84-9055 IRB JCPenney1
1
ORDINANCE NO. 84-9055
AN ORDINANCE AUTHORIZING THE CITY OF SALINA, KANSAS, TO LEASE
CERTAIN REAL ESTATE LOCATED WITHIN THE CORPORATE LIMITS OF THE
CITY AND TO ACQUIRE, CONSTRUCT, INSTALL AND EQUIP ON SAID LEASED
REAL ESTATE CERTAIN BUILDINGS, FACILITIES AND IMPROVEMENTS TO BE
SUBLEASED TO SALINA CENTRAL MALL LIMITED PARTNERSHIP (PENNEY'S), A
LIMITED PARTNERSHIP; AUTHORIZING AND DIRECTING THE ISSUANCE OF AND
SECURING THE $4,495,000 PRINCIPAL AMOUNT OF SALINA, KANSAS, REVE-
NUE BONDS (SALINA CENTRAL MALL LIMITED PARTNERSHIP (PENNEY'S)
PROJECT), SERIES 1984 AND SECURING A CERTAIN LETTER OF CREDIT AND
SUBSTITUTE CREDIT FACILITIES SECURING PAYMENT OF PRINCIPAL AND
INTEREST ON SAID BONDS, SAID BONDS BEING ISSUED FOR THE PURPOSE OF
PROVIDING FUNDS FOR THE ACQUISITION, CONSTRUCTION, INSTALLATION
AND EQUIPPING OF SAID BUILDINGS, FACILITIES AND IMPROVEMENTS ON
SAID LEASED REAL ESTATE TO BE USED FOR RETAIL AND COMMERCIAL
FACILITIES TO BE SUBLEASED TO SALINA CENTRAL MALL, LIMITED PART-
NERSHIP (PENNEY'S), AND PAYING CERTAIN RELATED COSTS ALLOCABLE
THERETO; PRESCRIBING THE FORM AND AUTHORIZING THE EXECUTION OF A
CERTAIN LEASE AGREEMENT BETWEEN THE CITY AND SALINA CENTRAL MALL
LIMITED PARTNERSHIP (PENNEY'S), WITH RESPECT TO SUCH LEASED REAL
ESTATE, BUILDINGS, FACILITIES AND IMPROVEMENTS; AND OTHER
MATTERS.
ORDINANCE NO. 84-9055
OF THE CITY OF SALINA, KANSAS
INDEX
PAGE
RECITALS.
.
. . . . . . . . . . . . . . . . . . . . . . .
1
SECTION
I.
Authority to Acquire Leasehold Estate
in Certain Property and to Acquire,
Construct, Install and Equip and Lease
Certain Facilities
2
SECTION
II.
Authority to Issue and Secure Bonds and a
Certain Letter of Credit or Substitute
Credit Facilities Securing Payment of
Principal and Interest on said Bonds, and
Designating Trustee . . . . . . . . . . . .
2
SECTION
III.
GRANTING CLAUSES
3
ARTICLE I
DEFINITIONS.
. . . . . . . . . . . . . . . . . . . . . . .
9
ARTICLE II
THE BONDS
SECTION
2.01.
Authorized Amount of Bonds . . . . . . . .
18
SECTION
2.02.
Issuance of Bonds . . . . . . . . . . . . .
18
SECTION
2.03.
Fxecution; Limited Obligation . . . . . . .
22
SECTION
2.04.
Authentication . . . . . . . . . . . . . .
23
SECTION
2.05.
Form of Bonds . . . . . . . . . . . . . . .
24
SECTION
2.06.
Delivery of Bonds . . . . . . . . . . . . .
24
SECTION
2.07.
Mutilated, Lost, Stolen or
Destroyed Bonds . . . . . . . . . . . . . .
26
SECTION
2.08.
Transfer of Bonds; Persons
Treated as Owners . . . . . . . . . . . . .
26
SECTION
2.09.
Destruction of Bonds . . . . . . . . . . .
27
SECTION
2.10.
Temporary Bonds . . . . . . . . . . . . . .
28
SECTION
2.11.
Certain References Ineffective after
Letter of Credit Termination Date . . . .
28
(i)
1
PAGE
ARTICLE III
REDEMPTION OF BONDS BEFORE MATURITY
SECTION
3.01.
Extraordinary Redemption. . . . . . . . . .
29
SECTION
3.02.
Optional Redemption by Developer . . . . .
29
SECTION
3.03.
Notice of Redemption. . . . . . . . . . . .
30
SECTION
3.04.
Redemption Payments . . . . . . . . . . . .
30
SECTION
3.05.
Cancellation . . . . . . . . . . . . . . . .
30
SECTION
3.06.
Partial Redemption of Bonds . . . . . . . .
31
ARTICLE IV
CONVERSION OF INTEREST RATE;
DEMAND PURCHASE OPTION
SECTION
4.01.
Conversion of Interest Rate on
Optional Conversion Date . . . . . . . . .
32
SECTION
4.02.
Conversion of Interest Rate on
Automatic Conversion Date . . . . . . . . .
33
SECTION
4.03.
Exchange of Bonds after Conversion Date . .
34
SECTION
4.04.
Condition to Conversion and to the Delivery
of the Alternate Rate Option Notice . . . .
34
SECTION
4.05.
Additional Notices . . . . . . . . . . . .
34
SECTION
4.06.
Demand Purchase Option . . . . . . . . . .
34
SECTION
4.07.
Funds for Purchase of Bonds . . . . . . . .
35
SECTION
4.08.
Delivery of. Purchased Bonds . . . . . . . .
35
SECTION
4.09.
Delivery of Proceeds of Sale of
Purchased Bonds . . . . . . . . . . . . . .
36
SECTION
4.10.
Duties of Trustee and Tender Agent
with Respect to Purchase of Bonds . . . . .
36
1
I
L
1
PAGE
ARTICLE V
GENERAL COVENANTS; COVENANTS
RESPECTING THE FACILITIES
SECTION 5.01. Payment of Principal, Premium, if any,
REVENUES AND FUNDS
SECTION
6.01.
and Interest . . . . . . . . . . . . . .
. 38
SECTION
5.02.
Performance of Covenants; City . . . . .
. . 38
SECTION
5.03.
Instruments of Further Assurance. . . . .
. 38
SECTION
5.04.
Recording and Filing. . . . . . . . . . .
. 39
SECTION
5.05.
Inspection of Books . . . . . . . . . . .
. 39
SECTION
5.06.
List of Owners of Bonds . . . . . . . . .
. 39
SECTION
5.07.
Rights Under Agreement . . . . . . . . .
. 39
SECTION
5.08.
Covenants Regarding the Operation and
Maintenance of the Facilities . . . . .
. 39
SECTION
5.09.
Risk of Loss . . . . . . . . . . . . . .
. 41
SECTION
5.10.
Security Interests in the Facilities . .
. 41
SECTION
5.11.
Granting of Easements . . . . . . . . . .
. 41
SECTION
5.12.
City May Permit Developer to Improve
or Alter . . . . . . . . . . . . . . .
. 42
SECTION
5.13.
Damage, Destruction and Condemnation . .
. 42
SECTION
5.14.
Trustee Undertakings on Behalf of City
43
ARTICLE VI
REVENUES AND FUNDS
SECTION
6.01.
Creation of the Bond Fund . . . . . . . .
. 44
SECTION
6.02.
Payments into the Bond Fund . . . . . . .
. 44
SECTION
6.03.
Use of Moneys in the Bond Fund . . . . .
. 44
SECTION
6.04.
Custody of Separate Trust Fund . . . . .
. 45
SECTION
6.05.
Construction Fund . . . . . . . . . . .
. 45
SECTION
6.06.
Payments into the Construction Fund;
Disbursements . . . . . . . . . . . . .
. 45
SECTION
6.07.
Use of Money in the Construction Fund.
Upon Default . . . . . . . . . . . . .
. . 45
PAGE
SECTION
6.08.
Completion of the Project . . . . . . . . .
46
SECTION
6.09.
Nonpresentment of Bonds . . . . . . . . . .
46
SECTION
6.10.
Moneys to be Held in Trust . . . . . . . .
46
SECTION
6.11.
Repayment to the Bank and the Developer
from the Bond Fund or the Construction
Fund . . . . . . . . . . . . . . . . . .
. 47
SECTION
6.12.
Letter of Credit . . . . . . . . . . . . .
47
SECTION
6.13.
Bond Purchase Account . . . . . . . . . . .
47
ARTICLE VII
INVESTMENTOF
MONEYS . . . . . . . . . . . . . . . . . . .
48
ARTICLE VIII
DISCHARGE OF LIENS
SECTION
8.01.
Discharge of Liens . . . . . . . . . . . .
49
SECTION
8.02.
Defeasance of Bonds . . . . . . . . . . . .
50
ARTICLE IX
DEFAULT PROVISIONS AND REMEDIES OF TRUSTEE, BANK
AND OWNERS OF BONDS
SECTION
9.01.
Defaults . . . . . . . . . . . . . . . . .
52
SECTION
9.02.
Acceleration . . . . . . . . . . . . . . .
52
SECTION
9.03.
Other Remedies; Rights of
Owners of Bonds . . . . . . . . . . . . . .
53
SECTION
9.04.
Right of. Owners of Bonds to Direct
Proceedings . . . . . . . . . . . . . . . .
54
SECTION
9.05.
Appointment of Receivers . . . . . . . . .
54
SECTION9.06.
Waiver . . . . . . . . . . . . . . . . . .
54
SECTION
9.07.
Application of Moneys . . . . . . . . . . .
54
SECTION
9.08.
Remedies Vested in Trustee . . . . . . .
56
SECTION
9.09.
Rights and Remedies of Owners
of Bonds . . . . . . . . . . . . . . . . .
57
SECTION
9.10.
Termination of Proceedings . . . . . . . .
57
(iv)
TRUSTEE AND TENDER AGENT
SECTION
10.01.
Acceptance of Trusts . . . . . . . . .
PAGE
10.10.
SECTION
9.11.
Waivers of Defaults . . . . . . . . . . . .
58
Other Charges . . . . . . . . . . . . . .
SECTION
9.12.
Notice of Defaults under Section 9.01(8);
. . 63
. 65
SECTION
10.03.
Opportunity to Cure Such Defaults . . . . .
58
SECTION
9.13.
Rights and Remedies of Bank . . . . . . .
59
10.13
SECTION
9.14.
Quiet Enjoyment . . . . . . . . . . . . . .
59
SECTION
10.05.
ARTICLE X
. . 63
TRUSTEE AND TENDER AGENT
SECTION 10.09. Acceptance by Any Successor
SECTION
10.01.
Acceptance of Trusts . . . . . . . . .
. . 60
10.10.
SECTION
10.02.
Fees, Charges and Expenses of
Other Charges . . . . . . . . . . . . . .
. 65
SECTION
Trustee . . . . . . . . . . . . . . . .
. . 63
. 65
SECTION
10.03.
Notice to Owners of Bonds if
Agent . . . . . . . . . . . . . . . . .
Default Occurs . . . . . . . . . . . .
. . 63
10.13
SECTION
10.04.
Intervention by Trustee . . . . . . . .
. . 63
SECTION
10.05.
Successor Trustee . . . . . . . . . . .
. . 63
SECTION
10.06.
Resignation by Trustee . . . . . . . .
. . 63
SECTION
10.07
Removal of Trustee . . . . . . . . . .
. . 64
SECTION
10.08.
Appointment of Successor Trustee
by Owners of Bonds . . . . . . . . . .
. . 64
SECTION 10.09. Acceptance by Any Successor
ARTICLE XI
SUPPLEMENTAL ORDINANCES
SECTION 11.01. Supplemental Ordinances Not Requiring
Consent of Owners of Bonds . . . . . . . . 68
SECTION 11.02. Supplemental Ordinances Requiring
Consent of Owners of Bonds . . . . . . . . 68
(v)
Trustee . . . . . . . . . . . . . . . . .
. 64
SECTION
10.10.
Right of Trustee to Pay Taxes and
Other Charges . . . . . . . . . . . . . .
. 65
SECTION
10.11.
Appointment of Co -Trustee . . . . . . . .
. 65
SECTION
10.12.
Appointment of and Successor to Tender
Agent . . . . . . . . . . . . . . . . .
. 66
SECTION
10.13
Notice to Rating Agencies . . . . . . . .
. 67
ARTICLE XI
SUPPLEMENTAL ORDINANCES
SECTION 11.01. Supplemental Ordinances Not Requiring
Consent of Owners of Bonds . . . . . . . . 68
SECTION 11.02. Supplemental Ordinances Requiring
Consent of Owners of Bonds . . . . . . . . 68
(v)
(vi)
PAGE
ARTICLE XII
AMENDMENT OF AGREEMENT
SECTION
12.01.
Amendments to Agreement Not Requiring
Consent of Owners of Bonds . . . . . . .
. 71
SECTION
12.02.
Amendments to Agreement
Re quirinq Consent of Owners of Bonds . .
. 71
ARTICLE XIII
MISCELLANEOUS
SECTION
13.01.
Consents of Owners of Bonds . . . . . . .
. 72
SECTION
13.02.
Limitation of Rights . . . . . . . . . .
. 72
SECTION
13.03.
Severability . . . . . . . . . . . . . .
. 72
SECTION13.04.
Notices . . . . . . . . . . . . . . . . .
. 72
SECTION
13.05.
Payments Due on Saturdays, Sundays
and Holidays . . . . . . . . . . . . . .
. 73
SECTION
13.06.
Waiver of Tax Exemption . . . . . . . . .
. 73
SECTION
13.07.
Financial Information . . . . . . . . . .
. 74
SECTION
13.08.
Applicable Provisions of Law . . . . . .
. 74
SECTION
13.09.
Rules of Interpretation . . . . . . . . .
. 74
SECTION13.10.
Captions . . . . . . . . . . . . . . . .
. 74
SECTION
13.11.
No Personal Liahility . . . . . .
. 74
SECTION
13.14.
Effective Date . . . . . . . . . . . . .
. 74
TESTIMONIUM .
. . . . . . . . . . . . . . . . . . . . . .
. 75
SIGNATURESAND
SEAL . . . . . . . . . . . . . . . . . . .
. 75
EXHIBIT
A - Pre -Conversion Floating Rate Form of Bond . .
. 76
EXHIBIT
B - Fixed Rate Form of Bond . . . . . . . . . . .
. 90
EXHIBIT
C - Post -Conversion Floating Rate Form of Bond .
. 97
EXHIBIT
D - Legal Description . . . . . . . . . . . . . .
. 104
(vi)
1
CITY OF SALINA, KANSAS
ORDINANCE NO. 84-9055
AN ORDINANCE AUTHORIZING THE CITY OF SALINA, KANSAS, TO LEASE
CERTAIN REAL ESTATE LOCATED WITHIN THE CORPORATE LIMITS OF THE
CITY AND TO ACQUIRE, CONSTRUCT, INSTALL AND EQUIP ON SAID LEASED
REAL ESTATE CERTAIN BUILDINGS, FACILITIES AND IMPROVEMENTS TO BE
SUBLEASED TO SALINA CENTRAL. MALL LIMITED PARTNERSHIP (PENNEY'S), A
LIMITED PARTNERSHIP; AUTHORIZING AND DIRECTING THE ISSUANCE OF AND
SECURING THE $4,495,000 PRINCIPAL AMOUNT OF SALINA, KANSAS, REVE-
NUE BONDS (SALINA CENTRAL MALL LIMITED PARTNERSHIP (PENNEY'S)
PROJECT), SERIES 1984 AND SECURING A CERTAIN LETTER OF CREDIT AND
SUBSTITUTE CREDIT FACILITIES SECURING PAYMENT OF PRINCIPAL AND
INTEREST ON SAID BONDS, SAID BONDS BEING ISSUED FOR THE PURPOSE OF
PROVIDING FUNDS FOR THE ACQUISITION, CONSTRUCTION, INSTALLATION
AND EQUIPPING OF SAID BUILDINGS, FACILITIES AND IMPROVEMENTS ON
SAID LEASED REAL ESTATE TO BE USED FOR RETAIL AND COMMERCIAL
FACILITIES TO BE SUBLEASED TO SALINA CENTRAL MALL LIMITED PART-
NERSHIP (PENNEY'S), AND PAYING CERTAIN RELATED COSTS ALLOCABLE
THERETO; PRESCRIBING THE FORM AND AUTHORIZING THE EXECUTION OF A
CERTAIN LEASE AGREEMENT BETWEEN THE CITY AND SALINA CENTRAL MALL
LIMITED PARTNERSHIP (PENNEY'S), WITH RESPECT TO SUCH LEASED REAL
ESTATE, BUILDINGS, FACILITIES AND IMPROVEMENTS; AND OTHER
MATTERS.
WHEREAS, the City of Salina, Kansas, hereinafter sometimes
referred to as the "City," desires to promote, stimulate and
develop the general welfare and economic prosperity of the City of
Salina, Kansas, and its environs and thereby to further promote,
stimulate and develop the general welfare and economic prosperity
of the State of Kansas; and
WHEREAS, pursuant to the provisions of K.S.A. Sections
12-1740 to 12-1749a, as amended, said City is authorized to issue
revenue bonds of the City, and it is hereby found and determined
to be advisable and in the interest and for the welfare of the
City and its inhabitants that revenue bonds of the City be author-
ized and issued for the purpose of Providinq funds, to pay the
costs of and relating to the acquiring, constructing, installing
and equipping the Facilities, hereinafter described for lease of
the same to SALINA CENTRAL MALI, LIMITED PARTNERSHIP (PENNEY'S), an
Arkansas limited partnership of Ft. Smith, Arkansas (the "Develop-
er") for its sublease of the same as provided under certain
Subleases, as hereinafter mentioned, and the costs of certain
improvements allocable thereto; and
WHEREAS, the City will acquire prior to or concurrently with
the issuance of the Bonds herein authorized a certain leasehold
estate in the real property hereinafter described and will other-
wise acquire, construct, install and equip thereon the aforesaid
Facilities, and provide funds for the payment of costs of certain
improvements allocable thereto;
- 1 -
required in connection with and for purposes of fully effectuating
the intents and purposes of. this Ordinance, the Ground Lease and
the Agreement.
