CONSTRUCTION AND CERTAIN GENERAL PROVISIONS
Section 1.1 Definitions. All capitalized terms not elsewhere defined in
this Lease Agreement have the meanings set forth in Section 101 of the
Indenture.
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Section 1.2 Rules of Interpretation.
(a) Words of the masculine gender shall be deemed and construed to include
correlative words of the feminine and neuter genders.
(b) Unless the context shall otherwise indicate, words importing the
singular number shall include the plural and vice versa, and words importing
person shall include firms, partnerships, associations and corporations,
including public bodies, as well as natural persons.
(c) The words "herein," "hereby," "hereunder," "hereof," "hereto,"
"hereinbefore," "hereinafter" and other equivalent words refer to this Lease
Agreement and not solely to the particular article, section, paragraph or
subparagraph hereof in which such word is used.
(d) Reference herein to a particular article or a particular section shall
be construed to be a reference to the specified article or section hereof unless
the context or use clearly indicates another or different meaning or intent.
Reference herein to a schedule or an exhibit shall be construed to be a
reference to the specified schedule or exhibit hereto unless the context or use
clearly indicates another or different meaning or intent.
(e) Wherever an item or items are listed after the word "including," such
listing is not intended to be a listing that excludes items not listed.
(f) The table of contents, captions and headings in this Lease Agreement
are for convenience only and in no way define, limit or describe the scope or
intent of any provisions or sections of this Lease Agreement.
ARTICLE II
REPRESENTATIONS
Section 2.1 Representations by the Issuer. The Issuer represents to the
Lessee that:
(a) The Issuer is a municipal corporation duly organized and validly
existing under the laws of the State. The Issuer has acquired title to the real
property constituting a part of the Project.
(b) The Issuer has lawful power and authority under the Act to enter into
this Lease Agreement and the Indenture and to carry out its obligations
hereunder and under the Indenture. By proper action of its governing body, the
Issuer has been duly authorized to execute and deliver this Lease Agreement,
acting by and through its duly authorized officers. The Indenture, the PILOT
Agreement and this Lease Agreement have been duly executed and delivered by the
Issuer and each constitutes a valid, legal, binding and enforceable obligation
of the Issuer (subject to bankruptcy, insolvency or creditors' rights laws
generally and principles of equity generally) without offset, defense or
counterclaim. The execution, delivery and performance of the Indenture, this
Lease Agreement and the PILOT Agreement by the Issuer will not violate any law,
regulation, order or decree of any governmental authority and, except for
certain consents, approvals, authorizations, orders or filings required to be
made with the Kansas Board of Tax Appeals and the County Appraiser of Johnson
County, Kansas, all consents, approvals, authorizations, orders or filings of or
with any court or governmental
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agency or body, if any, required for the execution, delivery and performance of
such documents by the Issuer have been obtained or made.
(c) The Project constitutes a "facility" within the meaning of the Act,
and the lease of the Project to the Lessee and the application of the proceeds
received by the Issuer from the sale of the Bonds for the purposes herein
specified will further the public purposes of the Act.
(d) To finance the costs of the Project, the Issuer proposes to issue the
Bonds in the aggregate principal amount of $33,000,000. The Bonds will bear
interest, be scheduled to mature, be in such series and be subject to purchase
and redemption prior to maturity in accordance with the provisions of the
Indenture. The Bonds are to be issued under and secured by the Indenture,
pursuant to which the Project and the rents, revenues and receipts derived by
the Issuer pursuant to this Lease Agreement, other than Unassigned Issuer
Rights, will be pledged and assigned to the Trustee for the benefit of the
Bondowners as security for payment of the principal of, premium, if any, and
interest on the Bonds and to the Letter of Credit Provider to secure the payment
of the obligations payable to the Letter of Credit Provider under the Letter of
Credit Provider Documents.
(e) To its knowledge, no member of the governing body of the Issuer or any
other officer of the Issuer has any significant or conflicting interest,
financial, employment or otherwise, in the Lessee, the Project or in the
transactions contemplated hereby.
Section 2.2. Representations by the Lessee.
(a) The Lessee is a corporation organized under the laws of the state of
Delaware. The Lessee is not in violation of any provision of its Organizational
Documents. The Lessee is duly authorized to do business in the State and has
lawful power and authority to enter into each of the Lessee Documents, acting by
and through its officers.
(b) The Lessee has the requisite authority to own or lease and operate its
properties and to carry on its business and has obtained all material permits,
licenses, consents and approvals as are necessary or required therefor.
(c) The Lessee has the power and authority to enter into, execute and
deliver the Lessee Documents, and to perform its obligations under and
consummate the transactions contemplated by the Lessee Documents, and has by
proper corporate action, duly authorized the execution and delivery of the
Lessee Documents and the performance of the Lessee's duties and obligations
thereunder.
(d) The Lessee Documents are valid and binding agreements of the Lessee,
enforceable in accordance with their respective terms, except as enforcement
thereof may be limited by applicable bankruptcy, insolvency, moratorium,
reorganization or other laws or equitable principles of general application
affecting remedies or creditors' rights or by general equitable principles which
may limit the right to obtain equitable remedies.
(e) The execution and delivery of the Lessee Documents, the consummation
of the transactions contemplated hereby and thereby and the fulfillment of or
compliance with the
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terms and conditions hereof and thereof will not (with the passage of time or
the giving of notice, or both) conflict with or result in or constitute a breach
of or default under any indenture, mortgage, deed of trust, lease or other
agreement or instrument to which the Lessee is a party or by which it or any of
its property is bound, or violate any provision of the Organizational Documents
of the Lessee, or of any constitutional or statutory provision, or of any order,
rule or regulation of any court or governmental authority applicable to the
Lessee or its property.
(f) There is not now pending or, to the knowledge of the Lessee,
threatened, any suit, action or proceeding against or affecting the Lessee by or
before any court, arbitrator, administrative agency or other governmental
authority which, if decided adversely to the Lessee, would materially affect the
validity of any of the transactions contemplated by the Lessee Documents and the
Indenture, or is reasonably likely to materially impair the ability of the
Lessee to perform its obligations under the Lessee Documents or the Indenture,
or as contemplated hereby or thereby, nor, to the knowledge of the Lessee, is
there any basis therefor.
(g) The Lessee agrees that during the term of this Lease Agreement it will
maintain its existence, will not dissolve or otherwise dispose of all or
substantially all of its assets, and will not transfer a controlling interest in
the Lessee except as provided in the next sentence. The Lessee may, with the
prior written consent of the Letter of Credit Provider and the Issuer, without
violating the agreement contained in this Section, sell or otherwise transfer to
another legal entity all or substantially all of its assets as an entirety
including by merger or consolidation, and, if Lessee so elects, thereafter
dissolve, if
(i) the transferee entity shall be a legal entity organized and existing
under the laws of one of the states of the United States of America or the
District of Columbia and shall be qualified to do business in the State,
and
(ii) the transferee entity shall assume in writing all of the obligations
of the Lessee under the Lessee Documents and the Letter of Credit Provider
Documents, in which event the Issuer if requested by the Lessee, shall
release the Lessee in writing from the Lessee's obligations under the
Lessee Documents to which the Issuer is a party, concurrently with and
contingent upon such transfer; and
(iii) prior to the transfer, the Trustee and the Issuer are furnished with
written notice of such proposed transfer and a certificate from the
Authorized Lessee Representative stating that in the opinion of such
Authorized Lessee Representative none of the covenants contained in this
Lease Agreement will be violated as a result of such transfer.
(h) As of the date of the issuance of the Bonds, the Lessee is not aware
of any hazardous, toxic, radioactive or similarly regulated substance or
material at the Project site, the removal of which is required by the provisions
of the Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. ss.9601 et seq., the Superfund Amendments and Reauthorization Act of
1986, or any other federal, state or local environmental statute, regulation or
ordinance ("Environmental Laws"). The Lessee agrees that it is responsible for
maintaining the Project in compliance with all Environmental Laws. The Lessee
agrees to indemnify the Issuer, the Trustee and the Bondowners and agrees to
defend and hold them harmless from and against all loss, cost, damage and
expense (including, without limitation,
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reasonable attorneys' fees and costs associated incurred in the investigation,
defense and settlement of claims) that they may incur, directly or indirectly,
as a result of or in connection with the assertion against them or any of them
of any claim relating to the presence on, escape or removal from the Project of
any hazardous substance or other material regulated by any applicable
Environmental Law, or compliance with any applicable Environmental Law, whether
before, during or after the term of this Lease Agreement, including claims
relating to personal injury or damage to property. The Lessee further agrees to
give immediate written notice to the Issuer, the Letter of Credit Provider and
the Trustee of any violation with respect to the Project site of any
Environmental Law of which violation the Lessee has actual knowledge.
ARTICLE III
CONVEYANCE AND CONSTRUCTION OF THE PROJECT; PROJECT FUNDS
Section 3.1. Conveyance of Project to Issuer. The Lessee shall prior to or
concurrently with the issuance of the Bonds deliver to the Issuer title to the
Project as described on Exhibit A to this Agreement, including the site, such
improvements as are then completed, installed or in progress and such equipment
that has been acquired. The Lessee shall also concurrently with such conveyance
make provisions for the discharge of any liens or encumbrances on the Project
other than Permitted Encumbrances. Except for personal property that is not
acquired with funds deposited in the Project Funds, all improvements to the
Project, materials for work in progress at the Project and equipment installed
at the Project shall immediately become the property of the Issuer and
constitute part of the Project. In the event this Agreement is deemed to be a
security agreement with respect to any of such improvements, equipment and
personal property, the Lessee hereby grants Issuer a security interest in such
such improvements, equipment and personal property and all attachments,
accessions, additions, substitutions, replacement and proceeds thereof
(including insurance proceeds) (collectively "Collateral") to secure all Lease
Payments and all obligations, covenants and agreements to be performed by the
Lessee hereunder, and agrees that this security interest shall be prior to all
other security interests in the Collateral.
Section 3.2. Use of Proceeds of the Bonds. The proceeds of the sale of the
Bonds shall be deposited with the Trustee and applied as provided in the
Indenture and this Lease Agreement.
Section 3.3. Agreement to Complete Construction of the Project. The Lessee
agrees to cause the acquisition, construction and equipping of the Project to be
diligently and continuously prosecuted and to be completed with reasonable
dispatch, and to provide (from its own funds if required) all moneys necessary
to complete the Project.
Section 3.4. Operation of the Project Funds.
(a) Disbursements from the Project Funds. Moneys in the Project Funds
shall be disbursed by the Trustee only in accordance with the terms of Section
403 of the Indenture. If there are not sufficient funds available under the
terms of the Indenture to fully acquire, construct and equip the Project, then
the Lessee will forthwith provide additional funds
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necessary for such acquisition, construction and equipment and make payments
directly to contractors, suppliers or other applicable parties for property
acquired or installed and services rendered. The Lessee shall hold the Issuer
and the Trustee whole and harmless from any obligation to pay any costs of the
Project in excess of moneys in the Project Funds.
(b) Completion Certificate.
(i) The Lessee shall deliver to the Trustee, the Issuer and the
Letter of Credit Provider within 90 days after the completion of the
Project a certificate of an Authorized Lessee Representative:
(1) stating that the acquisition, construction and equipping of
the Project have been fully completed and the date of completion;
(2) stating that he has made such investigation of such sources
of information as are deemed by him to be necessary, including
pertinent records of the Lessee, and is of the opinion that the
construction of the Project has been fully paid for and no claim or
claims exist against the Issuer or the Lessee or against the Project
out of which a lien based on furnishing labor or material exists or
might ripen; provided, however, there may be excepted from the
foregoing statement any claim or claims out of which a lien exists or
might ripen in the event that the Lessee intends to contest such
claim or claims in which event such claim or claims shall be
described; provided, further, that it shall be stated that funds are
on deposit in the Project Funds or other separate trust or escrow
accounts are available through enumerated bank loans (including
letters of credit) or federal or state government grants to the
Lessee for the Project sufficient to make payment of the full amount
which might in any event be payable in order to satisfy such claim or
claims (with respect to the amount of funds remaining in the Project
Funds or the amount of available bank loans (including letters of
credit) or federal or state government grants, such Authorized Lessee
Representative may rely upon a certificate of the Trustee); and
(3) stating that all permits necessary, if any, for the
occupancy and use of the Project have been obtained and are in full
force and effect.
(ii)If the statement of an Authorized Lessee Representative filed
with the Trustee, the Issuer and the Letter of Credit Provider responsive
to subparagraph (1) states that there is a claim or claims in controversy
which create or might ripen into a lien, there shall be filed with the
Trustee, the Issuer and the Letter of Credit Provider a statement of the
Authorized Lessee Representative when and as such claim or claims have
been fully paid or otherwise settled.
(c) Disposition of Project Funds Moneys After Completion. After payment by
the Trustee of all Written Requests theretofore tendered to the Trustee under
the provisions of Section 403 of the Indenture and after receipt by the Trustee
of the statement mentioned in subsection (b) of this Section, the balance of
moneys in the Project Funds shall be transferred and applied as provided in
Section 403(c) of the Indenture.
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Section 3.5. Right of Entry by Issuer. The duly authorized agents of the
Issuer shall have the right at any reasonable time and upon reasonable notice to
Lessee prior to the completion of the Project to have access to the Project or
any part thereof for the purpose of inspecting the acquisition, installation or
construction thereof.
ARTICLE IV
GRANTING PROVISIONS, LEASE PAYMENTS AND OTHER PAYMENTS, AND ASSIGNMENTS OF
ISSUER'S RIGHTS, ETC.
Section 4.1. Grant of Leasehold Estate. The Issuer hereby rents, leases
and lets the Project to the Lessee, and the Lessee hereby rents, leases and
hires the Project from the Issuer, subject to Permitted Encumbrances, for the
rentals and upon and subject to the terms and conditions herein contained, for a
term commencing on the date hereof and ending on the final maturity date of the
Bonds (the "Lease Term"), unless sooner terminated in a manner provided for in
this Lease Agreement.
Section 4.2. Possession and Use of Project.
(a) The Issuer covenants and agrees that as long as the Lessee is not in
default under this Lease Agreement, the Lessee shall have sole and exclusive
possession of the Project (subject to Permitted Encumbrances and the Issuer's
right of access pursuant to Section 3.5 and the Trustee's right of access
pursuant to Section 8.2) and shall and may peaceably and quietly have, hold and
enjoy the Project during the Lease Term. The Issuer, at the request and sole
expense of the Lessee, will cooperate with the Lessee in order that the Lessee
may have quiet and peaceable possession and enjoyment of the Project.
(b) Subject to the provisions of this Section, the Lessee shall have the
right to use the Project for any lawful purpose allowed by law and contemplated
by the Act. The Lessee shall comply with all statutes, laws, ordinances, orders,
judgments, decrees, regulations, directions and requirements of all federal,
state, local and other governments or governmental authorities, now or hereafter
applicable to the Project or to any adjoining public ways, as to the manner of
use or the condition of the Project or of adjoining public ways. The Lessee
shall also comply with the mandatory requirements, rules and regulations of all
insurers under the insurance policies carried by the Lessee. The Lessee will pay
all costs, expenses, claims, fines, penalties and damages that may in any manner
arise out of, or be imposed as a result of, the failure of the Lessee to comply
with the provisions of this Section. The Lessee has the right, at its own cost
and expense, to contest or review by legal or other appropriate procedures the
validity or legality of any such governmental statute, law, ordinance, order,
judgment, decree, regulation, direction or requirement, or any such requirement,
rule or regulation of an insurer, and during such contest or review the Lessee
may refrain from complying therewith.
Section 4.3. Lease Payments.
(a) Subject to the Lessee's right to acquire the Project from the Issuer
under Article IX, the Lessee agrees to make rental payments ("Lease Payments")
to the Trustee at its principal corporate trust office, for the account of the
Issuer, for deposit in the Bond Funds, in federal or
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other immediately available funds, during normal business hours on or before
11:00 a.m. Trustee's local time, on each Lease Payment Date or Purchase Date,
the amount of such payment being as follows:
(i) the amount of the principal of the Bonds coming due on each
Lease Payment Date, whether at stated maturity, by redemption or
acceleration or otherwise;
(ii) the amount of interest on the Bonds coming due on such Lease
Payment Date;
(iii) the amount of redemption premium, if any, on the Bonds coming
due on such Lease Payment Date; and
(iv) on each Purchase Date, Interest Rate Mode Conversion Date or
Substitute Letter of Credit Date, the purchase price of any Series 1998A
Bonds required to be purchased pursuant to Section 306 or 307 of the
Indenture.
(b) The amounts received by the Trustee under the Letter of Credit shall
be credited against the Lessee's corresponding Lease Payments due with respect
to the Series 1998A Bonds, and the Lessee's obligation to make Lease Payments
shall therefore be deemed satisfied to the extent of such amounts that are
received by the Trustee under the Letter of Credit.
(c) Except for such interest of the Lessee as may hereafter arise pursuant
to Section 507 of the Indenture, the Lessee and the Issuer each acknowledge that
neither the Lessee nor the Issuer has any interest in the Bond Fund and any
moneys deposited therein shall be in the custody of and held by the Trustee in
trust for the benefit of the Bondowners and the Letter of Credit Provider.
Section 4.4. Additional Payments.
(a) The Lessee shall pay, when due, the following amounts to the following
persons, all as "Additional Payments" under this Lease Agreement:
(i) To the Trustee, when due, all reasonable fees and charges for
its services rendered under the Indenture or this Lease Agreement and all
reasonable expenses (including without limitation reasonable fees and
charges of any paying agent, bond registrar, counsel, accountant, engineer
or other person) incurred in the performance of the duties of the Trustee
under the Indenture or this Lease Agreement for which the Trustee and
other persons are entitled to repayment or reimbursement;
(ii)To the Issuer all reasonable expenses (including without
limitation reasonable attorneys' fees) incurred by the Issuer in relation
to the transactions contemplated by this Lease Agreement and the
Indenture, which are not otherwise to be paid by the Lessee under this
Lease Agreement or the Indenture;
(iii) To the appropriate person, such payments as are required (i)
as payment for or reimbursement of any and all reasonable costs, expenses
and liabilities incurred by the Issuer, the Letter of Credit Provider or
the Trustee or any of them in satisfaction of
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any obligations of the Lessee hereunder that the Lessee does not perform,
or incurred in the defense of any action or proceeding with respect to the
Project, this Lease Agreement, the Indenture, or the other Lessee
Documents or (ii) as reimbursement for expenses paid, or as prepayment of
expenses to be paid, by the Issuer or the Trustee and that are incurred as
a result of a request by the Lessee or a requirement of this Lease
Agreement and that the Lessee is not otherwise required to pay under this
Lease Agreement;
(iv)To the Trustee, the cost of printing any Replacement Bonds; and
(v) To the Remarketing Agent, the fees and expenses required to be
paid under the Remarketing Agreement.
(b) Additional Payments shall be deemed past due for purposes of this
Lease Agreement if such remain unpaid after 30 days following the date when due.
Any past due Additional Payments which are due to the Issuer, the Trustee or the
Letter of Credit Provider shall continue as an obligation of the Lessee until
they are paid and shall bear interest (except as may be otherwise provided in
the Letter of Credit Documents with respect to obligations owed to the Letter of
Credit Provider) at the prime rate of interest announced from time to time by
the Trustee plus four percent during the period such Additional Payments remain
unpaid.
Section 4.5. Obligations of Lessee Unconditional. The Lessee covenants and
agrees with and for the express benefit of the Issuer and the Owners of the
Bonds and the Letter of Credit Provider that it will pay all amounts due under
Sections 4.3 and 4.4 and it will perform its obligations, covenants and
agreements under this Lease Agreement, without notice or demand, and without
abatement, deduction, set-off, counterclaim, recoupment or defense or any right
of termination or cancellation arising from any circumstances whatsoever,
whether now existing or hereafter arising, and regardless of whether or not the
Project is completed, any change in the tax or other law of the United States of
America, the State or any political subdivision of either thereof, any change in
the Issuer's legal organization or status, or any default of the Issuer
hereunder, and regardless of the invalidity of any action of the Issuer, and
regardless of the invalidity of any portion of this Lease Agreement, and, to the
extent permitted by law, the Lessee hereby waives the provisions of any statute
or other law now or hereafter in effect contrary to any of its obligations,
covenants or agreements under this Lease Agreement or which releases or purports
to release the Lessee therefrom. Nothing in this Lease Agreement shall be
construed as a waiver by the Lessee of any rights or claims the Lessee may have
against the Issuer under this Lease Agreement or otherwise, but any recovery
upon such rights or claims shall be had from the Issuer separately, it being the
intent of this Lease Agreement that the Lessee shall be unconditionally and
absolutely obligated to perform fully all of its obligations, agreements and
covenants under this Lease Agreement for the benefit of the Owners of the Bonds
and the Letter of Credit Provider.
