LEASE
Dated as of December 1, 2004
----------------------------------------
Between
CITY OF DODGE CITY, KANSAS
and
NATIONAL BEEF PACKING COMPANY, LLC
----------------------------------------
$120,000,000
Taxable/Convertible Variable Rate Demand
Industrial Development Revenue Bonds, Series 2004
(National Beef Packing Company, LLC Project)
----------------------------------------
Certain rights of City of Dodge City, Kansas, as Issuer, in this
Lease
(with certain exceptions) have been pledged and assigned to
Commerce Bank, N.A.,
as Trustee, under the Trust Indenture dated as of December 1, 2004,
between the
Issuer and the Trustee.
LEASE
Page
Parties...............................................................1
Recitals..............................................................1
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01.
Definitions of Words and Terms...............................1
Section 1.02.
Rules of Construction........................................3
ARTICLE II
REPRESENTATIONS
Section 2.01.
Representations by the Issuer................................3
Section 2.02.
No Representation or Warranty by Issuer as to Project........5
Section 2.03.
Representations by the Tenant................................5
Section 2.04.
No Purchase of Bonds by Issuer or Tenant.....................6
Section 2.05.
Survival of Representations..................................7
ARTICLE III
ISSUANCE OF THE BONDS; ACQUISITION, CONSTRUCTION, INSTALLATION
AND FINANCING OF THE PROJECT
Section 3.01.
Issuance of the Bonds........................................7
Section 3.02.
Agreement to Acquire, Construct and Complete the Project;
Use of Proceeds..............................................7
Section 3.03.
Project Documents............................................7
Section 3.04.
Changes to the Project.......................................8
Section 3.05.
[Reserved]...................................................8
Section 3.06.
Kansas Retailers' Sales Tax..................................8
Section 3.07.
Limitation of Issuer's Liability.............................8
Section 3.08.
Disclaimer of Warranties.....................................9
ARTICLE IV
LEASE OF THE PROJECT; PAYMENT PROVISIONS
Section 4.01.
Transfer of Title to the Land and the Project; Project
Contracts....................................................9
Section 4.02.
Granting of Leasehold Estate; Basic Term.....................9
Section 4.03.
Lease Payments...............................................9
Section 4.04.
Additional Payments.........................................10
Section 4.05.
Prepayment of Lease Payments................................11
Section 4.06.
Obligations Absolute and Unconditional......................11
Section 4.07.
Assignment of Issuer's Rights...............................12
i
Section 4.08.
All Right, Title and Interest of the Issuer in the Project
Subject and Subordinate to the Existing Mortgage, the
Existing Security Agreement, the Existing Fixture Filings
and the Existing Collateral Assignment of Lease.............12
ARTICLE V
VARIABLE RATE OF CONVERSION AND LETTER OF CREDIT
Section 5.01.
Tenant Elections............................................14
Section 5.02.
The Letter of Credit........................................14
Section 5.03.
Alternate Letter of Credit..................................14
Section 5.04.
Rights of Bank..............................................14
Section 5.05.
Limitation on Rights of the Bank............................15
Section 5.06.
Payments by Bank............................................15
Section 5.07.
Tenant Purchase of Bonds....................................15
ARTICLE VI
GENERAL COVENANTS AND PROVISIONS
Section 6.01.
Maintenance of Existence....................................15
Section 6.02.
Possession, Maintenance and Use of Project..................16
Section 6.03.
Compliance With Laws and Regulations........................16
Section 6.04.
Payment of Taxes and Other Charges..........................16
Section 6.05.
Licenses and Permits........................................17
Section 6.06.
Mechanic's Liens; Contest of Liens..........................17
Section 6.07.
General Indemnity...........................................17
Section 6.08.
Environmental Provisions....................................18
Section 6.09.
Insurance...................................................19
Section 6.10.
Financial and Other Information.............................19
Section 6.11.
Consolidation, Merger, Conveyance or Transfer of Property...20
Section 6.12.
Continuing Disclosure.......................................21
Section 6.13.
Assignment by the Tenant....................................21
Section 6.14.
Covenants under Financing Documents.........................21
Section 6.15.
Depreciation and Investment Tax Credit......................21
Section 6.16.
Ad Valorem Taxes............................................22
Section 6.17.
Access to the Project and Inspection; Operation of the
Project.....................................................22
Section 6.18.
Agreement of Issuer Not to Assign or Pledge the Project;
Certain Modifications and Amendments to the Indenture.......22
Section 6.19.
Alteration of Project.......................................22
Section 6.20.
Additions to Project........................................23
Section 6.21.
Utilities...................................................23
Article VII
DEFAULT AND REMEDIES
Section 7.01.
Events of Default...........................................23
Section 7.02.
Acceleration of Maturity; Rescission and Annulment..........24
ii
Section 7.03.
Exercise of Remedies by the Trustee.........................25
Section 7.04.
Application of Moneys Collected.............................26
Section 7.05.
Rights and Remedies Cumulative..............................26
Section 7.06.
Delay or Omission Not Waiver................................27
Section 7.07.
Waiver of Past Defaults.....................................27
Section 7.08.
Advances by Trustee.........................................27
ARTICLE VIII
SUPPLEMENTAL LEASES
Section 8.01.
Supplemental Leases without Consent of Owners of Bonds......27
Section 8.02.
Supplemental Leases with Consent of Owners of Bonds.........28
Section 8.03.
Execution of Supplemental Leases............................28
Section 8.04.
Effect of Supplemental Leases...............................29
Section 8.05.
Reference in Bonds to Supplemental Leases...................29
ARTICLE IX
PREPAYMENT AND ACCELERATION OF LEASE PAYMENTS
Section 9.01.
Prepayment at the Option of the Tenant......................29
Section 9.02.
Optional Prepayment Upon Certain Events.....................29
Section 9.03.
Mandatory Prepayment Upon Certain Events....................29
Section 9.04.
Right to Prepay at Any Time.................................29
Section 9.05.
Notice of Prepayment........................................29
Section 9.06.
Precedence of this Article..................................30
ARTICLE X
OPTION TO PURCHASE THE PROJECT
Section 10.01.
Option to Purchase the Project...............................30
Section 10.02.
Conveyance of the Project....................................30
Section 10.03.
Relative Position of Option and Indenture....................31
Section 10.04.
Option to Purchase Unimproved Portions of Land...............31
Section 10.05.
Quality of Title - Purchase Price............................31
Section 10.06.
