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Sedgwick CEBA Loan D'G~~E ~c/k-~ MEMORANDUM August 1, 2006 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Community Economic Betterment Account (CEBA) Loan Sedgwick CMS CEBA Contract Number P1205RS5200751 Loan Agreement Number 06-CEBA-032 In February 2006, Sedgwick CMS announced plans to locate in Dubuque. As part of this project, the company has committed to hiring 75 new full-time employees within the next three years, with an average starting wage of $15.72 per hour, plus benefits. Economic Development Director Dave Heiar recommends City Council approval of the execution of a CEBA Loan Agreement by and among the Iowa Department of Economic Development, Sedgwick CMS and the City of Dubuque. As previously approved by the City Council, the City of Dubuque's financial commitment to this project is a $100,000 loan to Sedgwick CMS to provide the local financial commitment I concur with the recommendation and respectfully request Mayor and City Council approval. /hIV! (~ I7t~ Micnael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, Corporation Counsel Cindy Steinhauser, Assistant City Manager David J. Heiar, Economic Development Director , -, ._' CITY OF DUBUQUE, IOWA MEMORANDUM August 2, 2006 TO: Michael Van Milligen, City Manager FROM: David J. Heiar, Economic Development Directoflj Ott- SUBJECT: Community Economic Betterment Account (CEBA) Loan Sedgwick CMS CEBA Contract Number P1205RS5200751 Loan Agreement Number 06-CEBA-032 INTRODUCTION This memorandum presents for City Council review and approval a Resolution relating to a CEBA loan/forgivable loan for Sedgwick CMS. The Resolution authorizes the execution of a CEBA Loan Agreement of $150,000 by and among the Iowa Department of Economic Development, Sedgwick CMS and the City of Dubuque. BACKGROUND In February 2006, Sedgwick announced plans to locate in Dubuque. The company has leased temporary space in the downtown NICC building, pending the construction of a new facility in the Dubuque Technology Park. As part of this project, the company has committed to hiring 75 new full-time employees within the next three (3) years. The average starting wage is $15.72 per hour plus benefits. DISCUSSION This memorandum asks the City to assist Sedgwick CMS by executing the attached CEBA Loan Agreement of $150,000 that has been approved by the State of Iowa Department of Economic Development Board. This CEBA award is for a $75,000, 0%, 5 year loan and a $75,000 forgivable loan. The CEBA program requires a local financial commitment to the project. The City Council previously approved the commitment of a $100,000 loan to Sedgwick to provide this local financial commitment. The loan will be financed by available UDAG funds and repaid at the rate of $20,000 per year for 5 years. RECOMMENDATION I recommend that the City Council adopt the attached Resolution authorizing the execution of a CEBA Loan Agreement of $150,000 to support the Sedgwick CMS project in Dubuque. ACTION STEP The Action Step for the City Council is to adopt the attached Resolution. F:\USERS\DHeiar\Sedgwlck\CEBA Memo.doc . " RESOLUTION NO. 345-06 A RESOLUTION AUTHORIZING THE EXECUTION OF A COMMUNITY ECONOMIC BETTERMENT ACCOUNT LOAN AGREEMENT FOR ONE HUNDRED AND FIFTY THOUSAND DOLLARS ($150,000) WITH SEDGWICK CMS. Whereas, the Community Economic Betterment Account (CEBA) program has been created by the Iowa Department of Economic Development to assist in the economic development efforts of local jurisdictions; and Whereas, in March 2006, the City of Dubuque, Iowa was awarded a one hundred and fifty thousand dollar ($150,000) loan/forgivable loan from the CEBA program by the Iowa Department of Economic Development; and Whereas, the City of Dubuque, Iowa desires to assist Sedgwick CMS in its efforts to locate its operations in Dubuque and create new, permanent employment opportunities for local citizens; and Whereas, a CEBA Loan Agreement, hereto attached and by this reference made a part hereof, is to be executed between the Iowa Department of Economic Development, Sedgwick CMS and the City of Dubuque, Iowa. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That the Mayor and Corporation Counsel be and they are hereby authorized and directed to endorse, on behalf of the City Council of the City of Dubuque, Iowa, the attached CEBA Loan Agreement. Section 2. That the City Manager be and he is hereby authorized to disburse loan funds to Sedgwick CMS from the CEBA program in accordance with the terms and conditions of the executed Agreement. Passed, approved and adopted this 7th day of August, 2006. Roy D. Buol, Mayor Attest: Jeanne F. Schneider City Clerk F:\USERS\DHeiarlSedgwick\ceba res.doc MASTER CONTRACT BY AND BETWEEN Sedl!Wick Claims Manae:ement Services. Inc. AND THE IOWA DEPARTMENT OF ECONOMIC DEVELOPMENT CONTRACT NUMBER: P1205RS5200751 ----- TABLE OF CONTENTS ARTICLE 1. MASTER CONTRACT DURATION; FUNDING AGREEMENT DURATION ARTICLE 2. FUNDING Article 2.1 Funding Sources Article 2.2 Reduction, Discontinuance or Alteration of Funding ARTICLE 3. CONTRACT STRUCTURE AND DEFINlTlONS; DOCUMENTS INCORPORATED BY REFERENCE; ORDER OF PRIORITY Article 3.1 Contract Structure and Definitions Article 3.2 Documents Incorporated by Reference Article 3.3 Business's Financial Assistance Application on File Article 3.4 Order of Priority ARTICLE 4. AWARD Article 4.1 Article 4.2 Article 4.3 Description of the Project and Award Budget Job Obligations Repayment Obligation ARTICLE 5. CONDITIONS TO DISBURSEMENT OF FUNDS; DISBURSEMENT TERMS Article 5.1 Documents Submitted Article 5.2 Prior Costs Article 5.3 Cost Variation Article 5.4 Suspension of Disbursement Article 5.5 Investment of Award Proceeds ARTICLE 6. SECURITY; CROSS-COLLATERALIZATION Article 6.1 Secured Property Article 6.2 Value of Collateral Article 6.3 Additional or Substitute Collateral ARTICLE 7. REPRESENTATIONS AND WARRANTIES Article 7.1 Article 7.2 Article 7. 3 Article 7.4 Article 7.5 Article 7. 6 Article 7.7 Article 7.8 Article 7.9 Article 7.10 Article 7.11 Article 7.12 Article 7.13 Article 7.14 Article 7.15 Article 7.16 Contract # P1205RS5200751 Organization and Qualifications Authority and Validity of Obligations Use of Proceeds Subsidiaries Financial Reports No Material Adverse Change Full Disclosure; Business's Financial Assistance Application Trademarks, Franchises and Licenses Governmental Authority and Licensing Litigation and Other Controversies Good Title Taxes Other Contracts No Default Compliance with Laws Effective Date of Representations and Warranties - 2- Master updated 9130105 ARTICLE 8. COVENANTS Article 8.1 Article 8.2 Article 8.3 Article 8.4 Article 8.5 Article 8.6 Article 8.7 Article 8.8 Article 8.9 Article 8.10 Article 8.11 Article 8.12 Article 8.13 Article 8.14 Article 8.15 Article 8.16 Article 8.17 Article 8.18 Article 8.19 Maintain Existence in Iowa Job Obligations Performance Obligations Maintenance of Properties Taxes and Assessments Insurance Required Reports Inspection and Audit Mergers, Consolidations and Sales Formation and Maintenance of Subsidiaries Compliance with Laws Use of Award Proceeds Changes in Business Ownership, Structure or Control Notice of Meetings Notice of Proceedings Accounting Records Restrictions No Changes in Business Operations Indemnification ARTICLE 9. EVENTS OF DEFAULT AND REMEDIES Article 9.1 Events of Default Article 9.2 Default Remedies Article 9.3 Default Interest Rate Article 9.4 Expenses Article 9.5 Notice of Default and Opportunity to Cure ARTICLE 10. MISCELLANEOUS Article 10.1 Article 10.2 Article 10.3 Article 10.4 Article 10.5 Article 10.6 Article 10. 7 Article 10.8 Article 10.9 Article 10.10 Article 10.11 Article 10.12 Article 10.13 Article 10.14 Article 10.15 Contract # P1205RS5200751 Timely Performance State of Iowa Recognition Choice of Law and Forum Governing Law Master Contract/Funding Agreement Amendments Notices Headings Final Authority Waivers Counterparts Survival of Representations Severability of Provisions Successors and Assigns Termination Integration - 3- Master updated 9/30105 MASTER CONTRACT BUSINESS: MASTER CONTRACT NUMBER: AWARD DATE: Sedgwick Claims Management Services, Inc. P1205RS5200751 March 16, 2006 This FINANCIAL ASSISTANCE CONTRACT (the "Master Contract") is made as of the CONTRACT EFFECTIVE DATE by and between the Iowa Department of Economic Development ("mED"), 200 East Grand Avenue, Des Moines, IA 50309 and Sedgwick Claims Management Services, Inc. an Illinois Corporation ("Business"), 1100 Ridgeway Loop Road, Memphis, Tennessee 38120. WHEREAS, the Business submitted an application to IDED requesting financial assistance in the financing of its Project as more fully described in Exhibit C, Description of the Project and Award Budget, (the "Project"); and WHEREAS, the IDED found the Project to meet the requirements established to receive financial assistance; and WHEREAS, the IDED and/or the Iowa Department of Economic Development Board ("IDED Board") have awarded the Business financial assistance from one or more IDED-administered programs for the Project, all of which are subject to the terms and conditions set forth herein and collectively referred to as the "Award"; and NOW THEREFORE, in consideration ofthe mutual promises contained herein and intending to be legally bound, the Business and IDED agree to the following terms: ARTICLE 1 MASTER CONTRACT DURATION; FUNDING AGREEMENTS DURATION This Master Contract shall be in effect until all of Business's obligations and liabilities under this Master Contract and all of the Funding Agreements executed in connection with this Master Contract have been satisfied. The duration of each Funding Agreement will be as described in the Funding Agreement. ARTICLE 2 FUNDING 2.1 Funding Sources. The sources of funding for this Award are appropriations to IDED for financial assistance programs administered by the IDED and tax credit programs that IDED is authorized to administer. 