Section 4.6. Lessee's Remedies. Nothing contained in this Article shall be
construed to release the Issuer from the performance of any of its agreements
herein, and if the Issuer should fail to perform any such agreements, the Lessee
may institute such action against the Issuer as the Lessee may deem necessary to
compel such performance so long as such action
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shall not violate the Lessee's agreements in Section 4.5 or diminish or delay
the amounts required to be paid by the Lessee pursuant to Sections 4.3 and 4.4.
The Lessee, however, acknowledges and agrees that any pecuniary obligation of
the Issuer created by or arising out of this Lease Agreement shall be payable
solely out of the proceeds derived from this Lease Agreement, the sale of the
Bonds, any insurance and condemnation awards, or amounts received upon the sale
or other disposition of the Project upon a default by the Lessee or otherwise.
Section 4.7. Assignment of Issuer's Rights. Under the Indenture, the
Issuer will, as additional security for the Bonds, assign, transfer, pledge and
grant a security interest in its rights under this Lease Agreement to the
Trustee (except for the Unassigned Issuer's Rights). The Issuer and the Lessee
agree to cooperate in the execution and delivery of all instruments necessary to
file and continue such security interest. The Trustee is hereby given the right
to enforce, either jointly with the Issuer or separately, the performance of the
obligations of the Lessee, and the Lessee hereby consents to the same and agrees
that the Trustee may enforce such rights as payments required under this Lease
Agreement directly to the Trustee. The Issuer and the Lessee recognize that the
Trustee and the Letter of Credit Provider are third party creditor-beneficiaries
of this Lease Agreement.
Section 4.8. Letter of Credit.
(a) The Lessee will cause the Letter of Credit Provider to maintain the
Letter of Credit in full force and effect in an amount equal to the principal
amount of the Outstanding Parity Bonds plus (so long as the Parity Bonds are in
the Weekly Mode or the Monthly Mode) 57 days' interest thereon computed at the
Maximum Rate. Upon any conversion of the Interest Rate Mode to an Interest Rate
Mode other than a Weekly Mode or Monthly Mode, the Lessee will cause the Letter
of Credit Provider to increase the interest component of the Letter of Credit to
cover 210 days' interest on the Parity Bonds at the rate or rates then borne by
the Parity Bonds.
(b) The Lessee may (without penalty or premium) provide and the Trustee
shall accept any Substitute Letter of Credit, provided that any Substitute
Letter of Credit shall meet the following requirements:
(i) the Issuer shall approve in writing the issuer of the Substitute
Letter of Credit or the Trustee shall receive written confirmation from
the Rating Agency that the credit rating on the Parity Bonds with the
Substitute Letter of Credit will be not less than the credit rating on the
Parity Bonds on the date of their original issuance.
(ii)the form and content of such Substitute Letter of Credit are
reasonably acceptable to the Trustee;
(iii) the amount which may be drawn under such Substitute Letter of
Credit is at least equal to the principal amount of the Parity Bonds then
Outstanding plus (so long as the Parity Bonds are in the Weekly Mode or
the Monthly Mode) an amount equal to 57 days' interest on the Parity Bonds
at the Maximum Rate (210 days' interest at the
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rate or rates borne by the Parity Bonds if the Parity Bonds are in an
Interest Rate Mode other than a Weekly Mode or Monthly Mode);
(iv) the other terms of the Substitute Letter of Credit are
substantially similar in all material respects to the predecessor Letter
of Credit;
(v) replacement of such predecessor Letter of Credit with such
Substitute Letter of Credit will not reduce the credit rating or ratings
on the Parity Bonds then in effect, if any (as evidenced by a written
confirmation received from each Rating Agency maintaining a credit rating
on the Parity Bonds prior to the delivery of such Substitute Letter of
Credit);
(vi) an opinion of Bond Counsel acceptable to the Trustee shall be
delivered to the Trustee to the effect that such substitution is permitted
by this Lease Agreement; and
(vii) an opinion of counsel acceptable to the Trustee has been
delivered to the Trustee to substantially the same effect as the opinion
delivered in connection with the issuance of the initial Letter of Credit
and, in addition, to the effect that the exemption of the Parity Bonds (or
any securities evidenced thereby) from the registration requirements of
the Securities Act of 1933, as amended, and the exemption of the Indenture
from qualification under the Trust Indenture Act of 1939, as amended,
shall not be impaired by the substitution of such Substitute Letter of
Credit or that the applicable registration or qualification requirements
of such acts have been satisfied.
(c) Upon acceptance of the Substitute Letter of Credit, the Trustee shall
return the predecessor Letter of Credit to the provider thereof.
Section 4.9. Net Lease. The Issuer and the Lessee agree that (a) this
Lease Agreement is intended to be a net lease, (b) the Lease Payments are
designed to provide the Issuer and the Trustee funds adequate in amount to pay
all principal of and interest and any purchase price and redemption premium
accruing on the Bonds as the same become due and payable, (c) to the extent that
the Lease Payments are not sufficient to provide the Issuer and the Trustee with
funds sufficient for the foregoing purposes, the Lessee will pay, upon demand,
as Additional Payments, such additional sums of money, in cash, as may from time
to time be required for such purposes, and (d) if, after all of the Bonds are
deemed to be paid in accordance with Article XII of the Indenture and provision
has been made for payment of all other sums payable under the Indenture and this
Lease Agreement in accordance with Article XII of the Indenture, the Trustee or
the Issuer holds unexpended funds received in accordance with the terms of this
Lease Agreement, the unexpended funds shall, after deduction for all sums then
due and owing by the Lessee under this Lease Agreement, and except as otherwise
provided in this Lease Agreement and the Indenture, become the absolute property
of and be paid over to the Lessee.
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ARTICLE V
MAINTENANCE; MODIFICATIONS; INSURANCE; ASSIGNMENT OF PROJECT;
LOSS OF OR DAMAGE TO PROJECT V
Section 5.1. Maintenance and Modification of Project by Lessee.
(a) The Lessee will at its own expense (i) keep the Project in as
reasonably safe condition as its operations shall permit, (ii) with respect to
the Project, comply with all applicable health and safety standards and all
other industrial requirements or restrictions enacted or promulgated by the
State, or any political subdivision or agency thereof, or by the government of
the United States of America or any agency thereof, and (iii) keep the Project
in good repair and in good operating condition and make from time to time all
necessary repairs thereto and renewals and replacements thereof. The Lessee is
not obligated to operate, maintain, preserve, repair, replace or renew any
element or unit of the Project the maintenance, repair, replacement or renewal
of which becomes, in the sole judgment of the Lessee and subject to the Letter
of Credit Provider Documents, uneconomical to the Lessee because of damage,
destruction or obsolescence, or change in economic or business conditions, or
change in government standards and regulations. The Lessee shall not permit or
suffer others to commit a nuisance in or about the Project or itself commit a
nuisance in connection with its use or occupancy of the Project. The Lessee will
pay all costs and expenses of operation of the Project.
(b) The Lessee may, subject to the Letter of Credit Provider Documents and
at its own expense, make from time to time any additions, modifications or
improvements to the Project that it may deem desirable for its business purposes
and that do not materially impair the structural strength or effective use, or
materially decrease the value, of the Project; provided that no such addition,
modification or improvement shall result in a change in the character of the
Project in a manner that would result in any of the representations or
warranties contained herein with respect to the Project or the use of the
proceeds of the Bonds being or becoming false, untrue, misleading or breached.
The Lessee will not do or permit others under its control to do any work in or
in connection with the Project or related to any repair, rebuilding,
restoration, replacement, alteration of or addition to the Project, or any part
thereof, unless all requisite municipal and other governmental permits and
authorizations shall have first been procured and paid for. All such work will
be done in compliance with all applicable building, zoning and other laws,
ordinances, governmental regulations and requirements and in accordance with the
requirements, rules and regulations of all insurers under the policies required
to be carried under the provisions of this Lease Agreement. All additions,
modifications or improvements made by the Lessee pursuant to this Section shall
(i) be made in a workmanlike manner and in strict compliance with all laws and
ordinances applicable thereto, (ii) when commenced, be prosecuted to completion
with due diligence, and (iii) other than personal property and trade fixtures,
when completed, be deemed a part of the Project.
(c) The Lessee will not do or suffer anything to be done whereby the
Project, or any part thereof, may be encumbered by any mechanic's or other
similar lien and if, whenever and so often as any mechanic's or other similar
lien is filed against the Project, or any part thereof, the Lessee will
discharge the same of record within 30 days after the date of filing. Nothing in
this Lease Agreement is to be construed to constitute authorization or consent
by the Issuer nor will the Issuer be liable for any labor or materials furnished
to the Lessee or anyone claiming by,
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through or under the Lessee upon credit, and that mechanic's or similar liens
for any such labor, services or materials will not attach to or affect the
estate of Issuer in and to the Project, or any part thereof. Notwithstanding the
foregoing, the Lessee will have the right to contest any such mechanic's or
other similar lien if within said 30-day period stated above it (i) notifies the
Issuer, the Letter of Credit Provider and the Trustee in writing of its
intention so to do, and if requested by the Issuer, deposits with the Trustee a
surety bond issued by a surety company acceptable to the Issuer as surety, in
favor of the Issuer or cash, in the amount of the lien claim so contested,
indemnifying and protecting the Issuer from and against any liability, loss,
damage, cost and expense of whatever kind or nature growing out of or in any way
connected with said asserted lien and the contest thereof, and (ii) diligently
prosecutes such contest, at all times effectively staying or preventing any
official or judicial sale of the Project or any part thereof or interest
therein, under execution or otherwise, and (iii) promptly pays or otherwise
satisfies any final judgment adjudging or enforcing such contested lien claim
and thereafter promptly procures record release or satisfaction thereof.
Section 5.2. Assignment or Sublease by Lessee. The Lessee will not assign
any of its right, title and interest in, to and under this Lease Agreement
without the prior written consent of the Issuer and the Letter of Credit
Provider except as provided in Section 2.2(g). The Lessee may sublease the
Project to a single party or entity, with the prior written consent of Issuer
and the Letter of Credit Provider. The Lessee may sublease portions of the
Project for use by others in the normal course of its business without Issuer's
prior consent or approval. In the event of any such subleasing, the Lessee shall
remain fully liable for the performance of its duties and obligations hereunder.
Any such sublease shall be subject and subordinate in all respects to the
provisions of this Lease Agreement.
Section 5.3. Taxes, Assessments and Other Charges.
(a) The Lessee shall pay all taxes, assessments and charges of any kind
whatsoever that may at any time be lawfully assessed or levied against or with
respect to the Project (including any tax upon or with respect to the income or
profits of the Issuer from the Project that, if not paid, would become a charge
on the payments to be made under this Lease Agreement prior to or on a parity
with the charge thereon created by the Indenture and including ad valorem, sales
and excise taxes, assessments and charges upon the Lessee's interest in the
Project), all utility and other charges incurred in the operation, maintenance,
use, occupancy and upkeep of the Project and all assessments and charges
lawfully made by any governmental body for public improvements that may be
secured by lien on the Project.
(b) The Lessee may, after giving written notice thereof to the Issuer, the
Letter of Credit Provider and the Trustee, at its expense, in its own name or in
the Issuer's name, contest in good faith the validity or amount of any tax,
assessment or other governmental charge; provided, however, the Lessee shall
institute appropriate legal proceedings to contest such charge at least 10 days
before such charge becomes delinquent; and, provided further, that if requested
by the Issuer, the Lessee shall deposit with the Trustee cash or a surety bond
of a surety company acceptable to the Issuer, in favor of the Issuer, in a sum
of at least the amount of the charge so contested, assuring the payment of such
contested charge together with all interest and penalties to accrue thereon. The
Lessee shall hold the Issuer whole and harmless from any costs and expenses the
Issuer may incur related to any of the above.
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(c) The Lessee shall furnish to the Issuer, the Letter of Credit Provider
and the Trustee, upon request, proof of payment of any taxes, governmental
charges, utility charges, insurance premiums or other charges required to be
paid by the Lessee under this Lease Agreement.
Section 5.4. Granting of Easements. If no Event of Default under this
Lease Agreement has occurred and is continuing, the Lessee may, at any time or
times, (a) grant easements, licenses and other rights or privileges in the
nature of easements with respect to any property included in the Project, free
from any rights of the Issuer or the Bondowners, or (b) release existing
easements, licenses, rights-of-way and other rights or privileges, all with or
without consideration and upon such terms and conditions as the Lessee
determines, and the Issuer agrees, to the extent that it may legally do so, that
it will execute and deliver any instrument necessary or appropriate to confirm
and grant or release any such easement, license, right-of-way or other right or
privilege or any such agreement or other arrangement, upon receipt by the Issuer
of: (i) a copy of the instrument of grant or release or of the agreement or
other arrangement, (ii) a written application signed by the Authorized Lessee
Representative requesting such instrument, and (iii) a certificate executed by
the Lessee stating (aa) that such grant or release is not detrimental to the
proper conduct of the business of the Lessee, and (bb) that such grant or
release will not impair the effective use or interfere with the efficient and
economical operation of the Project and will not materially adversely affect the
security of the Bondowners. If the instrument of grant shall so provide, any
such easement or right and the rights of such other parties thereunder shall be
superior to the rights of the Issuer and the right of the Bondowners and shall
not be affected by any termination of this Lease Agreement or default on the
part of the Lessee hereunder. If no Event of Default has occurred and is
continuing, any payments or other consideration received by the Lessee for any
such grant or with respect to or under any such agreement or other arrangement
shall be and remain the property of the Lessee, but, in the event of the
termination of this Lease Agreement because of an Event of Default, all rights
then existing of the Lessee with respect to or under such grant will inure to
the benefit of and be exercisable by the Issuer.
Section 5.5. Insurance and Bonds Required.
(a) The Lessee shall cause the Project to be kept continuously insured
against such risks as are customarily insured against by companies conducting
activities similar to those of the Lessee in connection with the Project and
shall pay as the same become due all premiums in respect thereof, such insurance
to include the following policies of insurance:
(i) Property Casualty Insurance: insurance insuring the Project
against loss or damage by fire, lightning, flood, earthquake and all other
risks covered by the extended coverage insurance endorsement then in use
in the State in an amount not less than the amount customarily maintained
for similar types of businesses issued by such insurance company or
companies authorized to do business in the State as may be selected by the
Lessee;
(ii) Liability Insurance: comprehensive general accident and public
liability insurance (including coverage for all losses whatsoever arising
from the ownership,
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maintenance, operation or use of any automobile, truck or other motor
vehicle in or upon the Project), in an amount not less than amounts
customarily maintained for similar types of businesses; and
(iii) Workers' Compensation Insurance: workers' compensation
and unemployment coverages as required by the laws of the State.
(b) Not less than 30 days prior to the expiration dates of the expiring
policies, originals or copies of renewal policies required by this Section or
certificates evidencing such insurance shall be delivered by the Lessee to the
Letter of Credit Provider and the Trustee. All policies of such insurance and
all renewals thereof (i) shall contain a provision that such insurance may not
be cancelled by the issuer thereof without at least 30 days' written notice to
the Lessee, the Trustee, the Issuer and the Letter of Credit Provider, (ii)
shall name the Lessee as the insured and the Trustee and the Issuer as
additional insured and loss payees, as their interests in the Project appear,
(iii) shall be issued by an insurance company qualified under the laws of the
State to assume the risks covered therein; and (iv) may be subject to reasonable
deductible.
(c) Nothing in this Lease Agreement shall be construed as preventing the
Lessee from satisfying the insurance requirements herein set forth by using
blanket policies of insurance provided each and all of the requirements and
specifications of this Lease Agreement respecting insurance are complied with.
(d) In addition to the insurance policies listed in Section 5.5(a) of this
Lease Agreement, the Lessee shall obtain a policy of owner's title insurance,
insuring the Issuer's fee simple title to the Project, (subject to Permitted
Encumbrances) and insuring the Letter of Credit Provider and the Trustee, as
their interests in the Project appear, in an amount equal to the value of the
site and improvements constituting a part of the Project. Such policy shall
contain full coverage against mechanics' liens and no survey exception.
Section 5.6. Damage, Destruction, Condemnation or Loss of Title.
(a) The Lessee shall notify the Issuer, the Letter of Credit Provider and
the Trustee immediately in the case of damage to or destruction of the Project
or any portion thereof resulting from fire or other casualty (hereinafter
referred to as a "casualty loss") or of a condemnation or loss of title.
(b) In the event of a casualty loss, a condemnation or a loss of title for
which the Net Proceeds do not exceed $250,000, the Lessee shall forthwith
repair, reconstruct, restore, replace and improve the Project to substantially
the same or an improved condition or utility value as existed prior to such
casualty loss or forthwith make such replacements of or repairs or improvements
to the Project or portions thereof made necessary by such condemnation or loss
of title. Such Net Proceeds shall be paid directly to the Lessee and applied to
the extent necessary to the payment of the costs of such repair, reconstruction,
restoration, replacement and improvement. Any remaining balance not required for
such purpose shall be paid by the Lessee to the Trustee for deposit in the Bond
Fund.
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(c) If Net Proceeds exceed $250,000, the Net Proceeds shall be deposited
with the Trustee and, at the option of the Lessee, with the prior written
consent of the Letter of Credit Provider, by written notice delivered to the
Trustee, the Letter of Credit Provider and the Issuer within 60 days after the
determination of the amount of such Net Proceeds or 180 days after the
occurrence of such casualty loss, condemnation or loss of title, whichever
occurs first, the Lessee shall either:
(i) Option A - Repairs and Improvements: use Net Proceeds to repair,
reconstruct, restore, replace and equip the Project and, in such event,
such Net Proceeds shall be deposited in a separate account of the Project
Funds and, so long as no Default exists, shall be disbursed from time to
time by the Trustee upon receipt of a Written Request therefor for the
purpose of restoring or rebuilding the Project, subject to reasonable
disbursement requirements to insure that the restoration or rebuilding is
timely completed in a good and workmanlike manner, free of liens for labor
and materials. Upon the completion of such use as certified in writing by
the Lessee, any remaining balance not required for such repair,
reconstruction, restoration, replacement and improvement shall be
deposited in the Bond Fund and applied in accordance with the provisions
of the Indenture; or
(ii)Option B - Redemption of Bonds: (1) prepay all Lease Payments
pursuant to Section 9.2 and cause all the Bonds to be redeemed (without
premium or penalty) in accordance with paragraph (b) of Section 302 of the
Indenture at the earliest practical date, or (2) prepay Lease Payments
pursuant to Section 9.2 and cause part of the Bonds to be redeemed
(without premium or penalty) pursuant to paragraph (b) of Section 302 of
the Indenture if the property suffering such casualty loss, condemnation
or loss of title was not essential to the use of the Project and the use
of such funds for prepayment under such circumstances will not result in
any of the representations or warranties respecting the Project and the
use of the proceeds of the Bonds being false, untrue, misleading or
breached.
(d) In the event Net Proceeds do not exceed $250,000 or the Lessee elects
Option A, (i) the Lessee shall complete the repair, reconstruction, restoration,
replacement and improvement of the Project, whether or not such Net Proceeds are
sufficient to pay for the same; (ii) the Lessee shall not be entitled to any
reimbursement from the Issuer, the Trustee, the Letter of Credit Provider or the
Bondowners or any abatement or diminution of its obligations hereunder by reason
of any inability to use all or any part of the Project during any period in
which the Project is damaged or destroyed or by reason of any payments made by
the Lessee for such purpose in excess of the Net Proceeds; and (iii) all such
repairs, reconstructions, restorations, replacements and improvements shall be a
part of the Project.
(e) The Issuer shall cooperate fully with the Lessee in the handling and
conduct of any prospective or pending condemnation proceedings with respect to
the Project as long as the Issuer is not the condemning authority. In no event
will the Issuer voluntarily settle or consent to the settlement of any
prospective or pending condemnation proceedings with respect to the Project
without the written consent of the Lessee.