SECTION II. Authority to Issue and Secure Bonds and a cer-
tain Letter of Credit or Substitute Credit Facilities Securing
Payment of Principal and Interest on said Bonds, and Desiqnatinq
- 2 -
NOW, THEREFORE, BE IT ORDAINED BY THE GOVERNING BODY OF THE
CITY OF SALINA, KANSAS:
SECTION I. Authority to Acquire Leasehold Estate in Certain
Property and to Acquire, Construct, Install, Equip and Lease cer-
tain Facilities and to Pay Certain Allocable Costs. The City of
Salina, Kansas, is hereby authorized to acquire a leasehold estate
in the real property set forth and described in Exhibit "D", at-
tached hereto and made a part hereof_, and in connection therewith
is authorized to enter into a certain Ground Lease (the "Ground
Lease") to be dated as of December 28, 1984, and by and between
the City of Salina, Kansas, as tenant, and WARMACK - SALINA PART-
NERSHIP (the "Landowner"), an Arkansas general partnership, as
Landlord, in such form as shall have endorsed thereon the written
approval of the City Attorney of the City, and further and in con-
nection therewith the Playor and Clerk of the City of Salina,
Kansas, are hereby authorized and directed to execute and deliver
the Ground Lease, substantially in the form ached to the Ordinance
and incorporated herein by reference, for and on behalf of and as
the act and deed of the City upon the approval thereof by said
City Attorney and following the first publication of. this Ordi-
nance. The City of Salina, Kansas, is further authorized to cause
to be acquired, constructed, installed and equipped the property,
buildings, structures, improvements, machinery, equipment and
other property hereinafter described collectively as the Facili-
ties and to pay the costs of certain drainage improvements alloc-
able to said Facilities, at an aggregate cost to the City of not
to exceed 84,495,000 under, through, pursuant to and in accordance
with the provisions of a certain Lease Agreement (the "Agreement")
to be dated as of December 28, 1984, and by and between the City,
as party lessor, and SALINA CENTRAL MALL LIMITED PARTNERSHIP
(PENNEY'S) (the "Developer"), an Arkansas limited partnership of
Ft. Smith, Arkansas, for ]ease of said Facilites to the Developer
for its sublease of portions thereof as otherwise provided for and
permitted in the Agreement, and in connection therewith and for
purposes thereof the City of Salina, Kansas is further authorized
to enter into the Agreement in such form as shall have endorsed
thereon the written approval of the City Attorney of the City, and
in connection therewith the Mayor and Clerk of the City of Salina,
Kansas, are hereby authorized and directed to execute and deliver
the Agreement, substantially in the form attached to this Ordinace
and incorporated herein by reference, for and on behalf of and as
the act and deed of the City upon the approval thereof of said
City Attorney and following the first publication of this Ordi-
nance. Further and in addition the Mayor and Clerk of the City of
Salina, Kansas, are authorized and directed to execute and deliver
for and on behalf of and as the act and deed of the City such
other and further instruments, certifications, agreements, f.inanc-
inq statements and other documentation as shall be reasonably
required in connection with and for purposes of fully effectuating
the intents and purposes of. this Ordinance, the Ground Lease and
the Agreement.
SECTION II. Authority to Issue and Secure Bonds and a cer-
tain Letter of Credit or Substitute Credit Facilities Securing
Payment of Principal and Interest on said Bonds, and Desiqnatinq
- 2 -
Trustee. For purposes of providing funds to pay the costs of and
relating to the acquiring, constructing, installing and equipping
said Facilities and the costs of certain drainage improvements
allocable to said Facilities to be leased to the Developer there
shall be issued and hereby are authorized and directed to be is-
sued a series of Revenue Bonds (SALINA CENTRAL MALL LIMITED PART-
NERSHIP (PENNEV S) PROJECT), SERIES 1984, of the City of Salina,
Kansas, in the aggregate original principal amount of $4,495,000
(said bonds herein authorized, the "Bonds"). The principal of,
premium, if any, and all interest on the Bonds herein authorized,
together with all obligations of the City under and in connection
with the Ground Lease shall be paid solely from the money and
revenue received and derived from the fees charged and rentals and
other sums received for or in connection with the use of said
Facilites, and such other funds and sources of funds, together
with collateral given in connection therewith, as may be furnished
or provided in support of the payment of such fees and rentals,
and not from any other fund or source, and further that the pay-
ment of the principal of, premium, if any, and interest on the
Bonds, and all such other fees, charges, expenses and other
amounts as shall from time to time be or become payable in connec-
tion therewith and under this Ordinance and under or in connection
with a certain Letter of Credit and Reimbursement Agreement to be
dated as of December 28, 1984 and by and between the Developer and
Centerre Rank National Association (the "Rank"), a national bank-
ing association with principal offices in St. Louis, Missouri,
pursuant to which a certain irrevocable letter of credit (the
"Letter of Credit") is to be issued by the Bank for purposes of
securing payment of the principal of and interest on the Bonds,
the obligations of the Developer under which are secured by the
Ordinance as hereinafter provided, are the limited and special
obligations of the City of Salina, Kansas, payable from and solely
from the funds and sources hereinafter and in Section III hereof
provided.
The City of Salina, Kansas, hereby and for the f_oregoina pur-
poses and subject to the limitations next hereinabove set forth
and otherwise and in this Ordinance set forth, contained and pro-
vided, pledges the Trust Estate, as set forth and provided in Sec-
tion III hereof, FIRST to the Trustee hereinafter designated for
the benefit of the owners, from time to time of the Bonds and to
the payment of the principal of, premium, if any, and interest on
the Bonds, and SECOND, to the Rank and to the payment of all sums
from time to time due and owing under and on the Credit Agreement,
as the same is hereinafter defined. In addition thereto and for
purposes hereof the City of Salina, Kansas, hereby designates Bank
of Oklahoma, Tulsa, N.A., a national banking association of Tulsa,
Oklahoma, having corporate trust powers, and any successor trustee
thereto as hereinafter provided (collectively, the "Trustee"), as
the fiscal agent of the City of Salina, Kansas, and in such
capacity as the Trustee with respect to the Bonds and under this
Ordinance.
SECTION III. GRANTING CLAUSES. That the City of Salina,
Kansas (the "City"), in consideration of the premises and upon the
written acceptance by the Trustee of the trusts hereby created and
- 3 -
the Trustee's rights, duties, responsibilities and obligations
hereunder and of the purchase and acceptance of the Bonds by the
owners thereof, and in consideration of the provision of the Let-
ter of Credit, as hereinafter defined, and for other good and
valuable consideration, in order (A) to secure the payment of the
principal of, premium, if any, and interest on the Bonds according
to their tenor and effect and to secure the performance and ob-
servance by the City of all the covenants expressed herein and in
the Bonds, and (8) to secure the payment of any and all sums from
time to time due under the Credit Agreement, as hereinafter de-
fined, to secure the performance and observance by the Developer
of, all covenants expressed in said Credit Agreement does hereby
mortgage, pledge, transfer and set over, and grant a security in-
terest in, the following described properties, rights, interests
and benefits (whether real, personal or mixed, tangible or intan-
gible) which are collectively called the "Trust Fstate":
(a) All leasehold rights, titles and interests of City in
and to the real estate described in Exhibit "D" (said real
estate hereinafter the "Land") arising under and by virtue of.
the Ground Lease, as hereinafter defined, together with all
rights, titles and interest of the City in and to all build-
ings, structures, improvements, fixtures and appurtenances
now and hereafter owned, constructed, located, erected, in-
stalled and/or affixed by or for City or Developer, or others
on or for the account of either thereof, upon the Land (here-
in the "Improvements");
(b) The equipment, facilities, fixtures, appliances, gear,
tools and other personalty, hereafter acquired with the pro-
ceeds of the Bonds, including without limitation such as is
described in Exhibit "E", attached hereto and made a part
hereof (and as Exhibit "E" may from time to time hereafter be
amended and supplemented), all accessories and accessions
thereunto, all replacements and substitutions therefor, and
all proceeds therefrom (collectively, hereinafter the "Equip-
ment," and together with the Land and Improvements, collec-
tively, the "Facilities");
(c) All accounts, rights, agreements and privileges now and
hereafter in any manner belonging to, serving or benefitting
the Facilities, together with all contracts, rights and
interests respecting and arising in connection with the con-
struction and/or installation of additions thereto, and
inc]ur?inq without limitation the construction contract, as
hereinafter defined, and the Pledged Interests, as defined in
Section 5.4 of the Agreement;
(d) All rights, titles and interests of the City in, to and
under the Agreement, as hereinafter defined, including, but
not limited to, the present and continuing right to make
claim for, collect, receive and receipt for any of the sums,
amounts, income, revenues, issues and profits and any other
sums of money held, payable or receivable under said Agree-
ment (except for amounts payable to the City under Sections
4.1(d) , 5.3(b) , 6.1(b) , 6.1(d) , 6.1(j) , 6.3, 6.6 and 8.2
- 4 -
thereof), and subject to the limitations set forth and con-
tained in Section 5.4 of said Agreement; to brinq actions
and proceedings thereunder or for the enforcement thereof_,
and to do any and all things which the City is or may become
entitled to do under this Ordinance and said Aqreement;
(e) All rights, titles and interests of the City in, to and
under and with respect to the Subleases and the Cash Defici-
ency Agreement, as said instruments are hereinafter defined,
including, but not limited to, the present and continuing
right to make claim for, collect, receive and receipt for any
of the sums, amounts, income, revenues, issues and profits
and any other sums of money held, payable or receivable under
said Subleases and said Cash Deficiency Agreement to bring
actions and proceedings thereunder or for the enforcement
thereof, and to do any and all other_ things which the City is
or may become entitled to do under this Ordinance, said
Aqreement, said Subleases and said Cash Deficiency Aqeement;
( f ) All interests, if any, of the City in such moneys and
securities as are from time to time held as provided by this
Ordinance or are on deposit in the Funds and Accounts and any
special trust accounts, as the same are defined and estab-
lished under this Ordinance and as provided under and/or pur-
suant to said Agreement, said Credit Aqreement, said Sub-
leases and said Cash Deficiency Aqreement, including all pro-
ceeds, securities and other permitted investments thereof;
(g) Any payment made by the Bank pursuant to said Letter of.
Credit;
(h) Any and all other property rights and interests of
every kind and nature from time to time hereafter by delivery
or by writing of any kind granted, bargained, sold, alienat-
ed, demised, released, conveyed, assigned, transferred, mort-
gaged, pledged, hypothecated or otherwise subjected hereto,
as and for additional security herewith, by the City or any
other person on its behalf or with its written consent, and
in connection with which the Trustee and the Rank (subject to
Section 9.13 hereof) are hereby authorized to receive any and
all such property at any and all times and to hold and apply
the same subject to the terms hereof; and
(i) All proceeds of the property and interests described. in
Subsections (a) through (h) hereof_, and including proceeds of
property included in the Facilities and proceeds of insurance
and condemnation, if any, inuring or accruinq to the City
from or in connection with the Facilities, and any portions
thereof;
TO HAVE AND TO HOLD all and singular the Trust Estate, whether now
owned or hereafter acquired, in trust forever:
FIRST UNTO THE TRUSTEE, AND ITS RESPECTIVE SUCCESSORS AND ASSIGNS
FOREVER, FOR THE EQUAL BENEFIT OF THE OWNERS OF THE BONDS, TO
SECURE THE PERFORMANCE OF THE COVENANTS AND AGREEMENTS HEREIN, AND
AS SECURITY FOR THE PAYMENT OF:
- 5 -
( i ) The $4,495,000 Revenue Bonds (SALINA CENTRAL MALL, LIMIT-
ED PARTNERSHIP (PENNEY' S ) PROJECT) , Series 1984, of the
City of Salina, Kansas, issued pursuant to this Ordi-
nance, together with interest thereon as provided in the
Bonds, and all other sums which may be or may become
payable under this Ordinance;
(ii) Any and all such other sums which Developer on behalf of
the City shall be obligated to pay upon, under or by
reason of said Agreement, and/or this Ordinance, as pro-
vided therein and herein, including without limitation
the Payments, as defined in said Agreement;
( iii) The fees and charges of.. the Trustee hereunder together
with any and all sums which Trustee, may in qood faith
incur, expend or become obligated to pay or expend, ex-
clusive of mortgage taxes, and including without limita-
tion, court costs, attorneys' fees, appraisers' fees,
abstracting expense and/or receivers' fees: (I) to pre-
serve or protect any of the Trust Estate, (II) to cure
any default under this Ordinance, said Agreement, said
Subleases or said Cash Deficiency Agreement, (III) in
pursuing, exercising and/or enforcing any right, rights,
remedy or remedies hereunder and/or consequent upon any
default of Developer or City; or (IV) upon any exercise
or enforcement of any right, rights, remedy or remedies
by, as the case may be, by the Trustee or the City under
this Ordinance, as hereinafter defined, said Agreement,
said Subleases or said Cash Deficiency Agreement; and
(iv) Interest per
annum at
the Late Payment Rate upon
all
money expended
by or on
behalf of Trustee under the
next
preceding clause (iii)
from the date of each such
ex-
penditure, all
of which
expenditures and interest shall
be payable to
Trustee,
as the case may be, at once
and
without demand (all the f_oregoinq under clauses
(i)
through (iv)
of this
subparagraph, collectively,
the
"Bonds Secured
Indebtedness"); and
SECOND UNTO BANK TO SECURE THE PERFORMANCE OF THE COVENANTS AND
AGREEMENTS HEREIN AND IN THF CREDIT AGREEMENT, AS HEREINAFTER
DEFINED, AND AS SECURITY FOR THE PAYMENT OF:
(i) Any and all sums from time to time due or to become due
and owing under Sections 1 and 2 of said Credit Agree-
ment;
(ii) Any and all sums which Bank may in good faith incur,
expend or become obligated to pay or expend and includ-
ing without limitation, court costs, attorneys' fees,
appraisers' fees, abstracting expense and/or receivers'
fees: (I) to preserve or protect any of. the Trust Estate
and/or to collect the Credit Secured Indebtedness (as
hereinafter defined), (II) to cure any default hereun-
der or under said Agreement, said Subleases or said Cash
Deficiency Agreement, (III) in pursuing, exercising
and/or enforcing any right, rights, remedy or remedies
- 6 -
hereunder and/or consequent upon any default of Develo-
per or the City, or ( IV) upon any exercise or enforce-
ment of any right, rights, remedy or remedies by Bank
under said Credit Agreement, the Pledge Agreement, as
hereinafter defined, said Agreement, said Subleases or
said Cash Deficiency Agreement, and/or this Ordinance;
and
Interest per annum at the variable rate provided in said
Credit Agreement upon all money expended by or on behalf
of the Bank under the next preceding clause (ii) from
the date of each such expenditure, all of which expendi-
tures and interest shall he payable by Developer to Bank
at once and without demand (all of the foregoing under
clauses (i) through (iii) of this subparagraph, collec-
tively the "Credit Secured Indebtedness"), and, together
with the Bonds Secured Indebtedness, the "Secured
Indebtedness");
THIS ORDINANCE shall also constitute a Security Agreement and the
City hereby grants and creates in all the Trust Estate and to
secure the Secured Indebtedness FIRST a security interest in favor
of. Trustee, for the equal benefit of the owners of the Bonds, and
SECOND a security interest in favor of Bank;
The City, will cause the Developer to pay all costs of filing
any financing, continuation or termination statements with respect
to the security interests created by this Ordinance, including any
attorney's fees incurred in so doing. Trustee, with respect to
its interests hereunder, and Bank, with respect to its interests,
are hereby and respectively appointed, as necessary, the City's
attorneys - in - fact, upon any default hereunder, to do, at such
party's option and at Developer's expense, all acts and things
which such party may deem necessary to perfect and continue per-
fected the security interests created by this Ordinance and to
protect the Trust Estate , in connection with which such party may
execute, sign, endorse, transfer or deliver, in the name of the
City, notes, checks, drafts or other instruments for the payment
of money and receipts, certificates of origin, certificates of
title, applications for certificates of title, or any other
- 7 -
Upon any default of the City hereunder, Trustee and Bank, as
the case may be, subject to the provisions of this Ordinance,
shall be entitled to jointly or severally exercise with respect to
all such collateral all of the rights and remedies afforded to a
Secured Party in default under the terms of Article 9 of the Kan-
sas Uniform Commercial Code, any or all of which may be pursued
and exercised concurrently, consecutively, alternately or other-
wise. The City will execute one or more supplemental security
agreements and financing statements, as Trustee or Bank may from
time to time require, covering the Trust Fstate, or any portions
thereof, and otherwise the collateral_ securing the obligations
under this Ordinance and said Credit Agreement and such financing
statements and other and further assurances as either Trustee or
Bank may request to perfect or evidence the security interest
herein created (which shall cover all proceeds of collateral) and
to particularize and identify the collateral;
The City, will cause the Developer to pay all costs of filing
any financing, continuation or termination statements with respect
to the security interests created by this Ordinance, including any
attorney's fees incurred in so doing. Trustee, with respect to
its interests hereunder, and Bank, with respect to its interests,
are hereby and respectively appointed, as necessary, the City's
attorneys - in - fact, upon any default hereunder, to do, at such
party's option and at Developer's expense, all acts and things
which such party may deem necessary to perfect and continue per-
fected the security interests created by this Ordinance and to
protect the Trust Estate , in connection with which such party may
execute, sign, endorse, transfer or deliver, in the name of the
City, notes, checks, drafts or other instruments for the payment
of money and receipts, certificates of origin, certificates of
title, applications for certificates of title, or any other
- 7 -
documents necessary to evidence, perfect or realize upon the
security interests and Trust Estate created or secured by this
Ordinance, and this authority shall be considered a power coupled
with an interest and shall be irrevocable until all the respective
portions of the Secured Indebtedness shall have been paid in
full;
IN TRUST NEVERTHELESS, upon the terms and trusts herein set
orth FIRST, for the equal and proportionate benefit, security and
protection of all present and future owners of the Bonds, from
time to time, issued under and secured by this Ordinance without
privilege, priority or distinction as to the lien or otherwise of
any of the Ronds over any of the other Bonds except in the case of
funds held hereunder for the benefit of particular owners of
Bonds, and SECOND, for the benefit of the Bank for the benefit of
the holders of the Credit Secured Indebtedness; and
PROVIDED, HOWEVER, that FIRST, if the City, its successors or
assigns, shall well and truly pay, or cause to be paid, the prin-
cipal of, premium, if any, and interest on the Bonds due or to
become due thereon, at the times and in the manner set forth in
the Bonds according to the true intent and meaning thereof, and
shall cause the payments to be made on the Bonds as required here-
under, or shall provide, as permitted hereby, for the payment
thereof by depositing with the Trustee the entire amount due or to
become due thereon, and shall well and truly cause to be kept,
performed and observed all of its covenants and conditions pursu-
ant to the terms of this Ordinance, and shall pay or cause to be
paid to the Trustee all sums of money due or to become due to it
in accordance with the terms and provisions hereof, and, SECOND,
if the Developer, its successors or assigns, shall well and truly
pay, or cause to be paid, the principal of and interest on the
Credit Secured Indebtedness due or to become due thereon, at the
times and in the manner set forth herein or in said Credit Agree-
ment according to the true intent and meaning thereof, and shall
cause the payments to be made thereon as required thereunder, and
shall well and truly cause to he kept, performed and observed all
of its covenants and conditions pursuant to the terms of this
Ordinance and said Credit Agreement and shall pay or cause to be
paid to the Bank or the holders of the Credit Secured Indebtedness
all sums of money due or to become due to it in accordance with
the terms and provisions hereof and said Credit Agreement, then
upon the final payment thereof. this Ordinance and the rights here-
by granted shall cease, determine and be void, except to the ex-
tent specifically provided in Article VIII hereof; otherwise this
Ordinance shall remain in full force and effect.
THIS ORDINANCE FURTHER WITNESSETH, and it is expressly
declared, that all Bonds issued and secured hereunder are to be
issued, authenticated and delivered and all said property rights
and interests, including, without limitation, the amounts payable
under said Agreement and any other amounts hereby assigned and
pledged are to be dealt with and disposed of under, upon and sub-
ject to the terms, conditions, stipulations, covenants, agree-
ments, trusts, uses and purposes as herein expressed.
1
ARTICLE I
DEFINITIONS
For purposes of this Ordinance the following words and phrases
shall have the following meanings:
"Act" means The Kansas Economic Revenue Bond Act, K.S.A.