Closing of Purchase..........................................32
Section 10.07.
Effect of Purchase on Lease..................................32
Section 10.08.
Effect of Failure to Complete Purchase.......................32
ARTICLE XI
TERM AND TERMINATION OF LEASE
Section 11.01.
Term of Lease...............................................32
Section 11.02.
Termination and Discharge of Lease..........................32
Section 11.03.
Amounts Remaining in Funds..................................33
Section 11.04.
Option to Extend Basic Term.................................33
Section 11.05.
Issuer's Option to Convey Project to the Tenant.............33
iii
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01.
Notices.....................................................33
Section 12.02.
Further Assurances..........................................34
Section 12.03.
Payments Due on Saturdays, Sundays and Holidays.............34
Section 12.04.
Limitation of Issuer's Liability............................34
Section 12.05.
Immunity of Officers, Employees and Directors of the
Issuer and the Tenant.......................................34
Section 12.06.
Net Lease...................................................34
Section 12.07.
Benefit of Lease............................................35
Section 12.08.
Severability................................................35
Section 12.09.
Amendments, Changes and Modifications.......................35
Section 12.10.
Captions....................................................35
Section 12.11.
Counterparts................................................35
Section 12.12.
Governing Law...............................................35
Signatures.....................................................S-1,
S-2
Exhibit A - Legal Description of
Land...............................A-1
* * *
iv
LEASE
THIS LEASE
, dated as of
December 1, 2004
, between
CITY OF DODGE CITY,
KANSAS,
a duly organized municipal corporation of the State of Kansas, as
lessor, and
NATIONAL BEEF PACKING COMPANY, LLC,
a Delaware limited liability
company duly authorized to do business under the laws of the State
of Kansas, as
lessee;
RECITALS
1.
Pursuant to the Act, and at the request of the Tenant, the
Issuer will issue the Bonds under an Indenture between the Issuer
and the
Trustee, for the purpose of providing funds to acquire, construct
and equip the
Project for the Tenant or to reimburse the Tenant for costs
incurred in the
acquisition, construction and equipping of said Project as
described in the
Indenture, in consideration of payments by the Tenant, which will
be sufficient
to pay the principal of, redemption premium, if any, and the
interest on the
Bonds.
2.
The Issuer and the Tenant are entering into this Lease to
lease the Project from the Issuer to the Tenant in consideration of
certain
payments to be made by the Tenant.
3.
The Tenant may, at certain times and upon certain conditions,
cause the Bank to issue and deliver to the Trustee the Letter of
Credit
providing for payment when due of the principal of and interest on
the Bonds, or
some portion thereof, and payment of the purchase price of Bonds
tendered for
purchase, under a Reimbursement Agreement to be entered into
between the Tenant
and the Bank.
NOW, THEREFORE,
in consideration of the premises and the mutual
representations, covenants and agreements set forth in this Lease,
the Issuer
and the Tenant covenant and agree as follows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01. Definitions of Words and Terms.
For all purposes of
this Lease, except as otherwise provided or unless the context
otherwise
requires, words and terms used in this Lease (including in the
Recitals above)
have the same meanings as set forth in
Section 1.01
of the
Indenture. In addition to the words and terms defined in the
Indenture and
elsewhere defined herein, the following words and terms as used
herein shall
have the following meanings unless the context or use clearly
indicates another
or different meaning or intent:
"Additional Term"
shall mean that term commencing immediately after the
last day of the Basic Term and terminating 5 years thereafter.
"Basic Term"
means that term commencing as of the Issue Date of the
Bonds and ending on December 1, 2019, subject to prior termination
as specified
in this Lease, but ending, in any event, when all of the principal
of,
redemption premium, if any, and interest on all Outstanding Bonds
shall have
been paid in full or provision made for their payment in accordance
with the
provisions of the Indenture.
"Completion Date"
means the date determined pursuant to Section 3.02 of
this Lease.
"Default"
means an event or condition the occurrence of which would,
with the lapse of time or the giving of notice or both, become an
event of
default hereunder.
"Environmental Assessment"
means an environmental assessment with
respect to the Project conducted by an independent consultant
reasonably
satisfactory to the Issuer and Trustee which reflects the results
of such
inspections, records reviews, soil tests, groundwater tests and
other tests
requested, which assessment and results shall be reasonably
satisfactory in
scope, form and substance to the Issuer and the Trustee.
"Environmental Laws"
means and includes the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, the Resource
Conservation and
Recovery Act, the Superfund Amendments and Reauthorization Act of
1986, any
other "Superfund" or "Superlien" law, or any other federal, state
or local
statute, law, ordinance, code, rule, regulation, order or decree
regulating,
relating to, or imposing liability or standards of conduct
concerning any
Hazardous Materials, as now or at any time hereafter in effect.
"Existing Collateral Assignment of Lease"
means that certain Amended
and Restated Collateral Assignment of Lease dated as of December
29, 2004, from
Tenant, as assignor, in favor of CoBank, ACB, as agent (as the same
may be
amended, supplemented, restated or otherwise modified from time to
time).
"Existing Fixture Filing"
means any existing fixture filing from
Tenant, as debtor, in favor of CoBank, ACB, as agent (as the same
may be
amended, supplemented, restated or otherwise modified from time to
time).
"Existing Mortgage"
means that certain Amended and Restated Mortgage,
Assignment of Rents and Leases, Security Agreement and Fixture
Filing dated as
of December 29, 2004, from Tenant, as mortgagor, in favor of
CoBank, ACB, as
agent (as the same may be amended, supplemented, restated or
otherwise modified
from time to time).
"Existing Security Agreement"
means that certain Fourth Amended and
Restated Security Agreement dated as of December 29, 2004, from
Tenant, as
debtor, in favor of CoBank, ACB, as agent (as the same may be
amended,
supplemented, restated or otherwise modified from time to time).
"Event of Default"
means one of the events so denominated and described
in
Section 7.01
of this Lease.
"Financing Documents"
means the Indenture, this Lease, the Bond
Purchase Agreement, and, to the extent applicable, the Existing
Mortgage, any
other Mortgage, the Existing Security Agreement, any other Security
Agreement,
the Reimbursement Agreement, the Letter of Credit, the Remarketing
Agreement and
the Tax Agreement.
"Hazardous Materials"
means and includes any hazardous, toxic or
dangerous waste, substance or material (including without
limitation any
materials containing asbestos) defined as such in (or for purposes
of) or
subject to regulation under any Environmental Laws.