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Section 5.7. Utilities. All utilities and utility services used by the
Lessee in, on or about the Project shall be paid for by the Lessee and shall be
contracted for by the Lessee in the Lessee's own name. The Lessee shall, at its
sole cost and expense, procure any and all permits, licenses or authorizations
necessary in connection therewith.
<PAGE>
Section 5.8. Depreciation and Investment Tax Credit. The Issuer agrees
that any depreciation or investment tax credit with respect to the Project or
any part thereof shall be made available to the Lessee, and the Issuer will
fully cooperate with the Lessee in any effort by the Lessee to avail itself of
any such depreciation or investment tax credit.
Section 5.9. Ad Valorem Taxes. The Issuer and the Lessee acknowledge that
under existing law the Issuer's interest in the property acquired, constructed
or installed with the proceeds of the Bonds is entitled to an exemption from
general ad valorem and property taxes for a period of 10 calendar years after
the calendar year in which the Bonds are issued, provided certain procedures as
required by law are met. The Issuer and the Lessee acknowledge that the
agreement with respect to such exemption and Lessee's obligations to make
certain payments in lieu of taxes is set forth in full in the PILOT Agreement.
ARTICLE VI
PARTICULAR COVENANTS
Section 6.1. Indemnification.
(a) The Lessee releases the Issuer and the Trustee from, agrees that the
Issuer and the Trustee shall not be liable for, and indemnifies the Issuer and
the Trustee against, all liabilities, losses, damages (including attorneys'
fees), causes of action (including negligent acts), suits, claims, costs and
expenses, demands and judgments of any nature imposed upon or asserted against
the Issuer or the Trustee (except by reason of the gross negligence of Trustee
or Issuer) on account of:
(i) any loss or damage to property or injury to or death of or loss
by any person that may be occasioned by any cause whatsoever pertaining to
the construction, maintenance, operation and use of the Project;
(ii) any breach or default on the part of the Lessee in the
performance of any covenant or agreement of the Lessee under this Lease
Agreement, the other Lessee Documents or any related document, or arising
from any act or failure to act by the Lessee, or any of its agents,
contractors, servants, employees or licensees;
(iii) violation of any law, ordinance or regulation affecting
the ownership, occupancy or use of the Project;
(iv) the authorization, issuance and sale of the Bonds, and the
provision of any information furnished by the Lessee in connection
therewith concerning the Project or the Lessee or arising from (1) any
errors or omissions of any nature whatsoever such that the Bonds, when
delivered to the Bondowners, are not validly issued and binding
obligations of the Issuer or (2) any fraud or misrepresentations or
omissions contained in
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the proceedings of the Issuer or the Trustee furnished by or attributable
to the Lessee relating to the issuance of the Bonds or pertaining to the
financial condition of the Lessee which, if known to the original
purchaser of the Bonds, might reasonably be considered a material factor
in its decision to purchase the Bonds; and
(v) any claim or action or proceeding with respect to the matters
set forth in subsections (i), (ii), (iii) and (iv) above brought thereon.
(b) The Lessee agrees to indemnify the Issuer and the Trustee for and to
hold it harmless against all liabilities, claims, costs and expenses incurred
without negligence or willful misconduct on the part of the Issuer and the
Trustee, on account of any action taken or omitted to be taken by the Issuer and
the Trustee in accordance with the terms of this Lease Agreement, the Bonds, the
other Lessee Documents or the Indenture or any action taken at the request of or
with the consent of the Lessee, including the costs and expenses of the Issuer
and the Trustee in defending itself against any such claim, action or proceeding
brought in connection with the exercise or performance of any of its powers or
duties under this Lease Agreement, the other Lessee Documents, the Bonds or the
Indenture.
(c) In case any action or proceeding is brought against the Issuer or the
Trustee in respect of which indemnity may be sought hereunder, the party seeking
indemnity shall promptly give notice of that action or proceeding to the Lessee,
and the Lessee upon receipt of that notice shall have the obligation and the
right to assume the defense of the action or proceeding; provided, that failure
of a party to give that notice shall not relieve the Lessee from any of its
obligations under this Section unless that failure prejudices the defense of the
action or proceeding by the Lessee. At its own expense, an indemnified party may
employ separate legal counsel and participate in the defense. The Lessee shall
not be liable for any settlement without its consent.
(d) The indemnification set forth above is intended to and shall include
the indemnification of all affected council members, officials, directors,
officers, attorneys, accountants, financial advisors, staff and employees of the
Issuer and the Trustee, respectively. That indemnification is intended to and
shall be enforceable by the Issuer and the Trustee, respectively, to the full
extent permitted by law.
Section 6.2. Further Assurances and Corrective Instruments. Subject to the
Indenture, the Issuer and the Lessee from time to time may execute, acknowledge
and deliver, or cause to be executed, acknowledged and delivered, Supplemental
Lease Agreements and such further instruments as may reasonably be required for
correcting any inadequate or incorrect description of the Project and for
carrying out the intention or facilitating the performance of this Lease
Agreement.
Section 6.3. Recording and Filing of Documents. The Lessee will cause all
appropriate financing and continuation statements and other security instruments
to be recorded and filed in such manner and in such places as may be required by
law to fully preserve and protect the rights and security of the Bondowners, the
Trustee, the Issuer and the Letter of Credit Provider. The Lessee will pay all
fees and expenses, including reasonable legal fees, incurred in connection with
such recordings and filings.
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Section 6.4. Litigation Notice. The Lessee shall give the Issuer, the
Trustee, the Remarketing Agent and the Letter of Credit Provider prompt notice
of any action, suit or proceeding by it or against it at law or in equity, or
before any governmental instrumentality or agency, or of any of the same which
may be threatened, which, if adversely determined, would materially impair the
right of the Lessee to carry on the business which is contemplated in connection
with the Project, or would materially and adversely affect its business,
operations, properties, assets or condition. Within one Business Day after the
filing by or against the Lessee of a petition in bankruptcy, the Lessee shall
notify the Trustee and the Letter of Credit Provider in writing as to the
occurrence of such filing.
Section 6.5. Covenant to Enter into Agreement or Contract to Provide
Ongoing Disclosure. The Lessee agrees that the initial offering and underwriting
of the Bonds is exempt from the requirements of Paragraph (b)(5)(i) of the
Securities and Exchange Commission Rule 15c2-12 under the Securities Exchange
Act of 1934, as amended (17 CFR Part 240, Section 240.15c2-12) (the "Rule")
pursuant to Paragraph (d)(1) of the Rule. If as a result of a conversion of
Interest Rate Mode or as a result of any amendment or supplement to the
Indenture or this Lease Agreement, the Bonds cease to be exempt under the Rule,
the Lessee will enter into an agreement or contract, constituting an
undertaking, to provide ongoing disclosure as may be necessary to comply with
the Rule as then in effect. The covenant and agreement contained in this Section
6.5 is for the benefit of the Bondowners as required by the Rule. It is the
Lessee's express intention that this Section 6.5 be assigned pursuant to and in
accordance with Section 706 of the Indenture to the Trustee for the benefit of
the Bondowners and that each Bondowner be a beneficiary of this Section 6.5 with
the right to enforce this Section 6.5 against the Lessee.
ARTICLE VII
ASSIGNMENT OF ISSUER'S RIGHTS UNDER LEASE AGREEMENT
Section 7.1. Assignment by the Issuer. The Issuer, by means of the
Indenture and as security for the payment of the principal of, purchase price,
and redemption premium, if any, and interest on the Bonds, and the obligations
payable to the Letter of Credit Provider under the Letter of Credit Provider
Documents, will assign, pledge and grant a security interest in certain of its
rights, title and interests in, to and under this Lease Agreement, including
Lease Payments and Additional Payments and other revenues, moneys and receipts
received by it pursuant to this Lease Agreement, to the Trustee (reserving its
rights to Unassigned Issuer's Rights).
Section 7.2. Restriction on Transfer of Issuer's Rights. Unless required
by law, the Issuer will not sell, assign, encumber, mortgage, transfer or convey
the Project, this Lease Agreement or any interest therein except the pledge and
assignment of the Project and this Lease Agreement pursuant to the Indenture to
secure the Bonds or as otherwise provided in this Lease Agreement or in the
Indenture.
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ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
Section 8.1 Events of Default Defined. The term "Event of Default" or
"Default" shall mean any one or more of the following events:
(a) Failure by the Lessee to make timely payment of any Lease Payment,
when due, or any Additional Payment within 30 days after notice to the Lessee
that such Additional Payment is due.
(b) Failure by the Lessee to observe and perform any covenant, condition
or agreement on the part of the Lessee under this Lease Agreement or the
Indenture, other than as referred to in the preceding subparagraph (a) of this
Section, for a period of 60 days after written notice of such default has been
given to the Lessee and the Letter of Credit Provider by the Issuer, the Letter
of Credit Provider or the Trustee during which time such default is neither
cured by the Lessee or the Letter of Credit Provider nor waived in writing by
the Issuer, the Letter of Credit Provider and the Trustee, provided that, if the
failure stated in the notice cannot be corrected within the 60-day period, the
Issuer, the Letter of Credit Provider and the Trustee may consent in writing to
an extension of such time prior to its expiration and the Issuer, the Letter of
Credit Provider and the Trustee will not unreasonably withhold their consent to
such an extension if corrective action is instituted by the Lessee or the Letter
of Credit Provider within the 60-day period and diligently pursued to completion
and if such consent, in their judgment, does not materially adversely affect the
interests of the Bondowners; provided, however, that any such default may be
waived by the Letter of Credit Provider alone so long as the Letter of Credit
Provider has honored all proper draws submitted to it by the Trustee.
(c) Any material representation or warranty by the Lessee herein or in any
certificate or other instrument delivered under or pursuant to this Lease
Agreement or the Indenture or in connection with the financing of the Project
shall prove to have been false, incorrect, misleading or breached in any
material respect on the date when made, unless waived in writing by the Issuer,
the Letter of Credit Provider and the Trustee.
(d) The Indenture at any time shall prove not to be a valid, binding and
enforceable agreement of the Issuer or shall not constitute a valid assignment
of the rights of the Issuer under this Lease Agreement described in Section 7.1
purportedly assigned under the Indenture and effective to vest in the Trustee
all such rights of the Issuer in, to and under this Lease Agreement, including
the right to enforce this Lease Agreement in accordance with its terms.
(e) The occurrence of an Event of Bankruptcy with respect to the Lessee.
(f) Abandonment of the Project by the Lessee.
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Section 8.2. Remedies on Default.
(a) If the principal of all Bonds then Outstanding and the interest
accrued thereon has been declared immediately due and payable pursuant to the
provisions of Section 802 of the Indenture, all Lease Payments for the remainder
of the Lease Term shall become immediately due and payable without any further
act or action on the part of the Issuer or the Trustee and the Trustee, as
assignee of the Issuer, may immediately proceed (subject to Section 8.8) to take
any one or more of the remedial steps set forth in subparagraph (b) below.
(b) Subject to Section 8.8, whenever any Event of Default has occurred and
is continuing, the Issuer may take any one or more of the following remedial
steps:
(i) by written notice to the Lessee declare all Lease Payments to be
immediately due and payable, together with interest on overdue payments of
principal and redemption premium, if any, and, to the extent permitted by
law, interest, at the rate or rates of interest then applicable under and
specified in the respective Bonds, without presentment, demand or protest,
all of which are expressly waived;
(ii) take whatever other action at law or in equity, as may appear
necessary or desirable to collect the amounts payable pursuant to this
Lease Agreement then due and thereafter to become due or to enforce the
performance and observance of any obligation, agreement or covenant of the
Lessee under this Lease Agreement or the Indenture;
(iii) give the Lessee written notice of intention to terminate this
Lease Agreement on a date specified therein, which date shall not be
earlier than 30 days after such notice is given, and if all defaults have
not then been cured, on the date so specified, the Lessee's rights to
possession of the Project shall cease and this Lease Agreement shall
thereupon be terminated, and the Issuer may re-enter and take possession
of the Project;
(iv)without terminating this Lease Agreement, re-enter the Project
to take possession thereof pursuant to legal proceedings or pursuant to
any notice provided for by law, and having elected to re-enter or take
possession of the Project without terminating this Lease Agreement, the
Issuer shall use reasonable diligence to re-let the Project, or parts
thereof, for such term or terms and at such rental and upon such other
terms and conditions as the Issuer may deem advisable, with the right to
make alterations and repairs to the Project, and no such re-entry or
taking of possession of the Project by the Issuer shall be construed as an
election on the Issuer's part to terminate this Lease Agreement, and no
such re-entry or taking of possession by the Issuer shall relieve the
Lessee of its obligation to pay Lease Payments or Additional Payments (at
the time or times provided herein), or any of its other obligations under
this Lease Agreement, all of which shall survive such re-entry or taking
of possession, and the Lessee shall continue to pay the Lease Payments and
Additional Payments provided for in this Lease Agreement until the end of
the Lease Term, whether or not the Project shall have been re-let, less
the proceeds, if any, of any re-letting of the Project after deducting all
of the Issuer's reasonable expenses in or in connection with such
re-letting, including
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without limitation all repossession costs, brokerage commissions, legal
expenses, expenses of employees, alteration costs and expenses of
preparation for re-letting. The proceeds of any re-letting shall be
deposited in the Bond Fund. Having elected to re-enter or take possession
of the Project without terminating this Lease Agreement, the Issuer may
(subject, however, to any restrictions against termination of this Lease
Agreement in the Indenture), by notice to the Lessee given at any time
thereafter while the Lessee is in default in the payment of Lease Payments
or Additional Payments or in the performance of any other obligation under
this Lease Agreement, elect to terminate this Lease Agreement on a date to
be specified in such notice, which date shall be not earlier than 30 days
after re-entry, and if all Events of Default shall not have then been
cured, on the date so specified this Lease Agreement shall thereupon be
terminated; and
(v) take whatever action at law or in equity may appear necessary or
appropriate to enforce its Unassigned Issuer's Rights; provided that the
Issuer will not take any action which would prejudice the rights of the
Trustee.
(c) If in accordance with any of the foregoing provisions of this Article
the Issuer shall have the right to elect to re-enter and take possession of the
Project, the Issuer may enter and expel the Lessee and those claiming through or
under the Lessee and remove the property and effects of both or either (forcibly
if necessary) without being guilty of any manner of trespass and without
prejudice to any remedies for arrears of rent or preceding breach of covenant.
The Issuer may take whatever action at law or in equity which may appear
necessary or desirable to collect rent then due and thereafter to become due, or
to enforce performance and observance of any obligation, agreement or covenant
of the Lessee under this Lease Agreement.
(d) Upon the occurrence of an Event of Default by the Lessee, the Issuer
grants to the Trustee a reasonable time within which to obtain possession of the
Project, to institute and with reasonable diligence to complete foreclosure
proceedings or otherwise acquire the Lessee's leasehold estate under this Lease
Agreement prior to the Issuer's exercise of any remedy under paragraph (b)(iii)
of this Section. The Issuer's right to terminate this Lease Agreement shall end
when the Trustee obtains possession of the Project as aforesaid, which
possession shall be deemed to include possession by a receiver.
(e) If this Lease Agreement shall terminate prior to the expiration of the
Lease Term (including the rejection of this Lease Agreement by the trustee of
the Lessee in a proceeding under the Bankruptcy Code), the Issuer shall enter
into a new lease for the Project with the Trustee, or its designee or nominee,
for the remainder of the Lease Term, effective as of the date of termination, at
the same rent and upon the same terms, covenants and conditions contained in
this Lease Agreement, except that such new lease shall not guarantee possession
of the Project to the new tenant as against the Lessee or anyone claiming under
the Lessee, and the Issuer, simultaneously with the execution and delivery of
such new lease, shall turn over to the new tenant all moneys, if any, then held
by the Issuer under this Lease Agreement on behalf of the Lessee, on condition
that:
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(i) the Trustee shall make written request for such new lease within
30 days after the date of such termination, and
(ii)on the commencement date of the term of the new lease, the
Trustee shall pay or cause to be paid, solely from moneys available under
the Indenture, to the Issuer on that date all expenses, including
reasonable counsel fees, court costs and disbursements, incurred by the
Issuer in connection with any such default and termination as well as in
connection with the execution and delivery of such new lease.
Any new lease entered under the terms of this paragraph (d) will provide that
the new lease will not be terminated by the Issuer during the period the
Trustee, or its nominee or designee, is the tenant.
(f) In the enforcement of the remedies provided in this Section, the
Trustee may treat all expenses of enforcement, including reasonable legal,
accounting and advertising fees and expenses, as Additional Payments then due
and payable by the Lessee.
(g) Any amount collected pursuant to action taken under this Section shall
be paid to the Trustee and applied, first, to the payment of any reasonable
costs, expenses and fees incurred by the Issuer or the Trustee as a result of
taking such action and, next, any balance shall be used to satisfy any Lease
Payments then due by payment into the Bond Funds and applied in accordance with
the Indenture and, then, to satisfy any other Additional Payments then due or to
cure any other Event of Default.
(h) Notwithstanding the foregoing, the Trustee shall not be obligated to
take any step that in its opinion will or might cause it to expend time or money
or otherwise incur liability, unless and until satisfactory indemnity has been
furnished to the Trustee at no cost or expense to the Trustee.
(i) The provisions of this Section are subject to the limitation that the
annulment of a declaration that the Bonds are immediately due and payable shall
automatically constitute an annulment of any corresponding declaration made
pursuant to subparagraph (b)(i) of this Section and a waiver and rescission of
the consequences of such declaration and of the Event of Default with respect to
which such declaration has been made, provided that no such waiver or rescission
shall extend to or affect any other or subsequent Default or impair any right
consequent thereon. If any covenant, condition or agreement contained in this
Lease Agreement is breached or any Event of Default has occurred and such breach
or Event of Default is thereafter waived by the Trustee, such waiver shall be
limited to such particular breach or Event of Default.
Section 8.3. No Remedy Exclusive. Subject to Section 8.8, no remedy
herein conferred or reserved 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
Lease Agreement or now or hereafter existing at law or in equity or by
statute. No
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delay or omission to exercise any right or power accruing upon Default shall
impair any such right or power or shall be construed to be a waiver thereof, but
any such right and power may be exercised from time to time and as often as may
be deemed expedient. In order to entitle the Trustee to exercise any remedy
reserved to it in this Article, it shall not be necessary to give any notice,
other than such notice as may be herein expressly required.
Section 8.4. Agreement to Pay Attorneys' Fees and Expenses. In connection
with any Event of Default by the Lessee, if the Trustee or the Issuer employs
attorneys or incurs other expenses for the collection of amounts payable
hereunder or the enforcement of the performance or observance of any covenants
or agreements on the part of the Lessee herein contained, the Lessee agrees that
it will, on demand therefor, pay such party the reasonable fees of such
attorneys and such other reasonable expenses so incurred by such party.
Section 8.5. Issuer and Lessee to Give Notice of Default. The Issuer and
the Lessee shall each, at the expense of the Lessee, promptly give to the
Trustee, the Remarketing Agent and the Letter of Credit Provider written notice
of any Default of which the Issuer or the Lessee, as the case may be, shall have
actual knowledge or written notice, but the Issuer shall not be liable for
failing to give such notice.
Section 8.6. Performance of Lessee's Obligations. If the Lessee fails to
keep or perform any of its obligations as provided in this Lease Agreement in
respect of (a) maintenance of insurance, (b) payments of taxes, assessments and
other charges, (c) repairs and maintenance of the Project, (d) compliance with
legal or insurance requirements, or in the making of any other payment or
performance of any other obligation, then the Issuer, the Letter of Credit
Provider or the Trustee may (but shall not be obligated so to do) upon the
continuance of such failure on the Lessee's part for 15 days after notice of
such failure is given to the Lessee by the Issuer, the Letter of Credit Provider
or the Trustee, and without waiving or releasing the Lessee from any obligation
hereunder, as an additional but not exclusive remedy, make any such payment or
perform any such obligation, and all sums so paid by the Issuer, the Letter of
Credit Provider or the Trustee and all necessary incidental costs and expenses
incurred by the Issuer, the Letter of Credit Provider or the Trustee in
performing such obligations shall be deemed to be Additional Payments and shall
be paid to the Issuer, the Letter of Credit Provider or the Trustee on demand.