Sections 12-1740, et seq., as amended, of the State.
"Act of Bankruptcy" means the filing of a petition in bank-
ruptcy (or the other commencement of a bankruptcy or similar pro-
ceedinq) by or against Developer or City under any applicable
bankruptcy, insolvency, reorganization or similar law, now or
hereafter in effect.
"Agreement" means the Lease Agreement dated as of November
27, 1984 between the City and the Developer, and any amendments
and supplements thereto.
"Alternate Floating Rate" shall mean the interest rate in ef-
fect on the Bonds from the effective date of the Alternate Rate
Option Notice until (but not including) the Conversion Date, as
said rate is determined in accordance with Section 2.02(D) here-
of.
"Alternate Rate Option Notice" shall mean the notice deliv-
ered by the Developer pursuant to, and in accordance with the pro-
visions of, Section 5.6 of the Agreement.
"Automatic Conversion Date" means the interest payment date
immediately preceding the Letter of Credit Termination Date.
"Authorized Investments" shall mean (i) Governmental Obliga-
tions; (ii) repurchase agreements with banks described in (iv)
hereof, or with government bond dealers recognized as primary
dealers by the Federal Reserve Bank of New York, in each case
which are secured by securities described in clause (i) above;
(iii) bank savings accounts and negotiable and non-negotiable
certificates of deposit, including those issued by the Trustee and
the Bank which are either insured by the Federal Deposit Insurance
Corporation or are fully secured by Governmental Obligations; (iv)
unsecured promissory notes of any banking institution, trust
Developer or bank holding Developer equal in dignity to such
entity's outstanding unsecured long term debt which is rated in
the highest rating category available by Standard & Poor's Corpor-
ation or Moody' s Investors Service, Inc.
"Available Moneys" means (a) with respect to any payment date
occurring during the term of the Letter of Credit, (i) moneys
drawn under the Letter of Credit, or (ii) moneys deposited into
the Bond Fund pursuant to Section 6.02(a) or 6.02(b) hereof or
moneys deposited directly by Developer with Trustee, in any such
case, which moneys have been on deposit with Trustee for at least
- 9 -
123 days durinq and prior to which no Act of Bankruptcy shall have
occurred, or (iii) the proceeds of the sale of refunding obliga-
tions, if, in the opinion of nationally recognized counsel experi-
enced in bankruptcy matters, the application of such moneys will
not constitute a voidable preference in the event of the occur-
rence of. an Act of Bankruptcy or (iv) the proceeds from investment
of moneys qualifying as Available Moneys under clause ( i) , ( ii) ,
or (iii) above, and (b) with respect to any payment date not
occurring during the term of the Letter of Credit, any moneys held
by Trustee and the proceeds from the investment thereof. Moneys
in the Construction Fund are not included within this definition
of "Available Moneys." Notwithstanding the foregoing, when used
with respect to payment of any amounts due in respect of any
Pledged Ponds, the term "Available Moneys" shall mean any moneys
held by Trustee and the proceeds from the investment thereof, ex-
cept for moneys drawn under the Letter of Credit.
"Bank" means ( i ) Centerre Bank National Association, a na-
tional banking association organized and existing under the laws
of the United States of America, with principal offices in St.
Louis, Missouri, in its capacity as issuer of the Letter of
Credit, and (ii) any Substitute Bank.
"Bond Counsel" means the attorney or firm of attorneys which
has rendered an opinion that the Bonds bear tax-exempt interest or
any other nationally recognized bond councel acceptable to the
Trustee, and to the Bank to the extent the Credit Agreement is
outstanding.
"Bond Fund" means the fund created in Section 6.01 hereof.
"Bond Registrar of City" means the Trustee as described in
Section 2.08 hereof. "Co -Bond Peqistrar of City" means the Tender
Agent as described in Section 2.08 hereof.
"Ponds" means the Ponds issued by the City pursuant to this
Ordinance.
"Business Day" means a day other than Saturday or Sunday on
which Bank, Trustee and Tender Agent are generally open for the
purpose of conducting commercial banking business.
"Cash Deficiency Agreement" means the Cash Deficiency Agree-
ment of even date herewith between the Landowner and the Develo-
per, whereby the Landowner guarantees the rental payments under
Section 5.3 of the Agreement, together with all instruments and
documents evidencinq and securing Landowner's payment obligations
under such Cash Deficiency Agreement.
"City" means the City of. Salina, Kansas, an incorporated
municipality organized under the Constitution and the laws of the
State.
"City Attorney" means the person appointed by the City Manag-
er to act as legal counsel for the City or any person or firm
employed by the City to act as its legal counsel for the purpose
of issuance of the Bonds under this Ordinance.
- 10 -
"City Representative" means the person or persons at the time
designated to act on behalf of the City by written certificate
furnished to Developer and Trustee containing the specimen signa-
tures of such person or persons and signed on behalf of the City
by its Mayor. Such certificate may designate an alternate or
alternates.
"Clerk" means the City Clerk of the City of Salina, Kansas,
from time to time serving.
"Code" means the Internal Revenue Code of 1954, as amended
from time to time.
"Completion Date" means the date of completion of the acqui-
sition, construction, improving and equipping of the Project, as
that date shall be certified in Section 4.4 of the Agreement.
"Construction Contract" means any and all such contracts and
purchase orders as Developer shall enter into with respect to and
for purposes of securing or effecting the acquisition, construc-
tion, installation and equippinq of the Facilities, a schedule of
which shall be furnished to City and Trustee as a part of the
Project Report.
"Construction Fund" Means a trust fund, created and estab-
lished with the Trustee, under the terms of Section 6.05 hereof.
"Conventional Financing Arranqements" means the financing
arranqements by and between Landowner and the Rank respecting the
costs of constructing the shopping center facilities with which
the Facilities are integrated.
"Conversion Date" means the earlier to occur of either the
Optional Conversion Date or the Automatic Conversion Date.
"Conversion Option" means the option granted to Developer in
Section 4.01 hereof pursuant to which the interest rate on the
Bonds is converted from the Floating Rate or the Alternate Float-
inq Rate, as the case may be, to the Fixed Rate or the Post -Con-
version Fl.oatinq Pate, as the case may be, as of the Conversion
Date.
"Costs of Project" means those expenditures authorized by
Article VI hereof_.
"Co -Trustee" means any individual or institution appointed
under the terms of Section 10.11 hereof.
"Credit Agreement" means ( i) the Letter of Credit and Reim-
bursement Agreement dated as of December 28, 1984 between Develop-
er and Bank, and any amendments and supplements thereto, and (ii)
any letter of credit agreement or reimbursement aqreement between
Developer, Bank and any Substitute Bank, and any amendments and
supplements thereto.
"Credit Secured Indebtedness" shall have the meaning ascribed
to it in the Section III Granting Clauses of this Ordinance.
"Default" means any Default under this Ordinance as specified
in and defined by Section 9.01 hereof.
"Demand Purchase Option" means the option granted to Owners
of Bonds to require that Ponds be purchased prior to the Conver-
sion Date pursuant to Section 4.06 hereof.
"Developer" means SALINA CENTRAL MALL LIMITED PARTNERSHIP
(PENNEY'S), an Arkansas limited partnership of Fort Smith,
Arkansas, its successors and assigns.
"Developer Representative" means the person or persons at the
time designated to act on behalf of Developer by written certifi-
cate furnished to City and Trustee containing the specimen signa-
tures of such person or persons and signed on behalf of Developer
by its general partner. Such certificate may designate an alter-
nate or alternates.
"Facilities" means the lands set forth and described in
Exhibit D, attached hereto and made a part hereof, and the Im-
provements and Fquipment now and hereafter located thereupon, as
defined in clause (b) of the Section III Granting Clauses hereof.
"First Optional Redemption Date" means the December 1 of the
year that results when the number of years between the December 1
immediately following the Conversion Date (unless the Conversion
Pate is December 1, in which case from such December 1) and Decem-
ber 1, 2014 is multiplied by 1/2 and rounded up to the nearest
whole number but in no event is less than seven ( 7 ) years after
the Conversion Date.
"Fixed Rate" means the interest rate as may be in effect on
the Bonds from and after the Conversion Date as said rate is de-
termined in accordance with Section 2..02(E) hereof.
"Floating Rate" means the interest rate in effect on the
Bonds from March 1, 1985, until (but not including) the earlier_ of
(i) the effective date of. an Alternate Rate Option Notice or ( ii)
the Conversion Date, as said rate is determined in accordance with
Section 2.02(C) hereof.
- 12 -
"Event of Taxability" shall mean any
event or series of
events through which or by reason of which
the interest
on the
Bonds shall be or become subject to inclusion
in the gross
income
of any Owners for purposes of federal income
by reason of such Owner being a "substantial
taxation (other than
user" of the Facili-
ties or a "related person" within the meaning of Section
103(b)
(13 ) of the Code) .
"Facilities" means the lands set forth and described in
Exhibit D, attached hereto and made a part hereof, and the Im-
provements and Fquipment now and hereafter located thereupon, as
defined in clause (b) of the Section III Granting Clauses hereof.
"First Optional Redemption Date" means the December 1 of the
year that results when the number of years between the December 1
immediately following the Conversion Date (unless the Conversion
Pate is December 1, in which case from such December 1) and Decem-
ber 1, 2014 is multiplied by 1/2 and rounded up to the nearest
whole number but in no event is less than seven ( 7 ) years after
the Conversion Date.
"Fixed Rate" means the interest rate as may be in effect on
the Bonds from and after the Conversion Date as said rate is de-
termined in accordance with Section 2..02(E) hereof.
"Floating Rate" means the interest rate in effect on the
Bonds from March 1, 1985, until (but not including) the earlier_ of
(i) the effective date of. an Alternate Rate Option Notice or ( ii)
the Conversion Date, as said rate is determined in accordance with
Section 2.02(C) hereof.
- 12 -
"Funds and Accounts" shall refer to all funds and accounts
from time to time created or existing under or pursuant to this
Ordinance, including without limitation, the Bond Fund and the
Constrizction Fund.
"Governmental Obligations" means any of the following which
are noncallable:
(a) direct general obligations of, or obligations the pay-
ment of the principal of and interest on which are uncondi-
tionally guaranteed by, the United States of America; and
(b) bonds, debentures or notes issued by Federal National
Mortgage Association, Government National Mortgage Associa-
tion, Federal Financing Bank, Federal Farm Credit Banks,
Federal Land Banks, Federal Home Loan Banks, Farmers Home
Administration, Federal Home Loan Mortgage Association or any
other comparable federal agency hereafter created to the
extent that said obligations are unconditionally guaranteed
by the United States of America.
"Ground Lease" means that certain Ground Lease dated as of..
December 28, 1984, between the Landowner and the City demising the
Land described on Exhibit D hereto.
"Independent Counsel" means an attorney duly admitted to
practice law before the highest court of anv state and who is not
a full-time employee, director, officer, or partner of Trustee,
Bank or Developer.
"Initial T -Bill Percentage" shall mean the T -Bill Percentage
set forth in the Alternate Rate Option Notice.
"Landowner" means WARMACK-SALINA PARTNERSHIP, an Arkansas
general partnership of Fort Smith, Arkansas, its successors and
assigns.
"Late Payment Rate" means with respect to the Bonds the rate
of interest on the Bonds, and for all other purposes means fifteen
percent (15%) per annum or if lower, the highest rate authorized
by applicable law.
"Lease Term" shall mean the period from the latter of Decem-
ber 28, 1984, or the date of execution and delivery of the Agree-
ment until the Agreement expires or terminates in accordance with
its terms.
"Letter of Credit" means ( i) that certain Letter of Credit
dated the date of the Bonds issued by the Bank and (ii) any Sub-
stitute Letter of Credit or Substitute Credit Facility.
- 13 -
"Moody's" means Moody's Investors Service, Inc., a corpora-
tion organized and existing under the laws of the State of
Delaware, its successors and assigns, and, if such corporation
shall be dissolved or liquidated or shall no lonqer perform the
functions of a securities rating agency, "Moody's" shall be deemed
to refer to any other nationally recognized securities rating
agency designated by Developer, with the consent of Bank, by
notice to Trustee.
"Net Proceeds" means, when used with respect to any insurance
or condemnation award, the proceeds from the insurance or condem-
nation award remaining after payment of all expenses (including
attorney's fees and any other expenses of.. the City, Trustee and
Bank) incurred in the collection of such proceeds.
"Letter of Credit Termination Date" means the later
of
( i)
that date upon which the
Letter of Credit shall expire or
termi-
nate pursuant to its term
or the terms of the Credit Aq reement,
of. the Conversion Option.
or
(ii) that date to which
the expiration or termination
of
the
Letter of Credit may be
extended, from time to time, either
by
extension or renewal of
the existing Letter of Credit
or
the
issuance of a Substitute
Letter of Credit or Substitute
Credit
Facility.
"Moody's" means Moody's Investors Service, Inc., a corpora-
tion organized and existing under the laws of the State of
Delaware, its successors and assigns, and, if such corporation
shall be dissolved or liquidated or shall no lonqer perform the
functions of a securities rating agency, "Moody's" shall be deemed
to refer to any other nationally recognized securities rating
agency designated by Developer, with the consent of Bank, by
notice to Trustee.
"Net Proceeds" means, when used with respect to any insurance
or condemnation award, the proceeds from the insurance or condem-
nation award remaining after payment of all expenses (including
attorney's fees and any other expenses of.. the City, Trustee and
Bank) incurred in the collection of such proceeds.
"Outstanding" or "Bonds Outstanding" mean all Bonds which
have been authenticated and delivered by Trustee under this Ordin-
ance, except:
(a) Bonds cancelled after purchase in the open market or
because of payment at or redemption prior to maturity;
(b) Bonds paid or deemed to be paid pursuant to Article VIIT
hereof;
(c) Bonds in lieu of which others have been authenticated
under Section 2.07 or Section 2.08 hereof;
(d) Bonds in lieu of which others have been issued pursuant
to Section 2.04(c) hereof; and
(e) Bonds deemed to have been purchased pursuant to Sections
4.01 and 4.02 hereof.
"Owner_" means the person or persons in whose name or names a
Bond shall be registered on the books of City kept for that pur-
pose in accordance with provisions of this Ordinance.
"Payments" means the payments required in Section 5.3 and
other sections of the Agreement.
- 14 -
"Optional Conversion Date" means that date on or after Sep-
tember 1, 1985, which shall be a Business Day, from and after
which the interest rate on the Bonds is converted from the Float-
inq Rate or the Alternate
Floatinq
Rate, as the case may be, as a
result of the exercise by
Developer
of. the Conversion Option.
"Outstanding" or "Bonds Outstanding" mean all Bonds which
have been authenticated and delivered by Trustee under this Ordin-
ance, except:
(a) Bonds cancelled after purchase in the open market or
because of payment at or redemption prior to maturity;
(b) Bonds paid or deemed to be paid pursuant to Article VIIT
hereof;
(c) Bonds in lieu of which others have been authenticated
under Section 2.07 or Section 2.08 hereof;
(d) Bonds in lieu of which others have been issued pursuant
to Section 2.04(c) hereof; and
(e) Bonds deemed to have been purchased pursuant to Sections
4.01 and 4.02 hereof.
"Owner_" means the person or persons in whose name or names a
Bond shall be registered on the books of City kept for that pur-
pose in accordance with provisions of this Ordinance.
"Payments" means the payments required in Section 5.3 and
other sections of the Agreement.
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"Permitted Encumbrances" shall mean as of any particular time
(i) liens for ad valorem taxes, assessments and governmental
charges and liens for labor and materials not delinquent or which
the Developer is contesting in good faith under the Agreement,
(ii) the Agreement and this Ordinance, (iii) the Subleases, (iv)
utility, access and other easements and riqhts of way, mineral
rights, licenses and restrictions that, in the opinion of an inde-
pendent counsel, will not materially interfere with or impair the
Facilities or any portions thereof, adjacent or related facilities
or for the uses of any thereof for their intended purposes, (v)
all liens and security interests arising out of or existing to
secure the Conventional Financing Arrangements, and (vi) such
other defects, irregularities, exceptions and clouds on title as
do not in the aggregate, in the opinion of an independent counsel,
materially impair the interest of the City, the Developer and the
Trustee in the Facilities.
"Pledge Agreement" means the Pledge and Security Agreement
dated as of December 28, 1984 made by Developer to Bank, and any
amendments or supplements thereto.
"Pledged Ponds" means any Ponds which shall, at the time of
determination thereof, be held by the Bank under the terms of the
the Pledge Agreement.
"Post -Conversion Floating Rate" shall mean the interest rate
in effect on the Bonds from the Conversion Date in the event the
Developer shall select said rate pursuant to the terms and condi-
tions of Sections 4.01 or 4.02 hereof, as said rate is determined
in accordance with Section 2.02(E) hereof.
"Project Report" means the project report of the Developer
dated as of. November 27, 1984, as amended and supplemented.
"Project" means the undertakings to acquire, construct, in-
stall and equip the Facilities, and all undertakings relating
thereto or necessary therefor and includes the payment of the
costs of certain drainage improvements allocable to the Facilities
as provided in the Ground Lease.
"Purchase Price" means an amount equal to 100% of the prin-
cipal amount of any Bond tendered or deemed tendered pursuant to
Sections 4.01, 4.02 or 4.06 hereof, plus, in the case of purchase
pursuant to Section 4.06 hereof, accrued and unpaid interest
thereon to the date of purchase.
"Record Date" means that day which is five ( 5 ) Business Days
prior to any interest payment date.
"Remarketing Agent" means the Remarketing Aqent acting as
such under the Remarketing Agreement or any successor acting under
an equivalent instrument. "Principal Office of Remarketing Agent"
means the principal office of. Remarketing Agent designated in the
Remarketing Agreement.
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"Remarketing Agreement" means the TENR Services and Remarket-
ing Agreement dated as of this date between the Developer and
Bankers Trust Company, and any amendments or supplements thereto,
or in the event Bankers Trust Company is no longer the Remarketing
Agent, any agreement for similar services between the Developer
and any successor Remarketing Agent.
"State" means the State of Kansas.
"Store Leases" or "Subleases" means any and all leases or
subleases of the Facilities, and any and all portions thereof
between the Developer, as lessor, and any Tenant, and shall fur-
ther include any and all subleases between any Tenant and any sub-
tenant.
"S&P" means Standard & Poor's Corporation, a corporation
organized and existing under the laws of the State of New York,
its successors and assigns, and, if such corporation shall be dis-
solved or liquidated or shall no longer perform the functions of a
securities rating agency, "S&P" shall be deemed to refer to any
other nationally recognized securities rating agency designated by
the Developer, with the consent of Bank by notice to Trustee.
11 "Substitute Bank" means (i) a commercial bank or savings and
loan association which has issued a Substitute Letter of Credit or
(ii) an entity which has issued a Substitute Credit Facility.