"Issue Date"
has the meaning defined in the Indenture.
"Land"
means the real property (or interests therein) described in
Exhibit A hereto.
"Lease Term"
means the Basic Term of this Lease, together with any
Additional Term.
2
"Permitted Encumbrances"
means all Permitted Liens (as defined in the
Reimbursement Agreement), to the extent they affect the Project;
the Mortgage;
the Existing Mortgage; the Existing Collateral Assignment of Lease;
the Existing
Fixture Filing; the Existing Security Agreement; easements and
rights-of-way of
record at the time of conveyance of the Land to the Issuer, any
encumbrances
noted on Schedule I to the Indenture, and any other title
exceptions not
affecting marketability or the usefulness of the Project to the
Tenant.
"Project"
means the same as that term is defined in the Indenture.
"Project Contracts"
means any contract or contracts entered into by the
Tenant for the acquisition, construction, installation or equipping
of the
Project.
"Unassigned Issuer's Rights"
means all of the rights of the Issuer to
receive additional payments under
Section 4.04
hereof, and to be held harmless
and indemnified and to be reimbursed for attorney's fees under
Sections 3.07
and
6.07
.
Section 1.02 Rules of Construction.
For all purposes of this Lease,
except as otherwise provided or unless the context otherwise
requires, the
following rules of construction apply in construing the provisions
of this
Lease:
(a) The defined terms referred to in this Article include the
plural as well as the singular.
(b) All references in this instrument to designated
"Articles," "Sections" and other subdivisions are to the designated
Articles, Sections and other subdivisions of this instrument as
originally executed.
(c) The words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Lease as a whole and not to
any
particular Article, Section or other subdivision.
(d) The Article and Section headings herein and in the Table
of Contents are for convenience only and shall not affect the
construction hereof.
(e) Whenever an item or items are listed after the word
"including," such listing is not intended to be a listing that
excludes
items not listed.
ARTICLE II
REPRESENTATIONS
Section 2.01 Representations by the Issuer.
The Issuer represents
and warrants to the Tenant and the Trustee as follows:
(a)
Organization and Authority.
The Issuer (1) is a municipal
corporation duly organized under the laws of the State, (2) has
lawful
power and authority to issue the Bonds for the purposes set forth
in
the Indenture, to enter into, execute and deliver this Lease, the
Indenture the Bond Purchase Agreement and any other Financing
Documents
required to be executed and delivered by the Issuer in connection
with
the issuance of the Bonds and to perform its obligations hereunder
and
thereunder, (3) has fully complied with the provisions of the Act,
and
3
(4) by all necessary corporate action has been duly authorized to
execute and deliver the Financing Documents required to be executed
and
delivered by it in connection with the issuance of the Bonds,
acting by
and through its duly authorized officers.
(b)
No Defaults or Violations of Law.
The execution and
delivery of the Financing Documents required to be executed by the
Issuer will not result in a breach of any of the terms of,
constitute a
default under, or create any lien, charge or encumbrance upon any
property of the Issuer (other than as contemplated in the Indenture
and
this Lease) under the provisions of any resolution, charter,
ordinance,
indenture, mortgage, deed of trust, lease or other agreement or
instrument to which the Issuer is a party or by which it or any of
its
property is bound or its bylaws or any of the constitutional or
statutory rules or regulations applicable to the Issuer or its
property. To the best of Issuer's knowledge, no event has occurred
and
no condition exists with respect to the Issuer which would
constitute
an "event of default" as defined in this Lease or the Financing
Documents or which, with the lapse of time or with the giving of
notice
or both, would become such an "event of default." The Issuer is not
in
default under the Act or under any agreement or instrument to which
it
is a party.
(c)
Absence of Litigation.
No litigation, proceedings or
investigations are pending or, to the knowledge of the Issuer,
threatened against the Issuer at law or in equity before any court,
tribunal, governmental authority or arbitration board, seeking to
restrain, enjoin or limit the approval or issuance and delivery of
the
Bonds, the Indenture, this Lease or any other Financing Documents
to
which the Issuer is a party, or in which an unfavorable
determination
could materially and adversely affect the validity or
enforceability of
the Bonds, the Indenture, this Lease or any other Financing
Document to
which the Issuer is a party or its ability to perform its
obligations
thereunder.
(d)
Governmental Consents.
Neither the nature of the Issuer
nor any of its activities or properties, nor any relationship
between
the Issuer and any other person, nor any circumstance in connection
with the issue, sale or delivery of any of the Bonds is such as to
require the consent, approval or authorization of, or the filing,
registration or qualification with, any governmental authority on
the
part of the Issuer in connection with the execution, delivery and
performance of this Lease or any of the Financing Documents or the
issue, sale or delivery of the Bonds, other than those already
obtained; provided, however, no representation is made as to
compliance
with any federal or state securities or "blue sky" law.
(e)
Nature and Location of the Project.
The financing of the
Project Costs, together with related expenses, is authorized under
the
Act and is in furtherance of the public purposes of the Act. The
Project is located within the incorporated territory of the City of
Dodge City, Kansas.
(f)
Limited Obligation.
Notwithstanding anything herein
contained to the contrary, any obligation the Issuer may hereby
incur
for the payment of money shall not constitute an indebtedness of
the
Issuer or of the State or of any political subdivision thereof
within
the meaning of any state constitutional provision or statutory
limitation and shall not give rise to a pecuniary liability of the
Issuer or the State or any political subdivision thereof, or
constitute
a charge against the general credit or taxing power of said Issuer
or
the State or any political subdivision thereof, but shall be
limited
obligations of the Issuer payable solely from (i) the Eligible
Moneys,
(ii) revenues derived from the sale of Bonds, and (iii) amounts on
deposit from time to time in the Bond Fund, subject to the
provisions
of this Lease and the Indenture permitting the application thereof
for
the purposes and on the terms and conditions set forth herein and
therein.
4
(g)
No Prior Pledge.
Neither this Lease nor any of the
Eligible Moneys have been pledged or hypothecated in any manner or
for
any purpose other than as provided in the Indenture as security for
the
payment of the Bonds.
Section 2.02
No Representation or Warranty by Issuer as to
Project.