Section 8.7. Remedial Rights Assigned to the Trustee. Upon the execution
and delivery of the Indenture, the Issuer will thereby have assigned to the
Trustee all rights and remedies conferred upon or reserved to the Issuer by this
Lease Agreement, reserving only the Unassigned Issuer's Rights. Subject to
Section 8.8, the Trustee shall have the exclusive right to exercise such rights
and remedies conferred upon or reserved to the Issuer by this Lease Agreement in
the same manner and to the same extent, but under the limitations and conditions
imposed thereby and hereby. The Trustee, the Letter of Credit Provider and the
Bondowners shall be deemed third party creditor beneficiaries of all
representations, warranties, covenants and agreements contained herein.
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Section 8.8. Letter of Credit Provider to Direct Trustee. Any provision
herein to the contrary notwithstanding, unless an Event of Default described in
subparagraph (a), (b), (c), (f) or (g) of Section 801 of the Indenture has
occurred and is continuing, the Issuer and the Trustee, as assignee of the
Issuer, (a) shall exercise the remedies provided for under this Lease Agreement
only if and as directed in writing by the Letter of Credit Provider and (b)
shall not waive any Event of Default without the prior written consent of the
Letter of Credit Provider. Any direction from the Letter of Credit Provider must
be in accordance with the provisions of law and of this Lease Agreement. The
Issuer and the Trustee shall have the right to decline to follow any direction
if the Issuer or the Trustee, as applicable, in good faith determines that the
proceeding so directed would involve it in personal liability.
ARTICLE IX
PREPAYMENT AND ACCELERATION OF LEASE PAYMENTS; PURCHASE OF PROJECT
Section 9.1. Prepayment at the Option of the Lessee. Upon the exercise by
the Lessee of its option to cause the Bonds or any portion thereof to be
redeemed pursuant to Section 302(a) of the Indenture, the Lessee shall prepay
(without premium or penalty) Lease Payments in whole or in part at the times and
at the prepayment prices sufficient to redeem all or a corresponding portion of
the Bonds then Outstanding in accordance with said paragraph. At the written
direction of the Lessee with the prior written consent of the Letter of Credit
Provider, such prepayments shall be applied to the redemption of the Bonds in
whole or in part in accordance with said paragraph.
Section 9.2. Optional Prepayment Upon Certain Events. Upon the occurrence
of any of the conditions or events set forth in Section 302(b) or (f) of the
Indenture, the Lessee shall have the option, with the prior written consent of
the Letter of Credit Provider, to prepay Lease Payments, in whole or in part at
any time, at the time and at the prepayment prices sufficient to redeem all or a
corresponding portion of the Bonds then Outstanding in accordance with said
paragraph.
Section 9.3. Mandatory Prepayment Upon Certain Events. If the Bonds or any
portion thereof are subject to mandatory redemption for any other reason
described in Section 302 of the Indenture, the Lessee shall (except to the
extent Bonds are purchased in lieu of redemption as provided in Section 302(e)
of the Indenture) prepay Lease Payments in whole at the time and at the
prepayment prices sufficient to redeem all of the Bonds then Outstanding in
accordance with Section 302 of the Indenture. The Lessee will promptly notify
the Issuer, the Letter of Credit Provider and the Trustee in writing of the
occurrence and existence of any event or condition which could result in
mandatory prepayment under this Section.
Section 9.4. Purchase of Project; Required Prepayment.
(a) Except during the continuance of an Event of Default, the Lessee shall
have the option to purchase the Project at any time, prior to the expiration of
the Lease Term and within 10 days following the expiration of the Lease Term and
to terminate this Lease Agreement if
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(i) the Bonds have been paid in full or if provision is otherwise made for
payment of the Bonds in such manner that the Indenture will be discharged under
Article XII of the Indenture on or before the date of termination, (ii) the
Lessee provides the Trustee, the Letter of Credit Provider and the Issuer with
an opinion of Bond Counsel to the effect that all such conditions have been
satisfied and (iii) written notice has been provided to the Rating Agency,
provided that this Lease Agreement may not be terminated unless and until (a)
all of the Lessee's obligations under the Lessee Documents have been satisfied
and (b) all of the Lessee's obligations with respect to the Issuer's fees have
been satisfied and the Lessee has so certified to the Issuer and the Trustee.
All obligations of the Lessee under Sections 4.3 and 6.1 shall survive
termination of this Lease Agreement until payment in full of the Bonds.
(b) Notwithstanding the foregoing, the Lessee may not terminate this Lease
Agreement unless and until the Trustee has on deposit an amount equal to the sum
of the following:
(i) Available Funds for payment of the principal of, premium, if
any, and interest on the Parity Bonds and funds (whether or not such funds
constitute Available Funds) for payment of the principal of, premium, if
any, and interest on the Subordinate Bonds are on deposit in any of the
funds and accounts established under the Indenture and available for that
purpose which are sufficient to discharge the Indenture in accordance with
Article XII of the Indenture; plus
(ii)to the extent not paid under subparagraph (i) above, an amount
equal to the Trustee's fees, expenses and charges under the Indenture and
any other amounts due under Section 6.1, accrued and, to the extent
determinable, to accrue until the Bonds are fully paid and redeemed and
all other advances, fees, costs and expenses reasonably incurred and to be
incurred on or before the termination date by the Trustee under the
Indenture and by the Issuer and the Trustee under this Lease Agreement and
the other Lessee Documents; plus
(iii) the sum of $100.
(c) On the purchase date, a closing shall be held at any office mutually
agreed upon among the Issuer, the Lessee and the Trustee (which closing may be
conducted by first-class mail or recognized overnight delivery service). At the
closing the Issuer and the Trustee shall, upon acknowledgment of receipt of the
sum set forth in paragraph (b) above, execute and deliver to the Lessee such
release and other instruments as the Lessee reasonably determines is necessary
to terminate this Lease Agreement, including documents conveying to the Lessee
legal title to the Project, as it then exists, subject to the following: (i)
those liens and encumbrances, if any, to which title to the Project was subject
when conveyed to the Issuer; (ii) those liens and encumbrances created by the
Lessee or to the creation or suffering of which the Lessee consented; (iii)
those liens and encumbrances resulting from the failure of the Lessee to perform
or observe any of the agreement on its part contained in this Lease Agreement;
(iv) Permitted Encumbrances other than the Indenture and this Lease Agreement;
and (v) if the Project or any part thereof is being condemned, the rights and
title of any condemning
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authority. All further obligations of the Lessee hereunder (except as
specifically provided in Sections 4.3 and 6.1) shall thereupon terminate,
provided, however, that the Lessee shall also remain obligated to pay or
reimburse the Issuer, and the Trustee for the payment of all other fees, costs
and expenses unaccounted for in the sum paid in accordance with paragraph (b)
above and reasonably incurred before or subsequent to such closing in connection
with the Bonds.
(d) The Lessee hereby agrees to purchase, and the Issuer hereby agrees to
sell, the Project for the sum of $100 at the expiration of the Lease Term
following full payment of the Bonds or provision for payment thereof having been
made in accordance with the provisions of the Indenture.
Section 9.5. Notice of Prepayment. To exercise an option granted by
Section 9.1, 9.2 or 9.4, the Lessee shall give written notice to the Issuer, the
Letter of Credit Provider and the Trustee which shall specify therein the date
upon which a prepayment of Lease Payments will be made, which date shall be not
less than 45 days from the date the notice is received by the Trustee, and which
shall contain the written consent of the Letter of Credit Provider. In the
Indenture, the Issuer has directed the Trustee to forthwith take all steps
(other than the payment of the money required to redeem the Bonds) necessary
under the applicable provisions of the Indenture to effect any redemption of the
then Outstanding Bonds, in whole or in part, pursuant to Section 302 of the
Indenture.
Section 9.6. Precedence of this Article. The rights, options and
obligations of the Lessee set forth in this Article may be exercised or shall be
fulfilled, as the case may be, whether or not a Default exists hereunder,
provided that such Default will not result in nonfulfillment of any condition to
the exercise of any such right or option, and provided further that no amounts
payable pursuant to this Lease Agreement shall be prepaid in part during the
continuance of an Event of Default described in Section 8.1(a).
ARTICLE X
MISCELLANEOUS
Section 10.1. Authorized Representatives.
(a) Whenever under this Lease Agreement the approval of the Issuer is
required or the Issuer is required or permitted to take some action, such
approval shall be given or such action shall be taken by the Authorized Issuer
Representative and the Lessee, the Letter of Credit Provider and the Trustee
shall be authorized to act on any such approval or action.
(b) Whenever under this Lease Agreement the approval of the Lessee is
required or the Lessee is required or permitted to take some action, such
approval shall be given or such action shall be taken by the Authorized Lessee
Representative, and the Issuer, the Letter of Credit Provider and the Trustee
shall be authorized to act on any such approval or action.
27
<PAGE>
(c) Whenever under this Lease Agreement the approval of the Letter of
Credit Provider is required or the Letter of Credit Provider is required or
permitted to take some action, such approval shall be given or such action shall
be taken by the Authorized Letter of Credit Provider Representative, and the
Issuer, the Lessee and the Trustee shall be authorized to act on any such
approval or action.
Section 10.2. Term of Lease Agreement. This Lease Agreement shall be
effective from and after its execution and delivery and shall continue in full
force and effect until the Bonds are deemed to be paid within the meaning of
Article XII of the Indenture and provision has been made for paying all other
sums payable by the Lessee to the Issuer, the Trustee, the Letter of Credit
Provider and the paying agents for the Bonds under this Lease Agreement and the
Indenture to the date of the retirement of the Bonds. The indemnifications
provided by Section 6.1 shall survive the termination of this Lease Agreement.
Section 10.3. Notices. All notices, certificates or other communications
hereunder shall be sufficiently given and shall be deemed given when delivered
by hand delivery or on the third day following the day on which the same has
been mailed by registered or certified mail, postage prepaid, addressed as
specified in Section 1303 of the Indenture. Notice to the Bondowners shall be
given, if necessary, in the manner provided in Section 1303 of the Indenture. A
duplicate copy of each notice, certificate or other communication given
hereunder to any party mentioned in Section 1303 shall be given to all other
parties mentioned therein (other than the Bondowners unless a copy is required
to be furnished to them by other provisions of this Lease Agreement). The
Issuer, the Lessee, the Letter of Credit Provider or the Trustee may, by notice
given hereunder, designate any further or different addresses to which
subsequent notices, certificates or other communications shall be sent to it.
Section 10.4. Performance Date Not a Business Day. If the last day for
performance of any act or the exercising of any right, as provided in this Lease
Agreement, shall not be a Business Day, such payment may be made or act
performed or right exercised on the next succeeding Business Day.
Section 10.5. Binding Effect. This Lease Agreement shall inure to the
benefit of and shall be binding upon the Issuer, the Lessee and their respective
successors and assigns, subject to the provisions contained in Sections 2.2(g)
and 5.2.
Section 10.6. Amendments, Changes and Modifications. Except as otherwise
provided in this Lease Agreement or in the Indenture, subsequent to the issuance
of Bonds and prior to all of the Bonds being deemed to be paid in accordance
with Article XII of the Indenture and provision being made for the payment of
all sums payable under the Indenture in accordance with Article XII of the
Indenture, this Lease Agreement may not be effectively amended, changed,
modified, altered or terminated without the concurring written consent of the
Trustee and the Letter of Credit Provider, given in accordance with the
Indenture.
28
<PAGE>
Section 10.7. Execution in Counterparts. This Lease Agreement may be
executed in several counterparts, each of which shall be an original and all of
which shall constitute but one and the same instrument; provided, however, that
for purposes of Article 9 of the Uniform Commercial Code of the State, no
security interest in this Lease Agreement may be created by the transfer or
possession of any counterpart hereof other than the counterpart containing the
receipt therefor executed by the Trustee on or immediately following the
signature page hereof delivered, pledged and assigned to the Trustee.
Section 10.8. No Pecuniary Liability. No provision, representation,
covenant or agreement contained in this Lease Agreement or in the Indenture, the
Bonds, or any obligation herein or therein imposed upon the Issuer, or the
breach thereof, shall constitute or give rise to or impose upon the Issuer a
pecuniary liability (except to the extent of any rental payments, revenues and
receipts derived by the Issuer pursuant to this Lease Agreement). No provision
hereof shall be construed to impose a charge against the general credit of the
Issuer or any personal or pecuniary liability upon any director, official or
employee of the Issuer.
Section 10.9. Extent of Covenants of the Issuer; No Personal or
Pecuniary Liability.
(a) No covenant, agreement or obligation contained in this Lease Agreement
shall be deemed to be a covenant, agreement or obligation of any present or
future council member, officer, employee or agent of the Issuer in his or her
individual capacity, and neither the council members of the Issuer nor any
officer thereof executing the Bonds shall be liable personally on the Bonds or
be subject to any personal liability or accountability by reason of the issuance
thereof. No council member, officer, employee or agent of the Issuer shall incur
any personal liability with respect to any other action taken by him pursuant to
this Indenture or the Act, provided such member, officer, employee or agent acts
in good faith.
(b) No agreements or provisions contained in this Lease Agreement nor any
agreement, covenant or undertaking by the Issuer contained in any document
executed by the Issuer in connection with the Project, or the issuance, sale and
delivery of the Bonds shall give rise to any pecuniary liability of the Issuer
or a charge against its general credit, or shall obligate the Issuer financially
in any way except as may be payable from the Lease Payments by the Lessee and
the proceeds of the Bonds. No failure of the Issuer to comply with any term,
condition, covenant or agreement herein or in any document executed by the
Issuer in connection with the issuance and sale of the Bonds shall subject the
Issuer to liability for any claim for damages, costs or other financial or
pecuniary charge except to the extent that the same can be paid or recovered
from the Lease Payments or proceeds of the Bonds. Nothing in this Indenture
precludes a proper party in interest from seeking and obtaining, to the extent
permitted by law, specific performance against the Issuer for any failure to
comply with any term, condition, covenant or agreement herein, provided that no
costs, expenses or other monetary relief will be recoverable from the Issuer
except as may be payable from the repayments by the Lessee under the Lease
Agreement or from the proceeds of the Bonds.
(c) No recourse shall be had for the payment of the principal of or
premium or interest on any of the Bonds or for any claim based thereon or upon
any obligation, covenant or
29
<PAGE>
agreement contained in this Lease Agreement against any past, present or future
officer, council member, employee or agent of the Issuer, or of any successor
corporation, as such, either directly or through the Issuer or any successor
corporation, under any rule of law or equity, statute or constitution or by the
enforcement of any assessment or penalty or otherwise, and all such liability of
any such officers, council members, employees or agents, as such, is hereby
expressly waived and released as a condition of, and consideration for, the
execution of this Lease Agreement and the issuance of such Bonds.
(d) Anything in this Lease Agreement to the contrary notwithstanding, it
is expressly understood and agreed by the parties hereto that (i) the Issuer may
rely conclusively on the truth and accuracy of any certificate, opinion, notice,
or other instrument furnished to the Issuer by the Trustee or the Lessee as to
the existence of any fact or state of affairs required hereunder to be noticed
by the Issuer; (ii) the Issuer shall not be under any obligation hereunder to
perform any record keeping or to provide any legal services; and (iii) none of
the provisions of this Lease Agreement shall require the Issuer to expend or
risk its own funds or otherwise incur financial liability in the performance of
any of its duties or in the exercise of any of its rights or powers under this
Lease Agreement, unless it shall first have been adequately indemnified to its
satisfaction against the cost, expenses, and liability which may be incurred.
Section 10.10. Effect of Default of Letter of Credit Provider or Payment
of Parity Bonds. Notwithstanding anything contained to the contrary in this
Lease Agreement, any and all rights given to the Letter of Credit Provider under
the Lease Agreement including, but not limited to, the giving of consents or
approvals or the direction of proceedings, shall be null and void (a) during any
time that an Event of Default has occurred and is continuing under Section
801(f) or (g) of the Indenture, and (b) if the Parity Bonds have been paid in
full or provision has been made for the payment of all Parity Bonds in
accordance with Article XII of the Indenture and all obligations owing the
Letter of Credit Provider under the Letter of Credit Documents have been paid or
provision has been made for payment of such obligations.
Section 10.11. Severability. If any provision of this Lease Agreement, or
any covenant, stipulation, obligation, agreement, act or action, or part thereof
made, assumed, entered into or taken thereunder, or any application of such
provision, is for any reason held to be illegal or invalid, such illegality or
invalidity shall not affect any other provision of this Lease Agreement or any
other covenant, stipulation, obligation, agreement, act or action, or part
thereof, made, assumed, entered into, or taken, each of which shall be construed
and enforced as if such illegal or invalid portion were not contained herein.
Such illegality or invalidity of any application thereof shall not affect any
legal and valid application thereof, and each such provision, covenant,
stipulation, obligation, agreement, act or action, or part thereof, shall be
deemed to be effective, operative, made, entered into or taken in the manner and
to the full extent permitted by law.
30
<PAGE>
Section 10.12. Governing Law. This Lease Agreement shall be governed by
and construed in accordance with the laws of the State.
[remainder of page intentionally left blank]
31
<PAGE>
IN WITNESS WHEREOF, the Issuer and the Lessee have caused this Lease
Agreement to be executed in their respective names.
CITY OF LENEXA, KANSAS
[SEAL]
By: /S/ Joan Bowman
---------------------
Joan Bowman, Mayor
ATTEST:
By: /s/ Sandra Howell
--------------------
Sandra Howell, City Clerk
Lease Agreement
LabOne, Inc. Project
32
<PAGE>
LABONE, INC.,
a Delaware corporation
LABONE, INC.
/s/ Kurt Gruenbacher
-----------------------------------
[SEAL] Kurt Gruenbacher
Vice President/Finance
Chief Accounting Officer & Treasurer
ATTEST:
/s/ Gregg R. Sadler
- ---------------------------
Gregg R. Sadler, Secretary
Lease Agreement
LabOne, Inc. Project
33
<PAGE>
ACKNOWLEDGMENT
State of Kansas )
)
County of Johnson )
The foregoing instrument was acknowledged before me on September 11, 1998,
by Joan Bowman, Mayor and Sandra Howell, City Clerk.
(SEAL) /s/ Mary Sue Fry
-----------------------------------
Mary Sue Fry, Notary Public
My appointment expires: June 24, 2001
34
<PAGE>
ACKNOWLEDGMENT
State of Kansas )
)
County of Johnson )
The foregoing instrument was acknowledged before me on September 11, 1998,
by Kurt Gruenbacher, Vice President/Finance, Chief Accountant Officer
and Treasurer and Gregg R. Sadler, Secretary.
/s/ Pam A. Moyers
------------------------------
Notary Public
(Seal)
My Appointment Expires:
March 22, 2000
- -----------------------
35
<PAGE>
UNIFORM COMMERCIAL CODE RECEIPT
Receipt of this original counterpart of the foregoing Lease Agreement is
hereby acknowledged this 11th day of September 1998.
INTRUST BANK, N.A.
------------------------------
By: J. Steven Larigan
Vice President
[NOTE: The Trustee should sign only on the copy of the Lease Agreement
received by it.]
Lease Agreement
LabOne, Inc. Project
36
<PAGE>
EXHIBIT A
Series 1998A and 1998B Project
The following property acquired, constructed and installed by the City of
Lenexa, Kansas (the "Issuer") in connection with the issuance by the City of its
$20,000,000 principal amount of Taxable Industrial Revenue Bonds (LabOne, Inc.