2.2 Reduction. Discontinuance or Alteration of Funding. Any termination, reduction, or delay of funds available due, in whole or in part, to (i) lack of, reduction in, or a deappropriation of revenues previously appropriated by the legislature for this Award, or (ii) any other reason beyond the IDED's control may, in the IDED's discretion, result in the termination, reduction or delay of funds to the Business. Contract # P1205RS5200751 -4- Master updated 9/30/05 ARTICLE 3 CONTRACT STRUCTURE AND DEFINITIONS; DOCUMENTS INCORPORATED BY REFERENCE; AND ORDER OF PRIORITY 3. I Contract Structure and Definitions. (a) This Award shall be governed by this Master Agreement and the individual funding agreements (the "Funding Agreements") for each source of program assistance for this Award. This A ward has been provided to the Business to fund the Project described in Exhibit C, Description of the Project and A ward Budget. The Articles ofthis Master Contract apply to each Funding Agreement unless a Funding Agreement specifically states otherwise. (b) The following terms apply to this Master Contract and each of the Funding Agreements, unless otherwise specified in a Funding Agreement: "Award Date" means the date first stated in this Master Contract and is the date the IDED and/or the IDED Board approved the awarding of financial assistance to the Business for the Project. "Business' Employment Base" means the number of jobs as stated in Exhibit D, Job Obligations that the Business and IDED have established as the job base for this Project. The number of jobs the Business has pledged to create/retain shall be in addition to the Business's Employment Base. "Created Jobs" means the number of new FTE Jobs the Business will add over and above the Business's Employment Base and, if applicable, Statewide Employment Base. "Forgivable Loan" means a form of an award made by the IDED to the Business under a Funding Agreement(s) for which repayment is eliminated in part or entirely if the Business satisfies the terms of this Contract and the Funding Agreement(s). "Full-time Equivalent (FTE) Job" means the employment of one person: (a) For 8 hours per day for a 5-day, 40-hour workweek for 52 weeks per year, including paid holidays, vacations and other paid leave, or (b) For the number of hours or days per week, including paid holidays, vacations and other paid leave, currently established by schedule, custom, or otherwise, as constituting a week of full-time work for the kind of service an individual performs for an employing unit. "Job Maintenance Period" means the date two (2) years from the Project Completion Date as stated in Exhibit C, Description of the Project and A ward Budget. The Business shall maintain the Project, and the created/retained jobs through the Job Maintenance Period. "Job Obligations" means the Created Jobs, Retained Jobs, QualifYing Jobs and Non-qualifYing Jobs associated with the Project that pay the wages and benefits, all as outlined in Exhibit D, Job Obligations. "Loan" means a form of an award made by the IDED to the Business under a Funding Agreement(s) for which full repayment is expected. "Non-qualifying jobs " are those jobs created or retained by the project that do not qualifY for funding, but would not be created or retained if the Project did not proceed. Contract # P1205RS5200751 - 5- Master updated 9/30105 "Project" means the description of the work and activities to be completed by the Business as outlined in Exhibit C, Description of the Project and Award Budget, and Exhibit A, Business's Financial Assistance Application. "Project Completion Date" means the date three (3) years from the Award Date as stated in Exhibit C, Description of the Project and Award Budget. The Project Completion Date is the date by which all Project activities shall be satisfactorily completed. "Statewide Employment Base" means the number of jobs as stated in Exhibit D, Job Obligations that the Business and IDED have determined as those jobs that will be retained at other facilities in the state. The number of jobs the Business has pledged to create/retain shall be in addition to the Statewide Employment Base. "QualifYing jobs" are those created or retained jobs that qualify for program funding. 3.2 Documents Incorporated bv Reference. The following documents are incorporated by reference and considered an integral part of this Master Contract: Exhibit A - Business's Financial Assistance Application, Application # 06-CEBA-032 Exhibit B - Funding Agreements: Bl- CEBA Funding Agreement Description of the Project and Award Budget Job Obligations Exhibit C - Exhibit D - "Retained Job" means an existingjob that would be eliminated or moved to another state ifthe project did not proceed in Iowa. 3.3 Business's Financial Assistance Application on File. Due to its size, Exhibit A will not be attached to this Master Contract, but will be kept on file at the Iowa Department of Economic Development. It shall, nevertheless, be considered an incorporated element of this Master Contract and the Funding Agreements. 3.4 Order of Priority. In the case of any inconsistency or conflict between the specific provisions of this document and the exhibits, the following order of priority shall control: (a) Master Contract, Articles 1-10 (b) Exhibit B - Funding Agreements (c) Exhibit C - Description of the Project and A ward Budget (d) Exhibit D - Job Obligations (e) Exhibit A - Business's Financial Assistance Application ARTICLE 4 AWARD 4.1 Description of the Proiect and Award Bud~et. The IDED and/or the IDED Board have approved an A ward to the Business from the programs and in the amounts identified in Exhibit C, Description of the Project and Award Budget. The Project Budget for this Award is as detailed in Exhibit C. 4.2 Job Obligations. The IDED and/or the IDED Board have approved an Award to the Business and the Business' obligations for FTE Created Jobs, Retained Jobs, Qualifying Jobs and Non- qualifying Jobs are outlined in Exhibit D, Job Obligations. Contract # P1205RS5200751 -6- Master updated 9/30105 4.3 Reoavment Obligation. The obligation to repay the direct financial assistance components of this Award shall be evidenced by Promissory Notes executed in connection with the Funding Agreements. ARTICLE 5 CONDITIONS TO DISBURSEMENT OF FUNDS; DISBURSEMENT TERMS The obligation of IDED to make, continue or disburse funds under this Master Contract and the Funding Agreements shall be subject to the following conditions precedent: 5.1 Documents Submitted. IDED shall have received each of the following documents, properly executed and completed, and approved by IDED as to form and substance: (a) Master Contract. Fully executed Master Contract. (b) Fundinf! Aweements. Fully executed Funding Agreements. (c) Promissorv Notes. The Promissory Notes required by the Funding Agreements. (d) Articles of Incorvoration. Copies of the articles of incorporation of the Business, certified in each instance by its secretary or assistant secretary. (e) Certificate of Corvo rate Existence. A certificate of existence for the Business from the Office of the Secretary of State ofIowa. (f) Results of Lien and Tax Search. Financing statement, tax and judgment lien search results, in the Business's state of incorporation/organization, against the Business and Secured Property. (g) Securitv Documents. The fully executed Security Documents required in Article 6.0. (h) Other Reauired Documents. IDED shall have received such other contracts, instruments, documents, certificates and opinions as the IDED may reasonably request. (i) Hazardous Waste Audit. To comply with Iowa Code section 15A.l (3)"b," if the Business generates solid or hazardous waste, it must either: a) submit a copy of the Business's existing in-house plan to reduce the amount of waste and safely dispose of the waste based on an in-house audit conducted within the past 3 years; or b) submit an outline of a plan to be developed in-house, or 3) submit documentation that the Business has authorized the Iowa Department of Natural Resources or Iowa Waste Reduction Center to conduct the audit. U) Release Form - Confidential Tax Information. A signed Authorization for Release of Confidential State Tax Information form to permit IDED to receive the Business's state tax information directly from the Iowa Department of Revenue for purposes of annually updating the Iowa Public Return on Investment Analysis. (k) Satisfactorv Credit Historv. Documentation of satisfactory credit history of the Business and guarantors, as applicable, with no judgments or unsatisfied liens or similar adverse credit actions. (I) Proiect Financial Commitments. The Business shall have submitted a letter from the funding sources identified in Exhibit C committing to the specified financial involvement in the Project and received the IDED's approval of the letters of commitment. Each letter shall include the amount, terms and Contract # P1205RS5200751 -7 - Master updated 9/30105 conditions of the financial commitment, as well as any applicable schedules. (m)Reauests for Disbursement. All disbursements of Award proceeds shall be subject to receipt by the IDED of requests for disbursement, in form and content acceptable to IDED, submitted by the Business. All requests shall include documentation of costs that have been paid or costs to be paid immediately upon receipt of Award proceeds. (n) Fundinl! Al!reements Disbursement Reauirements. Satisfaction of all disbursement requirements outlined in the specific program Funding Agreements. 5.2 Prior Costs. No expenditures made prior to the Award Date may be included as Project costs. This restriction applies to the direct financial assistance portions of this Award, not the tax credit benefits included in this Award. 5.3 Cost Variation. In the event that the total Project cost is less than the amount specified in the Exhibit C, the Funding Agreements shall be reduced at the same ratio to the total Project cost reduction as the ratio ofthe Funding Agreement amount to the total amount offunds provided by the Business and all funding sources requiring a proportional reduction of their financial contribution to the Project. Any disbursed excess above the reduced IDED participation amount shall be returned immediately to IDED. 5.4 Susoension of Disbursement. Upon the occurrence of an Event of Default (as defined in this Master Contract or any of the Funding Agreements) by the Business, the IDED may suspend payments and tax credit program benefits to the Business until such time as the default has been cured to IDED's reasonable satisfaction. Notwithstanding anything to the contrary in this Master Contract or the Funding Agreements, upon a termination of this Master Contract on account of an Event of Default by the Business, Business will no longer have the right to receive any disbursements or any tax credit program benefits after the effective date of default. All Award funds may also be suspended, in IDED's sole discretion, in the event the Business experiences a layoff within the state of Iowa or closes any of its Iowa facilities. 