The Issuer makes no representation or warranty concerning the
suitability of the Project for the purpose for which it is being
undertaken by
the Tenant. The Issuer has not made any independent investigation
as to the
feasibility of the Project or creditworthiness of the Tenant. Any
bond
purchaser, assignee of this Lease or any other party with any
interest in this
transaction, must make its own independent investigation as to the
creditworthiness of the Tenant and feasibility of the Project,
independent of
any representation or warranties of the Issuer.
Section 2.03
Representations by the Tenant.
The Tenant represents
and warrants to the Issuer and the Trustee as follows:
(a)
Organization and Authority.
The Tenant (1) is a Delaware
limited liability company and is authorized to conduct its
businesses
in Kansas as presently conducted and contemplated under the
Financing
Documents, (2) has lawful power and authority to enter into,
execute
and deliver this Lease and the Bond Purchase Agreement required to
be
executed and delivered by it in connection with the issuance of the
Bonds and to perform its obligations hereunder and thereunder, and
(3)
by all necessary action has been duly authorized to execute and
deliver
this Lease and the Bond Purchase Agreement, and any other documents
required to be executed and delivered by it in connection with the
issuance of the Bonds, acting by and through its duly authorized
officers.
(b)
No Defaults or Violations of Law.
The execution and
delivery of Financing Documents by the Tenant will not conflict
with or
result in a breach of any of the terms of, or constitute a default
under, or create any lien, charge or encumbrance upon any property
of
the Tenant under the provisions of any indenture, mortgage, deed of
trust, lease or other agreement or instrument to which the Tenant
is a
party or by which it or any of its property is bound or its
certificate
of incorporation, bylaws, or any of the rules or regulations of any
court or other governmental body applicable to the Tenant or its
property. No event has occurred and no condition exists with
respect to
the Tenant that would constitute an "event of default" under any of
the
Financing Documents to which the Tenant is a party, or which, with
the
lapse of time or with the giving of notice or both, would
reasonably be
expected to become such an "event of default." The Tenant is not in
violation in any material respect of its organization documents or
any
agreement or other instrument to which it is a party or by which it
may
be bound.
(c)
Licenses, Permits and Approvals.
The Tenant is duly
authorized and has all necessary licenses and permits which can be
obtained as of the date hereof to occupy and operate the Project
under
the laws and regulations of the United States, the State and the
departments, agencies and political subdivisions thereof, and the
Tenant has obtained or will obtain all requisite approvals of
federal,
state and local governmental bodies necessary for the acquisition,
construction and equipping of the Project. The Project is in all
material respects in compliance with all applicable federal, state
and
local zoning, subdivision, environmental, pollution control and
other
laws, rules and regulations, except where the violation thereof
would
not reasonably be expected to materially and adversely affect the
properties, business, prospects, profits or conditions (financial
or
otherwise) of the Tenant, and except for any thereof the validity
of
which the Tenant is contesting in good faith by appropriate
proceedings.
5
(d)
Absence of Litigation.
No litigation, proceedings or
investigations are pending or, to the knowledge of the Tenant,
threatened against the Tenant at law or in equity before any court,
tribunal, governmental authority or arbitration board seeking to
restrain, enjoin or in any way limit the approval or issuance and
delivery of the Bonds, the Financing Documents to which the Tenant
is a
party, or which challenges the corporate existence or powers of the
Tenant to enter into and carry out the transactions contemplated by
this Lease or any other Financing Documents to which it is a party,
or
wherein an unfavorable determination could reasonably be expected
to
materially and adversely affect the validity or enforceability of
the
Bonds, this Lease, or any other Issuer Document to which the Tenant
is
a party or its ability to perform its obligations thereunder.
(e)
Governmental Consent.
Neither the Tenant nor any of its
business or properties, nor any relationship between the Tenant and
any
other person, nor any circumstances in connection with the
execution,
delivery and performance by the Tenant of the Financing Documents
to
which the Tenant is a party, or the offer, issue, sale or delivery
by
the Issuer of the Bonds in the manner contemplated by the Bond
Purchase
Agreement, is such as to require the consent, approval or
authorization
of, or the filing, registration or qualification with, any
governmental
authority on the part of the Tenant other than those obtained as of
the
Issue Date of the Bonds; provided, however, that no representation
is
made as to any consents, approvals or authorizations required in
connection with the construction or occupancy of the Project.
(f)
Compliance with Law.
To its knowledge, the Tenant is not
in violation in any material respect of any laws, ordinances,
governmental rules or regulations to which it is subject relating
to
the Project and has not failed to obtain any licenses, permits,
franchises or other governmental authorizations relating thereto,
and
reasonably necessary to the ownership of its properties or to the
conduct of its business, which violation or failure to obtain might
reasonably be expected to materially and adversely affect the
properties, business, prospects, profits or conditions (financial
or
otherwise) of the Tenant, except for any thereof the validity of
which
the Tenant is contesting in good faith by appropriate proceedings.
(g)
Restrictions on Tenant.
The Tenant is not a party to any
contract or agreement that materially and adversely affects the
Project. By entering into those of the Financing Documents to which
the
Tenant is a party, the Tenant has not committed a material
violation of
any contract or agreement that restricts the right or ability of
the
Tenant to incur or guarantee indebtedness for borrowed money.
(h)
Inducement.
The issuance of the Bonds by the Issuer and
the expenditure of the proceeds thereof to acquire, construct and
equip
the Project for lease to the Tenant have induced the Tenant to
locate
and to expand the Project within the corporate limits of the
Issuer.
The issuance of the Bonds by the Issuer to enable the Tenant to
acquire, construct and equip the Project will assist the Tenant in
continuing to provide continued employment and industry within the
environs of the Issuer.
(i)
Location of Project.
The project is located within the
incorporated territory of the City of Dodge City, Kansas.
(j)
Use of Proceeds.
The proceeds from the sale of the Bonds
will be used only for payment of Project Costs authorized and
permitted
by the Act.
Section 2.04 No Purchase of Bonds by Issuer or Tenant.
Except for
purchases to retire Bonds and purchases pursuant to
Sections 3.01
and
3.04
of
the Indenture, the Issuer and the Tenant agree that they will not
purchase any
Segregated Series Bonds, directly or indirectly.
6
Section 2.05 Survival of Representations.
All representations of the
Issuer and the Tenant contained in this Lease or in any certificate
or other
instrument delivered by the Issuer and the Tenant pursuant to this
Lease, the
Indenture, or any other Financing Document, or in connection with
the
transactions contemplated thereby, shall survive the execution and
delivery
thereof and the issuance, sale and delivery of the Bonds, as
representations of
facts existing as of the date of execution and delivery of the
instruments
containing such representations.