Project) Series 1998A and $5,000,000 principal amount of Taxable Subordinate
Industrial Revenue Bonds (LabOne, Inc. Project), Series 1998B:
(a) The following described real estate in Johnson County, Kansas:
Lot 1, LAB ONE, a subdivision in the City of Lenexa, Johnson County,
Kansas, according to the recorded plat thereof; being more particularly
described as follows:
All that part of the West One-Half of Section 5, Township 13, Range 24, in
Lenexa, Johnson County, Kansas, described as follows:
Commencing at the Northwest corner of the Northwest Quarter of said Section 5;
thence South 2 degrees, 20 minutes, 28 seconds East, along the West line of said
Northwest Quarter, a distance of 84.98 feet; thence North 87 degrees, 39
minutes, 32 seconds East, a distance of 30.00 feet, to a point on the South
right-of-way line of 95th street, as now established; thence North 42 degrees,
38 minutes, 37 seconds East, along said South right-of-way line, a distance of
42.44 feet; thence North 87 degrees, 37 minutes, 42 seconds East, continuing
along said South right-of-way line, a distance of 622.67 feet, to a point on the
West right-of-way line of Interstate Highway No. 435, as now established; thence
Southerly, along said West right-of-way line, the following courses and
distances: South 47 degrees, 22 minutes, 13 seconds East, a distance of 63.67
feet; thence South 85 degrees, 31 minutes, 18 seconds East a distance of 369.40
feet; thence South 8 degrees, 08 minutes, 18 seconds East, a distance of 1167.18
feet; thence South 5 degrees, 59 minutes, 24 seconds East, a distance of 1330.12
feet, TO THE POINT OF BEGINNING; thence South 1 degree, 08 minutes, 05 seconds
East, a distance of 664.75 feet; thence South 7 degrees, 44 minutes, 12 seconds
East, a distance of 837.06 feet; thence South 19 degrees, 51 minutes, 36 seconds
West, a distance of 613.53 feet, thence South 66 degrees, 37 minutes, 19 seconds
West, a distance of 341.85 feet to a point on the Northerly right-of-way line of
Kansas Highway No. 10, as now established (said point being the Northeasterly
corner of a trance conveyed to Holland Associates by Department of
Transportation Deed recorded in Volume 2631, at Page 776); thence Westerly,
along the former Northerly right-of-way line of said highway (and along the
Southerly and Westerly line of said "Holland Tract"), the following courses and
distances; South 65 degrees, 07 minutes, 53 seconds West, a distance of 726.80
feet measured (Holland deed South 65 degrees, 05 minutes West 727.0 feet);
thence North 10 degrees, 40 minutes, 45 seconds East, measured, (Holland deed
North 10 degrees, 43 minutes East), a distance of 306.50 feet; thence Northerly,
along the Northerly right-of-way line of said highway (departing said "Holland
Tract") the following courses and distances: thence North 2 degrees, 18 minutes,
21 seconds West, a distance of 250.35 feet; thence North 74 degrees, 21 minutes,
32 seconds West, a distance of 113.60 feet; thence North 2 degrees, 37 minutes,
44 seconds West, a distance of 333.57 feet; thence North 10 degrees, 49 minutes,
15 seconds West, a distance of 168.90 feet; thence South 87 degrees, 41 minutes,
45 seconds West, a distance of 15.00 feet, to a point on the East
A-1
<PAGE>
right-of-way line of Renner Road, as now established; thence North 2 degrees, 18
minutes, 15 seconds West, along said East right-of-way line, a distance of
993.65 feet; thence North 53 degrees, 15 minutes, 45 seconds East, departing
said East right-of-way line, a distance of 276.66 feet; thence South 36 degrees,
44 minutes, 15 seconds East, a distance of 216.57 feet; thence North 87 degrees,
41 minutes, 45 seconds East, a distance of 149.36 feet; thence North 58 degrees,
30 minutes, 04 seconds East, a distance of 844.31 feet, to the Point of
Beginning.
said real property constituting the Project site as referred to in the Indenture
and the Lease Agreement entered into by the Issuer concurrently with the
issuance of the above-referenced bonds (the "Indenture" and the "Lease"),
subject to the Permitted Encumbrances.
(b) All buildings, building additions, improvements, machinery and
equipment now constructed, located or installed on the Project site, all or any
portion of the costs of which were paid from the proceeds of the
above-referenced bonds, together with any substitutions or replacements
therefor, the property described in paragraphs (a) and (b) of this Exhibit
together constituting the "Series 1998A and 1998B Project" as referred to in the
Indenture and the Lease Agreement; provided however, that the Series 1998A and
1998B Project shall not include furnishings, machinery and equipment described
under "Series 1998C Project" in this Exhibit.
Series 1998C Project
All furnishings, machinery and equipment now located or installed on the
Project site, architectural expenses relating to the Project and off-site road
development all or any portion of the costs of which were paid from the proceeds
of the Issuer's $8,000,000 principal amount of Taxable Subordinate Industrial
Revenue Bonds (LabOne, Inc. Project), Series 1998C, together with any
substitutions or replacements therefor, the property described in this paragraph
constituting the "Series 1998C Project" as referred to in the Indenture and the
Lease Agreement, including the following:
facilities equipment including conveyors, coolers,generators, UPS
system, etc.
laboratory equipment
computer equipment
furniture and fixtures
A-2
EXHIBIT 4.3
Execution Copy
===============================================================================
----------------------------------------
REIMBURSEMENT AGREEMENT
----------------------------------------
by and between
LabOne, Inc., a Delaware corporation
and
Commerce Bank, N.A.
Relating to
$20,000,000
City of Lenexa, Kansas
Taxable Industrial Revenue Bonds
(LabOne, Inc. Project)
Series 1998A
Dated as of September 1, 1998
===============================================================================
<PAGE>
TABLE OF CONTENTS
Page
Section 1. Certain Defined Terms.................................2
Section 2. Issuance of the Letter of Credit; Conditions
Precedent to Issuance of the Letter of Credit.......6
(a) Issuance of the Letter of Credit: Substitute
Letters of Credit ...................................7
(b) Conditions Precedent to the Issuance of the Letter
of Credit............................................7
Section 3. Reimbursement and Other Payments.....................10
(a) Reimbursement.......................................10
(b) Commissions and Fees................................12
(c) Increased Costs.....................................12
(d) Pledge of Bonds.....................................13
(e) Release of Pledged Bonds............................13
(f) Reinstatement of Letter of Credit...................13
(g) Payments on Pledged Bonds...........................14
(h) Payments and Computation of Payments and Interest...14
(i) Conversion of Interest Rate Mode to Semiannual Mode,
Annual Mode or a Multi-Year Mode....................14
Section 4. Obligations Absolute.................................15
Section 5. Representations and Warranties.......................15
(a) Status..............................................16
(b) Power and Authority.................................16
(c) Compliance with Other Instruments...................16
(d) Litigation..........................................16
(e) Governmental Approvals..............................17
(g) Federal Reserve Margin Regulations..................17
(h) Environmental Representations.......................17
(i) ERISA...............................................19
(j) Investment Company Act..............................19
(k) Taxes...............................................19
(l) Intellectual Property...............................19
(m) Accuracy of Information.............................19
(n) Related Documents...................................20
Section 6. Covenants............................................20
(a) Financial Reports...................................20
(b) Payment of Charges..................................21
(c) Insurance...........................................21
(d) Inspection of Books and Assets, Confidentiality.....21
i
<PAGE>
(e) Notices.............................................21
(f) Litigation..........................................21
(g) Preservation of Existence, Compliance with Laws.....22
(h) Environmental Laws..................................22
(i) ERISA...............................................22
(j) Liens...............................................23
(k) Financial Covenants of Company......................24
(l) Principal Operating Accounts........................25
(m) Amendment of Related Documents......................25
(n) Registration of Bonds...............................25
(o) Optional Redemption.................................25
(p) Indenture, Etc......................................25
(q) Sale of Subordinate Bonds...........................25
(r) Disbursement of Project Funds.......................26
(s) Environmental Report Compliance and Update..........26
Section 7. Events of Default....................................26
Section 8. Amendments, Etc......................................28
Section 9. Notices..............................................28
Section 10. No Waiver; Remedies.................................29
Section 11. Right of Setoff.....................................29
Section 12. Indemnification.....................................29
Section 13. Continuing Obligation...............................30
Section 14. Transfer of Letter of Credit; Reduction of Stated
Amount..............................................30
Section 15. Limitations on Bank Liability.......................30
Section 16. Costs, Expenses and Taxes...........................31
Section 17. Severability........................................31
Section 18. Governing Law.......................................31
Section 19. Substitute Letter of Credit Issuing Office..........31
Section 20. Headings............................................32
Section 21. Accounting Terms and Definitions....................32
ii
<PAGE>
Section 22. Counterparts........................................32
Section 23. Bank Consent........................................32
Section 24. Year 2000 Compliance................................32
Section 25. Waiver of Jury Trial................................32
Section 26. Statements Required by Law..........................33
iii
<PAGE>
REIMBURSEMENT AGREEMENT
THIS REIMBURSEMENT AGREEMENT is made as of September 1, 1998 by and
between LabOne, Inc., a Delaware corporation, with its principal office at 10310
West 84th Terrace, Lenexa, Kansas 66214 (the "Company"), and COMMERCE BANK,
N.A., with its principal office at 1000 Walnut 17th Floor, Kansas City, Missouri
64106 (the "Bank").
RECITALS
WHEREAS, The City of Lenexa, Kansas, and its successors and assigns
(the "Issuer") has agreed to issue its Taxable Industrial Revenue Bonds (LabOne,
Inc., Project) Series 1998A (the "Bonds") in the principal amount of $20,000,000
pursuant to a Trust Indenture dated as of September 1, 1998 (the "Indenture"),
between the Issuer and Intrust Bank, N.A., as Trustee (the "Trustee"), to
finance the acquisition, construction and equipping of an approximate 250,000
square foot office lab and warehouse facility located near Kansas highway K-10
and Interstate I-435 on Renner Road in Johnson County, Kansas (the "Project"),
pursuant to a Lease Agreement dated as of September 1, 1998 (the "Lease
Agreement"), between Issuer and the Company; and
WHEREAS, the Bonds are to be payable from payments in amounts
sufficient to pay the principal of and interest on the Bonds (the "Lease
Payments") to be made by the Company pursuant to the Lease Agreement; and
WHEREAS, the Remarketing Agent (as hereinafter defined) has agreed to
remarket from time to time the Bonds tendered for purchase on tender dates as
provided in the Indenture; and
WHEREAS, as a condition to the use of the proceeds of the Bonds for
the purpose of financing the Project, the Issuer has required the Company to
obtain an irrevocable direct pay letter of credit from the Bank (the "Letter of
Credit"), listing the Trustee as the beneficiary thereunder, in the initial
Stated Amount of Twenty Million Three Hundred Eighty Thousand Dollars
($20,380,000) (as the same may be reduced from time to time as provided
therein), of which up to $20,000,000 in the aggregate may be drawn upon in
respect of principal of the Bonds when due upon maturity, redemption or
acceleration, or with respect to the principal component of the Purchase Price
of the Bonds upon any optional or mandatory tender, and $380,000 in the
aggregate may be drawn upon in respect of interest on the Bonds, or the interest
component of the Purchase Price of the Bonds upon any optional or mandatory
tender; and
WHEREAS, as a condition to the Bank's undertaking the obligations
under the Letter of Credit, the Bank has required that the Company deliver to
the Bank: (i) this Reimbursement Agreement obligating the Company to reimburse
the Bank for any amounts drawn by the Trustee on the Letter of Credit; (ii) the
Pledge and Security Agreement (as such term is hereinafter defined); (iii) the
Security Agreement (the "Security Agreement") dated as of September 1, 1998
wherein the Company grants the Bank a security interest in the Project; (iv) a
letter (the "Comfort Letter") from Lab Holdings, Inc.
("Holdings") regarding Holdings'
<PAGE>
awareness of this transaction and all Related Documents and Holdings' agreement
to provide its reasonable efforts in assisting Company to fully comply with the
terms of this Agreement and all Related Documents; and (v) such other security
documents executed and delivered in connection with this Reimbursement Agreement
(collectively the documents referred to in this recital may at times be referred
to as the "Security Documents").
NOW, THEREFORE, in consideration of the premises and in order to
induce the Bank to issue the Letter of Credit, the Company and the Bank hereby
agree as follows:
Section 1..Certain Defined Terms. As used in this Agreement and unless otherwise
expressly indicated, or unless the context clearly requires otherwise, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"A Drawing" means a demand for payment under the Letter of Credit made by
presentation of a document in the form of Exhibit A (Same Day Purchase) thereto.
"Agreement" means this Reimbursement Agreement, as the same from time to
time may be amended or supplemented.
"Authorized Denominations" means the denominations of the Bonds as
authorized in Section 203 of the Indenture.
"B Drawing" means a demand for payment under the Letter of Credit made by
presentation of a document in the form of Exhibit B (Principal) thereto.
"Bond" or "Bonds" means individually or collectively, as appropriate one
or more Taxable Industrial Revenue Bonds (LabOne, Inc. Project), Series 1998A
issued under the Indenture by The City of Lenexa, Kansas.
"Bond Counsel" shall have the meaning ascribed to it in the Indenture.
"Bond Purchase Agreement" means the Bond Purchase Agreement among the
Issuer, the Underwriter and the Company.
"Business Day" means any day other than (i) a Saturday or Sunday, (ii) a
day on which banking institutions in the city in which the principal corporate
trust office of the Trustee, the Tender Agent and the Remarketing Agent or the
office of the Bank at which demands for payment under the Letter of Credit are
to be presented, are required or authorized by law to close, or (iii) a day on
which the New York Stock Exchange is closed.
"C Drawing" means a demand for payment under the Letter of Credit made by
presentation of a document in the form of Exhibit C (Interest) thereto.
"Code" means the Internal Revenue Code of 1986, as amended.
2
<PAGE>
"Comfort Letter" has the meaning assigned to that term in the recitals
to this Agreement.
"Date of Issuance" has the meaning assigned to that term in Section 3(b)
of this Agreement.
"D Drawing" means a demand for payment under the Letter of Credit made by
presentation of a document in the form of Exhibit D (Acceleration) thereto.
"Default" means any event or condition which with the giving of notice or
the lapse of time or both would, unless cured or waived, become an Event of
Default.
"Environmental Laws" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. ss.ss. 960, et
seq., the Hazardous Materials Transportation Act, 49 U.S.C. ss.ss. 1801, et
seq., the Resource Conservation and Recovery Act, 42 U.S.C. ss.ss. 6901, et
seq., the Toxic Substances Control Act of 1976, as amended, 15 U.S.C. ss.ss.
2601, et seq., the Clean Water Act, 33 U.S.C. ss.ss. 1251-1387, as amended, the
Clean Air Act, 42 U.S.C. ss.ss. 7401, et seq., as amended, and the Occupational
Safety and Health Act of 1970, as amended, 29 U.S.C. ss.ss. 651, et seq., as any
of the foregoing may be amended, any rule or regulation promulgated thereunder
or issued pursuant thereto, and any other present or future and all state,
federal and local environmental, health and safety statutes, ordinances, rules,
permit conditions, regulations, orders or directives addressing environmental,
health or safety issues and rules of common law and any amendments to any of the
foregoing.
"Environmental Report" means the Report of Phase II Environmental
Investigation to the Company from Kingston dated August 14, 1997.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended or any successor statute.
"Event of Default" has the meaning assigned to that term in Section 7 of
this Agreement.
"Expiration Date" has the meaning assigned to that term in Section 2(a)
of this Agreement.
"GAAP" means generally accepted accounting principles as in effect on the
date hereof. All accounting terms not specifically defined herein shall be
construed in accordance with GAAP.
"Hazardous Materials" means (i) any petroleum or petroleum products,
radioactive materials, asbestos in any form that is or could become friable,
urea formaldehyde foam insulation, and transformers or other equipment that
contain dielectric fluid containing levels of polychlorinated biphenyls; (ii)
any chemicals, materials or substances defined as or included in the definition
of "hazardous substances," "hazardous wastes," "hazardous materials," "extremely
hazardous wastes," "restricted hazardous wastes," "toxic substances," "toxic
pollutants," or words of similar import, under any applicable Environmental Law.
3
<PAGE>
"Holdings" means Lab Holdings, Inc., a Missouri corporation.
"Indebtedness" means, with respect to any Person, (a) indebtedness for
borrowed money (other than trade payables) or for the deferred purchase price of
property or services in respect of which such Person is liable, contingently or
otherwise, as obligor or otherwise, or any commitment by which such Person
assures a creditor against loss, including contingent reimbursement obligations
with respect to letters of credit, (b) any indebtedness described in clause (a)
which is guaranteed in any manner by such Person, including guarantees in the
form of an agreement to repurchase or reimburse, (c) obligations under leases
which shall have been or should be, in accordance with GAAP, recorded as capital
leases, in respect of which obligations such Person is liable, contingently or
otherwise, as obligor, guarantor or otherwise, or in respect of which
obligations such Person assures a creditor against loss, including, without
limitation, payments related to the Bonds pursuant to the Lease Agreement, but
specifically excluding payments related to the Subordinated Bonds pursuant to
the Lease Agreement, and (d) any unfunded obligations of such Person to any
benefit plan or multiemployer plan.
"Indenture" means the Trust Indenture referred to in the first recital
clause of this Agreement.
"Independent Architect" means such architect, engineer or firm of
architects or engineers selected by the Company and licensed by, or permitted to
practice in, the State, which architect, engineer or firm of architects or
engineers shall have no interest, direct or indirect, in the Company and, in the
case of an individual, shall not be a director, officer or employee of the
Company and, in the case of a firm, shall not have a partner, member, director,
officer or employee who is a director, officer or employee of the Company; it
being understood that an arm's-length contract with the Company for the
performance of architectural or engineering services shall not in and of itself
be regarded as creating an interest in or an employee relationship with such
entity and that the term Independent Architect may include an architect or
engineer or a firm of architects or engineers who otherwise meet the
requirements of this definition and who also are under contract to construct the
facility that they have designed.
"Interest Payment Date" has the meaning assigned to that term in the
Indenture.
"Issuer" has the meaning assigned to that term in the first recital clause
of this Agreement.
"Kingston" means Kinston Environmental Services, the entity retained to
prepare the Environmental Report.
"Lease Agreement" has the meaning assigned to that term in the first
recital clause of this Agreement.
"Letter of Credit" has the meaning assigned to that term in the fourth
recital clause of this Agreement.
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"Net Worth" has the meaning assigned to that term in Section 6(k) of this
Agreement.
"Official Statement" means the Official Statement dated September 4, 1998,
used by the Underwriter in connection with the sale of the Bonds.
"Ordinary Course of Business" means the Company's ordinary course of
business, including, without limitation, laboratory testing, risk assessment and
substance abuse testing and the acquisition of businesses engaged in one or more
of the lines of business of the Company.
"Outstanding" has the meaning assigned to that term in the Indenture.
"Paying Agent" has the meaning assigned to that term in the Indenture.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, a firm, a corporation, a partnership, an
association, a limited liability company, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Pledge and Security Agreement" means the Pledge and Security Agreement
dated as of September 1, 1998, executed by Company and Bank.
"Pledged Bonds" has the meaning assigned to that term in Section 3(d) of
this Agreement.
"Prime Rate" for any day shall mean the per annum rate of interest for
such day announced by the Bank from time to time as its base rate or equivalent
rate, with any change in such prime rate or equivalent to be effective on the
date of such change, it being understood that such rate may not be the best,
most favorable or lowest rate offered by the Bank.
"Project" has the meaning assigned to that term in the Indenture.
"Project Costs" has the meaning assigned to that term in the Indenture.
"Project Funds" has the meaning assigned to that term in the Indenture.
"Property" or "Properties" means any real property owned or leased at
any time by the Company.
"Purchase Price" means, with respect to a Bond, the amount of principal
and accrued interest, if any, necessary to purchase such Bond in accordance with
Sections 306 or 307 of the Indenture.
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"Related Documents" means this Agreement, the Letter of Credit, the Pledge
and Security Agreement, the Security Agreement, the Bonds, the Indenture, the
Lease Agreement, the Bond Purchase Agreement, the Remarketing Agreement, the
Preliminary Official Statement, the Official Statement, the Security Documents,
and any other document, agreement or instrument relating thereto.
"Remarketing Agent" means George K. Baum & Company, and any other
remarketing agent appointed in accordance with the provisions of the Indenture,
and their respective successors and assigns.
"Remarketing Agreement" means the Remarketing Agreement dated as of
September 1, 1998 between the Company and the Remarketing Agent, as the same may
be amended or supplemented from time to time, and any remarketing agreement
between the Company and a successor Remarketing Agent.
"Security Agreement" has the meaning assigned to that term in the fifth
recital clause of this Agreement.
"Security Documents" has the meaning assigned to that term in the fifth
recital clause of this Agreement.
"State" means the State of Kansas.
"Stated Amount" means the aggregate amount that at such time may be
demanded under the Letter of Credit, subject to reduction or increase as
provided therein.
"Subordinate Bonds" means those certain Taxable Industrial Revenue Bonds
(LabOne, Inc. Project), Series 1998B and Series 1998C in an aggregate amount of
$13,000,000 that Company has requested the Issuer to issue and that Company will
purchase.