5.5 Investment of Award Proceeds. (a) In the event that the Award proceeds are not immediately utilized, temporarily idle Award proceeds held by the Business may be invested provided such investments shall be in accordance with State law, including but not limited to the provisions ofIowa Code chapter 12C concerning the deposit of public funds. Interest accrued on temporarily idle Award proceeds held by the Business shall be credited to and expended on the Project prior to the expenditure of other Award proceeds. (b) All proceeds remaining, including accrued interest, after all allowable Project costs have been paid or obligated shall be returned to the IDED within thirty (30) days after the Project Completion Date. Within ten (10) days of receipt of a written request from IDED, Business shall inform the IDED in writing of the amount of unexpended A ward funds in the Business's possession or under the Business's control, whether in the form of cash on hand, investments, or otherwise. ARTICLE 6 SECURITY; CROSS-COLLATERALIZATION The Business shall execute in favor of the IDED security documents as set forth in this Article 6 (the "Security Documents"). Contract # P1205RS5200751 - 8- Master updated 9/30/05 6.1 Security. This Award shall be secured by: Blanket UCC-I. Subordinate to lead creditor (the "Secured Property ") 6.2 Value of Collateral. The value, as reasonably determined by IDEO, of the Secured Property shall meet or exceed the amount of Award funds disbursed. 6.3 Additional or Substitute Collateral. In case ofa decline in the market value of the Secured Property, or any part thereof, IDEO may require that additional or substitute collateral of quality and value satisfactory to IDEO be pledged as Secured Property for this Award. The Business shall provide such additional or substitute collateral Secured Property within 20 days of the date of the request for additional or substitute collateral to secure this Award in an amount equal to or greater than the amount of outstanding Award funds. ARTICLE 7 REPRESENTATIONS AND WARRANTIES The Business represents and warrants to IDEO as follows: 7.1 Organization and Oualifications. The Business is duly organized, validly existing and in good standing as a corporation under the state of its incorporation. The Business has full and adequate power to own its property and conduct its business as now conducted, and is duly licensed or qualified and in good standing in each jurisdiction in which the nature of the business conducted by it or the nature of the property owned or leased by it requires such licensing or qualitying, except where the failure to so quality would not have a material adverse effect on the Business's ability to perform its obligations hereunder. 7.2 Authoritv and Validitv of Obligations. The Business has full right and authority to enter into this Master Contract and the Funding Agreements and to make the borrowings herein provided for. The person signing this Master Contract and the Funding Agreements has full authority to: a) sign this Master Contract and the Funding Agreements, and b) issue Promissory Notes on behalf of the Business, and c) secure Business's obligations under this Master Contract and the Funding Agreements, and d) perform each and all of the obligations under the Master Contract and its Funding Agreement. The Master Contract and Funding Agreement documents delivered by the Business have been duly authorized, executed and delivered by the Business and constitute the valid and binding obligations of the Business and enforceable against it in accordance with their terms. This Master Contract, the Funding Agreements and related documents do not contravene any provision of law or any judgment, injunction, order or decree binding upon the Business or any provision of the articles of organization or operating agreement of the Business, contravene or constitute a default under any covenant, indenture or contract of or effecting the Business or any of its properties. 7.3 Use of Proceeds. The Business hereby agrees to use Award proceeds only for the Project and for the activities described in Exhibit C, Description of the Project and A ward Budget, this Master Contract and the Funding Agreements. Use of Award proceeds shall conform to the Budget for the Project as detailed in Exhibit C. The Business represents that there are legally enforceable commitments in place from the funding sources identified for the Project in Exhibit c. 7.4 Subsidiaries. On the Contract Effective Date, the Business has two subsidiaries, Sedgwick CMS Canada, Inc. and SCMS Administrative Services, Inc. Contract # P1205RS5200751 -9- Master updated 9/30105 7.5 Financial Reports. The balance sheet of the Business furnished to IDEO as of the Contract Effective Date, fairly presents its financial condition as at said date in conformity with GAAP applied on a consistent basis. The Business has no contingent liabilities which are material to it, other than as indicated on such financial statements or, with respect to future periods, on the financial statements furnished to ID ED. 7.6 No Material Adverse Chan€,e. Since the Award Date, there has been no change in the condition (financial or otherwise) or business prospects of the Business, except those occurring in the ordinary course of business, none of which individually or in the aggregate have been materially adverse. To the knowledge of the Business, there has been no material adverse change in the condition ofthe Business (financial or otherwise) or the business prospects of the Business 7.7 Full Disclosure; Business's Financial Assistance Aoplication. The statements and other information furnished to the IDEO by Business in its Financial Assistance Application and in connection with the negotiation of this Master Contract and the Funding Agreements do not contain any untrue statements of a material fact or omit a material fact necessary to make the material statements contained herein or therein not misleading. The IDEO acknowledges that as to any projections furnished to the IDEO, the Business only represents that the same were prepared on the basis of information and estimates it believed to be reasonable. 7.8 Trademarks. Franchises and Licenses. The Business owns, possesses, or has the right to use all necessary patents, licenses, franchises, trademarks, trade names, trade styles, copyrights, trade secrets, know how and confidential commercial and proprietary information to conduct its businesses as now conducted, without known contlict with any patent, license, franchise, trademark, trade name, trade style, copyright or other proprietary right of any other Person. As used in this Master Contract, "Person" means an individual, partnership, corporation, association, trust, unincorporated organization or any other entity or organization, including a government or agency or political subdivision thereof. 7.9 Governmental Authority and Licensing. The Business has received all licenses, permits, and approvals of all Federal, state, local, and foreign governmental authorities, if any, necessary to conduct its businesses, in each case where the failure to obtain or maintain the same could reasonably be expected to have a material adverse effect. No investigation or proceeding which, if adversely determined, could reasonably be expected to result in revocation or denial of any material license, permit, or approval is pending or, to the knowledge of the Business threatened. 7.10 Litigation and Other Controversies. There is no litigation or governmental proceeding pending, nor to the knowledge of the Business threatened, against the Business which if adversely determined would result in any material adverse change in the financial condition, Properties, business or operations of the Business, nor is the Business aware of any existing basis for any such litigation or governmental proceeding. 7.11 Good Title. The Business has good and defensible title (or valid leasehold interests) to all of its Property (including, without limitation, the Secured Property) retlected on the most recent balance sheets furnished to the IDEO (except for sales of assets in the ordinary course business). 7.12 Taxes. All tax returns required to be filed by the Business in any jurisdiction have, in fact, been filed, and all taxes, assessments, fees and other governmental charges upon the Business or upon any of its property, income or franchises, which are shown to be due and payable in such returns, have been paid, except such taxes, assessments, fees and governmental charges, if any, as are being contested in good faith and by appropriate proceedings which prevent enforcement ofthe matter under contest and as Contract # P1205RS5200751 -10 - Master updated 9/30/05 to which adequate reserves established in accordance with GAAP have been provided. The Business knows of no proposed additional tax assessment against it for which adequate provisions in accordance with GAAP have not been made on its accounts. Adequate provisions in accordance with GAAP for taxes on the books of the Business have been made for all open years, and for their current fiscal period. 7.13 Other Contracts. The Business is not in default under the terms or any covenant, indenture or contract of or affecting either the Business or any of its properties, which default, if uncured, would have a material adverse effect on its financial condition, properties, business or operations. 7.14 No Default. No Default or Event of Default has occurred or is continuing. 