"Substitute Credit Facility" means a policy of insurance de-
livered to Trustee in accordance with Section 5.5 of the Agree-
ment (i) issued by a Substitute Bank, (ii) replacing any existing
Letter of Credit or Substitute Credit Facility, (iii) to become
effective at a date on or prior to the expiration date of the Let-
ter of. Credit or Substitute Credit Facility for which the same is
to be substituted, ( iv) which shall expire on a date which is 15
days after an interest payment date for the Bonds and (v) which
will provide the same source of liquidity under the same terms and
conditions as the then existing Letter of Credit or Substitute
Credit Facility, except that the Substitute Credit Facility shall
expire on a date which is later than the expiration date of the
Letter of Credit or Substitute Credit Facility being replaced, and
except that the Substitute Credit Facility shall provide coverage
sufficient to pay the principal of and interest on all Bonds at
the time Outstanding.
"Substitute Letter of. Credit" means a letter of credit de-
livered to Trustee in accordance with Section 5.5 of the Agreement
(i) issued by Bank or Substitute Bank (ii) replacing any existing
Letter of Credit, (iii) dated as of a date prior to the expiration
date of the Letter of Credit for which the Substitute Letter of
Credit is to be substituted, (iv) which shall expire on a date
which is 15 days after an interest payment date for the Bonds and
(v) issued on substantially identical terms and conditions as the
then existing Letter of. Credit, except that the same shall expire
=V=
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1
on a date which is later than the expiration date of the Letter of
Credit being replaced, and except that the stated amount of the
Substitute Letter of Credit shall equal the sum of (A) the aggre-
gate principal amount of Bonds at the time Outstanding, plus (B)
an amount equal to at least 105 days interest (computed at the
maximum interest rate applicable to the Bonds) on all Bonds at the
time outstanding.
"T -Bill Percentage" shall. have the meaning set forth in Sec-
tion 2.02(D) hereof.
"T -Bill Rate" shall have the meaning set forth in Section
2.02(D) hereof.
"Tenant" means any sublessee, sub -sublessee or occupant of
the Facilities or any portion thereof.
"TENR" shall have the meaninq set forth in Section 2.02(C)
hereof...
"TENR Amount" shall have the meaning set forth in Section
2.02(C) hereof.
"Tender Agent" means Bankers Trust Company, a New York bank-
inq corporation and its successors and any corporation resulting
from or surviving any consolidation or merger to which it or its
successors may be a party and any successor Tender Agent at the
time servinq as successor Tender Agent hereunder. "Principal Of-
fice of Tender Aqent" means the address specified in Section 13.04
hereof or such other address as may he designated in writing to
City, Trustee, R.emarketinq Agent and Developer.
"Trustee" means Bank of Oklahoma, Tulsa, N.A., of Tulsa,
Oklahoma, a national banking association havinq corporate trust
powers orqanized and existing under the laws of the United States
of America, and its successors and any corporation resulting from
or surviving any consolidation or merger to which it or its suc-
cessors may be a party desiqnated as fiscal aqent for the City of
Salina, Kansas, and in such capacity as Trustee under this Ordi-
nance, and any successor Trustee at the time servinq as successor
trustee hereunder. "Principal Office of Trustee" means the
address specified in Section 13.04 hereof or such other address as
may be designated in writinq to City, Tender Agent, Remarketing
Aqent and Developer.
"Trust Estate" means the property and property interests con-
veyed to Trustee pursuant to the Section TII Granting Clauses
hereof.
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ARTICLE II
THE BONDS
SECTION 2.01. Authorized Amount of Bonds. No Bonds may be
issued under the provisions of this Ordinance except in accordance
with this Article. The total aggregate principal amount of bonds
that may be issued is hereby expressly limited to $4,495,000.
SECTION 2.02. Issuance of Bonds. (A) The Bonds shall be
designated "City of. Salina, Kansas, Revenue Bonds (SALINA CENTRAL
MALL LIMITED PARTNERSHIP (PENNE V S) Project), Series 1984." Prior
to the Conversion Date, the Bonds shall be issuable as fully
registered Bonds without coupons in the denomination of $100,000,
or any integral multiple of $5,000 in excess thereof; provided
that the Bonds may be issued in the denomination of $5,000 or any
integral multiple thereof if necessary to evidence the unredeemed
portion of any Bond. From and after the Conversion Date, the
Bonds shall. be issuable as fully registered Bonds without coupons
in the denomination of 55,000 or any integral multiple thereof.
Unless the City shall otherwise direct, the Bonds shall be let-
tered "R" and shall be numbered consecutively from 1 upward.
(B) Each Bond shall be dated the date of its authentication
nd shall bear interest, payable (i) on March 1, 1985, and (ii) so
ong as the Bonds bear interest at the Floating Rate or the Alter -
ate Floating Rate, as applicable, on March 1, June 1, September 1
nd December 1 of each year and on the Conversion Date, commencing
une 1, 1985, and payable from and after the Conversion Date on
une 1 or December 1 of each year, commencing on the June 1 or
ecember _I next following the Conversion Date, in each case from
he interest payment date next preceding the date to which inter-
st has been paid or duly provided for, unless the date thereof is
date to which interest has been paid or duly provided for, in
hick case from the date thereof, or unless no interest has been
aid or duly provided for on the Bonds, from December 28, 1984,
ntil payment of the principal thereof_ has been made or duly pro-
ided for. Notwithstanding the foregoing, any Bond dated after
ny Record Date and before the following interest payment date
hall bear interest from such interest payment date, provided,
owever, that if City shall default in the payment of .interest due
n such interest payment date, then such Bond shall bear interest
rom the next preceding interest payment date to which interest
as been paid or duly provided for, or, if no interest has been
aid or duly provided for on the Bonds, from December 2.8, 1984.
The Bonds shall mature on December 1, 2014.
(C) From the date of authentication of the Bonds through
ebruary 28, 1985, inclusive, the Bonds shall bear interest at the
ate of 7.254 per annum; commencing March 1, 1985 the Bonds shall
ear interest at the Floating Rate until ( but not including) the
arlier. of (i) the effective date of any interest rate change, as
et forth in the Alternate Rate Option Notice, or ( ii) the
onversion Pate. The Floatinct Rate shall be a variable rate of
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1
nterest equal to TENR plus an amount (as adjusted from time to
ime as hereinafter provided, the "TENR Amount") initially equal
o that amount necessary to permit the Remarketing Agent to market
he Bonds at par, and provided further:
( i) if Trustee and Remarketing Agent shall have received a
notice requiring the purchase of any Bond(s) in accordance
with Section 4.06 hereof and if Remarketing Agent shall re -
market all or a portion of such Bond(s) pursuant to the
Remarketing Agreement, the TENR Amount for all Bonds shall be
the TENR Amount required for Remarketing Agent to remarket
such. Bond(s) at par, which adjusted TENR Amount shall become
effective as of the day next following the next announcement
of TENR, unless such announcement of TENR occurs during the
period of five Business Days prior to an interest payment
date or a date fixed for redemption, in which case such ad-
justed TENR Amount shall become effective as of the day next
following the first announcement of TENR subsequent to such
interest payment date or date fixed for redemption, as the
case May he. In connection with any such remarketing, Re-
marketing Agent shall determine what increments of 1/8th of
1% per annum will, when added to or subtracted from the TENR
Amount at the time applicable to the Bonds, produce the mini-
mum interest rate per annum necessary to enable Remarketing
Agent to remarket such Bond(s) at par; provided, that the
TENR Amount shall not be more than 2 1/2%;
( ii) if the TENR Amount is adjusted pursuant to the preced-
ing clause (i), such adjusted TENR Amount shall remain in ef-
fect until the next succeeding interest payment date or until
a further adjustment to the TENR Amount is made pursuant to
such clause (i), or until the interest rate hereunder is
otherwise determined as provided for in this Ordinance; pro-
vided that if the Remarketing Agent shall have advised the
Developer, the City and the Trustee prior to any interest
payment date that the return of the TENR Amount to three-
eighths of one percent (3/8 of 1%) would result in the Bonds
bearing interest at a rate different from the minimum inter-
est rate per annum necessary to enable the Remarketing Agent
to remarket the Bonds at par., the TENR Amount shall not re-
turn to three -eights of one percent (3/8 of. 1%) on such in-
terest payment date;
(iii) subject to the proviso contained in the preceding
clause (ii), beginning on each interest payment date, the
TENR Amount applicable to all Bonds shall be three -eights of
one percent (3/8 of 1%) until such time as the TENR Amount
may again be adjusted pursuant to the preceding clause (i) or
until the interest rate hereunder is otherwise determined as
provided for in this Ordinance; and
(iv) notwithstanding the foregoing, no adjustment shall be
made to the Floating Rate during the period commencing five
Business Days prior to an interest payment date and/or a date
fixed for redemption.
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TENR is the rate announced by Bankers Trust Company, New
York, New York at its principal office as the annual rate of in-
terest which is indicative of current bid -side yields on high
quality, short-term, tax-exempt obligations, which rate shall be
announced by Bankers Trust Company, New York, New York, as of the
close of business on Wednesday in each calendar week until the
earlier of the Conversion Date or payment in full of the Bonds or,
if Wednesday in any calendar week shall not be a business day in
New York, New York, on the next succeeding business day in New
York, New York. TENR shall be effective during the period from
and including the day next succeeding the day on which Bankers
Trust Company, New York, New York, announces TENR, to and includ-
ing the day on which Bankers Trust Company, New York, New York,
next announces TENR. TENR shall be communicated by Bankers Trust
Company, New York, New York, to Trustee and Remarketing Agent on
the same day that TENR. is announced. Remarketing Agent shall in-
form Trustee and Dank in writing of any adjustments to the TENR
Amount required by clause (i) above. Trustee shall inform City
and Developer of TENR and of any such adjustments to the TENR
Amount. TENR is a Service Mark of Bankers Trust Company, New
York, New York.
The announcement of TENR and the determination of any adjust-
ments to the TFNR Amount as contemplated by the foregoing para-
graphs shall be conclusive and binding upon Trustee, Tender Agent,
City, Developer and the Owners of the Bonds.
Anything to the contrary notwithstanding, the Floating Rate
shall in no event exceed 15% per annum.
(D) From the effective date of any change in the interest
rate as set forth in the Alternate Rate Option Notice, until (but
not including) the Conversion Date, the Bonds shall bear interest
at the Alternate Floating Rate. The Alternate Floating Rate shall
be a variable rate of interest equal to the T -Bill Rate, as here-
inafter defined, times a percentage (such percentage, as adjusted
from time to time as hereinafter provided, herein referred to as
the "T -Bill Percentage") initially equal to the Initial T -Bill
Percentage, and provided further:
(i) if Trustee and Remarketing Agent shall have received
a notice requiring the purchase of any Bond(s) in accord-
ance with Section 4.06 hereof and if Remarketing Agent
shall remarket all or a portion of such Bond(s) pursuant
to the Remarketing Agreement, the T -Bill Percentage for
all Bonds shall. be the T -Bill Percentage required for
Remarketing Agent to remarket such Rond(s) at par, which
adjusted T -Bill Percentage shall become effective as of
the day next following the next determination of the
T -Bill Rate, unless such determination occurs during the
period of five Business Days prior to an interest payment
date or a date fixed for redemption, in which case such
adjusted T -Bill Percentage shall become effective as of
the day next following the first determination of the
T -Bill Rate subsequent to such interest payment date or
date fixed for redemption, as the case may be. In con-
nection with any such remarketing, Remarketing Agent
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shall determine what T -Bill Percentage will produce the
minimum interest rate per annum necessary to enable Re-
marketing Agent to r_emarket such Pond(s) at par; provid-
ed, that the T -Bill. Percentage shall at no time be less
than 50% or greater than 90%;
(ii) if the T -Bill Percentage is adjusted pursuant to
the preceding clause (i), such adjusted T -Bill Percentage
shall remain in effect until the next succeeding interest
payment date or until a further adjustment to the T -Bill
Percentage is made pursuant to such clause (i), or until
the interest rate hereunder is otherwise determined as
provided for in this Ordinance; provided that if the Re-
marketing Agent shall have advised the Developer, the
City and the Trustee prior to any interest payment date
that the return of the T -Bill Percentage to the Initial
T -Bill Percentage would result in the Bonds bearing in-
terest at a rate different from the minimum interest rate
per annum necessary to enable the Remarketing Agent to
remarket the Bonds at par, the T -Bill Percentage shall
not return to the Initial T -Bill Percentage on such in-
terest payment date;
(iii) subject to the proviso contained in the precedinq
clause (ii), beginning on each interest payment date, the
T -Bill Percentage applicable to all Bonds shall be the
Initial T -Bill Percentage until such time as the T -Bill
Percentage may again he adjusted pursuant to the preced-
ing clause (i) or until the interest rate hereunder is
otherwise determined as provided for in this Ordinance;
and
(iv) notwithstanding the foregoing, no adjustment shall
be made to the Alternate Floating Rate during the period
commencing five Business Days prior to an interest pay-
ment date and/or a date fixed for redemption.
"T -Bill
Rate" shall mean the average annual interest rate,
expressed as
a coupon equivalent of the discount, at which 13 -week
United States
Treasury Bills are sold at the United States Treas-
ury Auction
thereof next preceding the date of determination as
reported in
The ball Street Journal or, if such newspaper is not
published or
does not report such rate, then in any publication of
the Federal
Reserve Bank of New York, any other Federal Reserve
Bank or any
other Federal department or agency selected by the
Remarketinq
Agent (or the Trustee if such determination is to be
made subsequent
to the Conversion Date). The T -Bill Rate shall he
communicated
by Remarketing Agent to Trustee on the same day it is
determined.
Remarketing Agent shall inform Trustee and Bank in
writing of any adjustments to the T -Bill Percentage required by
clause (i) above.
Trustee shall inform City and Developer of the
T -Bill Rate
and of any such adjustments to the T -Rill Percentage.
The Trustee shall determine the T -Bill Rate on the Business
Day next succeeding each United States Treasury Auction at which
13 -week United States Treasury Bills are sold and such T -Bill Rate
shall be effective from the Business Day of such determination to
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I
the effective date of the next such determination. The determina-
tion of the T -Bill Rate and any adjustments to the T -Bill Percen-
tage as contemplated by the f_oregoinq paragraphs shall be conclu-
sive and binding upon Trustee, Tender Agent, City, Developer and
the Owners of. the Bonds.
Anything to the contrary notwithstanding, the Alternate
Floatinq Rate shall in no event exceed 15% per annum.
(E) The Bonds shall bear interest at the Fixed Rate or at
the Post -Conversion Floatinq Rate (as selected by the Developer
pursuant to Section 4.01 or 4.02 hereof, as the case may be), from
and after the Conversion Date until the maturity of the Bonds.
The Fixed Rate shall be a fixed annual interest rate on the Bonds
established by Remarketing Agent as the rate of interest for which
Remarketing Agent has received commitments on or prior to the 20th
day preceding the Conversion Date to purchase all the Outstanding
Bonds on the Conversion Date at a price of par without discount or
at a premium not to exceed the then customary underwriting dis-
count (but in no event may the premium exceed 3 percent). The
Post -Conversion Floating Rate shall be a floating annual interest
rate on the Bonds established by the Remarketing Agent as the
floating annual interest rate equal to a percentage of the T -Bill
Rate for which Remarketing Aqent has received commitments on or
prior to the 20th day preceding the Conversion Date to purchase
all. the Outstanding Bonds on the Conversion Date at price of par
without discount or at a premium not to exceed the then customary
underwriting discount (but in no event may the premium exceed
three percent). The determination of the T -Bill Rate and any
adjustment to the Post -Conversion Floating Rate shall be made by
the Trustee, and any such determination or adjustment shall be
conclusive and binding upon the City, the Developer and the Owners
of the Bonds.
(F) Prior to the Conversion Date, interest on the Bonds
shall be computed on the basis of a 360 -day year, and the actual
number of days elapsed. On and after the Conversion Date, inter-
est on the Bonds shall be computed on the basis of a 360 -day year
of twelve 30 -day months. The principal of and premium, if any, on
the Bonds shall be payable in lawful money of the United States of
America at the Principal Office of. Trustee, or of its successor in
trust. The Purchase Price of the Bonds shall be payable in lawful
money of the United States of America at the Principal Office of
the Tender Agent. Payment of interest on the Bonds shall be made
to the Owner thereof_ on the applicable Record Date by check mailed
by the Trustee on the applicable interest payment date to such
Owner at his address as it appears on the registration books of
City or at such other address as is furnished to Trustee in writ-
ing by such Owner, or in such other manner as may be mutually
acceptable to Trustee and the Owner of any Bond.
SECTION 2.03. Execution; Limited Obligation. The Bonds
shall be executed on behalf of the City with the manual signatures
of the mayor and Clerk of the City with the corporate seal of the
- 22 -
City affixed hereto or imprinted theron. The Bonds initially
issued and authenticated hereunder shall be registered in the
office of the Clerk when registration shall be evidenced by the
following certificate being imprinted there and bearing the signa-
ture of the Clerk:
"STATE OF KANSAS, COUNTY OF SALINE: ss: I, the under-
signed, City Clerk of the City of Salina, Salina,
Kansas, hereby certify that the within Revenue Bond
(SALINA CENTRAL MALL LIMITED PARTNERSHIP (PENNEY'S)
PROJECT), Series 1984, of the City of Salina, Kansas,
has been duly registered in my office according to law.
WITNESSETH my hand and official seal this day
of December, 1984.
(S E A L)
City Clerk"
SECTION 2.04. Authentication.
(a) The Trustee shall be an authenticating agent for the
Bonds and the Tender Agent shall be a co -authenticating agent
for the Bonds.
( b) No Bond shall be valid or obligatory for any purpose or
entitled to any security or benefit under this Ordinance un-
less and until a certificate of authentication on such Bond
substantially in either of the forms, as appropriate, set
forth on Exhibits A, B and C attached hereto shall have been
duly executed by Trustee or by the Tender Agent, and such
executed certificate of authentication upon any such Bond
shall be conclusive evidence that such Bond has been authen-
ticated and delivered under this Ordinance. The certificate
of authentication on any Bond shall be deemed to have been
executed by the Trustee or the Tender Agent if signed by an
authorized signatory of the Trustee or the Tender Agent, as
the case may be, but it shall not be necessary that the same
signatory execute the certificate of authentication on all of.
the Bonds.
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THE BONDS SHALL NOT BE GENERAL OBLIGATIONS OF THE CITY BUT LIMITED
AND SPECIAL OBLIGATIONS PAYABLE SOLELY FROM THE AMOUNTS PAYABLE
UNDER THE AGREEMENT AND OTHER AMOUNTS SPECIFICALLY PLEDGED THERE-
FOR UNDER THIS ORDINANCE, AND SHALL BE A VALID CLAIM OF THE RE-
SPECTIVE OWNERS THEREOF ONLY AGAINST THE BOND FUND AND OTHER
MONEYS HELD BY TRUSTEE AND THE AMOUNTS PAYABLE UNDER THE AGREEMENT
OTHERWISE PLEDGED THEREFOR, WHICH AMOUNTS ARE HEREBY PLEDGED,
ASSIGNED AND OTHERWISE SECURED FOR THE EQUAL PAYMENT OF THE BONDS
AND SHALL BE USED FOR NO OTHER PURPOSE THAN TO PAY THE PRINCIPAL
OF, PREMIUM, IF ANY, AND INTEREST ON THE BONDS, EXCEPT AS MAY BE
OTHERWISE EXPRESSLY AUTHORIZED IN THIS ORDINANCE. THE BONDS SHALL
NOT IN ANY RESPECT BE GENERAL OBLIGATIONS OF THE CITY NOR SHALL
THEY BE PAYABLE IN ANY MANNER BY TAXATION.