"Tangible Net Worth" has the meaning assigned to that term in Section 6(k)
of this Agreement.
"Termination Date" has the meaning assigned to that term in Section 3(b)
of this Agreement.
"Trustee" has the meaning assigned to that term in the first recital
clause of this Agreement.
"Underwriter" means George K. Baum & Company and their successors and
assigns.
"Written Request" has the meaning assigned to that term in the Indenture.
Section 2..Issuance of the Letter of Credit; Conditions Precedent to
Issuance of the Letter of Credit
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(a) Issuance of the Letter of Credit: Substitute Letters of Credit.
(i) Subject to the terms and conditions of this Agreement, the
Bank agrees to issue the Letter of Credit on the Date of Issuance in
the form of Annex I hereto, to expire initially on October 5, 2001
(such date, as it may be extended pursuant to clause (ii) of this
Section 2(a) (the "Expiration Date").
(ii) The Company must provide to the Bank written notice of
Company's request to extend the Expiration Date (a "Notice Request")
at least 485 days prior to the Expiration Date, if Company desires the
Bank to extend the Expiration Date of the Letter of Credit by issuing
an amendment to the Letter of Credit, extending the Expiration Date
for a twelve (12) month period. In accordance with Section 2(a)(iii)
Bank will within 60 days after its receipt of the Notice Request
determine whether Bank will extend the Expiration Date for a period of
twelve months.
(iii) The Bank shall not be required to issue any amendment or
substitute letter of credit to extend the then Expiration Date of the
Letter of Credit and only an appropriate writing signed by the Bank
and received by the Trustee shall constitute an amendment or
substitute letter of credit. In the event the Bank upon the written
request of Company, amends the Letter of Credit or issues a substitute
letter of credit for the purpose of extending the Expiration Date, the
amendment shall be effective, or the substitute letter of credit shall
be issued to be effective, on the date of delivery thereof to the
Trustee, and the terms and conditions, fees and commissions, as
provided in this Agreement shall apply to such amended Letter of
Credit or substitute letter of credit, except as then otherwise agreed
in writing by the Company and the Bank. In the event the Bank in its
sole discretion determines not to amend the Letter of Credit or issue
a substitute letter of credit, the Bank will give the Company and the
Trustee notice that it has determined not to amend the letter of
credit or to issue a substitute letter of credit ("Notice of
Non-Renewal") within sixty (60) days of the Bank's receipt of the
Notice Request.
(iv) The Company may exercise any right it otherwise may have
under the Indenture or the Lease Agreement to obtain an alternate or
substitute letter of credit or credit support facility from a
financial institution other than the Bank at any time, subject to the
obligation of the Company to pay the balance of the annual issuance
fee due the Bank if such right is exercised prior to October 1, 1999,
as provided in Section 3(b) hereof.
(b) Conditions Precedent to the Issuance of the Letter of Credit. The
obligation of the Bank to issue the Letter of Credit is subject to the
following conditions precedent:
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(i) The Bank shall have received on or before the Date of
Issuance the following, each dated the Date of Issuance, in form and
substance satisfactory to the Bank:
(1) this Agreement and all Security Documents duly executed
by the Company;
(2) certified articles of incorporation and good standing
certificate of the Company, certified no earlier than 15 days
prior to the Date of Issuance by the Kansas and Delaware
Secretaries of State;
(3) a copy of the resolutions of the Board of Directors of
the Company, certified by the Secretary or an Assistant Secretary
of the Company (which certificates shall state that such
resolutions are in full force and effect on the Date of
Issuance), authorizing the execution, delivery and performance of
the Related Documents to which the Company is a party and any
other documents as Bank may require to evidence Company's
authority to execute, deliver and perform this Agreement and the
transactions contemplated hereby;
(4) a certificate of the Secretary or Assistant Secretary of
the Company certifying the names and true signatures of the
officers of the Company authorized to sign the documents;
(5) an opinion of counsel to the Company as to such matters
as the Bank may reasonably request, which opinion shall be
satisfactory to the Bank in form and substance;
(6) an opinion of Bond Counsel as to such matters as the
Bank may reasonably request, which opinion shall be satisfactory
to the Bank in form and substance;
(7) an executed copy (or a duplicate thereof) of the Lease
Agreement;
(8) an executed copy (or a duplicate thereof) of the
Indenture;
(9) an executed copy (or a duplicate thereof) of the
Remarketing Agreement;
(10) certified copies of the resolution or resolutions of
the Issuer authorizing the execution and delivery of, and
performance by the Issuer under, the Indenture, the Lease
Agreement and the other Related Documents to which the Issuer is
a party;
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<PAGE>
(11) a copy of the Preliminary Official Statement and an
executed copy of the Official Statement;
(12) evidence of rating of the Bonds by Standard & Poor's
Ratings Group acceptable to the Bank;
(13) a certificate of an authorized officer of the Trustee
dated the Date of Issuance, certifying inter alia the names and
the signatures of the officers of the Trustee authorized to
execute the Indenture and permitting Bank to rely on the
Trustee's Certificate required under the Bond Purchase Agreement;
(14) evidence of zoning and a copy of construction permits
(for the Project);
(15) final plans and specifications for the Project;
(16) a Project budget, architect's contract and construction
contract;
(17) Owner's title insurance policy in favor of the Issuer
and in favor of the Bank and the Trustee, as their interests may
appear, containing no exceptions as to mechanic's liens and
survey;
(18) the Environmental Report;
(19) evidence satisfactory to the Bank (which may include
the survey and surveyor's certification) that the Project does
not lie within a flood plain or an area designated as wetlands
or, in the Bank's sole judgment, has adequate flood insurance;
(20) receipts from the initial purchasers of the Bonds and
the Subordinate Bonds evidencing their delivery;
(21) insurance certificates reflecting Builder's Risk,
general liability, property and worker's compensation insurance
coverages in form and amount and with such companies as are
approved by the Bank;
(22) an executed copy of the Comfort Letter; and
(23) such other documents, instruments, approvals (and, if
requested by the Bank, certified duplicates of executed copies
thereof) or opinions as the Bank may reasonably request, and such
matters as are provided in the proposal letter of Bank to Company
dated May 21, 1998 (the "Proposal Letter").
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<PAGE>
(ii) The following statements shall be true and correct on the
Date of Issuance and the Bank shall have received certificates signed
by duly authorized officers of the participants, dated the Date of
Issuance, stating that:
(1) the representations and warranties made by the Company
contained in Section 5 of this Agreement and in any other Related
Document to which the Company is a party or in any other writing
or instrument issued in connection herewith or therewith, are
true and correct on and as of the Date of Issuance as though made
on and as of such date; and
(2) no Default or Event of Default has occurred and is
continuing, or would result from the issuance of the Letter of
Credit.
(iii) on or before the Date of Issuance:
(1) this Agreement and the Related Documents shall be in
full force and effect;
(2) all conditions precedent to the issuance of the Bonds
shall have occurred; and
(3) the Issuer shall have duly executed, issued and
delivered all of the Bonds pursuant to the Indenture and all of
the Bonds shall have been placed pursuant to the Bond Purchase
Agreement.
(iv) The Company shall have paid to the Bank the fees provided
for in Section 3(b) hereof.
Section 3..Reimbursement and Other Payments.
(a) Reimbursement. The Company hereby agrees:
(i) to pay to the Bank immediately and without demand, not later
than 2:00 p.m. (Kansas City time) two business days prior to the date
any payment is to be made under the Letter of Credit, pursuant to any
"B Drawing", any "C Drawing" or any "D Drawing", to pay the principal
of or interest on the Bonds, as the case may be, and not later than
2:00 p.m. (Kansas City time) on the date any drawing is made under the
Letter of Credit pursuant to any "A Drawing," in all cases such
payment to the Bank to be the amount which the Bank advises the
Company is an amount equal to the full amount paid or expected to be
paid under the Letter of Credit; provided, however,
notwithstanding the foregoing any amount payable with respect to an "A
Drawing" shall be payable to the Bank as follows:
(1) Interest on such amount shall be payable at the interest
rate set forth in Section 3(a)(iii) hereof and shall be payable
at the
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<PAGE>
same time interest on the Bonds is due and payable under the
Indenture, and such payment shall constitute full payment of the
interest due on Pledged Bonds; and
(2) The principal of such Pledged Bonds shall be due on the
Termination Date.
(ii) to pay to the Bank on demand any and all charges and
expenses that the Bank may pay or incur relative to the Letter of
Credit, including without limitation, the costs, expenses, fees and
taxes referred to in Sections 3(c), 12 and 16 hereof;
(iii) to pay to the Bank on demand interest on any and all
amounts required to be paid from and after the due date of payments as
provided in Sections 3(a)(i), 3(a)(ii), 3(a)(iv), 3(b), 3(c), 12 and
16; and until payment is made in full, at a fluctuating per annum
interest rate equal to the Prime Rate plus three percent (3%); and
(iv) to pay to the Bank on the first day of each month commencing
October 1, 1998, an amount equal to one-twelfth (1/12th) of the annual
amount of principal next due on the Bonds pursuant to Section
302(g)(i) of the Indenture, such amount shall be held by the Bank in a
segregated trust account as security for all amounts due hereunder.
All amounts held in such account shall be invested in a U.S.
Government money market account or such other investment acceptable to
the Bank and the Company and interest on such amounts shall accrue to
such account until the amount deposited therein is applied as set
forth in this subparagraph. The Company hereby instructs the Bank to
apply the amounts on deposit in said account to immediately reimburse
the Bank for amounts due under Section 3(a)(i) hereof in the following
order of priority: (1) first, with respect to payment for Pledged
Bonds which are subject to mandatory redemption pursuant to Section
302(g)(i) of the Indenture, payable by the Bank to the Trustee for
deposit in the Bond Fund to be disbursed by the Trustee in accordance
with the Indenture to redeem said Pledged Bonds, (2) second, to
satisfy amounts owing by the Company to the Bank hereunder with
respect to any "B Drawing," and (3) third, to satisfy amounts owing by
the Company to the Bank hereunder with respect to any "C Drawing,"
made in connection with a "B Drawing". In no event shall the Bank use
any moneys in said account to honor draws under the Letter of Credit.
The Bank shall provide the Company with statements with respect to
such account on at least a quarterly basis.
The Company's payment obligations under this Section 3 shall survive the
termination of this Agreement.
(b) Commissions and Fees. The Company agrees to pay the Bank (i) an
origination fee payable on the Date of Issuance of $-0-, (ii) an annual
issuance fee, payable on the Date of Issuance (prorated through September
30, 1998) and thereafter
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<PAGE>
Quarterly in advance on the first day of each quarter commencing with
October 1, 1998, or the next succeeding Business Day thereafter if any such
day is not a Business Day, computed at the rate of .60 of one percent
(.60%) per annum of the Stated Amount from time to time available to be
drawn under the Letter of Credit (plus the amount of any "C Drawing" which
is automatically reinstatable under the Letter of Credit prior to such
reinstatement) from and including the Date on which the Letter of Credit is
issued (the "Date of Issuance") until the last day a drawing is available
under the Letter of Credit (the "Termination Date"), provided, that, if the
Termination Date occurs prior to October 1, 1999 by reason of the Company
having obtained an alternate letter of credit or substitute letter of
credit or credit support facility to credit enhance the Bonds prior to
October 1, 1999, the Company will pay the Bank on the Termination Date the
balance of the annual issuance fee for the period October 1, 1998 through
October 1, 1999, (iii) a negotiation fee of $150 upon each date of Drawing
under the Letter of Credit, and (iv) a sum equal to $500 upon each transfer
of the Letter of Credit in accordance with its terms.
(c) Increased Costs. If the Bank reasonably determines that the
introduction of, change in, or change in the interpretation or application
of, any law, rule, regulation or directive by any court or administrative
or governmental authority charged with the administration thereof shall
either (i) impose, modify or deem applicable any taxation, reserve,
assessment, special deposit or other requirement with respect to letters of
credit issued by, or with respect to any other extension of credit by, or
assets held by, or deposits in or other liabilities for the account of, the
Bank or (ii) impose on the Bank any other condition regarding this
Agreement, the Letter of Credit, or any collateral therefor, or any of the
transactions in the preceding clause (i), or (iii) affect the amount of any
deduction that the Bank may take for purposes of federal, state or local
income taxes in respect of the cost, including, but not limited to,
interest, costs of maintaining the Letter of Credit or the reimbursement
obligations of the Company hereunder, and the result of any event referred
to in clause (i), (ii) or (iii) above shall be to increase the cost, or
diminish the anticipated return, to the Bank of issuing or maintaining the
Letter of Credit or the reimbursement obligations of the Company hereunder,
or reduce the amounts receivable by the Bank hereunder or thereunder (which
increase in cost, diminution in return or reduction of amounts, are
determined by the Bank's reasonable allocation of the aggregate of such
costs, increases, diminution in return, or reductions resulting from such
event, or reduce the rate of return on all or any part of the Bank's
capital as described in the next succeeding sentence, then, upon demand by
the Bank, the Company will immediately pay to the Bank from time to time as
specified by the Bank additional amounts which are sufficient to compensate
the Bank on an after-tax basis for such increased cost, diminution in
return, reduction or loss of profitability from the date of such event
together with interest on such amount from the date demanded until payment
in full at the rate set forth in Section 3(a)(iii) above. If after the date
hereof, the Bank reasonably determines that the introduction of,
implementation of, change in, or change in the interpretation, or
application of, any law, rule, regulation, guideline or directive by any
governmental authority, central bank or other comparable agency charged
with the interpretation or administration thereof, imposes, modifies or
deems applicable any capital adequacy or similar requirement (including
without limitation a
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<PAGE>
request or requirement which affects the manner in which the Bank allocates
capital resources to its commitments, including its obligations hereunder)
and as a result thereof, in the sole opinion of the Bank, the rate of
return on the Bank's capital as a consequence of its obligations hereunder
is reduced to a level below that which the Bank could have achieved but for
such circumstances, then, upon demand by the Bank, the Company shall pay to
the Bank, in the manner described in the preceding sentence, such
additional amount as will compensate the Bank for such reduction in rate of
return. A certificate setting forth such increased cost, diminution in
return, or reduction of amounts or in rate of return incurred by the Bank
as a result of any event mentioned above and giving a reasonable
explanation thereof, submitted by the Bank to the Company (absent error),
shall be conclusive and binding for all purposes. The provisions of this
Section 3(c) shall survive termination of this Agreement.
(d) Pledge of Bonds. As security for the payment of the obligations of
the Company pursuant to Section 3(a) hereof, the Company will pledge to the
Bank, and grant to the Bank a security interest in, its right, title and
interest in and to Bonds delivered to the Bank in connection with "A
Drawings" (herein called "Pledged Bonds"), pursuant to the Pledge and
Security Agreement.
(e) Release of Pledged Bonds. Upon reimbursement of any "A Drawing" in
accordance with Section 3(a)(i) above, together with accrued interest to
the date of such payment on the amount to be paid, the outstanding
obligations of the Company under Section 3(a)(i) above shall be reduced by
the amount of such payment, interest shall cease to accrue on the amount
paid and, upon reinstatement of the Letter of Credit pursuant to Section
3(f) below, the Bank shall release to the Company from the Pledge and
Security Agreement, a principal amount of Pledged Bonds (but only in
Authorized Denominations) held under the Pledge and Security Agreement
corresponding and equal to (or as closely equal as possible without
exceeding the amount of such reimbursement) the principal amount of such
Pledged Bonds included in the "A Drawing" reimbursed by such payment.
(f) Reinstatement of Letter of Credit. (i) Upon receipt by the Bank of
notice from the Remarketing Agent that the Pledged Bonds pledged to the
Bank in connection with an "A Drawing" have been remarketed and the
reimbursement of any amount owing pursuant to Section 3(e) hereof, and
concurrent with the release of the Pledged Bonds as specified therein, the
obligation of the Bank to honor demands for payment of "A Drawings" under
the Letter of Credit will be automatically reinstated to the total
principal amount of the released Bonds plus interest thereon at 12% for 57
days upon issuance of notice of such reinstatement by the Bank to the
Trustee; provided, however, the Bank in its complete and sole discretion
may refuse to release any Pledged Bonds from the pledge and security
interest and may refuse to reinstate the amount thereof as aforesaid if
there shall have occurred and be continuing any Default or Event of
Default.
(i) The obligation of the Bank to honor demands for payment of "C
Drawings" under the Letter of Credit will be automatically reinstated
to the total
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<PAGE>
principal amount of the Bonds Outstanding plus interest thereon at 12%
for 57 days, on the eleventh (11th) business day after the Bank honors
a "C Drawing" made under the Letter of Credit; provided, however, that
the Bank in its complete and sole discretion may refuse to reinstate
the amount of the Letter of Credit as aforesaid by giving notice to
the beneficiary of the Letter of Credit on or before 5:00 p.m., Kansas
City time, on the tenth (10th) business day after the Bank honors such
"C Drawing" that an Event of Default has occurred under this
Reimbursement Agreement and the Bank has declined to reinstate such
amount of the Letter of Credit.
(g) Payments on Pledged Bonds. Payments by the Issuer of
principal or interest due on the Pledged Bonds held pursuant to the
Pledge and Security Agreement, which payments have been received by
the Bank, shall be credited against payments due under Section 3(a)
above. Receipt and application of any such payments, however, shall
not be in satisfaction of, or relieve the Company from, the Company's
payment obligations under Section 3(a) above to the extent of any
deficiency in the amount so received by the Bank.
(h) Payments and Computation of Payments and Interest. All
payments by the Company to the Bank hereunder shall be made in lawful
currency of the United States and in immediately available funds at
the Bank's office set forth in the preamble hereof, or at such other
place as it may designate in writing without any withholding,
deduction or setoff. Funds received after 2:00 p.m., Kansas City Time,
shall be deemed to have been received by the Bank on the following
Business Day, and if any amount payable hereunder shall fall due on a
day that is not a Business Day, then such due date shall be extended
to the next succeeding Business Day. In each such case, interest
and/or fees provided hereunder shall continue to accrue during such
extension. If any payment by the Bank under the Letter of Credit with
respect to a demand for payment by the Trustee thereunder shall be
reimbursed by the Company to the Bank on or before 2:00 p.m. at the
Bank's address as set forth above on the same date such payment is
made by the Bank, no interest shall be payable on the reimbursed
amount. Interest and commission payable hereunder shall be computed on
the basis of a year of 360 days and actual days elapsed. All payments
and other recoveries of money received by the Bank hereunder shall be
applied: FIRST, to the payment of fees, costs, expenses, taxes and
indemnification amounts required hereunder; SECOND, to the payment of
interest as provided herein; and THIRD, to the reimbursement of
amounts drawn under the Letter of Credit.
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(i) Conversion of Interest Rate Mode to Semiannual Mode,
Annual Mode or a Multi-Year Mode. In the event that Company
elects to change the Interest Rate Mode in accordance with the
Indenture to a Semiannual Mode, Annual Mode or a Multi-Year Mode
and the Bank has approved the changes, and in connection
therewith, the Bank is requested and agrees to increase its
Letter of Credit to provide for additional days interest coverage
under the Indenture or the Lease Agreement, Company agrees to
enter into a modification of this Reimbursement Agreement and any
modifications to any Security Documents to reflect the increased
amount of the indebtedness, as may be reasonably required by
Bank.
Section 4..Obligations Absolute. Except as hereinafter provided, the
obligations of the Company under this Agreement and the Security Documents shall
be absolute, unconditional and irrevocable and shall be paid and performed
strictly in accordance with the terms of this Agreement and the Security
Documents, under all circumstances whatsoever, including, without limitation,
the following circumstances:
(a) any lack of validity or enforceability of the Letter of Credit,
this Agreement, the Bonds, the Indenture, the Lease Agreement, the
Remarketing Agreement or any other Related Document;
(b) any amendment or waiver of, or any consent to or departure from
all or any of the Related Documents which is not consented to in writing by
the Bank;
(c) the existence of any claim, setoff, defense or other rights which
the Company may have at any time against the Trustee, any beneficiary or
any transferee of the Letter of Credit (or any persons or entities for whom
the Trustee, any such beneficiary or any such transferee may be acting),
the Bank, the Remarketing Agent or any other person or entity, whether in
connection with this Agreement, the Related Documents or any unrelated
transaction;
(d) any statement or any other document presented under the Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect
whatsoever;
(e) payment by the Bank under the Letter of Credit against
presentation of a draft or certificate which does not comply with the terms
of the Letter of Credit; or
(f) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing.