7.15 Comoliance with Laws. The Business is in compliance with the requirements of all federal, state and local laws, rules and regulations applicable to or pertaining to the business operations of the Business and laws and regulations establishing quality criteria and standards for air, water, land and toxic or hazardous wastes or substances, non-compliance with which could have a material adverse effect on the financial condition, properties, business or operations of the Business. The Business has not received notice to the effect that its operations are not in compliance with any of the requirements of applicable federal, state or local environmental or health and safety statutes and regulations or are the subject of any governmental investigation evaluating whether any remedial action is needed to respond to a release of any toxic or hazardous waste or substance into the environment, which non-compliance or remedial action could have a material adverse effect on the financial condition, properties, business or operations of the Business. 7.16 Effective Date of Reoresentations and Warranties. The warranties and representations of this Article are made as of the Contract Effective Date and shall be deemed to be renewed and restated by the Business at the time each request for disbursement of funds is submitted to the IDED. ARTICLE 8 COVENANTS The Business agrees that, for the duration of this Master Contract and the Funding Agreements: 8.1 Maintain Existence in Iowa. The Business shall at all times preserve and maintain its existence as a corporation in good standing and maintain the Project in Iowa. The Business will preserve and keep in force and affect all licenses, permits, franchises, approvals, patents, trademarks, trade names, trade styles, copyrights and other proprietary rights necessary to the proper conduct of its respective business. 8.2 Job Obligations. (a) Jobs and Wages. By the Project Completion Date, the Business shall create/retain the number ofFTE Created Jobs, Retained Jobs, Qualifying Jobs and Non-qualifying Jobs above the Business' Employment Base and, if applicable, the Statewide Employment Base, and maintain the jobs through the Job Maintenance Period, all as detailed in Exhibit D. The Business shall pay the wage rates identified in Exhibit D. (b) Benefits. The Business shall provide and pay for the eligible benefits described in Exhibit A, Business's Financial Assistance Application, with an Average Benefit Value calculated by IDED and shown in Exhibit D. During the Contract period the Business may adjust the benefit package provided the Average Benefit Value is not decreased and provided the benefit package includes eligible benefits. For Contract # P1205RS5200751 -11- Master updated 9/30/05 purposes of this Contract, "Eligible benefits" means, medical and dental insurance plans, pension and profit-sharing plans, child care services, life insurance coverage, vision insurance plan, and disability coverage. 8.3 Performance Obligations. By the Project Completion Date, Business shall complete the Project, make the total investment pledged for the Project, and comply with all other performance requirements described in this Master Contract and the Funding Agreements. The Business shall promptly provide IDEO with written notice of any major changes that, in the reasonable determination of the Business, would have a material adverse impact on the success of the Project. 8.4 Maintenance ofProDerties. The Business shall maintain, preserve and keep its properties in good repair, working order and condition (ordinary wear and tear excepted) and will from time to time make all needful and proper repairs, renewals, replacements, additions and betterments thereto so that at all time the efficiency thereof shall be fully preserved and maintained in accordance with prudent business practices. 8.5 Taxes and Assessments. The Business shall duly pay and discharge all taxes, rates, assessments, fees and governmental charges upon or against it against its properties, in each case before the same become delinquent and before penalties accrue thereon, unless and to the extent that the same are being contested in good faith and by appropriate proceedings and adequate reserves are provided therefore. 8.6 Insurance. The Business shall insure and keep insured in good and responsible insurance companies, all insurable property owned by it which is of a character usually insured by Persons similarly situated and operating like properties against loss or damage from such hazards or risks as are insured by Persons similarly situated and operating like properties; and the Business shall insure such other hazards and risks (including employers' and public liability risks) in good and responsible insurance companies as and to the extent usually insured by Persons similarly situated and conducting similar businesses. The Business will upon request of the IDEO furnish a certificate setting forth in summary form the nature and extent of the insurance maintained pursuant to this Article. 8.7 Required ReDorts. (a) Review of Disbursement Requests and ReDorts. The Business shall prepare, sign and submit disbursement requests and reports as specified in this Master Contract in the form and content required by IDEO. The Business shall review all reimbursement requests and verify that claimed expenditures are allowable costs. The Business shall maintain documentation adequate to support the claimed costs. (b) ReDorts. The Business shall prepare, sign and submit the following reports to the IDEO throughout the Contract period: Report Due Date Mid-Year Status ReDort July 31st for the period ending June 30th End-of-Year Status Report Includes:................... January 31" for the period ending Dec. 31 " - Public Return on Investment (ROI) Update - Payroll Register with all created and/or retained jobs highlighted and indicate the Project Jobs paying the required wage - "Employer's Contribution and Payroll Report" - For Enterprise Zone awards, annual certification of compliance Contract # P1205RS5200751 -12 - Master updated 9/30/05 with the requirements ofIowa Code 15E.193, as required by 15E.195(6). End ofProiect Report ......................................... Report content: same items as End-of- Y ear Report Within 30 days of Project Completion Oate End of Job Maintenance Period Report .............. Report Content: same items as End-of- Y ear Report Within 30 days of the end ofthe Job Maintenance Period (c) Additional Reports, Financials as Requested bv IDEO. The IDEO reserves therightto require more frequent submission of any of the above reports if, in the opinion of the IDEO, more frequent submissions would help improve the Business's Project performance, or if necessary in order to meet requests from the Iowa General Assembly, the Department of Management or the Governor's office. At the request of IDEO, Business shall submit its annual financial statements completed by an independent CPA, or other financial statements including, but not limited to, income, expense, and retained earnings statements. 8.8 Inspection and Audit. Upon reasonable advance notice the Business will permit the IOEO and its duly authorized representatives to visit and inspect any of the Business's properties, corporate books and financial records of the Business related to the Project, to examine and make copies of the books of accounts and other financial records of the Business, and to discuss the affairs, finances and accounts of the Business with, and to be advised as to the same by, its officers, and independent public accountants (and by this provision the Business authorizes such accountants to discuss with the IOEO and the IDEO's duly authorized representatives the finances and affairs of the Business) at such reasonable time and reasonable intervals as the IDEO may designate, but at least annually. 8.9 Mergers. Consolidations and Sales. Without the written consent of the IDEO, which shall not be unreasonably withheld, the Business shall not sell, transfer, lease or otherwise dispose of all or any part of the Secured Property. 8.10 Formation and Maintenance of Subsidiaries. The Business will not transfer assets pledged as security for this Master Contract to any subsidiary or affiliate without the written consent ofthe IDEO, which shall not be unreasonably withheld. 8.11 Compliance with Laws. (a) The Business will comply in all material respects with the requirements of all federal, state and local laws, rules, regulations and orders applicable to or pertaining to its properties or business operations including, but not limited to, all applicable environmental, hazardous waste or substance, toxic substance and underground storage laws and regulations, and the Business will obtain any permits, licenses, buildings, improvements, fixtures, equipment or its property required by reason of any applicable environmental, hazardous waste or substance, toxic substance or underground storage laws or regulations. (b) The Business shall comply in all material respects with all applicable federal, state, and local laws, rules, ordinances, regulations and orders applicable to the prevention of discrimination in employment, including the administrative rules of the Iowa Oepartment of Management and the Iowa Civil Rights Commission which pertain to equal employment opportunity and affirmative action. (c) The Business shall comply in all material respects with all applicable federal, state and local Contract # P1205RS5200751 -13 - Master updated 9/30/05 laws, rules, ordinances, regulations and orders applicable to worker rights and worker safety. (d) The Business shall comply with IDED's administrative rules for each program funding source, as identified in the Funding Agreements. 8.12 Use of Award Proceeds. The Business will use the Award proceeds extended under this Master Contract and the Funding Agreements solely for the purposes set forth in Exhibit C. 8.13 Changes in Business Ownership. Structure and Control. The Business shall not materially change the ownership, structure, or control of the Business if it would adversely affect the Project. This includes, but is not limited to, entering into any merger or consolidation with any person, firm or corporation or permitting substantial distribution, liquidation or other disposal of Business assets directly associated with the Project. Business shall provide IDED with advance notice of any proposed change in ownership, structure or control if the change, in Business's reasonable judgment, would have a material adverse effect on the Project. The materiality of the change and whether or not the change affects the Project shall be as reasonably determined by IDED. 8.14 Notice of Meetings. The Business shall notifY IDED at least two (2) working days in advance of all meetings of the board of directors at which the subject matter of this Master Contract, the Funding Agreements, or the Project is proposed to be discussed. The Business shall provide IDED with copies, within ten (10) business days, of that portion of the agenda and minutes of such meetings related to the Master Contract, Funding Agreements, or the Project and expressly agrees that a representative of IDED has a right to attend those portions of any and all such meetings where the Project, this Master Contract or the Funding Agreements are discussed. 