SECTION 2.04. Authentication.
(a) The Trustee shall be an authenticating agent for the
Bonds and the Tender Agent shall be a co -authenticating agent
for the Bonds.
( b) No Bond shall be valid or obligatory for any purpose or
entitled to any security or benefit under this Ordinance un-
less and until a certificate of authentication on such Bond
substantially in either of the forms, as appropriate, set
forth on Exhibits A, B and C attached hereto shall have been
duly executed by Trustee or by the Tender Agent, and such
executed certificate of authentication upon any such Bond
shall be conclusive evidence that such Bond has been authen-
ticated and delivered under this Ordinance. The certificate
of authentication on any Bond shall be deemed to have been
executed by the Trustee or the Tender Agent if signed by an
authorized signatory of the Trustee or the Tender Agent, as
the case may be, but it shall not be necessary that the same
signatory execute the certificate of authentication on all of.
the Bonds.
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(c) Any Bonds with respect to which the Owner thereof has
given notice of its desire to continue to retain as provided
in Section 4.01 or Section 4.02 which are not delivered for
exchange as provided in Section 4.03 prior to the first in-
terest payment date next following the Conversion Date shall,
effective such date, be deemed to have been tendered for
exchange and the City and the Trustee or the Tender Agent
shall authenticate new Bonds of like denomination as those
deemed tendered.
SECTION 2.05. Form of Bonds. The Bonds and the certificate
of authentication to be endorsed thereon prior to the Conversion
Date are to be in substantially the form set forth on Exhibit A
attached hereto, with appropriate variations, omissions and inser-
tions as permitted or required by this Ordinance. The Bonds which
bear interest at the Fixed Rate and the certificate of authentica-
tion to be endorsed thereon are to be in substantially the form
set forth on Exhibit B attached hereto, with appropriate varia-
tions, omissions and insertions as permitted or required by this
Ordinance. The Bonds which bear interest at the Post -Conversion
Floating_ Rate and the certificate of authentication to be endorsed
thereon are to be in substantially the same form as set forth on
Exhibit C attached hereto, with appropriate variations, omissions
and insertions as permitted or required by this Ordinance.
Prior to the delivery by Trustee of the Bonds (I) the Trustee
shall have received and be possessed of the following (unless the
requirement thereof shall have been waived by the Rank and the
receipt thereof determined by the Trustee not to be necessary):
(1) evidence of the due adoption passage and first publica-
tion of the Ordinance;
(2) original duly -executed counterparts of:
( a) the Ground _Tease;
(b) such financing statements as pertain to this Ordi-
nance;
(c) the Agreement;
(d) the Cash Deficiency Agreement;
(e) the Credit Agreement;
(f) the Pledge Agreement;
(g) such financing statements as pertain to the Pledge
Agreement;
(h) the Remarketing Agreement; and
( i) the Tender Agent Agreement;
(3) such certificates and documents respecting Developer and
its undertakings in connection herewith as counsel for
Trustee or bond counsel shall reasonably .require;
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SECTION 2.06. Delivery of Bonds.
Following the
passage and
first publication of this Ordinance,
the City shall
execute and
deliver to Trustee and Trustee or Tender
Agent shall
authenticate
the Bonds and deliver them as directed
by the City as
hereinafter
in this Section provided.
Prior to the delivery by Trustee of the Bonds (I) the Trustee
shall have received and be possessed of the following (unless the
requirement thereof shall have been waived by the Rank and the
receipt thereof determined by the Trustee not to be necessary):
(1) evidence of the due adoption passage and first publica-
tion of the Ordinance;
(2) original duly -executed counterparts of:
( a) the Ground _Tease;
(b) such financing statements as pertain to this Ordi-
nance;
(c) the Agreement;
(d) the Cash Deficiency Agreement;
(e) the Credit Agreement;
(f) the Pledge Agreement;
(g) such financing statements as pertain to the Pledge
Agreement;
(h) the Remarketing Agreement; and
( i) the Tender Agent Agreement;
(3) such certificates and documents respecting Developer and
its undertakings in connection herewith as counsel for
Trustee or bond counsel shall reasonably .require;
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(4) such opinions of counsel for Developer as counsel for
Trustee or bond counsel shall reasonably require;
(5) appropriate certifications by Developer with respect to
(i) certain capital expenditures with respect to the
Project as otherwise required under U.S. Treasury Reg-
ulation §1.103-10(b), (ii) the use of the proceeds of
the Bonds in consideration of §103(c) of the Code, (iii)
the test -period beneficiary status of the Developer
under §103(b)(15) of the Code (iv) the use of the pro-
ceeds of. the Bonds with respect to prohibited uses under
§103(b)(6)(0) and §103(h)(18) of the Code and (v) the
status of the Bonds as a single issue under Section
103(b)(6)(k) of the Code;
(6) satisfactory evidence respecting Developer's compliance
with the insurance requirements of the Agreement, the
Credit Agreement and the Cash Deficiency Agreement;
(7) a mortgagee form nolicy of title insurance naming the
Trustee and the Bank as insureds, as their interests may
appear;
11 (8) satisfactory evidence as to the necessary filing and/or
recording in all places required for due perfection
under the laws of the State with respect to this Ordi-
nance and with respect to or of the Aq reement, the Gen-
eral Lease, the Cash Deficiency Aqreement and the Cred-
it Agreement;
(9) the oriqinal duly -executed Assignment of this Agreement
as duly endorsed payable to the order of the Trustee;
(10) the Letter of Credit;
(11) a certified engineer's survey of the Facilities site,
showing foundation lines, easements, set -backs and such
other matters as either Issuer or Trustee may reasonably
require, satisfactory certification as to the proper
zoning of the lands for the uses intended, and satisfac-
tory evidence that all necessary utilities for the
Facilities are or will be available and that the volume
or capacity of such services will be sufficient for the
needs of all occupants of the Facilities, and that the
Improvements will not be located in a 100 year federally
designated flood plain or zone;
(12) the Project Report, together with a detailed cost -
breakdown analysis of the Facilities to be acquired,
constructed, installed and equipped, in sufficient de-
tail that the propriety of the amount of any requested
advance of Bond proceeds may be verified and sufficient
to demonstrate to the satisfaction of the Trustee that
the proceeds of the Bonds, together with other funds
available to Developer_ are sufficient to pay all costs
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(including all direct and indirect costs of construc-
tion, financing and fees) necessary to complete the
Facilities according to the Agreement, which shall also
detail costs of financing all direct and indirect con-
struction costs including engineers' fees, insurance and
the like, and shall contain a trade breakdown showing
all subcontractors by name, work and amount and indicat-
ing whether such amounts are contract amounts or esti-
mates, and shall also show Developer's projection of
anticipated monthly disbursements for direct costs of
construction and shall list profit and overhead of the
prime contractor for the Facilities as separate items.
(13) such other and further materials as either or both Bank
or Trustee may reasonably require;
(II) the Trustee shall have filed with the Clerk of the City the
Trustee's written acceptance of the duties specified in this Ordi-
nance and the Agreement and the Trustee's agreement to act in said
capacity and (III) there shall be filed with Trustee a request and
authorization to Trustee on behalf of the City and signed by the
Mayor or Clerk of the City for authentication and delivery of the
Bonds to the purchasers and for the purchase price therein identi-
fied. Upon payment of the proceeds to Trustee, Trustee shall
deposit the proceeds in the Construction Fund pursuant to Article
VI hereof for use as therein provided.
SECTION 2.07. Mutilated, Lost, Stolen or Destroyed Bonds.
In the event any Bond is mutilated, lost, stolen or destroyed, the
City shall execute and Trustee shall authenticate a new Bond of
like date and denomination as that mutilated, lost, stolen or
destroyed, provided that, in the case of any mutilated Bond, such
mutilated Bond shall first be surrendered to the Trustee, and in
the case of any lost, stolen or destroyed Pond, there first shall
be furnished to the Trustee evidence of such loss, theft or
destruction satisfactory to Trustee, together with an indemnity
satisfactory to it which indemnity shall, in any event, name the
Tender Agent and Trustee as a beneficiary. In the event any such
Bond shall have matured, Trustee, instead of issuing a duplicate
Bond, may pay the same without surrender thereof, making such
requirements as it deems fit for its protection, including that of
a lost instrument bond. Trustee may charae the Owner of such Bond
with its reasonable fees and expenses for such service. In execu-
ting a new Bond, the City may rely conclusively upon a represen-
tation by Trustee that Trustee is satisfied with the adequacy of
the evidence presented concerning the mutilation, loss, theft or
destruction of any Bond.
SECTION 2.08. Transfer of Bonds; Persons Treated as Owners.
Trustee shall keep books for the transfer of the Bonds as provided
in this Ordinance, and Trustee is hereby constituted and appointed
the Bond Registrar of. City. The Tender Agent is hereby constitut-
ed and appointed the Co -Bond Registrar of City. The Trustee and
the Tender Agent shall adopt such procedures and make such other
arrangements as shall be mutually satisfactory to each of them in
order that the books maintained by each of them shall accurately
- 26 -
reflect the holders of and any transfers of the Bonds. Upon sur-
render for transfer of any Bond at the Principal Office of
Trustee, or at the Principal Office of the Tender Aqent, duly en-
dorsed for transfer or accompanied by an assignment duly executed
by the Owner or his attorney duly authorized in writing, City
shall execute and Trustee or Tender Agent, as the case may be,
shall authenticate and deliver in the name of the transferee or
transferees a new Bond or Bonds in authorized denominations for a
like aqqreqate principal amount. In each case, Trustee or Tender
Agent, as the rase may be, may require the payment by the Owner of..
the Bond requestinq exchange or transfer of any tax or other gov-
ernmental charge required to be paid with respect to such exchange
or transfer.
Trustee and the Tender Aqent shall not be required to
exchange or register a transfer of (a) any Bonds during the 15 -day
period next preceding the selection of Bonds to be redeemed and
thereafter until the date of the mailing of a notice of redemption
of Bonds selected for redemption, or (b) any Bonds selected,
called or being called for redemption in whole or in part except,
in the case of any Bond to be redeemed in part, the portion there-
of not so to be redeemed; provided that the foregoing shall not
apply to the registration of transfer of any Bond which has been
tendered to Tender Agent pursuant to Section 4.06 hereof, and in
any such case, for purposes of selection for redemption, the Bond
so tendered and the Bond issued to the transferee thereof pursuant
to Section 4.08 hereof shall be deemed and treated as the same
Bond. If any Bond shall be transferred and delivered pursuant to
Section 4.08 hereof_ after such Pond has been called for redemp-
tion, the Tender Agent shall deliver to such transferee a copy of
the applicable redemption notice, indicating that the Bond
(delivered to such transferee has previously been called for.
redemption.
Trustee, Tender. Agent and City may treat the person in whose
name a Bond is registered as the absolute Owner thereof for all
purposes, and neither City, Tender Agent nor Trustee shall be
bound by any notice of knowledqe to the contrary, but such regis-
tration may be changed as hereinabove provided. All payments made
to the Owner shall be valid and effectual. to satisfy and discharge
the liability upon such Bond to the extent of the sum or sums so
paid.
SECTION 2.09. Destruction of Bonds. Whenever any Outstand-
ing Bond shall be delivered to Trustee for cancellation pursuant
to this Ordinance, or for replacement pursuant to Section 2.07
hereof, such Bond shall be promptly cancelled and cremated or
otherwise destroyed by Trustee, and counterparts of a certificate
of destruction evidencing such cremation or other destruction
shall be furnished by Trustee to City and Developer.
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SECTION 2.10. Temporary Bonds. Until and unless Bonds in
definitive form are ready for delivery, City may execute, and upon
the request of City, Trustee shall authenticate and deliver, sub-
ject to the provisions, limitations and conditions set forth
above, one or more Bonds in temporary form, whether printed, type-
written, lithographed or otherwise produced, substantially in the
form of the definitive Bonds, with appropriate omissions, varia-
tions and insertions, and in authorized denominations. Upon
presentation and surrender of any Bond or Fonds in temporary form,
City shall, at the request of Trustee, execute and deliver to
Trustee, and Trustee shall authenticate and deliver, in exchange
therefor, a Bond or Bonds in definitive form. Such exchange shall
be made by Trustee without making any charge therefor to the Owner
of such Bond in temporary form. Notwithstanding the foregoing,
Bonds in definitive form may be issued hereunder in typewritten
form.
SECTION 2.11. Certain References Ineffective After Letter of
Credit Termination Date. From and after the Letter of Credit
Termination nate, upon receipt by Trustee of a certificate from
Bank stating that all Credit Secured Indebtedness has been paid in
full, all references to Bank, the Credit Agreement, or the Letter
of Credit in the Agreement, this Ordinance and the Ponds shall be
ineffective.
1
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ARTTCLF III
REDEMPTION OF BONDS BEFORE MATURITY
SECTION 3.01. Extraordinary Redemption. The Bonds are call-
able for redemption in the event (1) the Facilities or any portion
thereof are damaged or destroyed or taken in a condemnation pro-
ceeding to which. Section 7.1 of the Agreement is applied, (2)
Developer shall exercise its option to cause Bonds to be redeemed
as provided in Section 11.3 of the Agreement, or ( 3 ) Developer
shall be obligated to cause Bonds to be redeemed as provided in
Section 11.4 of the Agreement. If called for redemption at any
time pursuant to (1), (2) or (3) above, the Bonds shall be subject
to redemption by City prior to maturity on any interest payment
date, in whole or ( in the case of redemption pursuant to Section
7.1 of the Agreement) in part, less than all of such Bonds to be
selected in such manner as Trustee may determine (except as other-
wise provided in Section 3.06 hereof), at a redemption price equal
to 100% of the principal amount thereof plus accrued interest to
the redemption date.
In addition, the Bonds are subject to mandatory redemption,
in whole, on the Conversion Date, at a redemption price equal to
100% of the principal amount thereof, in the event that (a) the
opinion of bond counsel required to be furnished to Trustee purs-
uant to Section 4.04 hereof shall not have been furnished on or
prior to the 20th day prior to the Conversion Date or (b) the Fix-
ed Rate or Post -Conversion Floating Rate, as the case may be, has
not been established in accordance with Section 2.02 (E) hereof_ on
or prior to the 20th day preceding the Conversion Date.
SECTION 3.02. Optional Redemption by Developer. On or prior
to the Conversion Date, the Bonds are subject to redemption by the
City, at the option of the T)eveloper, at any time on or after
September 1, 1985, in whole or in part, _less than all of such
Bonds to be selected in such manner as the Trustee shall determine
( except as otherwise provided in Section 3.06 hereof.) at the re-
demption price of 100% of the principal amount thereof plus
accrued interest to the redemption date.
After the Conversion Date, the Bonds are subject to redemp-
tion by City, at the option of Developer, on or after the First
Optional Redemption Date, in whole at any time or in part on any
interest payment date, less than all of such Bonds to be selected
in such manner as Trustee shall determine (except as otherwise
provided in Section 3.06 hereof), at the redemption prices
(expressed as percentages of principal amount) set forth in the
following table plus accrued interest to the redemption date:
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u
Redemption Dates
Redemption
Prices
First Optional Redemption Date through the
following November 30 103%
First Anniversary of the First Optional
Redemption Date through the following
November 30 102%
Second Anniversary of the First Optional Redemp-
tion Date through the following November 30 101%
Third Anniversary of the First Optional
Redemption Date and thereafter 100%
SECTION 3.03. Notice of Redemption. Notice of the call for
edemption, identifying the Bonds or portions thereof to be re-
deemed, shall be given by Trustee by mailing a copy of the redemp-
ion notice by registered or certified mail at least fifteen (15)
days but not more than sixty (60) days prior to the date fixed for
edemption to the Owner of each Bond to be redeemed in whole or in
art at the address shown on the registration books. Any notice
ailed as provided in this Section shall be conclusively presumed
o have been duly given, whether or not the Owner receives the
otice. The Trustee shall deliver a copy of any such redemption
otice to the Tender Aqent. Notwithstanding the foregoing provi-
ions of this Section 3.03, delivery by the Tender Aqent of a copy
f a redemption notice to a transferee of a Bond which has been
alled for redemption, pursuant to the requirements of Section
.08, shall be deemed to satisfy the requirements of the first
entence of this Section 3.03 with respect to any such trans-
er.ee.
SECTION 3.04. Redemption Payments. On or prior to any date
ixed for redemption, Available Moneys shall be on deposit with
rustee in an amount sufficient to pay the principal of. the Bonds
r portions thereof called, together with accrued interest thereon
o the redemption date and any required premium. Upon the giving
f notice and the deposit of Available Moneys for redemption, as
rovided in this Article, interest on the Bonds or portions there -
f thus called shall no longer accrue after the date fixed for
edemption.
SECTION 3.05. Cancellation. All Bonds which have been re-
eemed shall not he reissued, but shall be cancelled and cremated
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1
or otherwise destroyed by Trustee in accordance with Section 2.09
hereof.
SECTION 3.06.
Partial Redemption of Bonds.
(a) Upon surrender of any Bond for redemption in part only,
City shall execute and Trustee shall authenticate and deliver to
the Owner thereof_ a new Bond or Bonds of authorized denominations,
in an aqqregate principal amount equal to the unredeemed portion
of the Bond surrendered.
(b) In case a Bond is of a denomination Targer than $5,000,
a portion of. such. Frond ($5,000 or any inteqral multiple thereof)
may be redeemed, but Bonds shall be redeemed only in the principal
amount of $5,000 or any integral multiple thereof; provided that
prior to the Conversion Date the references in this paragraph to
$5,000 shall be deemed to be references to $100,000.
(c) Notwithstandinq anything to the contrary contained in
this Ordinance, whenever the Bonds are to he redeemed in part,
Bonds which are Pledged Bonds at the time of selection of Bonds
for redemption shall he selected for redemption prior to the
selection of any other Bonds. If. the aggregate principal amount
of Bonds to be redeemed exceeds the aggregate principal amount of
Pledged Bonds at the time of selection, Trustee may select for
redemption Bonds in an agqregate principal amount equal to such
excess in such manner as Trustee may determine.
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ARTICLE IV
CONVERSION OF INTEREST RATE; DEMAND
PURCHASE OPTION
SECTION 4.01. Conversion of Interest Rate on Optional Con-
version Date. The interest rate on the Bonds shall be converted
from the Floating Rate or the Alternate Floating Rate, as the case
may be, to the Fixed Rate or the Post -Conversion Floating Rate, as
the case may be, upon the exercise by the Developer of the Conver-
sion Option, and the Bonds shall be subject to mandatory tender
for purchase by the Owners thereof_ on the Optional Conversion
Date. To exercise the Conversion Option, the Developer shall
give written direction to the Trustee to, and the Trustee upon
receipt of such direction shall, deliver or mail by first class
mail a notice at _least twenty (20) days but not more than thirty
(30) days prior to the Optional Conversion Date to the Owner of
each Bond at. the address shown on the registration books of the
City. Any notice given by the Trustee as provided in this Section
shall be conclusively presumed to have been duly given, whether or
not the Owner receives the notice. Said notice shall state in
substance the following:
1. The Conversion Date;
2. The Fixed Rate or the Post -Conversion Floating Rate, as
the case may be, which will take effect on the Conversion Date;
3. That from and after the Conversion Date the Demand Pur-
chase Option will not be available to Owners of Bonds;
4. That all Owners of Bonds who have not given notice of
their desire to retain Bonds as provided in this Section shall be
deemed to have tendered their Bonds for purchase on the Conversion
Date; and
5. In such event, that the Letter of. Credit will expire
fifteen (15) days after the Conversion Date.