ARTICLE III
ISSUANCE OF THE BONDS; ACQUISITION, CONSTRUCTION, INSTALLATION AND
FINANCING OF THE PROJECT
Section 3.01 Issuance of the Bonds.
The Issuer shall issue the
Bonds for the purposes and upon the terms and conditions provided
in this Lease
and in the Indenture.
Section 3.02 Agreement to Acquire, Construct and Complete the
Project;
Use of Proceeds.
As of the Issue Date of the Bonds, the Tenant shall have
conveyed to the Issuer title to the Land and the buildings,
improvements,
machinery and equipment located thereon on the Bonds' Issue Date,
subject to
Permitted Encumbrances, and the Tenant as agent of the Issuer shall
cause the
acquisition, construction, installation and equipping of the
remainder of the
Project as described in
Schedule I
to the Indenture to be completed with
reasonable dispatch. The Tenant agrees to obtain all licenses,
permits and
consents required for the acquisition, construction and
installation of the
Project, and the Issuer shall have no responsibility therefor.
The Tenant shall comply with all of the provisions and shall
perform
all obligations of the Tenant set forth in the Indenture with
respect to the
completion of the Project. The Tenant will not take any action or
fail to take
any action which would reasonably be expected to adversely affect
the
qualification of the Project under the Act.
The Tenant shall provide, from its own funds, all moneys necessary
to
complete the Project. Bonds will be issued in the principal amount
so advanced
by the Tenant, up to a maximum of $120,000,000. The Tenant agrees
that if
Project Costs exceed $120,000,000, Tenant shall pay such costs
pursuant to the
provisions of this Section, but shall not be entitled to the
issuance of
additional Bonds or to any reimbursement therefor from the Issuer
or the Trustee
nor shall it be entitled to any abatement, diminution or
postponement of its
payments hereunder.
In addition, the Tenant agrees to pay the costs of issuance of the
Bonds by paying any or all of such costs directly or by depositing
the same with
the Trustee. Any monies so deposited with the Trustee shall be
disbursed by the
Trustee in accordance with written instructions from the Tenant.
The payment of Project Costs by the Tenant shall be evidenced by a
certificate in the terms set forth in
Exhibit B
to the Indenture, signed by the
Authorized Tenant Representative and delivered to the Trustee.
Absent manifest
error, the certifications of the Tenant by each such certificate
shall be
conclusive as to the amount spent, and other information therein.
The completion
of the Project shall be evidenced to the Trustee by a certificate
in the form
set forth in
Exhibit C
to the Indenture, signed by the Authorized Tenant
Representative, delivered to the Trustee within 90 days of the date
of
completion of the Project.
Section 3.03 Project Documents.
The Tenant shall procure and maintain
in its files and available for inspection by the Issuer, the
Trustee or, if the
Letter of Credit is in effect, the Bank, upon
7
request, copies of all required licenses, permits and approvals
required or
necessary for the acquisition, construction, installation and
equipping of the
Project from any governmental agency as may be necessary for such
work, at such
time as such documents become available and, except with respect to
licenses and
permits not then required, in any event by the time work is
commenced on the
portion of the Project to which they relate.
Section 3.04 Changes to the Project.
The Tenant may make, authorize or
permit such changes to the Project as it may reasonably determine
to be
necessary or desirable; provided, however, that no such change
shall be made to
the Project that would cause a material change in the scope,
nature, or function
of the Project, unless the Tenant shall file with the Trustee:
(a) a certificate of the Authorized Tenant Representative to
the effect that the Project will, after such change, continue to
constitute facilities authorized and permitted to be financed under
the
Act, and such change will not result in any property of the Tenant
being used for any purpose prohibited by this Lease or otherwise
result
in the Tenant failing to comply with any provisions of this Lease;
and
(b) if at the time any Segregated Series of Bonds are
outstanding, an opinion of Bond Counsel to the effect that such
change
shall be permitted by the Act and shall not impair the exclusion of
interest on any of the Segregated Series Bonds from gross income of
the
owners thereof for federal income tax purposes.
If any change would render materially inaccurate the description of
the
Project in
Schedule I
to the Indenture, there shall be delivered to the Trustee
a revised
Schedule I
containing a description of the Project that reflects the
change in the Project, the accuracy of which shall have been
certified by a
certificate of the Authorized Tenant Representative.
Section 3.05 [Reserved.]
Section 3.06 Kansas Retailers' Sales Tax.
The parties have entered into
this Lease in contemplation that, under the existing provisions of
K.S.A.
79-3606(d) and other applicable laws, sales of tangible personal
property or
services purchased in connection with construction of the Project
are entitled
to exemption from the tax imposed by the Kansas Retailers' Sales
Tax Act. The
Issuer has obtained from the State and will allow the Tenant to
furnish to the
contractors and suppliers an exemption certificate for the
construction of the
Project. The Tenant covenants that such sales tax exemption shall
be used only
in connection with the purchase of tangible personal property or
services
becoming a part of the Project.
Section 3.07 Limitation of Issuer's Liability.
ANYTHING CONTAINED IN
THIS LEASE TO THE CONTRARY NOTWITHSTANDING, ANY OBLIGATION THE
ISSUER MAY INCUR
IN CONNECTION WITH THE UNDERTAKING OF THE PROJECT FOR THE PAYMENT
OF MONEY SHALL
NOT BE DEEMED TO CONSTITUTE A DEBT OR GENERAL OBLIGATION OF THE
ISSUER, THE
STATE OR ANY POLITICAL SUBDIVISION THEREOF, BUT SHALL BE PAYABLE
SOLELY FROM THE
REVENUES AND RECEIPTS DERIVED BY IT FROM THIS LEASE AND THE LETTER
OF CREDIT,
INCLUDING PAYMENTS MADE PURSUANT TO THE LETTER OF CREDIT. NO
PROVISION IN THIS
LEASE OR ANY OBLIGATION HEREIN IMPOSED UPON THE ISSUER, OR THE
BREACH THEREOF,
SHALL CONSTITUTE OR GIVE RISE TO OR IMPOSE UPON THE ISSUER, THE
STATE OR ANY
POLITICAL SUBDIVISION THEREOF A PECUNIARY LIABILITY OR A CHARGE
UPON ITS GENERAL
CREDIT OR TAXING POWERS. NO OFFICER OR MEMBER OF THE GOVERNING BODY
OF THE
ISSUER SHALL BE PERSONALLY LIABLE ON THIS LEASE.