8.15 Notice of Proceedings. The Business shall promptly notifY IDED of the initiation of any claims, lawsuits, bankruptcy proceedings or other proceedings brought against the Business which, in the reasonable determination of the Business, would have a material adverse impact on the Project. 8.16 Accounting Records. The Business is required to maintain its books, records and all other evidence pertaining to this Master Contract and it Funding Agreements in accordance with generally accepted accounting principles and such other procedures specified by IDED. These records shall be available to IDED, its internal or external auditors, the Auditor of the State oflowa, the Attorney General of the State oflowa and the Iowa Division of Criminal Investigations at all times during the Master Contract's and the Funding Agreements' duration and any extensions thereof, and for three (3) full years from the Agreement Expiration Date. 8.17 Restrictions. The Business shall not, without prior written disclosure to IDED and prior written consent oflDED, which shall not be unreasonably withheld, directly or indirectly: (a) Assign, waive or transfer any of Business's rights, powers, duties or obligations under this Master Contract or the Funding Agreements. (b) Sell, transfer, convey, assign, encumber or otherwise dispose of any of the Secured Property or the Project. (c) Place or permit any restrictions, covenants or any similar limitations on the Secured Property or the Project. (d) Remove from the Project site or the State all or substantially all of the Secured Property. Contract # P1205RS5200751 -14 - Master updated 9/30105 (e) Create, incur or permit to exist any Lien of any kind on the Secured Property. 8.18 No Changes in Business Ooerations. The Business shall not materially change the Project or the nature ofthe Business and activities being conducted, or proposed to be conducted by Business, as described in the Business's approved application for funding, Exhibit A of this Master Contract, unless approved in writing by IDED prior to the change. 8.19 Indemnification. The Business shall indemnity, defend and hold harmless the IDED, the State oflowa, its departments, divisions, agencies, sections, commissions, officers, employees and agents from and against all losses, liabilities, penalties, fines, damages and claims (including taxes), and all related costs and expenses (including reasonable attorneys' fees and disbursements and costs of investigation, litigation, settlement,judgments, interest and penalties), arising from or in connection with any of the following: a) Any claim, demand, action, citation or legal proceeding arising out of or resulting from the Project; b) Any claim, demand, action, citation or legal proceeding arising out of or resulting from a breach by the Business of any representation or warranty made by the Business in this Master Contract or the Funding Agreements; c) Any claim, demand, action, citation or legal proceeding arising out of or related to occurrences that the Business is required to insure against as provided for in this Master Contract or the Funding Agreements; and d) Any claim, demand, action, citation or legal proceeding which results from an act or omission of the Business or any of their agents in its or their capacity as an employer of a person. ARTICLE 9 EVENTS OF DEFAULT AND REMEDIES 9.1 Events of Default. Anyone or more of the following shall constitute an "Event of Default" hereunder: (a) Nonpavment. In the event ofa missed payment under a Loan or in the event a Forgivable Loan is not forgiven and all or a portion of the Forgivable Loan must be repaid by the Business, a default in the payment when due (whether by lapse of time, acceleration or otherwise) of any principal on the Promissory Note(s), or default in payment for more than ten (10) Business Days of the due date thereof of any interest on the Promissory Note(s) or any fee or other obligation payable by the Business shall be an Event of Default; or (b) Noncompliance with Covenants. Default in the observance or performance of any covenant set forth in Article 8, for more than ten (10) Business Days; or (c) Noncompliance with Securitv Documents. Default in the observance or performance of any term of any Security Documents beyond any applicable grace period set forth therein; or (d) Noncompliance with Master Contract. Default in the observance or performance of any other provision of this Master Contract; or (e) Noncompliance with Fundinl! Allreements: Cross-Default. Default in the observance or performance of any other provision of any of the Funding Agreements, including Events of Default identified in any of the Funding Agreements; IDED may elect to declare the Business in default ofthis Master Contract and any or all of the Funding Agreements ifthere is a default under anyone of the Funding Agreements; or Contract # P1205RS5200751 -15 - Master updated 9/30/05 (1) Material Misrepresentation. Any representation or warranty made by the Business in this Master Contract or the Funding Agreements or in any statement or certificate furnished by it pursuant to this Master Contract or the Funding Agreements, or made in its Financial Assistance Application, or in connection with any of the above, proves untrue in any material respect as of the date of the issuance or making thereof; or (g) Lien Deficiencies. Any of the Security Documents shall for any reason fail to create a valid and perfected priority Lien in favor ofthe IDEO in any Secured Property pledged by Business; or (h) Judf!ment Over $500.000. Any judgment or judgments, writ or writs or warrant or warrants of attachment, or any similar process or processes in an aggregate amount in excess of $500,000 shall be entered or filed against the Business or against any of its property and remains unpaid, unvacated, unbonded or unstayed for a period of 30 days; or (i) Adverse Chanf!e in Financial Condition. Any change shall occur in the financial condition of the Business which would have a material adverse effect on the ability of the Business to perform under this Master Contract or the Funding Agreements; or OJ Bankruptcv or Similar Proceedinf!s Initiated. Either the Business shall (I) have entered involuntarily against it an order for relief under the United States Bankruptcy Code, as amended, (2) not pay, or admit in writing its inability to pay, its debts generally as they become due, (3) make an assignment for the benefit of creditors, (4) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any substantial part of its Property, (5) institute any proceeding seeking to have entered against it an order for relief under the United States Bankruptcy Code as amended, to adjudicate it insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, or (6) fail to contest in good faith any appointments or proceeding described in Article 9.l(k) below; or (k) Appointment of Officials. A custodian, receiver, trustee, examiner, liquidator or similar official shall be appointed for either the Business or any substantial part of any of its respective property, or a proceeding described in Article 9.1 G) shall be instituted against either the Business and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of sixty (60) days; or (I) Insecurity. IDEO shall in good faith deem itself insecure and reasonably believes, after consideration of all the facts and circumstances then existing, that the prospect of payment and satisfaction ofthe obligations under this Master Contract and/or the Funding Agreements, or the performance of or observance of the covenants in this Master Contract and/or the Funding Agreements, is or will be materially impaired. (m) Failure to Submit Required Reports. The Business fails to submit complete reports by the required due dates as outlined in Article 8.7. (n) Lavoffs. Relocation. or Closure. The Business experiences a substantial layoff, relocates a substantial portion of its business or its offices outside of Iowa, or closes its operations during the term of this Contract. 9.2 Default Remedies. When an Event of Default has occurred and is continuing, the IDEO may, by written notice to the Business: Contract # P1205RS5200751 -16- Master updated 9/30105 (a) terminate this Master Contract, the Funding Agreements and all of the obligations ofIDED under this Master Contract and the Funding Agreements on the date stated in such notice, and (b) declare the principal and any accrued interest on the outstanding Promissory Notes to be forthwith due and payable, including both principal and interest and all fees, charges and other amounts payable under this Master Contract and the Funding Agreements, shall be and become immediately due and payable without further demand, presentment, protest or notice of any kind. 9.3 Default Interest Rate. If an Event of Default occurs and remains uncured, a default rate of 6% shall apply to repayment of amounts due under this Master Contract and the Funding Agreements. The default interest rate shall accrue from the first date Award funds are disbursed. 9.4 Exoenses. The Business agrees to pay to the IDED all expenses reasonably incurred or paid by IDED including reasonable attorneys' fees and court costs, in connection with any Default or Event of Default by the Business or in connection with the enforcement of any of the terms of this Master Contract and the Funding Agreements. 