Any Owner of Bonds desiring to retain Bonds after the Option-
al Conversion Date must notify the Developer and the Trustee in
writing which notice must be received no later than ten (10) days
prior to the Optional Conversion Date. Said notice shall state in
substance the following:
(a) The Bond numbers and principal amounts of the Bonds
which the Owner thereof wishes to retain after the Conversion
Date;
(b) That the Owner thereof recognizes that the events set
forth in 1 through 5 above will occur;
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1
1
(c) That the Owner thereof recognizes that the rating as-
signed to the Bonds based on the Letter of Credit will no
longer apply to the Bonds; and
(d) That the Owner thereof wishes to continue to own the
Bonds specified in (a) above after the Conversion Date.
Owners of Bonds not providing the Trustee and the Developer with
the notice described above shall be required to tender their Bonds
to the Tender Agent for purchase at the Purchase Price, and any
such Bonds not delivered to the Tender Agent on or prior to the
Optional Conversion Date ("Undelivered Bonds"), for which there
has been irrevocably deposited in trust with the Trustee an amount
of moneys sufficient to pay the Purchase Price of the Undelivered
Bonds, shall be deemed to have been tendered and purchased pur-
suant to this Section 4.01 and no longer Outstanding. IN THE
EVENT OF A FAILURE BY AN OWNER OF BONDS (OTHER, THAN AN OWNER OF
BONDS WHO HAS GIVEN NOTICE AS PROVIDED ABOVE) TO DELIVER ITS BONDS
ON OR PRIOR TO THE OPTIONAL CONVERSION DATE, SAID OWNER SHALL NOT
BE ENTITLED TO ANY PAYMENT (INCLUDING ANY INTEREST TO ACCRUE SUB-
SEQUENT TO THE OPTIONAL CONVERSION DATE) OTHER THAN THE PURCHASE
PRICE FOR SUCH UNDELIVERED BONDS, AND ANY UNDELIVERED BONDS SHALL
NO LONGER BE ENTITLED TO THE BENEFITS OF THE ORDINANCE, EXCEPT FOR
THE PURPOSE OF PAYMENT OF THE PURCHASE PRICE THEREFOR.
SECTION 4.02. Conversion of Interest Rate on Automatic Con-
version Date. The interest rate on the Bonds shall be converted
from the Floating Rate or the Alternate Floating Rate, as the case
may be, to the Fixed Rate or the Post -Conversion Floating Rate, as
the case may be, on the Automatic Conversion Date, and the Bonds
shall be subject to mandatory tender for purchase by the Owners
thereof on the Automatic Conversion nate. The Developer_ shall
give the Trustee written direction to, and the Trustee upon re-
ceipt of such direction shall, deliver or mail by first class mail
a notice, conforming to the requirements set forth in Section 4.01
above, at least twenty (20) days but not more than thirty (30)
days prior to the Automatic Conversion hate to the Owner of each
Bond at the address shown on the registration books of the Trus-
tee. Any notice given as provided in this Section shall be con-
clusively presumed to have been duly given, whether or not the
Owner receives the notice.
Any Owner of. Bonds desiring to retain Bonds after the Auto-
matic Conversion Date must notify the Developer_ and the Trustee in
writing which notice Must be received no later than ten (10) days
prior to the Automatic Conversion Date. Said notice shall conform
to the requirements set forth in Section 4.01 above. Owners of
Bonds not providing the Trustee and the Developer with the notice
described above shall be required to tender their Ponds to the
Tender Agent for purchase at the Purchase Price, and any such
Bonds not delivered to the Tender Agent on or prior to the Auto-
matic Conversion Date ("Undelivered Bonds"), for which there has
been irrevocably deposited in trust with the Trustee an amount of
- 33 -
moneys sufficient to pay the Purchase Price of the Undelivered
Bonds, shall be deemed to have been tendered and purchased pursu-
ant to this Section 4.02 and no longer Outstanding. IN THE EVENT
OF A FAILURE BY AN OWNER OF BONDS (OTHER. THAN AN OWNER OF BONDS
WHO HAS GIVEN NOTICE AS PROVIDED ABOVE) TO DELIVER ITS BONDS ON OR
PRIOR TO THE AUTOMATIC CONVERSION DATE, SAID OWNER SHALL NOT BE
ENTITLED TO ANY PAYMENT (INCLUDING ANY INTEREST TO ACCRUE SUBSE-
QUENT TO THE AUTOMATIC CONVERSION DATE) OTHER THAN THE PURCHASE
PRICE FOR SUCH UNDELIVERED BONDS, AND ANY UNDELIVERED BONDS SHALL
NO LONGER BE ENTITLED TO THE BENEFTTS OF THE ORDINANCE, EXCEPT FOR
THE PURPOSE OF PAYMENT OF THE PURCHASE PRICE THEREFOR.
SECTION 4.03. Exchange of Bonds after Conversion Date.
At
any time prior to the first interest payment date following
the
Conversion Date, an Owner of Bonds who has given notice of
its
desire to continue to hold Bonds as provided in Section 4.01
or
Section 4.02 above may deliver said Bonds to the Trustee or
the
Tender Agent, and upon such delivery, the Trustee or the Tender
Agent, as the case may be, shall exchange said Bonds for replace-
ment Bonds in the form of Exhibit B or Exhibit C, as the case
may
be, hereto. Such exchange shall be made by the Trustee or
the
Tender Agent, as the case may be, without making any charge there-
for to the Owner of such. Bonds.
SECTION 4.04. Condition to Conversion and to the Delivery of
the Alternate Rate Option Notice. As a condition to the giving of
directions as provided in Sections 4.01 or 4.02 above, or to the
delivery of the Alternate Rate Option Notice, to Trustee, the
Developer shall provide the Trustee with an opinion of nationally
recognized bond counsel satisfactory to the Developer and Trustee
to the effect that the proposed conversion or change, as the case
may be, of the interest rate on the Bonds will not adversely
affect the exemption of the interest on the Bonds from federal
income taxation.
SECTION 4.05. Additional Notices. The Developer shall pro-
vide the Tender Agent with a copy of any notice given to the Trus-
tee for delivery to the Owners of the Bonds pursuant to either of
Sections 4.01 or 4.02 hereof. The Trustee shall provide the Ten-
der Aqent with a copy of any notice received by the Trustee from
any Owner of a Bond pursuant to either of Sections 4.01 or 4.02
hereof.
SECTION 4.06. Demand Purchase Option. On and after March 1,
19851 any Bond shall be purchased at the Purchase Price from the
Owner thereof upon:
( i) delivery to the Trustee at its Principal Office and to
the Remarketing Agent at its Principal Office of a notice
(said notice to be irrevocable and effective upon receipt)
which (1) states the aggregate principal amount and Bond
- 34 -
numbers of the Bonds to be purchased; and (2) states the date
on which such Bonds are to be purchased, which date shall be
a Business Day not prior_ to the seventh (7th) day next suc-
ceeding the date of delivery of such notice and which date
shall be prior to the Conversion Bate; and
( ii) delivery to the Tender Aqent at its Delivery Office at
or Prior to 10: 00 a.m. , New York City time, on the date
designated for purchase in the notice described in (i) above
of such Bonds to be purchased, with an appropriate endorse-
ment for transfer or accompanied by a bond power endorsed in
blank, and if such Bonds are to be purchased prior to the
next succeeding interest payment date and after the Record
Date in respect thereof, a due -bill check, payable to bearer,
for interest due on such interest payment date.
SECTION 4.07. Funds for Purchase of Bonds. On the date
Bonds are to be purchased pursuant to Sections 4.01, 4.02 or 4.06
hereof, such Bonds shall be purchased at the Purchase Price only
from the funds listed below. Subject to the provisions of Section
6. 12(b) , funds for the payment of the Purchase Price shall be de-
rived from the following sources in the order of priority indicat-
ed:
(i) moneys deposited into the Bond Fund pursuant to Sec-
tion 6.02(a) hereof which constitute Available Moneys;
(ii) moneys drawn for such purpose by the Trustee under the
Letter of Credit;
(iii) the proceeds of the sale of such Bonds which have been
remarketed by the Pemarketi.ng Agent prior to 4:00 p.m., New
York City time, on the Business Day preceding the date such
Bonds are to be purchased, to any entity other than the
Developer or the City; and
(iv) any other moneys furnished to the Trustee and avail-
able for such purpose.
SECTION 4.08. Delivery of Purchased Bonds.
(a) Bonds purchased with moneys described in Section 4.07(i)
hereof shall be delivered to the Trustee for cancellation.
(b) Bonds purchased with moneys described in Section 4.07
(ii) hereof shall be delivered by the Tender Agent to or upon the
order of the Bank pursuant to the Pledge Agreement.
(c) Bonds purchased with moneys described in Section 4.07
(iii) hereof shall be delivered by the Tender Agent, at its Deliv-
ery office, to or upon the order of the purchasers thereof.
- 35 -
(d) Bonds purchased with moneys described in Section 4.07
(iv) shall, at the direction of the Developer, be (A) delivered as
instructed by the Developer or ( B) delivered to the Trustee for
cancellation; provided, however, that any Bonds so purchased after
the selection thereof by the Trustee for redemption shall be
delivered to the Trustee for cancellation.
(e) The Tender Agent shall deliver to the person to whom the
Tender Agent is to deliver such bonds the due -bill checks, if any,
delivered to the Tender Agent with such Bonds in accordance with
Section 4.06 hereof.
Bonds delivered as provided in this Section shall be regis-
tered in the manner directed by the recipient thereof. The Remar-
keting Agent shall promptly notify the Tender Agent upon receipt
by the Remarketing Agent of the notice described in clause ( i) of
Section 4.06 hereof.
SECTION 4.09. Delivery of Proceeds of Sale of Purchased
Bonds.
(a) Except in the case of the sale of any Pledged Bonds, the
proceeds of the sale of any Bonds delivered to the Tender Agent
pursuant to Sections 4.01, 4.02 or 4.06 hereof, to the extent not
required to pay the Purchase Price thereof in accordance with
Section 4.07 hereof, shall be paid to or upon the order of the
Developer.
(b) In the event the Remarketing Agent shall have remarketed
any Pledged Bonds and the Developer shall have directed the Bank
to deliver such Pledged Bonds to the Tender Agent pursuant to
Paragraph 2B of the Credit Agreement, such Bonds shall be deliv-
ered by the Tender Agent in accordance with Section 4.08(c) hereof
and the proceeds of sale of such Bonds shall he delivered to the
Bank; provided that so long as no default or event of default has
occurred and is continuing under the Credit Agreement any (i)
premium or (ii) accrued interest in excess of amounts then due to
the Bank, as the case may be, pursuant to Paragraph 2A of the
Credit Agreement, as the case may be, received upon the sale of
such Bonds shall be delivered by the Rank to or upon the order of
the Developer.
SECTION 4.10. Duties of Trustee and Tender Agent with Re-
spect to Purchase of Bonds.
( a) The Tender Agent shall hold all Bonds delivered to it
pursuant to Sections 4.01, 4.02 or 4.06 hereof in trust for the
benefit of the respective Owners of Bonds which shall have so
delivered such Bonds until moneys representing the Purchase Price
of such Bonds shall have been delivered to or for the account of
or to the order of such Owners of Bonds;
(b) The Trustee and the Tender Agent shall hold all moneys
delivered to them pursuant to this Ordinance for the purchase of
Bonds in a separate account, in trust for the benefit of the per-
son or entity which shall have so delivered such moneys until the
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1
Bonds purchased with such moneys shall have been delivered to or
for the account of such person or entity;
(c) The Trustee shall deliver to the Tender Aqent, the
Developer and the Bank a copy of each notice delivered to it in
accordance with Section 4.06 hereof and the Tender Aqent shall, as
soon as possible, but no later than the close of business on the
date of delivery to it of Bonds in accordance with said Section
4.06, give telephonic or telegraphic notice to the Developer, the
Trustee and the Bank specifying the principal amount of the Bonds
so delivered; and
(d.) The Trustee shall draw moneys under the Letter of Credit
in accordance with the terms thereof to the extent required by
Sections 4.07 and 6.12 hereof to provide for timely payment of the
Purchase Price of Bonds.
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ARTICLE V
GENERAL COVENANTS;
COVENANTS RESPECTING THE FACILITIES
SECTION 5.01. Payment of Principal, Premium, if any, and
Interest. The City covenants that it will Promptly pay and cause
to be paid the principal of, premium, if any, and interest on
every Bond issued under this Ordinance at the place, on the dates,
and in the manner provided herein and in said Bonds according to
the true intent and meaning thereof., but solely from the amounts
pledged therefor which are from time to time held by Trustee in
the Bond Fund. The principal of., premium, if any, and interest on
the Bonds are payable from the amounts to be paid under the Aq ree-
ent and otherwise as provided herein and in the Agreement, which
amounts are hereby specifically pledged to the payment thereof in
the manner and to the extent herein specified, and nothing in the
Bonds or in this Ordinance shall be construed as pledging any
other funds or assets of the City. Neither City, any official,
officer, elect or employee of City, the State, nor any political
subdivision of the State shall in any event be liable for the pay-
ent of the principal of, premium, if any, or interest on any of
the Bonds or for the performance of any pledge, obligation or
agreement undertaken by City except to the extent that loan pay-
ents and moneys pledged herein are sufficient therefor.
SECTION 5.02. Performance of Covenants; City. City cove-
nants that it will faithfully cause to be enforced and performed
at all times any and all covenants, undertakings, stipulations and
provisions contained in this Ordinance and in the Agreement, in
any and every Bond executed, authenticated and delivered hereunder
and in all of its proceedings pertaining hereto. The City's obli-
gation to pay the expenses of such enforcement shall be limited to
funds made available to it for that purpose by the Trustee, any
Owner of Bonds or other interested persons. The City covenants
that it is duly authorized under the Constitution and laws of the
State, including particularly and without limitation the Act, to
issue the Bonds authorized hereby; to approve, pass and adopt this
Ordinance and to execute and deliver the Ground Lease and the
q reement; to assign the Agreement and its other interests herein
assigned; and to pledge the amounts to be paid under the Agreement
and other amounts hereto pledged in the manner and to the extent
erein set forth; that all actions on its part for the issuance of
the Bonds and the approval , passage and adoption of this Ordi-
nance have been duly and effectively taken, and that the Bonds in
the hands of the Owners thereof are and will be valid and enforce-
able obligations of. the City according to the terms thereof_ and
hereof.
SECTION 5.03. Instruments of Further Assurance. The City
ill cause to be done, executed, acknowledged and delivered such
Ordinances supplemental hereto and such further acts, instruments
and transfers as Trustee may reasonably require for the better
assuring, transferring, conveying, pledging, assigning and con-
firming unto Trustee all and singular the amounts pledged hereby
o the payment of the principal of, premium, if any, and interest
n the Bonds. The City, except as herein and in the Agreement
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provided, will not sell, convey, mortgage, encumber or otherwise
dispose of any part of the Trust .Estate or any amounts, revenues
and receipts payable under the Aqreement or any its rights there-
under.
SECTION 5.04. Recording and Filinq. All financing state-
ments related to this Ordinance and all supplements hereto, as
well as such other security a(Ireements, financing statements and
all supplements thereto and other instruments as may be required
from time to time to be kept, to be recorded and filed in such
manner and in such places as may from time to time be required by
law in order to preserve and protect fully the security of the
Owners of the Bonds and the rights of Trustee hereunder, and to
take or cause to be taken any and all other action necessary to
perfect the security interest created by this Ordinance, shall be
so kept, recorded and filed.
SECTION 5.05. Inspection of Books. All books and records,
if any, in the City's possession relatinq to the Facilities and
the amounts derived from the Facilities shall at all reasonable
times durinq normal business hours be open to inspection by such
accountants or other agents as Trustee may from time to time
designate.
SECTION 5.06. List of Owners of Bonds. Trustee will keep on
file a list of names and addresses of the Owners of all Bonds as
from time to time reqistered on the registration books maintained
by Trustee as Pond registrar, together with the principal amount
and numbers of such Ponds. At reasonable times and under reason-
able requlations established by Trustee, said list may be inspect-
ed and copied for any purpose by the City, Developer or by Owners
(or a designated representative thereof) of fifteen percent (15%)
or more in agqreqate principal amount of. Outstandinq Bonds, such
possession or ownership and the authority of such designated
representative to be evidenced to the satisfaction of Trustee.
SECTION 5.07. Rights Under Agreement. The Agreement, a duly
executed counterpart of which has been filed with Trustee, sets
forth the covenants and obligations of City and Developer, and
reference is hereby made to the Agreement for a detailed statement
of said covenants and obligations of Developer thereunder, and
City agrees that Trustee in its name or in the name of City shall
enforce all rights of City and all obligations of Developer under
and pursuant to the Agreement for and on behalf of the Owners of
Bonds, whether or not City is in Default hereunder. City cove-
nants that it will not consent to any amendment of the Agreement
without the prior express approval of the Trustee and the Rank.
SECTION 5.08. Covenants Regarding Operation and Maintenance
of Facilities. The City expressly covenants and agrees that it
shall cause the Developer to bear and timely pay all costs of
operating and maintaining the Facilities and further:
( a) That it shall cause the Developer to operate and main-
tain or cause to be operated and maintained the Facilities
and each and every portion thereof, including all additions
- 39 -
and improvements and all facilities adjoining and/or appur-
tenant thereto and otherwise in accordance with the require-
ments of the Ground Lease and good operating order and condi-
tion, reasonable and ordinary wear and tear and insured risks
(to the extent and only to the extent of Developer's electing
to apply insurance or condemnation proceeds under the provi-
sions of Section 5.13 hereof_ and the Credit Agreement) , alone
excepted, and make all necessary repairs thereto, interior
and exterior, structural and nonstructural, ordinary and
extraordinary, foreseen and unforeseen, and otherwise to make
all replacements, alterations, improvements and modifications
to the Facilities necessary to insure that the same shall not
be materially impaired or diminished;
(b) That it shall cause the Developer to assume and bear or
cause to be assumed and borne full and sole responsibility
for the condition, operation, repair, replacement, mainte-
nance and management of the Facilities; provided, however,
Trustee, Bank and their agents shall have the right to in-
spect the Facilities at any reasonable time in a manner which
will not i_nteref.ere unreasonably with either the Developer's
or Tenants' use thereof. In the event of Developer's breach
of the covenants and agreements contained in Section 6.1 of
the Agreement, following ten (1.0) days written notice to
Developer of specified breach and its failure to institute or
cause to be instituted prompt and efficient action to cure
the same, Trustee or Bank or their aqents shall have the
right, but shall not be obligated, to enter the Facilities
for the purpose of curing the same and Developer shall be
caused to promptly pay or cause to be paid the cost thereof
upon presentation of statements or invoices evidencing the
same;
(c) That it shall cause the Developer to pay or cause to be
paid, as the same respectively become due, all taxes and
assessments, whether general or special, and governmental
charges of any kind whatsoever that may at any time be law-
fully assessed or levied against or with respect to the
Facilities. City may permit Developer to contest or permit
to he contested any such item of tax, assessment, other
governmental charge, lien or other encumbrance and, in the
event of such contest, may permit the item so contested to
remain unpaid during the period of such contest and any
appeal therefrom if City shall first notify Trustee and Bank
of its intention to do so;
(d) That it shall cause the Developer to comply with all
present and future laws, ordinances, orders, rules, regula-
tions and requirements of every duly constituted governmental
authority or agency and all orders, rules and regulations of
any regulatory body exercising similar functions, which per-
tain to the Facilities. The City shall likewise cause the
Developer to perform and comply or cause to be performed and
complied with the material respects of all duties and obliga-
tions of any kind imposed by law, covenant, condition,
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or easement with respect to the Facilities and the Project
and including without limitation the Ground Lease. The fore-
going obligations shall include, but not be limited to, the
duty of City to cause the Developer to obtain or cause to be
obtained any certificates of occupancy with respect to all or
any portion of the Facilities which may at any time be re-
quired by any governmental agency having jurisdiction thereof
and to procure, maintain and comply with all licenses and
other authorizations required for the use of the Facilities
then being made or cause such to occur; and
(e) That it shall cause the Developer not to permit the
Facilities to be used or occupied for any unlawful purpose or
in violation of any private covenant, restriction, condition,
easement or agreement coverinq or affecting the use of the
Facilities, or suffer any act to be done or any condition to
exist in the Facilities or any article to be brought therein
or thereon which may be dangerous, unless safeguarded as
required by law, or which, under law, constitutes a nuisance,
public or private, or which may make void or voidable any
insurance then in force with respect thereto.