8
Section 3.08 Disclaimer of Warranties.
The Tenant recognizes that since
the Project has been or will be acquired, constructed and equipped
by the Tenant
and by contractors and suppliers selected by the Tenant, THE ISSUER
DOES NOT
MAKE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH
RESPECT TO THE
MERCHANTABILITY, CONDITION OR WORKMANSHIP OF ANY PART OF THE
PROJECT OR ITS
SUITABILITY FOR THE PURPOSES OF THE TENANT.
ARTICLE IV
LEASE OF THE PROJECT; PAYMENT PROVISIONS
Section 4.01 Transfer of Title to the Land and the Project; Project
Contracts.
Prior to or concurrently with the issuance of the Bonds, the
Tenant will convey the Land and the buildings and improvements
located thereon
to the Issuer, subject and subordinate to the Permitted
Encumbrances, together
with a bill of sale transferring to the Issuer title, subject and
subordinate to
the Permitted Encumbrances, to such portions of the Project
constituting
personal property as are then completed, installed or in progress.
Concurrently
with the delivery of the bill of sale, the Tenant shall also make
provision for
the discharge of any liens or encumbrances (other than unfiled
mechanic's liens
for work in progress) incurred by it in connection with the
construction,
installation or development of the Project, other than Permitted
Encumbrances.
The Project itself is not pledged to secure payment of the Bonds
within the
meaning of the Act. The Issuer acknowledges that even though the
Issuer will be
vested with ownership of the Project as a result of its
authorization,
validation, sale, or issuance of the Bonds to finance the cost of
the
acquisition, construction, equipping, or installation of the
Project, the only
security for the Bonds will be Lease Payments, the moneys deposited
in the funds
and accounts created under the Indenture, and, to the extent
applicable, the
Letter of Credit. At the time of delivery of the Certificate of
Completion to
the Trustee, the Tenant will also deliver a supplemental bill of
sale,
transferring title to all of its remaining right, title and
interest in the
Project as completed to the Issuer.
Prior to the delivery of this Lease, the Tenant has entered into
one or
more Project Contracts. Prior to the delivery hereof, certain work
has been
performed on the Project pursuant to said Project Contracts or
otherwise. The
Issuer hereby designates the Tenant as Issuer's agent for the
purpose of
performing the Project Contracts and overseeing, directing,
supervising and
monitoring the design, construction and equipping of the Project.
After the
execution hereof, the Tenant shall cause the Project Contracts to
be fully
performed by the contractor(s), subcontractor(s) and supplier(s)
thereunder in
accordance with the terms thereof, and the Tenant covenants to
cause the Project
to be acquired, constructed and/or completed in accordance with the
Project
Contracts. The Tenant will cause the construction and/or
acquisition of the
Project to be in accordance with said Project Contracts. The Tenant
shall have
sole management and control of the Project. Any and all amounts
received by
Issuer, Trustee or the Tenant from any of the contractors or other
suppliers by
way of breach of contract, refunds or adjustments shall be retained
or delivered
to the Tenant.
Section 4.02 Granting of Leasehold Estate; Basic Term.
As of the Issue
Date of the Bonds, the Issuer hereby rents, leases, and lets the
Project to the
Tenant, and the Tenant hereby rents, leases, and hires the Project
from the
Issuer, for the rentals and upon and subject to the terms and
conditions herein
contained, for the Basic Term. The Basic Term may be extended for
the Additional
Term as set forth in
Article XI
of this Lease.
Section 4.03 Lease Payments.
The Tenant shall pay the following Lease
Payments to provide for payment of the interest on and principal
of, and
redemption premium, if any, on the Bonds, directly to
9
the Trustee, in immediately available funds, for deposit in the
Bond Fund, on
the following dates, and otherwise as set out below:
(a)
Bond Fund--Interest:
On or before 11:00 a.m., Central
time, on each Interest Payment Date or any other date that any
payment
of interest is required to be made in respect of the Bonds pursuant
to
the Indenture, an amount which is, together with any other moneys
available for such purpose in the Bond Fund other than Available
Moneys, not less than the interest to become due on all Outstanding
Bonds on such Interest Payment Date or other date that interest is
due.
(b)
Bond Fund--Principal:
On or before 11:00 a.m., Central
time, on each principal payment date on the Bonds (whether at
maturity
or upon mandatory sinking fund redemption or acceleration or
otherwise), an amount which, together with any other moneys
available
for such purpose in the Bond Fund, is not less than the principal
due
on the Bonds on the next principal payment date by maturity,
mandatory
sinking fund redemption, acceleration or otherwise.
(c)
Bond Fund--Redemption:
On or before the date required by
this Lease or the Indenture, the amount required to redeem Bonds
then
Outstanding if the Tenant exercises its right to redeem Bonds under
any
provision of the Indenture or if any Bonds are required to be
redeemed
(other than pursuant to mandatory sinking fund redemption
provisions)
under any provision of the Indenture.
The Tenant shall receive a credit against its obligations to make
the
Lease Payments under this Section and the obligation of the Tenant
to make any
such payment hereunder shall be deemed satisfied and discharged to
the extent of
the corresponding payment made by the Bank to the Trustee under the
Letter of
Credit; provided, however, that to the extent such payment is not
made under the
Letter of Credit, the Tenant is obligated to make full payment.
If the Tenant fails to make any of the payments required in this
Section, the item or installment so in default shall continue as an
obligation
of the Tenant until the amount in default shall have been fully
paid, and the
Tenant agrees to pay the same with interest thereon from the date
when such
payment was due until paid in full, at the rate of interest borne
by the Bonds.
Section 4.04 Additional Payments.
The Tenant shall make the following
additional payments to the following Persons:
(a)
Issuer Fees.
The Tenant shall pay to the Issuer all
reasonable expenses, including reasonable attorneys fees, incurred
by
the Issuer in relation to the Bonds and the transactions
contemplated
by this Lease, the Indenture and any of the Financing Documents,
including costs and expenses to enforce the provisions of this
Lease,
and the reasonable fees of its counsel.
(b)
Trustee Fees and Professional Fees.