9.5 Notice of Default and Oooortunity to Cure. IfIDED has reasonable cause to believe that and Event of Default has occurred under this Master Contract and/or the Funding Agreements, IDED shall issue a written Notice of Default to the Business, setting forth the nature of the alleged default in reasonable specificity, and providing therein a reasonable period time, which shall not be fewer than thirty (30) days from the date of the Notice of Default, in which the Business shall have an opportunity to cure, provided that cure is possible and feasible. ARTICLE 10 MISCELLANEOUS. 10.1 Timelv Performance. The parties agree that the dates and time periods specified in this Master Contract and the Funding Agreements, including the timelines established for the Project and more fully described in Exhibit C, are of the essence to the satisfactory performance of this Master Contract and the Funding Agreements. 10.2 State of Iowa Recognition. The Project shall permanently recognize, in a manner acceptable to IDED, the fmancial contribution to the Project made by the State of Iowa. For example, a sign or plaque acknowledging that the Project was funded in part by an Award from the State of Iowa, Iowa Department of Economic Development. 10.3 Choice of Law and Forum. (a) In the event any proceeding ofa quasi-judicial or judicial nature is commenced in connection with this Master Contract or the Funding Agreements, the proceeding shall be brought in Des Moines, Iowa, in Polk County District Court for the State of Iowa, if such court has jurisdiction. If however, such court lacks jurisdiction and jurisdiction lies only in a United States District Court, the matter shall be commenced in the United States District Court for the Southern District of Iowa, Central Division. (b) This provision shall not be construed as waiving any immunity to suit or liability, in state or federal court, which may be available to the IDED, the State ofIowa or its members, officers, employees or agents. 10.4 Governing Law. This Master Contract and the Funding Agreements and the rights and duties of the parties hereto shall be governed by, and construed in accordance with the internal laws of the Contract # P1205RS5200751 -17 - Master updated 9/30105 State of Iowa without regard to principles of conflicts of laws. 10.5 Master ContractlFunding Agreement Amendments. Neither this Master Contract nor any documents incorporated by reference in connection with this Master Contract, including the Funding Agreements, may be changed, waived, discharged or terminated orally, but only as provided below: (a) Writing required. The Master Contract and the Funding Agreements may only be amended if done so in writing and signed by the Business and IDED; and for those Funding Agreements in which the Community is a signatory, by the Community, the Business and IDED. Examples of situations requiring an amendment include, but are not limited to, time extensions, budget revisions, and significant alterations of existing activities or beneficiaries. No amendment will be valid until approved in writing by IDED. (b) IDED review. IDED will consider whether an amendment request is so substantial as to necessitate reevaluating the IDED's or IDED Board's original funding decision. An amendment may be denied by IDED if it substantially alters tbe circumstances under which the Project funding was originally approved. 10.6 Notices. Except as otherwise specified herein, all notices hereunder shall be in writing (including, witbout limitation by fax) and shall be given to the relevant party at its address, e-mail address, or fax number set forth below, or such other address, e-mail address, or fax number as such party may hereafter specif'y by notice to the other given by United States mail, by fax or by other telecommunication device capable of creating a written record of such notice and its receipt. Notices hereunder shall be addressed: To the Business: Sedgwick Claims Management Services, Inc. Rhynette Hurd, Corporate Counsel I 100 Ridgeway Loop Road Memphis, Tennessee 38120 E-mail: rhurd(a)sedgwickcms.com Telephone: 901.415.7761 Facsimile: 901.415.7409 To the IDED at: Iowa Department of Economic Development Business Services 200 East Grand Avenue Des Moines, Iowa 50309 Attention: Peggy Russell, Business Services Project Manager E-mail: Peggy.Russell@iowalifechanging.com Telephone: 515.242.4848 Facsimile: 515.242.4832 Each such notice, request or other communication shall be effective (i) if given by facsimile, when such facsimile is transmitted to tbe facsimile number specified in this Article and a confirmation of such facsimile has been received by the sender, (ii) if given bye-mail, when such e-mail is transmitted to the e- mail address specified in this Article and a confirmation of such e-mail has been received by the sender, Contract # P1205RS5200751 -18 - Master updated 9/30105 (iii) if given by mail, five (5) days after such communication is deposited in the mail, certified or registered with return receipt requested, addressed as aforesaid or (iv) if given by any other means, when delivered at the addresses specified in this Article. 10.7 Headings. Article headings used in this Master Contract and the Funding Agreements are for convenience of reference only and are not a part of this Master Contract or the Funding Agreements for any other purpose. 10.8 Final Authoritv. The IDEO shall have the authority to reasonably assess whether the Business has complied with the terms ofthis Master Contract and the Funding Agreements. Any IDEO determinations with respect to compliance with the provisions of this Master Contract and the Funding Agreements shall be deemed to be final determinations pursuant to Section 17 A of the Code of Iowa (2005). 10.9 Waivers. No waiver by IDEO of any default hereunder shall operate as a waiver of any other default or of the same default on any future occasion. No delay on the part of either party in exercising any right or remedy hereunder or under the Funding Agreements shall operate as a waiver thereof. No single or partial exercise of any right or remedy by either party shall preclude future exercise thereof or the exercise of any other right or remedy. 10.10 CounteJllarts. This Master Contract may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument. 10.11 Survival of Representations. All representations and warranties made herein or in any other Master Contract/Funding Agreement document or in certificates given pursuant hereto or thereto shall survive the execution and delivery of this Master Contract and the Funding Agreements and the other Master Contract/Funding Agreement documents and shall continue in full force and effect with respect to the date as of which they were made until all of Business's obligations or liabilities under this Master Contract and the Funding Agreements have been satisfied. 10.12 Severability of Provisions. Any provision ofthis Master Contract or the Funding Agreements, which is unenforceable in any jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of such unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. All rights, remedies and powers provided in this Master Contract and or the Funding Agreements or any other Master Contract document may be exercised only to the extent that the exercise thereof does not violate any applicable mandatory provisions oflaw, and all the provisions of this Master Contract and the Funding Agreements and any other Master Contract document are intended to be subject to all applicable mandatory provisions of law which may be controlling and to be limited to the extent necessary so that they will not render this Master Contract or the Funding Agreements or any other Master Contract document invalid or unenforceable. 10.13 Successors and Assigns. This Master Contract and the Funding Agreements shall be binding upon the Business and its respective successors and assigns, and shall inure to the benefit of the IDEO and the benefit of their respective successors and assigns. The Business may not assign its rights hereunder or under any of the Funding Agreements without the written consent of the IDEO, which consent will not be unreasonably withheld. 10.14 Termination. This Master Contract and any of the Funding Agreements can be terminated upon mutual, written agreement of the Business and IDEO and, for amendments to Funding Agreements to which the Community is a signatory, the Community. Contract # P1205RS5200751 -19- Master updated 9/30105 10.15 Integration. This Master Contract and the Funding Agreements contains the entire understanding between the Business and IDED relating to the Project and any representations that may have been made before or after the signing of this Master Contract and the Funding Agreements, which are not contained herein, are nonbinding, void and of no effect. None of the Parties have relied on any such prior representation in entering into this Master Contract and its Funding Agreement. IN WITNESS WHEREOF in consideration of the mutual covenants set forth above and for other good and valuable consideration, the receipt, adequacy and legal sufficiency of which are hereby acknowledged, the parties have entered into this Master Contract and have caused their duly authorized representatives to execute this Master Contract, effective as of the latest date stated below (the "Contract Effective Date"). FOR THE IOWA DEPARTMENT OF ECONOMIC DEVELOPMENT: BY: Mary Lawyer, Director Date Paul J. Posey, General Counsel Date Contract # P1205RS5200751 -20- Master updated 9/30/05 Exhibit A - Exhibit B - Exhibit C - Exhibit D - Contract # P1205RS5200751 LIST OF EXHIBITS Business's Financial Assistance Application (on file with IDED), Application # 06-CEBA-032 Funding Agreements B l-CEBA Funding Agreement Description of the Project and A ward Budget Job Obligations -21 - Master updated 9/30/05 EXHIBIT B-1 I CEBA FUNDING AGREEMENT I BUSINESS: COMMUNITY: SedQwick Claims ManaQement Services, Inc, City of Dubuque MASTER CONTRACT NUMBER: FUNDING AGREEMENT NUMBER: # P1205RS5200751 # 06-CEBA-032 AWARD TYPE: AMOUNT: Loan/ForQivable Loan $150,000 THIS CEBA FUNDING AGREEMENT is made by and among the IOWA DEPARTMENT OF ECONOMIC DEVELOPMENT, 200 East Grand Avenue, Des Moines, Iowa 50309 ("IDED"), the business identified above ("Business"), and the community identified above, ("Community"), effective as of the Contract Effective Date stated in the Master Contract identified above. WHEREAS, the Business has executed the Master Contract described above with the IDED pursuant to an Award on the Award Date stated in the Master Contract to the Business for the Project; and WHEREAS, the Master Contract specifies that for each program funding source the IDED and the Business shall enter into a Funding Agreement; and WHEREAS, the Iowa Code provisions applicable to the CEBA Program require the Community to submit an application on behalf of the Business in order to apply for and receive CEBA funds; and WHEREAS, this CEBA Funding Agreement contains additional terms and conditions for the award of CEBA funds and NOW, THEREFORE, the Business and Community accept the terms and conditions set forth in this Funding Agreement and the Master Contract for the funding of the Project. In consideration of the mutual promises contained in the Master Contract and this CEBA Funding Agreement and other good and valuable consideration, it is agreed as follows: 1.0 Master Contract. Unless otherwise specified in this CEBA Funding Agreement, the definitions, terms, conditions, and provisions contained in the Master Contract are applicable to this CEBA Funding Agreement. 