Section 5..Representations and Warranties. In order to induce the Bank to
enter into this Agreement and to issue the Letter of Credit pursuant to the
terms hereof, the Company makes the following representations and warranties to
the Bank, all of which shall survive the execution and delivery of this
Agreement:
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(a) Status. The Company is a duly organized and validly existing
Delaware corporation in good standing and qualified to do business in the
State as a foreign corporation and has the power and authority to own its
property and to transact the business in which it is engaged or presently
proposes to engage and is duly qualified or licensed as a foreign
corporation in good standing in each jurisdiction other than the State in
which such qualification is required, except where the failure to be so
licensed or qualified would not have a material adverse effect on the
Company taken as a whole.
(b) Power and Authority. The Company has the power to execute, deliver
and carry out the terms and provisions of this Agreement and the other
Related Documents to which it is a party and has taken all necessary action
to authorize the execution, delivery and performance of this Agreement and
the other Related Documents to which it is a party and the actions
hereunder and thereunder. This Agreement and the other Related Documents to
which the Company is a party are the legal, valid and binding obligations
of the Company enforceable in accordance with their respective terms,
except as enforcement may be limited by bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights generally.
(c) Compliance with Other Instruments. The Company is not in default
under any agreement to which it is a party (other than an agreement related
to a trade payable) which default would materially impair the ability of
the Company to perform its obligations under this Agreement, and neither
the execution, delivery or performance of this Agreement or the other
Related Documents to which the Company is a party nor the consummation of
the transactions herein or therein contemplated, nor compliance with the
terms and provisions hereof or thereof, will contravene any provision of
any material law, statute, rule or regulation to which the Company is
subject or any material judgment, decree, franchise, order or permit
applicable to the Company or will conflict or be inconsistent with or will
result in any breach of, any of the terms, covenants, conditions or
provisions of, or constitute a default under, or result in the creation or
imposition of (or the obligation to create or impose) any material lien,
security interest, charge or encumbrance upon any property or assets of the
Company pursuant to the terms of any material indenture, mortgage, deed of
trust, agreement or other instrument to which the Company is a party or by
which it is bound or to which it may be subject, or violate any provision
of the Articles of Incorporation or Bylaws of Company.
(d) Litigation. Except as previously disclosed to the Bank in writing,
there are no actions, suits or proceedings pending or threatened against or
affecting the Company before any court or tribunal or before any
governmental or administrative body or agency, which in any one case or in
the aggregate if determined adversely to the interest of the Company would
have a material adverse effect on the business, properties, condition
(financial or otherwise) or operations, of the Company, taken as a whole.
The Company is not in default in any material respect with respect to any
applicable statute, rule, writ, injunction, decree, order or regulation of
any governmental authority having jurisdiction over the Company.
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(e) Governmental Approvals. No order, permission, consent, approval,
license, authorization, registration or validation of, or filing with, or
exemption by, any governmental agency, commission, board or public
authority is required to authorize, or is required in connection with, the
execution, delivery and performance of this Agreement or any other Related
Document to which the Company is a party by the Company or the taking of
any action hereby or thereby contemplated by the Company.
(f) Financial Statements. The Company has heretofore furnished the
Bank the balance sheet of the Company dated June 30, 1998 and the related
statements of income and cash flows for the period ended on such date(s).
As of such date(s) the Company had no material liabilities, contingent or
otherwise, which were required to be recorded in accordance with GAAP,
other than those set forth on such financial statements, which may
materially adversely affect the operations, business, property or assets or
condition (financial or otherwise) of the Company taken as a whole. Such
financial statements (including in each case the related schedules and
notes) fairly presented the financial condition of the Company, as of the
date(s) of such balance sheet and the results of its operations for the
period covered by such statements of income and cash flows. There has been
no material adverse change in the operations, business, property or assets,
or in the condition (financial or otherwise) of the Company since the
date(s) of the respective financial statements referenced above.
(g) Federal Reserve Margin Regulations. The Company is not engaged in
the business of extending credit for the purpose of purchasing or carrying
any margin stock (within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System of the United States). If requested
by the Bank, the Company will furnish to the Bank statements in conformity
with the requirements of the Federal Reserve Form U-1 referred to in
Regulation U of said Board of Governors.
(h) Environmental Representations.
(i) Except as previously disclosed to the Bank in the
Environmental Report or otherwise in writing, all Property of the
Company and the operations and activities thereon, have been and
continue to be in compliance in all material respects with the
requirements of all applicable Environmental Laws. Except as
previously disclosed to the Bank in writing, the Company has no
knowledge of any presence, disposal, release, or threatened release of
any Hazardous Materials that constitutes or results in any material
respect in a violation or claimed violation of any applicable
Environmental Law on or from any Property. Except as previously
disclosed to the Bank in writing, the Company has no knowledge of any
actions, suits, investigations, liabilities, inquiries or other
proceedings, rulings, orders, or citations involving the Company
pending, existing or threatened, as the result of the failure of the
Company or any predecessor of Company, to comply (or the assertion of
liability even if in compliance) with any requirement of any
Environmental Law with respect to any Property. For the purposes of
this Agreement, the terms "disposal," "release," and "threatened
release," shall mean any disposal, release, and threatened release in
or
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for the purposes of the Comprehensive Environmental Response,
Compensation, and Liability Act, as amended ("CERCLA"), or any other
Environmental Law, as in effect, now for the making of this
representation on the date hereof, or at any time hereafter when this
representation is made.
(ii) Without limiting the generality of the foregoing:
(1) Except as previously disclosed to the Bank in writing,
there are no outstanding orders, judgments, decrees or
stipulations of any court, any other governmental or
administrative body or agency (including, but not limited to, in
favor of any citizens' group) affecting any Property, or any
portion thereof, based on any violation or claimed violation of
any Environmental Law. Except as previously disclosed to the Bank
in writing, the Company has all permits necessary for discharges
to the air or water from its operations and activities on any
Property or affecting solid and hazardous waste generation,
storage, treatment, and disposal on or from any Property. All
material permits required under applicable Environmental Laws to
enable the Company to operate its business at the Property are in
full force and effect, and all material permits and all
conditions and agreements contained therein have been
substantially complied with.
(2) Except as previously disclosed to the Bank in writing,
to the best knowledge of the Company, no materials from any
Property have been disposed of at any of the sites listed by the
U.S. Environmental Protection Agency in the proposed or final
National Priorities List of hazardous waste sites developed
pursuant to Section 105(8)(B) of CERCLA or any similar official
state list as of the date hereof. Additionally, to the knowledge
of the Company, no Property and no other real property formerly
owned, occupied, used or leased by the Company is presently under
investigation by federal, state or local governmental authorities
or is listed on the above-mentioned National Priorities List or,
except as previously disclosed to the Bank in writing, is
formally proposed for listing on the above-mentioned National
Priorities List or any similar official state list.
(3) The Company has previously provided to the Bank in
writing a list of all underground storage facilities ("UST") of
any type on each of the Properties and such list is true,
accurate and complete as of the date hereof.
(4) Except as previously disclosed to the Bank in writing,
to the best of the knowledge of the Company, no Property contains
any polychlorinated biphenyls as defined by the Toxic Substances
Control Act, as amended.
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(i) ERISA. Except as previously disclosed to the Bank in writing, the
Company has not incurred any material accumulated funding deficiency within
the meaning of ERISA or incurred any material liability to the PBGC in
connection with any employee benefit plan (or other class of benefit which
the PBGC has elected to insure) other than a multiemployer plan within the
meaning of ERISA, or, to the Company's actual knowledge, in connection with
any such multiemployer plan, established or maintained by the Company.
Except as previously disclosed to the Bank in writing, the Company has
fully complied in all material respects with the applicable administrative,
reporting and substantive requirements of ERISA and any other applicable
law, rule or regulation with respect to each such plan.
(j) Investment Company Act. The Company is not an "investment company"
or a company controlled by an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
(k) Taxes. The Company has filed all United States federal tax returns
and all other tax returns which are required to be filed and has paid all
taxes due pursuant to said returns or pursuant to any assessment received
by the Company except such taxes, if any, as are being contested in good
faith and as to which adequate reserves have been provided. Except as
previously disclosed to the Bank in writing, to the knowledge of the
Company, no tax liens have been filed and no claims are being asserted with
respect to any such taxes. The charges, accruals and reserves on the books
of the Company in respect of any taxes or other governmental charges are
adequate in all material respects.
(l) Intellectual Property. The Company owns and possesses all such
patents, patent rights, trademarks, trademark rights, trade names, trade
name rights, service marks, service mark rights and copyrights as the
Company reasonably considers necessary for the conduct of its business
without, to the knowledge of the Company and except as previously disclosed
to the Bank in writing, individually or in the aggregate, any infringement
upon the rights of other persons which would be reasonably likely to have a
materially adverse effect on the business of the Company in the aggregate.
(m) Accuracy of Information. No information, exhibit or report
furnished by the Company to the Bank in connection with this Agreement, any
other agreement, document or instrument between the Company and the Bank,
or the negotiation of the transaction described herein contained at the
time so furnished any misstatement of a material fact or omitted at such
time to state a material fact or any fact necessary to make the statements
contained therein not materially misleading.
(n) Related Documents. The Company makes each of the representations
and warranties contained in the Related Documents to which the Company is a
party, to and for the benefit of the Bank as if the same were set forth in
full herein.
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Section 6..Covenants. So long as the Termination Date has not occurred or
any amount is due or owing to the Bank hereunder, the Company agrees and
covenants that unless the Bank otherwise consents in writing:
(a) Financial Reports. The Company will furnish to the Bank:
(i) within 125 days after the end of each fiscal year of the
Company , an audited report certified by independent certified public
accountants of recognized standing selected by the Company and
satisfactory to the Bank containing a balance sheet of the Company as
of the close of such fiscal year and the related statements of income
and cash flows for such fiscal year, setting forth in each case in
comparative form corresponding figures from the preceding report, all
of which shall be in reasonable detail and prepared in accordance with
GAAP;
(ii) within 50 days after the end of each fiscal quarter of each
fiscal year of the Company, an unaudited balance sheet of the Company
as of the close of such quarter and the related statements of income
and cash flows for such fiscal quarter and for the period from the
beginning of such fiscal year to the end of such quarter, setting
forth in each case in comparative form the corresponding figures for
the corresponding period in the preceding fiscal year, all in
reasonable detail and certified by the Chief Financial Officer of the
Company;
(iii) at the time of the delivery of the financial statements
required by clause (i) and clause (ii) of this Section 6(a), a
certificate of the Company executed by the Chief Financial Officer of
Company, to the effect that there exists no Event of Default and no
condition, event or act which, with the giving of notice or lapse of
time, or both, would constitute such an Event of Default, or if any
such Event of Default, condition, event or act exists, specifying the
nature thereof, the period of existence thereof and the action the
Company proposes to take with respect thereto;
(iv) Copies of (a) the quarterly financial statements of Holdings
within fifty (50) days after the end of each calendar quarter and (b)
year end audited financial statements of Holdings, within 125 days
after its fiscal year end; and
(v) with reasonable promptness, such further information
regarding the business, affairs and financial condition of the Company
as the Bank may reasonably request.
(b) Payment of Charges. The Company will pay and discharge all taxes,
assessments and governmental charges or levies imposed upon it or its
property or assets, or upon properties leased by it (except with respect to
those obligations under leases which the Company's lessor is obligated to
pay), prior to the date on which penalties attach thereto, and all material
claims which if unpaid might become a lien or charge upon its property or
assets, provided that the Company shall not be required to pay
20
<PAGE>
any such tax, assessment, charge, levy or claim the payment of which is
being contested in good faith and by proper proceedings if adequate
reserves with respect thereto have been set up by the Company.
(c) Insurance. The Company will maintain insurance coverage by
financially sound and reputable insurers in such forms and amounts and
against such risks as are customary for Persons of established reputation
engaged in the same or similar businesses and owning and operating similar
properties.
(d) Inspection of Books and Assets, Confidentiality. The Company will
allow any representative of the Bank to visit and inspect any of its
properties, to examine its books of record and account and to discuss its
affairs, finances and accounts with its officers, all at such reasonable
times and as often as the Bank may reasonably request. The Bank shall
insure that all confidential information relating to the Company which the
Bank or any of its representatives may obtain as a result of such
inspection or examination shall not be published, disclosed, or made
accessible by it to any other Person at any time without the prior written
consent of the Company, to which such confidential information relates;
provided, however, that the restrictions of this sentence shall not apply
(i) as may otherwise be required by law, (ii) to the extent such
information shall otherwise have become publicly available, or (iii) to
disclosure to its attorneys related to this Agreement and the Letter of
Credit.
(e) Notices. The Company will deliver to the Bank promptly after any
executive officer of Company obtains any knowledge of the existence of any
Event of Default or any condition, event or act which, with the giving of
notice or lapse of time, or both, would constitute an Event of Default, a
certificate signed by an officer of the Company specifying to the best of
his or her knowledge the nature thereof, the period of existence thereof
and what action the Company proposes to take with respect thereto.
(f) Litigation. The Company will promptly give written notice to the
Bank of (i) any action, proceeding or claim, which has been commenced or
threatened against the Company and (ii) any dispute which may exist between
the Company and any governmental regulatory body, if any such action,
proceeding, claim or dispute, if adversely determined, would have a
material adverse effect on the Company taken as a whole.
(g) Preservation of Existence, Compliance with Laws. The Company will
maintain and preserve its corporate existence and qualification and right
to carry on its business and duly procure all necessary renewals and
extensions thereof, use its best efforts to maintain, preserve and renew
all material rights, powers, privileges and franchises which in the opinion
of the Board of Directors of the Company continue to be advantageous to it
and comply in all material respects with all applicable laws, statutes and
regulations in respect of the conduct of its business.
(h) Environmental Laws. The Company will keep and maintain all
Properties in compliance with and not cause or permit any Property to be in
violation of
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any applicable Environmental Law. The Company shall not generate,
manufacture, or dispose of on or under any Property any Hazardous Materials
other than in compliance with applicable Environmental Laws. As soon as
practicable, and in any event within twenty days after receipt by the
Company of (i) any notice of claim to the effect that such entity is or may
be liable to any Person as a result of the release or threatened release by
such entity or any other Person of any Hazardous Material into the
environment, or (ii) any notice alleging any material violation of any
Environmental Law, the Company shall notify the Bank of such receipt and
the Company shall deliver to the Bank a copy of the notice so received by
the Company.
(i) ERISA. As soon as possible and in any event within 10 days after
the Company knows that any event which would constitute a reportable event
under Section 4043(b) of Title IV of ERISA with respect to any employee
pension or other benefit plan of the Company subject to such Title has
occurred (other than an event for which the 30-day notice requirement to
the PBGC has been waived), or that the PBGC or the Company has instituted
or will institute proceedings under such Title to terminate such plan, the
Company will deliver to the Bank a certificate of the chief financial
officer of the Company, setting forth details as to such reportable event
and the action which the Company proposes to take with respect thereto,
together with a copy of any notice of such reportable event which may be
required to be filed with the PBGC, or any notice delivered by the PBGC
evidencing its intent to institute such proceedings, or any notice of the
PBGC that the plan is to be terminated, as the case may be. For the
purposes of this covenant, the Company shall be deemed to have knowledge of
all facts attributable to the plan administrator under such Title IV. If
the Bank so requests or if any annual report referred to in this sentence
describes an event for which the 30-day notice period to the PBGC has been
waived, the Company shall furnish the Bank (or cause the plan administrator
to furnish the Bank) with the annual report for each plan covered by such
Title IV and filed with the Internal Revenue Service not later than 10 days
after such report has been filed.
(j) Liens. The Company will not contract, create, incur, assume or
suffer to exist any mortgage, pledge, lien or other charge or encumbrance
of any kind (including the charge upon property purchased under conditional
sale or other title retention agreements but excluding liens incurred in
the Ordinary Course of Business not in connection with the borrowing of
money or the obtaining of credit) not existing on the date of this
Agreement upon, or grant any security interest in, the Project or Company's
assets, whether now owned or hereafter acquired other than:
(i) liens for taxes not yet due, or liens for taxes being
contested in good faith and by appropriate proceedings for which
adequate reserves have been established;
(ii) liens in respect of property or assets of the Company
imposed by law, which were incurred in the ordinary course of
business, such as carriers', warehousemen's and mechanics' liens and
other similar liens arising in the ordinary course of business and (x)
which do not in the aggregate materially
22
<PAGE>
detract from the value of such property or assets or materially impair
the use thereof in the operation of the business of the Company or (y)
which are being contested in good faith by appropriate proceedings,
which proceedings have the effect of preventing the forfeiture or sale
of the property or assets subject to any such lien;
(iii) liens in existence on the Date of Issuance which are set
forth in a writing delivered to the Bank prior to or on the Date of
Issuance and which have been agreed to by the Bank;
(iv) pledges, or deposits in connection with worker's
compensation, unemployment insurance and other social security
legislation;
(v) judgment liens in existence less than 15 days after the entry
thereof or with respect to which execution has been stayed or the
payment of which is covered in full (subject to a customary
deductible) by insurance;
(vi) easements, restrictions and other minor defects of title
which are not, in the aggregate, material, and which do not,
individually or in the aggregate, materially adversely affect the
Company in the aggregate or the rights and remedies of the Bank
hereunder.
Notwithstanding the above, but subject to the limitations on Indebtedness
in Section (k)(iv) contained herein, Company shall have the right to incur or
create first lien purchase money security interests ("PMSI") or enter into
Equipment leases not to exceed $1,000,000 annually in the aggregate for future
equipment acquisitions in the Ordinary Course of Business.
(k) Financial Covenants of Company. The Company agrees:
(i) Company will not make any acquisitions of assets outside of
the Ordinary Course of Business or sell on an annual basis any assets
of Company outside of the Company's Ordinary Course of Business
without the prior written consent of the Bank provided, that, the
Company may sell its existing real property and improvements thereon
from which it will move to the Project; and
(ii) Except with respect to acquisitions in the Ordinary Course
of Business or a merger of Holdings with Company, the Company will not
merge or consolidate with any entity or enter into any transaction
which results in a change of control of the Company or (except for
such merger with the Company) Holdings and will not dissolve or enter
into any joint venture or become a partner, member or shareholder in
any partnership, limited liability company or corporation which
results in a change of control of the Company or Holdings; and
(iii) the Company will not invest any funds in or loan any funds
to any other Person or entity inconsistent with the current investment
policies
23
<PAGE>
established by the Board of Directors of Company and which are
otherwise reasonably acceptable to the Bank; and
(iv) Without the Bank's prior written consent, which may be
withheld by the Bank in its sole discretion, Company will not incur
any Indebtedness of any nature other than (A) unsecured debt arising
in the Ordinary Course of Business, (B) debt incurred in connection
with acquisitions in the Ordinary Course of Business secured only by
the assets so acquired, or (C) Indebtedness secured by PMSI's or
Equipment leases entered into in compliance with Section 6(k) hereof;
and
(v) Company will not directly or indirectly sell, grant, convey,
assign or otherwise transfer or permit to be the subject of a transfer
any portion of the Project or any facilities or improvements
constructed with the proceeds of the Bonds or transfer any legal or
beneficial interest therein without the Bank's prior written consent,
which may be withheld by the Bank in its sole discretion; and
(vi) Company will maintain at all times as determined on a
calendar year basis a Net Worth equal to at least $40,000,000 and a
Tangible Net Worth of at least $20,000,000. As used herein, (i) "Net
Worth" means the total stockholders equity of Company as presented in
its consolidated balance sheet, which consists of the total of
preferred stock and common stock, additional paid in capital and
retained earnings less equity adjustment from foreign currency
translation as determined in accordance with generally accepted
accounting principles, and (ii) "Tangible Net Worth" means the total
stockholders equity of Company as presented in its consolidated
balance sheet, which consists of the total of preferred stock and
common stock, additional paid in capital and retained earnings less
equity adjustment from foreign currency translation and less
intangible assets net of accumulated amortization as defined in
accordance with GAAP; and
(vii) Company will maintain as of the end of each fiscal quarter,
commencing with the fiscal quarter ending September 30, 1998, a
quarterly debt service coverage of not less than 3:00 to 1:00 (i.e.,
net income plus depreciation plus amortization must equal 3.0 times
scheduled principal payments on all Indebtedness, including
amortization of the Bonds but excluding amortization of the
Subordinate Bonds) determined on a Calendar Year to date basis;
(l) Principal Operating Accounts. Until termination of this Agreement,
the Company will maintain or caused to be maintained in accounts opened at
the Bank all primary operating and disbursement accounts (but excluding
payroll accounts) of the Company.