SECTION 5.09. Risk of Loss. The risk of loss or of decrease
hn the enjoyment and beneficial use of the Facilities in conse-
quence of the damage or destruction thereof by Acts of God, fire,
the elements, casualties, thefts, riots, civil strife, war,
nuclear explosion or otherwise or in consequence of foreclosures,
attachments, levies or executions shall be the express obligation
and risk of the Developer, and the City and Trustee shall in no
event be answerable, accountable or liable therefor, nor shall any
of the foregoing events entitle Developer to any abatement of any
of its obligations hereunder.
SECTION 5.10. Security Interests in the Facilities. This
Ordinance, any supplement thereto and any and all financing state-
ments or amendments thereof or continuation statements thereto
necessary to perfect and continue the perfection of the security
interests granted in this Ordinance, all to the extent required by
or appropriate under applicable laws of the State, shall he filed
and recorded as required by law, with Developer to pay all costs
of filing such instruments.
SECTION 5.11. Granting of Easements. If no event of non-
performance hereunder shall have happened and be continuing, the
City may, at any time or times grant, easements, licenses, riqhts
of way (including the dedication of public highways) and other
rights and privileges in the nature of easements with respect to
any property or rights included in the Facilities, free from the
security interest and lien of this Ordinance, or release existing
easements, licenses, rights-of-way and other rights and privi-
leges, all with or without consideration, and the City aqrees that
it shall execute and deliver and will cause and direct the Trustee
to execute and deliver any instrument necessary or appropriate to
confirm and grant or release any such easement, license, right -of-
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SECTION 5.12. City May Permit Developer to Improve or Alter.
The City may permit the Developer and the Tenants, to the extent
and in the manner provided in the Agreement, at no cost or expense
to the City or the Trustee to remodel or make such additions,
improvements, alterations, removals and/or substitutions to the
Facilities or to install such furnishings or equipment as they may
deem desirable; provided, that such additions, improvements,
alterations or installation of furnishings or equipment neither
impair nor adversely affect the structural integrity or operation-
al utility value of the Facilities, or any portions thereof., under
this Ordinance or violate any of the covenants of the Agreement.
SECTION 5.13. Damage, Destruction and Condemnation. Unless
Developer shall have exercised its option to terminate the Agree-
ment pursuant to the provisions of Section 11.3(a) or Section
11.3(b) of the Agreement, if prior to full payment of the Bonds
(or prior to provision for payment thereof having been made in
accordance with the provisions of this Ordinance) (i) the Facili-
ties or any portion thereof are destroyed (in whole or in part) or
are damaged by fire or other casualty or (ii) title to or any
interest in, or the temporary use of, the Facilities or any part
thereof shall be taken under the exercise of the power of eminent
domain by any _governmental body or by any person, firm or corpora-
tion acting under governmental authority, Developer, to the extent
therein provided, shall be obligated to continue to pay the
amounts specified in Section 5.3 of the Agreement.
The City and Trustee will cause the Net Proceeds of any
insurance proceeds or condemnation award resulting from any event
described above to be deposited in a separate trust fund with the
Trustee. All Net Proceeds so deposited shall be applied in one or
more of the following ways as shall be elected by Developer in a
written notice to Bank, City and Trustee:
(a) To the prompt repair, restoration, modification or im-
provement of the Facilities by Developer as City's agent.
Any balance of the Net Proceeds remaining after such work has
been completed shall be transferred to the Bond Fund to be
applied, at such time as such funds constitute Available
Moneys, to the payment of principal of, premium if any, and
interest on the Bonds, or if the Bonds have been fully paid
(or provision for payment thereof has been made in accordance
with the provisions of this Ordinance), any balance remaining
in such separate trust fund shall be paid in accordance with
Section 6.11 of this Ordinance.
- 42 -
way or
other grant or
privilege upon
receipt of: ( i) a copy of
the instrument of grant or release;
(ii) a written application
signed
by the Developer Representative
requesting such action and
stating_
(a) that such
qrant or release is not detrimental to the
proper
conduct of the
business of the
Developer or its operation
of the
Facilities as
contemplated hereunder, and (b) that such
grant or release will
not impair the
effective use or interfere
with the
operation of
the Facilities as contemplated hereunder.
SECTION 5.12. City May Permit Developer to Improve or Alter.
The City may permit the Developer and the Tenants, to the extent
and in the manner provided in the Agreement, at no cost or expense
to the City or the Trustee to remodel or make such additions,
improvements, alterations, removals and/or substitutions to the
Facilities or to install such furnishings or equipment as they may
deem desirable; provided, that such additions, improvements,
alterations or installation of furnishings or equipment neither
impair nor adversely affect the structural integrity or operation-
al utility value of the Facilities, or any portions thereof., under
this Ordinance or violate any of the covenants of the Agreement.
SECTION 5.13. Damage, Destruction and Condemnation. Unless
Developer shall have exercised its option to terminate the Agree-
ment pursuant to the provisions of Section 11.3(a) or Section
11.3(b) of the Agreement, if prior to full payment of the Bonds
(or prior to provision for payment thereof having been made in
accordance with the provisions of this Ordinance) (i) the Facili-
ties or any portion thereof are destroyed (in whole or in part) or
are damaged by fire or other casualty or (ii) title to or any
interest in, or the temporary use of, the Facilities or any part
thereof shall be taken under the exercise of the power of eminent
domain by any _governmental body or by any person, firm or corpora-
tion acting under governmental authority, Developer, to the extent
therein provided, shall be obligated to continue to pay the
amounts specified in Section 5.3 of the Agreement.
The City and Trustee will cause the Net Proceeds of any
insurance proceeds or condemnation award resulting from any event
described above to be deposited in a separate trust fund with the
Trustee. All Net Proceeds so deposited shall be applied in one or
more of the following ways as shall be elected by Developer in a
written notice to Bank, City and Trustee:
(a) To the prompt repair, restoration, modification or im-
provement of the Facilities by Developer as City's agent.
Any balance of the Net Proceeds remaining after such work has
been completed shall be transferred to the Bond Fund to be
applied, at such time as such funds constitute Available
Moneys, to the payment of principal of, premium if any, and
interest on the Bonds, or if the Bonds have been fully paid
(or provision for payment thereof has been made in accordance
with the provisions of this Ordinance), any balance remaining
in such separate trust fund shall be paid in accordance with
Section 6.11 of this Ordinance.
- 42 -
(b) At such time as such funds constitute Available Moneys,
to redemption of the Bonds on the next succeeding redemption
date as specified in a written notice by Developer to Trus-
tee, provided that no part of the Net Proceeds may be applied
for such redemption unless (1) all of the Bonds are to be
redeemed in accordance with this Ordinance upon termination
of the Agreement or (2) in the event that less than all of
the Bonds are to be redeemed, Developer shall furnish to
City, Bank and Trustee a certificate of Developer Representa-
tive acceptable to Bank and Trustee stating that (i) the
property forming the part of the Facilities that was damaged
or destroyed by such casualty or was taken by such condemna-
tion proceedings is not essential to the use or possession of
the Facilities by Developer or the Tenants or (ii) the
Facilities have been repaired, restored, modified or improved
to operate as designed.
If such Net Proceeds are insufficient to pay in full the cost
of any repair, restoration, modification or improvement referred
to in Article b of the Agreement, City will nonetheless cause
Developer to complete the work and to pay any cost in excess of
the amount of the Net Proceeds held by Trustee; provided, how-
ever, any such payments shall not entitle the Developer to any
reimbursement therefor from Trustee or the Owners of any of the
Bonds, nor shall. Developer be entitled to any diminution of the
amounts payable under Section 5.3 of the Agreement.
The City may cooperate fully with Developer at the expense of
Developer in filing any proof of loss with respect to any insur-
ance policy covering the casualties described in Section 7.1 of
the Agreement and in the prosecution or defense of any prospective
or pending condemnation proceeding with respect to the Facilities
or any part thereof or any property of Developer in connection
with which the Facilities are used and will., to the extent it may
lawfully do so, permit Developer to litigate in any proceeding
resulting therefrom in the name and on behalf of the City. In no
event will City voluntarily settle, or consent to the settlement
of, any proceeding arising out of any insurance claim or any pro-
spective or pending condemnation proceeding with respect to the
Facilities or any part thereof without the prior written consent
of Developer Representative.
SECTION 5.14. Trustee Undertakings on Behalf of City. Not-
withstanding any provisions of this Ordinance to the contrary, the
duties and obligations of the Trustee under this Ordinance shall
include, in addition to such as are expressly otherwise set forth
in this Ordinance and the Agreement, all rights, duties, responsi-
bilities and obliqations which are reserved to or imposed upon the
City under this Ordinance and the Agreement, and, to the extent
thereof, the Ground Lease, the Subleases and the Cash Deficiency
Aq reement, exceptinq only such of those rights, duties, responsi-
bilities and obligations as may only be properly and lawfully
exercised by or imposed upon the City.
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1
1
There is hereby
reated and established with the Trustee a trust fund to be desig-
ated "City of Salina, Kansas - Bond Fund (SALINA CENTRAL MALL
IMITFD PARTNERSHIP (PENNEY'S) PROJECT), which shall be used to
ay when due the principal of, premium, if any, and interest on
he Bonds.
SECTION 6.02. Payments into the Bond Fund. There shall be
eposited into the Bond Fund from time to time the following:
( a) any amount in the Construction Fund directed to be paid
into the Bond Fund in accordance with the provisions of
either of Sections 6.07 or 6.08 hereof;
(b) any amount deposited into the Bond Fund pursuant to Sec-
tion 6.04 hereof;
(c) all payments specified in Section 5.3 of the Agreement;
(d) any moneys drawn under the Letter of Credit, which
moneys shall he deposited in separate sub -accounts of the
Bond Fund and shall in no event be commingled with any other
moneys held by the Trustee; and
(e) all other moneys received by the Trustee under and pur-
suant to any of the provisions of the Aq r_eement which are re-
quired to be or which are accompanied by directions that such
moneys are to be paid into the Bond Fund.
SECTION 6.03. Use of Moneys in the Bond Fund. Except as
rovided in Section 6.11 hereof, moneys in the Bond Fund shall be
sed solely for the payment of the principal of, premium, if any,
nd interest on the Bonds and for the redemption of the Bonds
rior to maturity. Subject to the provisions of Section 6.12
ereof, funds for such payments of the principal of, premium, if
ny, and interest on the Bonds shall be derived from the following
ources in the order of priority indicated:
(i) amounts deposited into the Bond Fund from the proceeds
of the Bonds representing capitalized interest;
(ii) amounts deposited into the Bond Fund pursuant to Sec-
tion 6.02(a) hereof which constitute Available Moneys;
- 44 -
1
( iii) amounts deposited into the Bond Fund pursuant to Sec-
tion 6.02(b) hereof which constitute Available Moneys;
(iv) moneys drawn by the Trustee under the Letter of Credit;
and
(v) any other moneys furnished to the Trustee and available
for such purpose.
Notwithstanding the foregoing, amounts deposited into the
and Fund in accordance with Section 6.08 hereof shall be applied
nly to the payment of the principal of the Bonds, and amounts de-
osited into the Bond Fund pursuant to Section 6.04 hereof shall
e applied only to the payment of the principal of the Bonds.
SECTION 6.04. Custody of Separate Trust Fund. The Trustee
s authorized and directed to hold all Net Proceeds from any in-
urance proceeds or condemnation award, and disburse such proceeds
n accordance with Section 6.4 of the Agreement. If the Developer
directs that any portion of such Net Proceeds be applied to
redeem Bonds, the Trustee shall deposit such Net Proceeds in a
separate sub -account of.. the Bond Fund, and the City covenants and
agrees to take and cause to he taken any action requested of the
City to redeem on the earliest possible redemption date the amount
f Bonds so specified by the Developer.
SECTION 6.05. Construction Fund. There is hereby created
nd established with the Trustee a trust fund to be designated
City of Salina, Kansas - Construction Fund, (SALINA CENTRAL MALL
IMITED PARTNERSHIP (PENNEY'S) PROJECT)", which shall be expended
n accordance with the provisions of the Agreement (referred to
erein as the "Construction Fund").
SECTION 6.06. Payments into the Construction Fund; Dis-
ursements. The proceeds of the issuance and delivery of the
onds shall be deposited in the Construction Fund. The Trustee is
ereby authorized and directed to make each disbursement from the
onstruction Fund required by the provisions of the Aq reement.
he Trustee shall keep and maintain adequate records pertaining to
he Construction Fund and all disbursements therefrom, including
ecords of all requisitions made pursuant to Section 4.2 of the
qreement, and after the Project has been completed and a comple-
ion certificate has been filed as provided in Section 6.08 here -
f, the Trustee shall, upon request of the Developer, file an
ccounting thereof with the City, the Developer and the Bank.
SECTION 6.07. Use of Money in the Construction Fund Upon
efault. If the principal of the Bonds shall have become due
- 45 -
nd payable pursuant to Article IX hereof, any balance remaining
n the Construction Fund shall without further authorization be
ransferred into the Bond Fund.
SECTION 6.08. Completion of the Project. The completion of
he Project and payment or provision for payment of all Costs of
he Project shall be evidenced by the filing with the Trustee of
he certificate required by Section 4.4 of the Agreement. As soon
s practicable and in any event not more than sixty (60) days from
he date of the certificate referred to in the preceding sentence,
ny balance remaining in the Construction Fund (except amounts the
eveloper shall have directed the Trustee to retain for any Cost
f the Project not then due and payable) shall without further
uthorization he transferred into a separate sub- account within
he Bond Fund and thereafter applied in the manner provided in
ection 5.3 of the Aq reement to the payment of the principal of
he Bonds.
SECTION 6.09. Nonpresentm.ent of Bonds. In the event any
Bond shall not be presented for payment when the principal thereof
becomes due, either at maturity, or at the date fixed for redemp-
tion thereof, or otherwise, if Available Moneys sufficient to pay
ny such Bond shall have been made available to the Trustee for
he benefit of the Owner thereof, all liability of the City to the
wner thereof for the payment of. such Bond shall forthwith cease,
etermine and be completely discharged, and thereupon it shall be
he duty of the Trustee to hold such funds, without liability for
nterest thereon, for the benefit of the Owner of. such Bond who
hall thereafter he restricted exclusively to such funds for any
l.aim of whatever nature on his part under this Ordinance with
espect to such Bond.
Any moneys so deposited with and held by the Trustee not so
ppl. ied to the payment of Bonds within five ( 5 ) years after the
ate on which the same shall have become due shall be repaid by
he Trustee to the Developer upon direction of a Developer Repre-
entative, and thereafter Owners of Bonds shall be entitled to
oak only to the Developer for payment, and then to the extent of
he amount so repaid, and all liability of the Trustee with
espect to such money shall thereupon cease, and the Developer
hall not be liable for any interest thereon and shall not be
egarded as a trustee of such money.
SECTION 6.10. Moneys to be Held in Trust. All moneys re-
quired to be deposited with or paid to the Trustee for the account
f any fund or account referred to in any provision of this Ordi-
ance or the Agreement, except the account established pursuant to
Section 6.13 hereof, shall be held by the Trustee in trust, and
hall, while held by the Trustee, constitute part of the Trust
state and be subject to the liens and security interests created
ereby.
- 46 -
u
SECTION 6.11. Repayment to the Bank and the Developer from
the Bond Fund or the Construction Fund. Any amounts remaining in
the Bond Fund, the Construction Fund, or any other fund or account
created hereunder after payment in full of the principal of,
premium, if any, and interest on the Bonds, the fees, charges and
expenses of the Trustee and all other amounts rectuired to be paid
hereunder, shall be paid immediately to the Bank to the extent of
any indebtedness of the Developer under the Credit Aqreement and,
after repayment of all such indebtedness, to the Developer.
SECTION 6.12. Letter of Credit.
(a) During the term of the Letter of Credit, the Trustee
shall draw moneys under the Letter of Credit in accordance with
the terms thereof (x) to the extent moneys described in Section
6.03(i), (ii) and (iii) hereof are not available therefor, to pay
when due (whether by reason of maturity, redemption, acceleration
or otherwise) the principal of, premium, if any, and interest on
the Bonds, and (y) to the extent moneys described in Section
4.07(i) hereof are not available therefor, to pay when due the
Purchase Price of Bonds.
(b) Notwithstanding any provision to the contrary which may
be contained in this Ordinance, including, without limitation,
Section 6.12(a), (i) in computing the amount to be drawn under the
Letter of Credit on account of the payment of the principal or
Purchase Price of, or premium, if any, or interest on the Bonds,
the Trustee shall exclude any such amounts in respect of any Bonds
which are Pledged Bonds on the date such payment is due, and (ii)
amounts drawn by the Trustee under the Letter of Credit shall not
be applied to the payment of the principal or Purchase Price of,
or premium, if any, or interest on, any Bonds which are Pledged
Bonds on the date such payment is due.
SECTION 6.13. Bond Purchase Account. There is hereby estab-
lished the separate account referred to in Section 4.10(b), de-
nominated as a bond purchase account, in which, in such event, the
Trustee shall hold any funds received by it under Section 4.10
hereof for the purchase of Bonds pursuant to Sections 4.01, 4.02
and 4.06 hereof.
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ARTICLE VII
INVESTMENT OF MONEYS
Any moneys held as a part of the Construction Fund or any
other trust fund created hereunder or by operation hereof, other
than the Bond Fund, shall be invested or reinvested by the Trus-
tee, to the extent permitted by law, at the verbal request of and
as directed by the Developer Representative in Authorized Invest-
ments. The Trustee shall provide written confirmation of all
investments so made.
Any moneys held as a part of the Bond Fund shall be invested
or reinvested by the Trustee, to the extent permitted by law, in
United States Treasury Bills with maturities of no more than thir-
ty (30) days from the date of acquisition thereof.