2.0 Definitions. As used in this CEBA Funding Agreement, the following terms shall apply: 2.1 Aareement Expiration Date. Expiration of this CEBA Funding Agreement occurs upon the happening of one of the following events, whichever occurs first: (a) IDED's determination that the Business and Community have fully met the requirements of this CEBA Funding Agreement, including repayment of all amounts due hereunder, and IDED closes out this CEBA Funding Agreement. (b) An Event of Default occurs that is not remedied within the time period allowed under the Master Contract. (c) If no disbursement of CEBA funds has occurred within twenty-four (24) months of the Award Date (as defined in the Master Contract). (d) This CEBA Funding Agreement is terminated upon mutual, written agreement of the Business, the Community and IDED. 2.2 CEBA. "CEBA" means the Community Economic Betterment Program (established in Iowa Code sections 15.315-15.325). The source of funding for this CEBA Funding Agreement is an appropriation by the State legislature to IDED. 2.3 CEBA Award. "CEBA Award" means the financial assistance provided to the Business in the form of a Loan and/or Forgivable Loan, as more fully defined in Articles 3 and 4 of this CEBA Funding Agreement. 3.0 Terms of CEBA Award - Loan. CEBA funds have been awarded to the Community on behalf of the Business to assist the Business with the Project. The terms of the Loan are as follows: 3.1 $75,000 3.2 60 months 3.3 0% interest rate 3.4 Promissorv notes. The obligation of the Business and Community to repay the Loan shall be evidenced by Promissory Notes executed by the Business and the Community. 3.5 No other conditions to disbursement 4.0 Terms of CEBA Award - Forgivable Loan. CEBA funds have been awarded to the Community on behalf of the Business to assist the Business with the Project. The terms of the Forgivable Loan are as follows: 4.1 $75,000 4.2 36 months 4.3 Terms of Foraiveness. IDED will, in its sole discretion, determine if the Business has satisfied the terms of this CEBA Funding Agreement, including fulfillment of the Job Obligations by the Project Completion Date as shown in Master Contract Exhibit D. If IDED determines that the Business has satisfied said terms and has continued to satisfy said terms through the Job Maintenance Period, then barring any other default, repayment of principal and interest which would otherwise have accrued for the time period beginning with the Award Date and ending with the Project Completion Date shall be permanently waived. If IDED does not waive repayment, the Forgivable Loan shall be repaid as described in Article 11.2(b) of this CEBA Funding Agreement. 4.4 Promissorv notes. The obligation of the Business and Community to repay the Forgivable Loan shall be evidenced by a Promissory Notes executed by the Business and Community. 4.5 No other conditions to disbursement Master Contract # P1205RS5200751 Funding Agreement # 06-CEBA-032 - 2- Master FA updated 09/30/05 5.0 Maximum CEBA funds available for Project. It is expressly understood and agreed that the maximum amounts to be paid to the Business by IDEO for this CEBA Funding Agreement shall not exceed the amount stated on page one of this CEBA Funding Agreement. 6.0 Business' Job Obligations. The Business's Job Obligations are as described in Master Contract Exhibit D. 7.0 Conditions to Disbursement. In addition to the conditions to disbursement described in the Master Contract, the Business shall meet the following conditions before IDEO will release CEBA funds: 7.1 Consultation with Iowa Workforce Development. The Business shall have provided documentation to the IDEO that it has consulted with the area Iowa Workforce Development (IWD) office to discuss employment services available. In addition, the Business must provide to IWD agencies a list of positions to be created including job descriptions and qualifications. 8.0 Affirmative Covenants of Community. The Community covenants with IDEO that: 8.1 Proiect Work and Services. The Community shall perform work and services detailed in the Business's CEBA application by the Project Completion Date. 8.2 Filina. Unless otherwise agreed, IDEO shall file the Security Documents required under this CEBA Funding Agreement. The Community shall, if requested by IDEO, file in a proper and timely manner any and all Security Documents required in connection with the CEBA Award, naming the IDEO as co-security holder and promptly providing the IDEO with date-stamped copies of said Security Documents. The Community shall, at the IDEO's request, obtain and provide to the IDEO lien searches or attorney's title opinions. 8.3 Indemnification. The Community shall indemnify and hold harmless the IDEO, its officers and employees to the extent allowed under the Iowa Constitution and Iowa Code on the same basis as the Business is obligated to indemnify the IDEO under the Master Contract. 8.4 Reauests for CEBA Award Funds. The Community shall review the Business' requests for CEBA Award funds to ensure that the requests are in compliance with the IDEO's requisition procedures and shall execute and forward the requests to the IDEO for processing. 8.5 Unused CEBA Award Proceeds. The Community shall return all unused CEBA Award proceeds, including accrued interest, to the IDEO within thirty (30) days after the Project Completion Date. 8.6 Notice of Meetinas. The Community shall notify the IDEO at least two (2) days in advance of all public or closed meetings at which the subject matter of this CEBA Award and/or the Project is proposed to be discussed. The Community shall provide the IDEO with copies of the agenda and minutes of such meetings and expressly agrees that a representative of the IDEO has the right to attend any such meetings for the purposes of the discussion of the Project and/or the CEBA Award. 8.7 Notice to IDEO. In the event the Community becomes aware of any material alteration in the Project, initiation of any investigation or proceeding involving the Project or Master Contract # P1205RS5200751 Funding Agreement # 06-CEBA-032 -3 - Master FA updated 09/30105 CEBA Award, change in the Business' ownership, structure or operation, or any other similar occurrence, the Community shall promptly notify the IDEO. 8.8 Responsibility Upon Default. If the Business fails to perform under the terms of the Master Contract and/or this CEBA Funding Agreement and the IDEO declares the Business in default, the IDEO shall take the lead on recovery of CEBA Award proceeds, as well as penalties, interest, costs and foreclosure on collateral, provided the Community assigns its security interest and CEBA contract documents to IDEO for collection purposes. 9.0 Negative Covenants of Community. The Community shall not, without written consent of IDEO: (a) Acceptance of CEBA Award Repayments. Accept any CEBA Award repayments and/or settlements on Community funds considered local effort for this CEBA Funding Agreement. (b) Assiqnment. Assign its rights and responsibilities under this CEBA Funding Agreement. (c) Alter Financial Commitments. Alter, accelerate or otherwise change the terms of the Community's financial commitment to the Business for this CEBA Funding Agreement. (d) Administration. Discontinue administration or loan servicing activities under this CEBA Funding Agreement. 10.0 Community Liability. 10.1 Good Faith Enforcement. The Community's liability under this CEBA Funding Agreement is limited to those amounts which the Community recovers from the Business in unused CEBA Award proceeds, enforcement of judgments against the Business and through its good faith enforcement of the Security Documents executed by the Business. Nothing in this paragraph shall limit the recovery of principal and interest by IDEO in the event of Community's fraud, negligence, or gross mismanagement in the application for, or use of, sums provided under this CEBA Funding Agreement. 11.0 Default; Remedies upon Default. 