The Tenant shall pay
to the Trustee and any authenticating agents, registrars, paying
agents, counsel, accountants and other Persons when due, all
reasonable
fees, charges and expenses of such Persons for services rendered
under
the Indenture and under any of the Financing Documents and expenses
incurred in the performance of such services under the Indenture
and
any of the Financing Documents for which such Persons are entitled
to
payment or reimbursement, including expenses of compliance with the
Tax
Agreement.
(c)
Purchase Price of Tendered Bonds.
The Tenant shall pay to
the Trustee, at the times and in the amounts and manner therein
specified, the amounts required in order to purchase
10
any Bonds tendered for purchase pursuant to the Indenture;
provided,
however, that the amounts required to be paid by the Tenant under
this
paragraph shall be reduced by the amounts made available for such
purpose from the proceeds of the remarketing of such Bonds by the
Remarketing Agent deposited in the Bond Fund or through payments by
the Bank under the Letter of Credit deposited in the Bond Fund
under
Section 6.03
of the Indenture. The Tenant authorizes and directs the
Trustee to demand money under the Letter of Credit in accordance
with
the provisions of the Reimbursement Agreement and the Indenture to
the
extent necessary for the purchase of Bonds pursuant to the
Indenture.
The Tenant authorizes and directs the Trustee to apply the payments
made by the Tenant under this paragraph to the payment of the
purchase
price of Bonds.
(d)
Advances By Trustee.
The Tenant shall pay to the Trustee,
the amount of all advances of funds made by the Trustee under the
provisions of this Lease or the Indenture, with interest thereon at
the
prime rate announced from time to time by the Trustee.
(f)
Costs of Enforcement.
In the event the Tenant defaults
under any of the provisions of this Lease and the Trustee employs
attorneys or incurs other fees, charges and expenses for the
collection
of required payments or the enforcement of performance or
observance of
any obligation or agreement on the part of the Tenant contained in
this
Lease, the Tenant on demand therefor shall pay to the Trustee the
reasonable fees of such attorneys and such other reasonable fees,
charges and expenses so incurred by the Trustee. The Tenant also
shall
pay, and shall indemnify the Issuer and the Trustee from and
against,
all costs, expenses and charges, including reasonable counsel fees
(to
the extent permitted by law), incurred for the collection of
payments
due or for the enforcement or performance or observance of any
covenant
or agreement of the Tenant under this Lease, the Indenture or any
other
Financing Document.
(g)
Other Amounts Payable.
The Tenant shall pay to the Person
or Persons entitled thereto, any other amounts which the Tenant has
agreed to pay under this Lease, including all costs of issuance of
the
Bonds, or which the Tenant is required to pay under the Indenture.
Section 4.05 Prepayment of Lease Payments.
The Tenant shall have and is
granted the option to prepay from time to time the amounts payable
under this
Lease in sums sufficient to redeem or to pay or cause to be paid
all or part of
the Bonds in accordance with the provisions of the Indenture. Upon
written
notice and direction by the Tenant to the Trustee to redeem Bonds
subject to
optional redemption under the Indenture, the Trustee shall
forthwith take all
steps (other than the payment of the money required for such
redemption)
necessary under the applicable redemption provisions of the
Indenture to effect
redemption of all or part of the then Outstanding Bonds, as may be
specified by
the Tenant, on the date established for such redemption. Whenever
any Bonds
shall have been called for optional redemption under any provision
of the
Indenture, the Tenant shall deposit with the Trustee moneys in such
amounts and
at such times required to redeem such Bonds, including the
principal, redemption
premium, if any, and accrued interest thereon to the redemption
date. The Tenant
further agrees that in the event the payment of principal of and
interest on the
Bonds is accelerated upon the occurrence of an event of default
under this
Lease, all Lease Payments payable for the remainder of the term of
this Lease
shall be accelerated and prepayment shall be made on the Bonds in
such amounts.
Any such prepayments shall be deposited in the Bond Fund, and
applied by the
Trustee in accordance with the provisions of the Indenture.
Section 4.06 Obligations Absolute and Unconditional.
The obligations of
the Tenant under this Lease are absolute and unconditional
obligations of the
Tenant, and the full faith and credit of the Tenant is pledged to
the payment of
all amounts due and payable by the Tenant under this Lease. The
Tenant shall pay
all such amounts due and payable under this Lease using any and all
available
resources
11
of the Tenant, as necessary. The Tenant shall pay all Lease
Payments and other
payments due under this Lease and perform its obligations,
covenants and
agreements under this Lease, without notice or demand, and without
abatement,
deduction, set-off, counterclaim, recoupment, discrimination or
defense or any
right of termination or cancellation arising from any circumstances
whatsoever,
including, without limiting the generality of the foregoing,
failure of the
Tenant to complete the acquisition, construction, improving and
equipping of the
Project, the occurrence of any acts or circumstances that may
constitute failure
of consideration, eviction or constructive eviction, destruction of
or damage to
the Project, the taking by eminent domain of title to or temporary
use of any or
all of the Project, commercial frustration of purpose, any change
in the tax or
other laws of the United States of America or of the State or any
political
subdivision of either thereof or any failure of the Issuer or the
Trustee to
perform and observe any agreement, whether express or implied, or
any duty,
liability or obligation arising out of or connected with this
Lease, and
regardless of the invalidity of any portion of this Lease. To the
extent
permitted by law, the Tenant waives the provisions of any statute
or other law
now or hereafter in effect contrary to any of its obligations,
covenants or
agreements under this Lease or which releases or purports to
release the Tenant
therefrom. Nothing in this Lease shall be construed as a release of
the Issuer
from its obligations hereunder or waiver by the Tenant of any
rights or claims
the Tenant may have against the Issuer or the Trustee under this
Lease or
otherwise, but any recovery upon such rights or claims shall be had
from the
Issuer and the Trustee separately, it being the intent of this
Lease that the
Tenant shall be absolutely and unconditionally obligated to perform
fully all of
its obligations, agreements and covenants under this Lease for the
benefit of
the owners of the Bonds.
Section 4.07 Assignment of Issuer's Rights.
Under the Indenture, the
Issuer has pledged, assigned, transferred in trust and granted a
security
interest to the Trustee in all of the Issuer's rights, title and
interest under
this Lease (except for the Unassigned Issuer's Rights) as security
for the
Bonds, and such rights, title and interest may be exercised,
protected and
enforced for or on behalf of the owners of the Bonds in conformity
with this
Lease and the Indenture. The Trustee is hereby given the right to
enforce, as
assignee of the Issuer, the performance of the obligations of the
Tenant under
this Lease, and the Tenant hereby consents to the same and agrees
that the
Trustee may enforce such rights as provided in this Lease and in
the Indenture.