(m) Amendment of Related Documents. Except for a permitted
substitution of the Letter of Credit, the Company will not enter into or
consent to any amendment of any of the Related Documents, or require or
consent to the replacement of
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<PAGE>
the Trustee, the Tender Agent or the Remarketing Agent, or permit any Bonds
(other than Pledged Bonds) not to be secured by the Letter of Credit,
without the Bank's prior written consent.
(n) Registration of Bonds. The Company will cause all Pledged Bonds to
be registered in the name of the Company as pledgor or at the Bank's
option, the Bank as pledgee, pursuant to the Pledge and Security Agreement.
(o) Optional Redemption. The Company will not give any direction to
the Issuer to optionally redeem all or any portion of the Bonds in
accordance with Section 302(a) of the Indenture unless (i) the Bank shall
have provided its written consent thereto or (ii) the Company shall have
deposited (or caused to be deposited) with the Trustee an amount sufficient
to effect such optional redemption; or (iii) the Bank has given the Company
a Notice of Non-Renewal.
(p) Indenture, Etc. All covenants and obligations of the Company set
forth in the Indenture and the Lease Agreement that run to or are made for
the benefit of the Bank are incorporated herein with the same effect as if
set forth at length herein.
(q) Sale of Subordinate Bonds. The Company will not pledge, sell,
assign or transfer the Subordinate Bonds without the prior consent of the
Bank.
(r) Disbursement of Project Funds. The Company will not present to the
Bank (for approval and submission to the Trustee) a Written Request for a
disbursement of Project Funds for payment of Project Costs related to
construction of the Project unless such Written Request is accompanied by
an approval executed by an Independent Architect, which may be in the form
of an AIA Form G702 signed by the Company, the Independent Architect and
the general contractor for the Project.
(s) Environmental Report Compliance and Update. The Company agrees
that all actions recommended by Kingston in the Environmental Report will
have been taken and completed to the satisfaction of the Bank on or prior
to the date the Company occupies the Project and that the Company will
provide to the Bank an update to the Environmental Report to such effect on
or before such date.
Section 7..Events of Default. Upon the occurrence of any of the following
events (herein referred to as an "Event of Default"), unless waived by the Bank
pursuant to this Section 7:
(a) the Company shall fail to pay when due any amount specified in
Section 3 hereof; or
(b) any representation or warranty made by the Company herein or in
the Related Documents or in any certificate, financial or other statement
furnished by the Company pursuant to this Agreement or the Related
Documents, was untrue or incomplete in any material respect when made; or
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<PAGE>
(c) if, for any reason (other than release by the Bank or a permitted
substitution of the Letter of Credit) this Agreement or the Related
Documents shall cease to be valid and binding and in full force and effect
or if the Company shall assert that it is not liable under this Agreement
or the Related Documents; or
(d) the Company shall fail to comply with any of the financial
covenants set forth in Section 6(k) or shall fail to maintain any of the
accounts described in Section 6(l) hereof; or
(e) the Company shall default in any material respect in the due
performance or observance of any term, covenant or agreement on its part to
be performed or observed pursuant to any of the provisions of this
Agreement (other than those referred to in Sections 7(a), 7(b) and 7(c)
above) and such default shall continue unremedied for a period of 30 days;
unless such default cannot be remedied within 30 days, and Company has
commenced cure and diligently prosecutes cure of such default, then Company
shall be granted an additional reasonable period of time to cure such
default but in any event no more than 90 days from the end of such 30 day
period; or
(f) an "Event of Default" under the Lease Agreement or the Indenture
shall have occurred and be continuing; or
(g) the Company is in default on or pursuant to the terms of any other
obligation of the Company to the Bank continuing beyond the applicable
grace period set forth in the document or documents governing such
obligation; or
(h) any obligations of the Company in respect of indebtedness for
borrowed money or a lease of property which would be classified as a
"capital lease" in accordance with GAAP (including indebtedness assumed,
guaranteed or as to which such entity shall otherwise be liable, directly
or indirectly) in an aggregate amount in excess of $500,000 is declared to
be or becomes due and payable prior to the stated maturity thereof or such
obligations are not paid as and when the same become due and payable, or
there shall occur and continue any default under any instrument, agreement
or evidence of indebtedness relating to any such obligations the effect of
which is to permit the holder or holders of such instrument, agreement or
evidence of indebtedness, or a trustee, agent or other representative on
behalf of such holder or holders, to cause the indebtedness for borrowed
money evidenced thereby to become due prior to its stated maturity; or
(i) the Company shall suspend or discontinue its business operations
for more than 30 days; shall make an assignment for the benefit of
creditors; shall generally fail to pay its debts as such debts become due;
shall file a petition commencing a voluntary case concerning such
corporation under any chapter of Title 11 of the United States Code
entitled "bankruptcy," or an involuntary case shall be commenced against
the Company under any such chapter and relief is ordered against such
corporation or the petition is controverted but is not dismissed within 60
days after the commencement of the case; or shall petition or apply to any
tribunal for the appointment of any receiver, custodian, liquidator or
trustee of or for it or any substantial part of its property, or shall
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<PAGE>
commence any proceeding relating to the Company under any bankruptcy,
reorganization, arrangement, readjustment of debt, receivership,
dissolution or liquidation law or statute of any jurisdiction, whether now
or hereafter in effect, or if there is commenced against the Company any
such proceeding which remains undismissed for a period of 60 days, or an
order, judgment or decree approving the petition in any such proceeding
shall be entered; or the Company by any act or failure to act indicates its
consent to, approval of or acquiescence in any such proceeding or the
appointment of any receiver, custodian, liquidator or trustee of or for it
or any substantial part of its property, or suffers any such appointment to
continue undischarged or unstayed for a period of 30 days; or the Company
shall take any action for the purpose of effecting any of the foregoing; or
(j) a judgment or judgments for the payment of money in excess of
$250,000 in the aggregate shall be rendered against Company and any such
judgment or judgments for which there is no insurance coverage shall remain
unsatisfied, unstayed or unbonded for a period in excess of 30 days; or
(k) there shall occur a "reportable event" under Section 4043(b) of
Title IV of ERISA with respect to any employee pension or other benefit
plan of the Company subject to such Title (other than an event for which
the 30-day notice requirement of the PBGC has been waived) or any such plan
shall be the subject of termination proceedings (whether voluntary or
involuntary) and there shall result from such event or termination
proceedings a liability of the Company to the PBGC which will have a
material adverse effect upon the business, operations or financial
condition of the Company; or
(l) the occurrence of an Event of Default with respect to the
Subordinate Bonds; or
(m) Holdings encumbers, pledges, hypothecates or grants a security
interest in any ownership interests of Holdings in the Company if the
result thereof is that Holdings will own less than 51% of the voting stock
of the Company; or
(n) Holdings sells, assigns or otherwise transfers the shares of
common stock of the Company to any Person if the result thereof is that
Holdings will own less than 51% of the voting stock of the Company;
then, in any such event, the Bank may, (i) by written notice to the Company,
declare the obligations of the Company under Section 3 hereof to be forthwith
due and payable, whereupon the same shall become due and payable without demand,
presentment, protest or further notice of any kind, all of which are hereby
expressly waived; (ii) decline to reinstate any amount available under the
Letter of Credit, including sending notice to the Company and the beneficiary of
the Letter of Credit as provided in Section 3(f)(ii) and in the Letter of Credit
that the Bank will not reinstate the amount of any "C Drawing" thereunder; (iii)
notify the Company and the beneficiary of the Letter of Credit pursuant to the
Letter of Credit that the Letter of Credit shall terminate thirty (30) days
following delivery of such notice to the addressees thereof; (iv) by written
notice to the Company demand payment forthwith of the amount available to be
drawn under the Letter
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<PAGE>
of Credit on the date of such demand; (v) demand that the Company procure the
issuance of an alternate or substitute letter of credit from another financial
institution or otherwise arrange to purchase or defease the Bonds or otherwise
arrange for the prompt release of the Bank's obligations under the Letter of
Credit; (vi) exercise any right provided in the Indenture to cause an
acceleration or a mandatory redemption of the Bonds to be declared; and/or (vii)
pursue any other remedy available to it under this Agreement, under the Related
Documents or otherwise.
Section 8..Amendments, Etc. No amendment or waiver of any provision of this
Agreement nor consent to any departure by the Company therefrom shall in any
event be effective unless the same shall be in writing and signed by the Bank,
and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given.
Section 9..Notices. Except as expressly provided for herein, all notices
and other communications provided for hereunder shall be in writing and shall be
deemed to have been duly given (a) when delivered personally, (b) on the
following Business Day when sent by overnight courier, (c) on dispatch when sent
by telecopy (confirmed by telephone), and (d) on the fifth following Business
Day when mailed by registered or certified mail, postage prepaid, return receipt
requested, to the address set forth in the preamble hereof, or to such other
address as may be specified in a notice given by one party to another, except
that communications with the Bank with respect to the Letter of Credit shall be
made as provided in the Letter of Credit.
Section 10. No Waiver; Remedies. No failure on the part of the Bank to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other further exercise thereof or the exercise of any other right.
The remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
Section 11. Right of Setoff. Upon the occurrence and during the continuance
of any Event of Default, the Bank is hereby authorized at any time and from time
to time, without notice to the Company (any such notice being expressly waived
by the Company), to setoff and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by the Bank to or for the credit or the account of the Company,
regardless of the currency of such deposits or indebtedness, against any and all
of the obligations of the Company now or hereinafter existing under this
Agreement, irrespective of whether or not the Bank shall have made any demand
under this Agreement and although such obligations may be contingent and
unmatured; and if such deposits or other indebtedness are in a currency other
than U.S. dollars, the Bank is authorized to convert the same to U.S. dollars
upon such setoff, appropriation and application. The rights of the Bank under
this Section are in addition to other rights and remedies which the Bank may
have including, without limitation, other rights of setoff.
Section 12. Indemnification. The Company hereby indemnifies and holds
harmless the Bank (and its directors, officers, employees, attorneys and agents)
from and against any and all claims, damages, losses, liabilities, reasonable
costs or expenses whatsoever which the Bank may incur (or which may be claimed
against the Bank by any Person) by reason of, or
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in connection with: (a) the execution and delivery or transfer of, or payment or
failure to pay under, the Letter of Credit (including, without limitation,
actions commenced by any Person including the Company for wrongful dishonor or
to enjoin the Bank from honoring a Letter of Credit), (b) the issuance and sale
of the Bonds, including without limitation any of the foregoing resulting from
any misstatement or omission in the Official Statement (other than in the
Official Statement referring to the Bank in Appendix A thereto), (c) the pledge
of any of the Pledged Bonds pursuant to the Pledge and Security Agreement;
provided that the Company shall not be required to indemnify the Bank for any
claims, damages, losses, liabilities, costs or expense, to the extent, but only
to the extent, caused by the willful misconduct or gross negligence of the Bank
or by the Bank's default under this Agreement or any of the Related Documents.
Nothing in this Section 12 is intended to limit the reimbursement obligation of
the Company contained in Section 3(a) hereof. If any action shall be brought
against the Bank in respect of which indemnity may be sought against the
Company, the Bank shall promptly notify the Company in writing, and the Company
shall promptly assume the defense thereof, including the employment of counsel,
the payment of all expenses and the right to negotiate and consent to
settlement. The Bank shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, and the fees and expenses of
such counsel shall be at the expense of the Company. The Company shall not be
liable for any settlement of any such action effected without the Company's
consent by the Bank, but if settled with the consent of the Company or if there
shall be a final judgment for the plaintiff in any such action against the
Company or the Bank, with or without the consent of the Company, the Company
agrees to indemnify and hold harmless the Bank to the extent provided herein.
Section 13. Continuing Obligation. This Agreement is a continuing
obligation, shall survive the termination of the Letter of Credit and shall (a)
be binding upon the Company, its successors and assigns, and (b) inure to the
benefit of and be enforceable by the Bank and its successors and assigns until
all of the financial and indemnification obligations owing by Company to Bank
under this Reimbursement Agreement or any of the Security Documents have been
paid and/or performed in full and then terminate; provided that the Company may
not assign all or any part of this Agreement without the prior written consent
of the Bank, except in connection with a transfer permitted under this
Agreement.
Section 14. Transfer of Letter of Credit; Reduction of Stated Amount. The
Letter of Credit may be transferred in accordance with the provisions set forth
therein and the Stated Amount of the Letter of Credit may be reduced in
accordance with the provisions set forth therein.
Section 15. Limitations on Bank Liability. The Company assumes all risks
of, and the Bank shall not be liable or responsible for, the acts or omissions
of the Trustee and any beneficiary or transferee of the Letter of Credit with
respect to its use of the Letter of Credit and whether any demand under the
Letter of Credit is inconsistent with any other demand or with any Related
Document. As between the Company and the Bank, neither the Bank nor any of its
officers or directors shall be liable or responsible for any claim, damage,
loss, liability, cost or expense which the Company may incur (or which may be
claimed by any Person) by reason of or in connection with the execution and
delivery or transfer of the Letter of Credit or under any Related Document or
any circumstance or event referred to in Section 3 of this Agreement,
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except only that the Company shall have a claim against the Bank, and the Bank
shall be liable to the Company, to the extent, but only to the extent, of any
direct, as opposed to consequential, damages suffered by the Company which the
Company proves were caused by the Bank's gross negligence or willful misconduct
or by the Bank's default under this Agreement or any of the Related Documents.
In furtherance and not in limitation of the foregoing, the Bank may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary.
In addition, the Company acknowledges that it has specifically requested that
the Letter of Credit provide for honor within a period of time significantly
shorter than the three-day period for examining documents provided for under
applicable law and banking usage, and that this feature of the Letter of Credit
is not consistent with bank usage and increases the risk that purported demands
under the Letter of Credit may not receive the same examination (and the Bank
may not be able to obtain the opinion of its counsel or the Company with respect
to such demand) had such three-day period been available to the Bank, and the
Company accepts and agrees not to hold the Bank responsible for such variance
from bank usage. Any claim or demand by the Company for gross negligence or
willful misconduct against the Bank shall require that the Company establish
that the Bank's conduct was not occasioned or the result of such shortened
examination period. The Company acknowledges and agrees that the Bank also shall
be relieved from responsibility for (and its right to reimbursement hereunder
shall not be impaired by) any act or omission for which banks are relieved of
responsibility under the Uniform Customs and Practice for Documentary Credits,
1993 revision, ICC Publication No. 500 (1993).
Section 16. Costs, Expenses and Taxes. The Company agrees to pay on demand
all reasonable costs and expenses of the Bank in connection with the
preparation, execution, delivery and administration of this Agreement and any
other documents which may be delivered in connection with this Agreement,
including, without limitation, the reasonable fees and out-of-pocket expenses of
counsel for the Bank with respect thereto, with respect to any opinions rendered
by such counsel, and with respect to advising the Bank as to its rights and
responsibilities under this Agreement, and all reasonable costs and expenses in
connection with the enforcement or any renegotiation or amendment of this
Agreement and such other documents which may be delivered in connection with
this Agreement. In addition, the Company shall pay any and all stamp and other
taxes and fees payable or determined to be payable in connection with the
execution, delivery, filing and recording of this Agreement or the Pledge and
Security Agreement, and such other documents and agrees to save the Bank
harmless from and against any and all liabilities with respect to or resulting
from any delay in paying or omission to pay such taxes and fees.
Section 17. Severability. Any provision of this Agreement which is
prohibited, unenforceable or not authorized in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or non-authorization without invalidating the remaining
provisions hereof or affecting the validity, enforceability or legality of such
provision in any other jurisdiction.
Section 18. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the law of the State of Missouri applicable to
contracts to be performed in the State of Missouri.
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Section 19. Substitute Letter of Credit Issuing Office. In the event that
the Bank determines, in its complete discretion, that the banking office of the
Bank, as set forth in the Letter of Credit shall be changed to another banking
office within the United States of America, (a) in order to avoid any increased
cost or amount referred to in Section 3(a), or (b) in the event the adoption of
any applicable law, rule or regulation, or any change therein, or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by the Bank with any request or directly
(whether or not having the force of law) of any such authority, central bank or
comparable agency, shall make it unlawful for the Bank to maintain the Letter of
Credit at such Bank's aforesaid address, then the Bank shall notify the Trustee
and the Company in writing not less than 10 Business Days prior to such change
and (with the written consent of the Company only in the case of avoiding an
increased cost or amount as referred to in clause (a) above), upon receipt of
such notice the Letter of Credit shall be deemed issued by such other banking
office in the United States on the effective date that the Bank specifies in its
notice.
Section 20. Headings. Section headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose.
Section 21. Accounting Terms and Definitions. Unless otherwise specified
herein, all accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial statements required to
be delivered hereunder shall be prepared in accordance with generally accepted
accounting principles as in effect from time to time, applied on a basis
consistent (except for changes approved by the Company's independent
accountants) with the most recent financial statements as described in Section
6(a) of the Company delivered to the Bank.
Section 22. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original with the same effect as if the
signature hereto and thereto were upon the same instrument.
Section 23. Bank Consent. Whenever any provision in this Reimbursement
Agreement or in any of the Security Documents requires the consent of the Bank
to an administrative or ministerial act, Bank agrees that such consent will not
be unreasonably withheld or delayed unless the provision otherwise expressly
states that consent may be granted or denied in Bank's sole discretion. Company
acknowledges and agrees that Bank's agreement not to unreasonably withhold or
delay its consent shall apply only in the limited context of an administrative
or ministerial act, and in no event shall such agreement extend to an act which
would require an underwriting decision by Bank, such as (without limiting the
generality of the aforesaid) a request to transfer ownership rights in the
Company or the Property.
Section 24. Year 2000 Compliance. The Company covenants and agrees to take
all reasonable steps and implement all reasonable procedures necessary to insure
that all software utilized in the conduct of Company's business will have
appropriate capabilities and compatibility for operation to handle calendar
dates falling on or after January 1, 2000, and all
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information pertaining to such calendar dates, in the same manner and with the
same functionality as the software does respecting calendar dates falling on or
before December 31, 1999. Further, Company covenants and agrees that the
data-related user interface functions, data-fields, and data-related program
instructions and functions of the software utilized by the Company will on or
before December 31, 1999, include the indication of the century.
Section 25. Waiver of Jury Trial. THE BANK AND THE COMPANY HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER RELATED DOCUMENT, OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR
WRITTEN), OR ACTIONS OF THE BANK OR THE COMPANY. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE BANK ENTERING INTO THIS AGREEMENT.
Section 26. Statements Required by Law.
(i) Section 432.045 Notice. The following notice is given to
comply with Section 432.045 of the Revised Statutes of Missouri:
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO
EXTEND OR RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT THE BANK
AND COMPANY FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS
THEY REACHED COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING AND
THE SECURITY DOCUMENTS, WHICH ARE THE COMPLETE AND EXCLUSIVE
STATEMENTS OF THE AGREEMENTS BETWEEN THE PARTIES HERETO, EXCEPT AS
THEY MAY LATER AGREE IN WRITING TO MODIFY IT.
(ii) K.S.A. ss.16-118 Notice. THIS WRITTEN CREDIT AGREEMENT IS A
FINAL EXPRESSION OF THE CREDIT AGREEMENT BETWEEN THE BANK AND THE
COMPANY AND SUCH CREDIT AGREEMENT MAY NOT BE CONTRADICTED BY EVIDENCE
OF ANY PRIOR ORAL CREDIT AGREEMENT OR OF A CONTEMPORANEOUS ORAL CREDIT
AGREEMENT BETWEEN THE BANK AND THE COMPANY.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective representatives thereunto duly
authorized as of the date first above written.
LabOne, Inc., a Delaware corporation
By: /s/ Kurt Gruenbacher
-------------------------------------------
Print Name: Kurt Gruenbacher
---------------------------------
Title: V.P. Finance, CAO, Treasurer
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Commerce Bank, N.A.
By: /s/ Pam Hill
------------------------------------------
Print Name: Pam Hill
--------------------------------
Title: Vice President
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