11.1 The terms of the Master Contract regarding Events of Default and Remedies govern this CEBA Funding Agreement. The following are additional Events of Default for this CEBA Funding Agreement: No other specific default events 11.2 The following are Default Remedies available to IDEO in addition to those specified in the Master Contract: (a) Repayment of Loan - Failure to Meet Job Obliqations. If the Business meets less than 100% of its Job Obligations, the IDEO may require full repayment of the Loan, as permitted under the Master Contract. IDEO may also elect to allow repayment on a pro rata basis as described below: If the Business received a Loan at a rate below 6% (the annual interest rate for default set by the IDEO Board), the unpaid principal amount of the Loan may be prorated between the percentage of FTE Jobs created/retained and the percentage of the Master Contract # P1205RS5200751 Funding Agreement # 06-CEBA-032 -4- Master FA updated 09/30105 shortfall. The shortfall principal portion may be amortized over the remaining term of the Loan, beginning at the Project Completion Date, at a default rate of 6% (the annual interest rate set by the IDED Board). Interest will be charged beginning from the date Loan proceeds were disbursed to the Community for the Business; interest accrued from this date will be due immediately. The pro rata portion of the Loan associated with the percentage of FTE Jobs created will be amortized at the original Loan rate and term. (b) Repavment of Foraivable Loan - Failure to Meet Job Obliaations. If the Business has fulfilled 50% or more of its Job Obligations, a pro rata percentage will be forgiven for each new FTE job created/retained at the time the repayment amount is calculated (e.g. at the Project Completion Date or the date an Event of Default occurred) Any balance (shortfall) will be amortized over a two (2) year period (beginning at the at the time the repayment amount is calculated (e.g. at the Project Completion Date or the date an Event of Default occurred) at six (6%) percent interest per annum with equal monthly payments, and, interest will be charged at six (6%) percent per annum from the date of the first CEBA disbursement on the shortfall amount with that amount accrued as of the Project Completion Date being due and payable immediately. (c) Repavment Time Allowed. If the IDED has allowed repayment of the Forgivable Loan on a pro rata basis as described in paragraph "b" above, that amount is immediately due and payable. If the Business has a current Loan balance, the amount owed on the Forgivable Loan may be combined with the amount owed on the Loan to reflect a single monthly payment. This combined loan shall be repaid over the time period remaining (d) Example. CEBA Funding Agreement Exhibit B is an example of how these repayment calculations will be applied. 12.0 Incorporated documents. The following documents are hereby incorporated by this reference: 1. The Master Contract and its Exhibits. 2. CEBA Promissory Notes: CEBA Funding Agreement Exhibit A1 - Community, and CEBA Funding Agreement Exhibit A2 - Business. 3. CEBA Funding Agreement Exhibit B - Example: Business Job Shortfall Calculation. Master Contract # P1205RS5200751 Funding Agreement # 06-CEBA-032 - 5- Master FA updated 09/30/05 IN WITNESS WHEREOF, the parties have executed this CEBA Funding Agreement: BUSINESS: rr :jJ S,om"~ ~ ~ A BY: Paul J. Posey, General Counsel Date IOWA DEPARTMENT OF ECONOMIC DEVELOPMENT: BY: Mary Lawyer, Director Date COMMUNITY: BY: Signature Typed Name and Title Date Master Contract # P1205RS5200751 Funding Agreement # 06-CEBA-032 -6- Master FA updated 09/30105 EXAMPLE: Business Job Shortfall Calculation (CEBAl FundinQ AQreement Exhibit B CEBA City of Dubuque! Sedgwick Claims Management Services. Inc. FUNDING AGREEMENT #: 06-CEBA-032 $150,000 LIFL! March 16, 2006 ($75,000 0% Loan, $75,000 Forgivable Loan) A. FORGIVABLE LOAN - JOB SHORTFALL CALCULA nON 50 jobs pledged, 42 jobs attained; 84% of pledged jobs attained, 16 % shortfall $75,000 (forgivable loan amount) x 16% = $12,000 Forgivable Loan Job Shortfall Balance due = $12,000 B. FORGIVABLE LOAN - INTEREST PENALTY CALCULA nON CEBA funds disbursed on 11-1-00. Project Completion Date was 6-30-03. Interest penalty ~ job shortfall balance x 6% x number of years from disbursement offunds to Project Completion Date ($12,000 x 6% x 2.67 years) = $1,922.40 Forgivable Loan Net Interest Penalty due = $1,922.40 C. LOAN BALANCE - INTEREST PENALTY CALCULATIONS Loan balance as of7-21-05 = $15,797.58 84% of remaining loan balance stays at 0% interest = ($15,797.58 x .84) ~ $13,269.97 16% of remaining loan balance changes to 6% interest = ($15,797.58 x .16) = $2.527.61 Interest penalty = 16% of remaining loan balance x 6% x 2.67 years ($2.527.61 x 6% x 2.67 years) = $404.92 Loan Net Interest Penalty due = $404.92 D. REPAYMENT TERMS & SCHEDULE I. Total Net Interest Penalty due is $2.327.32 ($1,922.40 + $404.92). 2. Total Forgivable Loan amount due is $12,000. 3. Remaining Loan Balance as of7-21-05 will be $15,797.58 and will be re-amortized to convert 16% afthat balance to 60/0 interest over remaining term of loan. Master f>1 Exhihit B updated 1]-30-05 DESCRIPTION OF THE PROJECT AND AWARD BUDGET (EXHIBIT C) Name of Business: Sedgwick Claims Management Services, Inc. Contract Number: P1205RS5200751 PROJECT DESCRIPTION Sedgwick Claims Management Services will expand its employment to manage disability claims for prospective new clients, at the DUbuque location. The project involves furniture and fixture purchases, computer hardware/software purchases, jOb training, and working capital. The Business will create 73 full time equivalent positions as a result of this project. Project Completion Date: Job Maintenance Period: March 31, 2009 March 31, 2011 AWARD BUDGET SOURCE OF FUNDS USE OF FUNDS Amount IDEO Programs CEBA $150,000 Loan/Forgivable loan *Computer Hardware Computer Software Furniture and Fixtures Working Capital Job Training ~ $420,000 . $775,OOQ. $42~,OOQ: $240,OQo $350,000 . Community College local government Business $350,000 Grant $100,000: Loan $1,610,000 Cas.h/Equity SUB TOTAL $2,210,000 SUBTOTAL $2,210,000 'jncludedascaprtaljnIle8ImenIWawarded\aXcred~p(ogram Sl.lBTOTAl " $2,210,000 SUBTOTAL " $2,210,000 TOTAL ALL FUNDS Apr.Q6 EXHIBIT 0 - JOB OBLIGATIONS Jobs Created or Retained through this Project Sedgwick Claims Management Services, Inc. Contract # P1205RS5200751 Below is a list of the jobs that must be retained and/or created as a resuit of this Project. A "retained job" is an existing job that would be eliminated or moved to another state if the project did not proceed in Iowa. A "created job" means the number of new FTE Jobs the Business will add over and above the Business's Employment Base and. if applicable. Statewide Employment Base. "Qualifying jobs" are those created or retained jobs that qualify for program funding. "Non-qualifying jobs" are those jobs created or retained by the project that do not qualify for funding, but would not be created or retained if the Project did not proceed. . PROJECT JOBS CEBA ". $13.44 Starting or . . Type of Job: Avg. Benefit Job Title # of Jobs Created (C) or Current Hourty Qualifying Non-Qualifying Retained (R) Wage Vaiue Clerical 6 C $10.26 6 Claims Analyst 2 C $16.41 2 Disabilitv Soecialist 19 C $13.85 19 o erations Manager 1 C $47.18 1 DEP Schedulino 7 C $12.31 7 DEP Suoervisor 1 C $24.62 1 Intake CSR I 8 C $12.31 8 Intake CSR II 2 C $14.36 2 Intake Suoervisor 1 C $20.51 1 FMlA Assistant 1 C $10.26 1 FMLA Examiner 11 C $13.13 11 FMlA Suoervisor 1 C $24.62 1 JulrsllT Coordinator 1 C $16.82 1 l TO Active 5 C $19.90 5 l TD Maintenance 2 C $14.36 2 Supervisor 4 C $24.62 4 Performance Analvst 1 C $22.56 1 Total Jobs Created: 73 Total Jobs Retained: 0 Totals: 73 40 33 Business Employment Base: o Statewide Employment Base: 14 Job Performance Obliaations As a result of this project, Sedgwick Claims Management Services will create 73 full-time equivalent (FTE) jobs at the Dubuque location. 40 of the created project jobs will have starting wages that meet or exceed $13.44 per hour. The average wage, not including benefits, of the 40 qualifying project jobs will be at least $16.59 per hour. Mar-06 CEBA Funding Agreement Exhibit A1- Community's Promissory Note (Forqivable Loan) PROMISSORY NOTE FOR VALUE RECEIVED, the undersigned promises, in the event this Forgivable Loan is not forgiven, to pay to the order of the IOWA DEPARTMENT OF ECONOMIC DEVELOPMENT, at its office at 200 East Grand, Des Moines, Iowa 50309, the sum of SEVENTY FIVE THOUSAND DOLLARS ($75,000) with interest at a rate of 0% unless an Event of Default occurs, in which case interest shall be at the default rate set forth in Contract number P1205RS5200751 ("Contract"). The terms and conditions by which forgiveness of this Loan may occur are as specified in the Contract. Interest shall first be deducted from the payment and any balance shall be applied on principal. Upon default in payment of any interest, or any installment of principal, the whole amount then unpaid shall become immediately due and payable at the option of the holder. The undersigned, in case of suit on this note, agrees to pay on demand all costs of collection, maintenance of collateral, legal expenses, and attorneys' fees incurred or paid by the holder in collecting and/or enforcing this Note on default. This note shall be secured by the Security specified in the Contract. Makers, endorsers and sureties waive demand of payment, notice of non-payment, protest and notice. Sureties, endorsers and guarantors agree to all of the provisions of this note, and consent that the time or times of payment of all or any part hereof may be extended after maturity, from time to time, without notice. ADDRESS: 50 W 13th Street Dubuque, IA 52001-4864 City of Dubuque BY: Mayor Roy Buol ATTEST: (Signature) Date CEBA Funding Agreement Exhibit A1- Community's Promissory Note (Loan) PROMISSORY NOTE FOR VALUE RECEIVED, the undersigned promises to pay to the order of the IOWA DEPARTMENT OF ECONOMIC DEVELOPMENT, at its office at 200 East Grand, Des Moines, Iowa 50309, the sum of SEVENTY FIVE THOUSAND DOLLARS ($ 75,000) with interest thereon at ZERO PERCENT (0%) to be paid as follows: 60 monthly payments of $1,250.00 beginning on the first day ofthe fourth month from the date Award funds are disbursed. Final payment may vary depending upon dates payments are received. Interest shall first be deducted from the payment and any balance shall be applied on principal. Upon default in payment of any interest, or any installment of principal, the whole amount then unpaid shall become immediately due and payable at the option of the holder. The undersigned, in case of suit on this note, agrees to pay on demand all costs of collection, maintenance of collateral, legal expenses, and attorneys' fees incurred or paid by the holder in collecting and/or enforcing this Note on default. This note shall be secured by the Security specified in the Contract. Makers, endorsers and sureties waive demand of payment, notice of non-payment, protest and notice. Sureties, endorsers and guarantors agree to all of the provisions of this note, and consent that the time or times of payment of all or any part hereof may be extended after maturity, from time to time, without notice. ADDRESS: 50 W 13th Street Dubuque, IA 52001-4864 City of Dubuque BY: Mayor Roy Buol ATTEST: (Signature) Date