This Lease recognizes that the Trustee is a third party
creditor-beneficiary of
this Lease.
Section 4.08
All Right, Title and Interest of the Issuer in the
Project Subject and Subordinate to the Existing Mortgage, the
Existing Security
Agreement, the Existing Fixture Filings and the Existing Collateral
Assignment
of Lease.
The Issuer and the Tenant hereby acknowledge and agree that title
to
the Land and the Project has been conveyed to the Issuer, and the
Land and the
Project are hereby leased to Tenant, subject and subordinate to the
Existing
Mortgage, the Existing Security Agreement, the Existing Fixture
Filings, the
Existing Collateral Assignment of Lease and all financing
statements related
thereto. The Issuer and the Tenant hereby represent, warrant and
agree that the
priority of the Existing Mortgage, the Existing Security Agreement,
the Existing
Fixture Filings, the Existing Collateral Assignment of Lease and
all related
financing statements shall hereinafter be deemed first, prior and
senior, for
all purposes, to any interest which the Issuer may now or hereafter
have in the
Land and Project and any interest which the Tenant may now or
hereafter have in
the Land and the Project pursuant to this Lease. The Issuer and the
Tenant
hereby agree that they will not contest the validity, perfection,
priority or
enforceability of the Existing Mortgage, the Existing Security
Agreement, the
Existing Fixture Filings, the Existing Collateral Assignment of
Lease and the
related financing statements. The Issuer and the Tenant further
hereby
acknowledge and agree that notwithstanding the date, manner or
order of
recording, filing or perfection of the liens, security interests,
assignments or
other encumbrances under any of the Existing Mortgage, the Existing
Security
Agreement, the Existing Fixture Filings, the Existing Collateral
Assignment of
Lease and any related financing statements, or any provision of the
Uniform
Commercial Code of any jurisdiction or any other statute, law or
decision
governing or affecting
12
the priority of any mortgage, deed of trust, lien, security
interest, assignment
or encumbrance or other right or interest with respect to real or
personal
property, the Existing Mortgage, the Existing Security Agreement,
the Existing
Fixture Filings, the Existing Collateral Assignment of Lease and
all related
financing statements shall at all times rank first and senior in
priority to any
judgment, claim, lien, security interest, encumbrance or other
interest that the
Issuer now has or hereafter acquires in or to the Land and the
Project or that
the Tenant now has or hereafter acquires in the Land or the Project
pursuant to
this Lease, as if all debts, liabilities and obligations secured by
the Existing
Mortgage, the Existing Security Agreement, the Existing Fixture
Filings, the
Existing Collateral Assignment of Lease and all related financing
statements had
been fully funded and were outstanding and the Existing Mortgage,
the Existing
Security Agreement, the Existing Fixture Filings, the Existing
Collateral
Assignment of Lease and all financing statements related thereto
had been duly
filed, recorded and placed of record in the appropriate recording
office prior
to recording or execution and delivery of any deed, bill of sale or
other
conveyance conveying title to the Land and the Project to the
Issuer and prior
to the recording of this Lease, regardless of the actual date of
recording or
filing of the Existing Mortgage, the Existing Security Agreement,
the Existing
Fixture Filings, the Existing Collateral Assignment of Lease and
all financing
statements related thereto.
The Issuer hereby acknowledges and agrees that, without notice to
or
consent by the Issuer, CoBank, ACB or any of its successors or
assigns (and any
other lender (or affiliate thereof) from time to time party to any
credit
facility agented by CoBank, ACB, or its successors or assigns) may
amend,
modify, restate or supplement any term, condition or provision of
the Existing
Mortgage, the Existing Security Agreement, the Existing Fixture
Filings, the
Existing Collateral Assignment of Lease, any financing statements
related
thereto, any credit agreement, any note and/or any other loan
document now or
hereafter related to any of the foregoing. Without limiting the
generality of
the foregoing, CoBank, ACB or any of its successors or assigns (and
any other
lender (or affiliate thereof) from time to time party to any credit
facility
agented by CoBank, ACB, or its successors or assigns) may, at any
time and from
time to time, without the consent of or notice to the Issuer and
without
incurring responsibility to Issuer or impairing or releasing any of
its rights
under the Existing Mortgage, the Existing Security Agreement, the
Existing
Fixture Filings, the Existing Collateral Assignment of Lease, any
financing
statements related thereto, any credit agreement, any note and/or
any other loan
document now or hereafter related to any of the foregoing: (a)
increase or
reduce the principal amount of any debts, liabilities or other
obligations
thereunder or change the interest rates or change the amounts of
payments or
extend the time for payments or renew or otherwise alter in any
manner the
terms, conditions and provisions of the Existing Mortgage, the
Existing Security
Agreement, the Existing Fixture Filings, the Existing Collateral
Assignment of
Lease, any financing statements related thereto, any agreement, any
note and/or
any other document or instrument now or hereafter related to any of
the
foregoing; (b) sell, exchange, release or otherwise deal with any
property at
any time securing payment of any debts, liabilities or other
obligations
thereunder or any part thereof; (c) release anyone liable in any
manner for the
payment or collection of any debts, liabilities, or other
obligations thereunder
or any part thereof; (d) exercise or refrain from exercising any
right against
the Tenant or any other person or entity; and (e) apply any sums
received, by
whomsoever paid and however realized, to any debts, liabilities, or
other
obligations thereunder in such manner as CoBank, ACB, or its
successor or
assigns, shall deem appropriate.
At the request of CoBank, ACB, or its successors or assigns, the
Issuer
shall execute and deliver to CoBank, ACB, or its successors or
assigns, such
further documents or agreements as CoBank, ACB, or its successors
or assigns,
shall reasonably request to evidence the subordination of all
right, title and
interest of the Issuer in and to the Land and the Project to the
Existing
Mortgage, the Existing Security Agreement, the Existing Fixture
Filings, the
Existing Collateral Assignment of Lease and all financing
statements related
thereto.
13
ARTICLE V
VARIABLE RATE CONVERSION AND LETTER OF CREDIT
Section 5.01 Tenant Elections.
Tenant has the absolute right, at its
election, to exercise a Variable Rate Conversion and a Fixed Rate
Conversion
under the Indenture and that, upon such election, the Issuer will
execut