The Trustee may make any and all. such investments through its
own bond or investment department or the bond or investment de-
partment of any bank or trust company under common control with
the Trustee. All such investments shall at all times be a part of
the fund or account from which the moneys used to acquire such
investments shall have come and all income and profits on such
investments shall be credited to, and losses thereon shall be
charged against, such fund. Investments in the Construction Fund
shall be made so as to mature or be subject to redemption at the
option of the owner thereof on or prior to the date or dates that
the Developer anticipates that moneys therefrom will be required.
All investments hereunder shall be registered in the name of the
Trustee, as Trustee under this Ordinance. All investments here-
under shall be held by or under the control of the Trustee. The
Trustee shall sell and reduce to cash a sufficient amount of
investments in the Bond Fund whenever the cash balance in the Bond
Fund is insufficient, together with any other funds available
therefor, to pay the principal or Purchase Price of, premium, if
any, and interest on the Bonds when due.
The City covenants and certifies to
and for the benefit of
the Owners of the Bonds fromtime to time Outstanding that so long
as any of the Bonds remain Outstanding,
the City shall neither
direct nor permit Developer pursuant to
the provisions of the
Agreement to direct that moneys on deposit
in any fund or account
in connection with the Bonds (whether or not such moneys were
derived from the proceeds of the sale of
the Bonds or from any
other sources), be used in a manner which
will cause the Bonds to
be classified as "arbitrage bonds" within
the meaning of Section
103(c) of the Code.
1
1
ARTICLE 171II
DISCHARGE OF LIENS
SECTION 8.01. Discharge of Liens. If City shall pay or
cause to be paid, in accordance with the provisions of this
Ordinance, to the Owners of the Bonds, the principal of, premium,
if any, and interest due at the time and in the manner stipulated
therein, and if City shall not then be in Default in any of the
other covenants and promises in the Bonds and in this Ordinance
expressed as to be kept, performed and observed by it or on its
part and if City shall pay or cause to be paid to Trustee all sums
of money due or to become due according to the provisions hereof
then, to the extent all Credit Secured Indebtedness shall have
been paid and with the express prior_ written consent of the Bank,
these presents and the estates and rights hereby granted shall
cease, determine and be void, whereon Trustee and the Bank shall
cancel and discharge their liens lander this Ordinance, and execute
and deliver to City such instruments in writing as shall be
requisite to release such liens and reconvey, release, assign and
deliver unto City any and all of the estate, right, title and
interest in and to any and all rights or property conveyed,
assigned or pledged to such parties or otherwise subject to the
liens of this Ordinance, except amounts in the Bond Fund or Con-
struction Fund requi.red to be paid to Bank and Developer under
Section 6.11 hereof_ and except cash held by Trustee for the pay-
ment of the principal or Purchase Price of, premium, if any, or
interest on particular Bonds; PROVIDED, HOWEVER, in the event that
any portion of the Credit Secured Indebtedness shall remain out-
standing then these estates and rights granted hereunder shall
continue to exist for the benefit of the Bank, to be enforceable
by the Bank as otherwise provided herein and the Trustee shall
cooperate with the Bank in Bank's exercise of its rights and
remedies and in the preservation of the Trust Estate and at the
request of Bank shall execute and deliver such instruments in
writing as shall be required to release, assign and deliver unto
Bank any and all rights, property or interests therein conveyed,
assigned or pledged to Bank or otherwise subject to the lien of
this Ordinance. To the extent that all Credit Secured Indebted-
ness shall have been paid and with the express prior written con-
sent of the Trustee, these presents and the estates and rights
hereby granted to Bank shall cease, determine and be void, whereon
Bank shall cancel and discharge its liens under this Ordinance in
the manner hereinabove set forth. At such time as the require-
ments of this Section 8.01 have been met, whether or not in the
event of a redemption in whole tinder Article III hereof_, the
Aq reement shall terminate, and the City shall convey all its
right, titles and interests in the Facilities to the Developer, as
provided in the Agreement and the Mayor and other appropriate
officers of the City are hereby authorized and directed to execute
and deliver all such deeds, bills of sale and other instruments,
including without limitation a certain General Lease Assignment
and Assumption Agreement (the form of which is attached as Exhibit
E to the Agreement), as may be necessary to effect such conveyance
and transfer.
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i
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SECTION 8.02. Defeasance of Bonds. The following provisions
of this Section 8.02 shall apply only from and after the Letter
of Credit Termination Date:
Any Bond shall be deemed to be paid within the meaning of
this Article and for all purposes of this Ordinance when (a) pay-
ment of the principal of and premium, if any, on such Bond, plus
interest thereon to the due date thereof (whether such due date is
by reason of maturity or upon redemption as provided herein) eith-
er (i) shall have been made or caused to be made in accordance
with the terms thereof or (ii) shall have been provided by irre-
vocably depositing with Trustee, in trust and irrevocably set
aside exclusively for such payment, (1) Available Moneys suffi-
cient to make such payment or (2) Governmental Obligations of the
types described in clause (a) of the definition thereof_ contained
in Article I maturing as to principal and interest in such amounts
and at the times as will insure the availability of sufficient
moneys to make such payment, and (b) all necessary and proper
fees, compensation and expenses of Trustee and City pertaining to
the Bonds with respect to which such deposit is made shall have
been paid or the payment thereof provided for to the satisfaction
of Trustee. At such times as a Bond shall be deemed to be paid
hereunder, as aforesaid, such Bond shall no longer be secured by
or entitled to the benefits of this Ordinance, except for the
purposes of any such. payment from such moneys or Governmental
Obligations.
Notwithstanding the foregoing, no deposit under clause (a)
(ii) of the immediately preceding paragraph shall be deemed pay-
ment of such Bonds as aforesaid until (a) proper notice of redemp-
tion of such Bonds shall have been previously given in accordance
with Article III of this Ordinance, or in the event said Bonds are
not by their terms subject to redemption within the next succeed-
ing sixty (60) days, until Developer shall have given Trustee on
behalf of City, in form satisfactory to Trustee, irrevocable in-
structions to notify, as soon as practicable, the Owners of the
Bonds, that the deposit required by (a)(ii) above has been made
with Trustee and that said Bonds are deemed to have been paid in
accordance with this Section 8.n2 and stating the maturity or
redemption date upon which moneys are to be available for the pay-
ment of the principal of and the applicable redemption premium, if
any, on said Bonds, plus interest thereon to the due date thereof;
or (b) the maturity of such Bonds.
All moneys so deposited with Trustee as provided in this Sec-
tion 8.02 may also be invested and reinvested, at the direction of
Developer, in Governmental Obligations, maturing in the amounts
and times as hereinbefore set forth, and all income from all
Governmental Obligations in the hands of Trustee pursuant to this
Article which is not required for the payment of the Bonds and
interest and premium, if any, thereon with respect to which such
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1
moneys shall have been so deposited shall be deposited in the Bond
Fund as and when realized and collected for use and application as
are other moneys deposited in the Bond Fund.
The City hereby covenants that no deposit will knowingly be
made or accepted and no use knowingly made of any such deposit
which would otherwise cause the Bonds to be treated as arbitrage
bonds within the meaning of Section 103(c) of the Code.
Notwithstanding any provision of any other Article of this
Ordinance which may be contrary to the provisions of this Section
8.02, all moneys or Governmental Obligations set aside and held in
trust pursuant to the provisions of this Section 8.02 for the pay-
ment of Bonds (including interest and premium thereon, if any)
shall be applied to and used solely for the payment of the
particular Bonds (including the interest and premium thereon, if
any), with respect to which such moneys or Governmental Obliga-
tions have been so set aside in trust.
Anything in Article XI hereof to the contrary notwithstand-
ing, if moneys or Governmental Obligations have been deposited or
set aside with Trustee pursuant to this Article for the payment of
Bonds and such Bonds shall not have in fact been actually paid in
full, no amendment to the provisions of this Article shall be made
without the consent of the Owner of each Bond affected thereby.
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ARTICLE IX
DEFAULT PROVISIONS AND REMEDIES OF TRUSTEE, BANK
AND OWNERS OF BONDS
SECTION 9.01. Defaults. If_ any of the following events
occur, it is hereby declared to constitute a "Default":
( a) Default in the due and punctual payment of interest on
any Bond;
(b) Default in the due and punctual_ payment of the principal
of, or premium, if any, on any Bond, whether at the stated
maturity thereof_, or upon proceedings for redemption thereof,
or upon the maturity thereof_ by declaration;
(c) Default in the due and punctual payment of the Purchase
Price of any Bond at the time required by any of Sections
4.01, 4.02, or 4.06 hereof;
(d) At any time prior to the Letter of. Credit Termination
Date, receipt by Trustee, within ten (10) "Business Days" (as
defined in the Credit Agreement) following a drawing under
the Letter of Credit to pay interest or the portion of the
Purchase Price corresponding to interest on the Bonds, of
notice from Bank that the Letter of Credit will not be rein-
stated (in respect of interest) to an amount equal to at
least 105 days' interest on all Outstandinq Bonds;
(e) Receipt by Trustee of notice from Rank that an "Event of
Default" has occurred under the Credit Agreement;
(f) At any time after the Letter of Credit Termination Date,
the occurrence of a Default under the Agreement; or
(g) At any time after the Letter of Credit Termination Date,
default in the performance or observance of any other of the
covenants, agreements or conditions on the part of the City
in this Ordinance or in the Bonds contained and failure to
remedy the same after notice thereof pursuant to Section 9.12
hereof..
SECTION 9.02. Acceleration. Upon the occurrence of (i) any
Default under subsections (a), (b), (c), (f) or (g) of Section
9.01, Trustee may, and at the written request of the Owners of not
less than twenty-five percent (25%) in aggregate principal amount
of Outstanding Bonds Trustee shall, or (ii) any Default under sub-
sections (d) or (e) of Section 9.01, Trustee shall, by notice in
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writing delivered to Bank, City and Developer, declare the princi-
pal of all Bonds and the interest accrued thereon to the date of
such acceleration immediately due and payable. Upon any declara-
tion of acceleration hereunder, Trustee shall immediately declare
the payments required to be made by the Developer under Section
5.3 of the Agreement to be immediately due and payable and, prior
to the Letter of Credit Termination Date, shall draw moneys under
the Letter of Credit to pay the principal of all Outstanding Bonds
and the accrued interest thereon to the date of acceleration to
the extent required by Section 6.12(a) hereof.
The provisions of this Section 9.02 are subject to the condi-
tions that (i) with respect to a Default under subsection (e) of
Section 9.01 hereof, any waiver of any Event of Default under the
Credit Agreement and rescission and annulment of its consequences
and (ii) with respect to a Default under subsection (d) of Section
9.01 hereof, receipt by Trustee of written notice from Bank that
the Letter of Credit has been reinstated (in respect of interest)
as provided in such subsection (d), shall constitute a waiver of
the corresponding Default under this Ordinance and a rescission
and annulment of the consequences thereof.. No such waiver,
rescission and annulment shall extend to or affect any subsequent
Default or impair any right or remedy consequent thereon.
Notwithstanding the foregoing, no waiver, rescission or
annulment of a Default hereunder shall be made if Bank shall
theretofore have honored in full a drawing under the Letter of
Credit in respect of such Default.
SECTION 9.03. Other Remedies; Rights of Owners of Bonds.
Subject to the provisions of Section 9.02 hereof_, upon the occur-
rence of a Default, Trustee may pursue any available remedy at law
or in equity or under any provision of the Agreement to enforce
the payment of the principal of, premium, if any, and interest on
the Outstanding Bonds.
Subject to the provisions of Section 9.02 hereof, if a De-
fault shall have occurred and be continuing and if requested so to
do by the Owners of twenty-five percent (250) in aggregate princi-
pal amount of Outstanding Bonds and provided Trustee is indemni-
fied as provided in Section 10.01(1) hereof_, Trustee shall be
obligated to exercise such one or more of the rights and powers
conferred by this Section and by Section 9.02 hereof, as Trustee,
being advised by counsel, shall deem most expedient in the inter-
ests of the Owners of Bonds.
Subject to the provisions of Section 9.02 hereof, no remedy
by the terms of this Ordinance conferred upon or reserved to
Trustee (or to the Owners of Bonds) is intended to be exclusive of
any other remedy, but each and every such remedy shall be cumula-
0 tive and shall be in addition to any other remedy given to Trustee
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or to the Owners of Bonds hereunder or now or hereafter existing
at law or in equity.
No delay or omission to exercise any right or power accruing
upon any Default shall impair any such right or power or shall be
construed to he a waiver of any such Default or acquiescence
therein; such riqht or power may be exercised from time to time as
often as may be deemed expedient.
No waiver of any Default hereunder, whether by Trustee or by
the Owners of Bonds, shall extend to or shall affect any subse-
quent Default or shall impair any rights or remedies consequent
thereon.
SECTION 9.04. Right of Owners of Bonds to Direct Proceed-
ings. Subject to the provisions of Section 9.02 hereof, anything
in this Ordinance to the contrary notwithstanding, the Owners of a
majority in aggregate principal amount of the Outstanding Bonds
shall have the right, at any time, by an instrument or instruments
in writing executed and delivered to Trustee, to direct the method
and place of conducting all proceedings to be taken in connection
with the enforcement of the terms and conditions of this Ordi-
nance, or for the appointment of a receiver or any other proceed-
inqs hereunder provided that such direction shall not be otherwise
than in accordance with the provisions of law and of this
Ordinance.
SECTION 9.05. Appointment of Receivers. Upon the occurrence
of a Default, and upon the filinq of a suit or other commencement
of judicial proceedings to enforce the rights of Trustee and of
the owners of Bonds under this Ordinance, Trustee shall be
entitled, as a matter of right, to the appointment of a receiver
or receivers of the Trust Estate and of the revenues, earnings,
income, products and profits thereof, pending such proceedings,
with such powers as the court making such appointment shall con-
fer.
SECTION 9.06. Waiver. Upon the occurrence of Default, to
the extent that such rights may then lawfully be waived, neither
City nor anyone claiming through or under it, shall set up, claim
or seek to take advantage of any appraisement, valuation, stay,
extension or redemption laws of any jurisdiction now or hereafter
in force, in order to prevent or hinder the enforcement of this
Ordinance, and City, for itself and all who may claim through or
under it, hereby waives, to the extent that it lawfully may do so,
the benefit of all such laws.
of the costs and expenses of the proceedings resulting in the
collection of such money and of the expenses, liabilities and
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SECTION 9.07. Application of
Moneys. All moneys received
pursuant to any right given or
of this Article or pursuant to
action taken under the provisions
the Agreement shall, after payment
of the costs and expenses of the proceedings resulting in the
collection of such money and of the expenses, liabilities and
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advances incurred or made by, as the case may be, Trustee and/or
Bank, as the case may be, shall be deposited in the Bond Fund and
applied as follows:
(a) Unless the principal of all the Bonds shall have become
or shall have been declared due and payable, all such moneys
shall be applied:
FIRST - To the payment to the persons entitled thereto
of all installments of interest then due on the Bonds,
in the order of the maturity of the installments of such
interest (with interest on overdue installments of such
interest, to the extent permitted by law, at the Late
Payment Rate) and, if the amount available shall not be
sufficient to pay in full any particular installment,
then to the payment ratably, according to the amounts
due on such installment, to the persons entitled there-
to, without any discrimination or privilege; and
SECOND - To the payment to the persons entitled thereto
of the unpaid principal of and premium, if any, on any
of the Bonds which shall have become due (other than
Bonds matured or called for redemption for the payment
of which moneys are held pursuant to the provisions of
this Ordinance) (with interest on overdue installments
of principal and premium, if any, to the extent per-
mitted by law, at the Late Payment Rate) and, if the
amount available shall not be sufficient to pay in full
all Bonds due on any particular date, then to the pay-
ment ratably according to the amount of principal due on
such date, to the persons entitled thereto without any
discrimination or privilege; and
THIRD - To be held for the payment to the persons enti-
tled thereto as the same shall become due of the princi-
pal of and premium, if any, and interest on the Bonds
which may thereafter become due either at maturity or
upon call for redemption prior to maturity and, if the
amount available shall not be sufficient to nay in full
Bonds due on any particular date, together with interest
and premium, if any, then due and owing thereon, payment
shall be made ratably according to the amount of inter-
est, principal and premium, if any, due on such date to
the persons entitled thereto without any discrimination
or privilege.
( b) If the principal of all the Bonds shall have become due
or shall have been declared due and payable, all such moneys
shall be applied to the payment of the principal and inter-
est then due and unpaid on the Bonds, without preference or
priority of principal over interest or of interest over prin-
cipal, or of any installment of interest over any other
installment of interest, or of any Bond over any other Bond,
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ratably, according to the amounts due, respectively, for
principal and interest, to the persons entitled thereto with-
out any discrimination or privilege, with interest on overdue
installments of interest or principal, to the extent per-
mitted by law, at the Late Payment Rate.
(c) If the principal of all the Bonds shall have been de-
clared due and payable and if such declaration shall there-
after have been rescinded and annulled under the provisions
of this Article, then, subject to the provisions of Section
9.07(b) hereof, in the event that the principal of all the
Bonds shall later become due or be declared due and payable,
the moneys shall be applied in accordance with the provisions
of Section 9.07(a) hereof.
(d) If_ the principal. of all the Bonds shall have been paid
in full, all such moneys shall be applied to the payment of
the Credit Secured Indebtedness together with interest on
overdue amounts and installments of principal and/or inter-
est, to the extent permitted by law, at the applicable rate
as provided in the Credit Agreement.
Whenever moneys are to be applied pursuant to the provisions
of. this Section, such moneys shall be applied at such times, and
from time to time, as Trustee, to the extent of its interest
therein, shall determine, having due regard to the amount of such
moneys available for application and the likelihood of additional
moneys becoming available for such application in the future.
Whenever Trustee shall apply such funds, it shall fix the date
(which shall be an interest payment date and unless it shall deem
another date more suitable) upon which such application is to he
made and upon such date interest on the amounts of principal to be
paid on such dates shall cease to accrue. Trustee shall give such
notice as it may deem appropriate of the deposit with it of any
such moneys and of the fixing of any such date, and shall not be
required to make payment to the Owner of any Bond until such Bond
shall be presented to Trustee for appropriate endorsement or for
cancellation if fully paid.
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Whenever the principal of, premium, if any, and interest on
all Bonds have been paid under the provisions of this Section and
all expenses and charges of Trustee have been paid, any balance
remaining in the Bond Fund shall be first applied to the payment
in full of the Credit Secured Indebtedness, thereafter to be paid
to Bank or Developer as provided in Section 6.11 hereof. Notwith-
standing anything to the contrary herein or otherwise, moneys
drawn under the Letter of Credit shall be applied only to the
payment of principal or Purchase Price of, premium, if any, and
accrued interest on the Bonds.
SECTION 9.08. Remedies Vested in Trustee. All rights of
action (including the right to file proof of claims) under this
Ordinance or under any of the Bonds may be enforced by Trustee
without the possession of any of the Bonds or the production
thereof in any trial or other proceeding relating thereto, and any
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such suit or proceeding instituted by Trustee shall be brought in
its name as Trustee without the necessity of joining as plaintiffs
or defendants any Owners of the Bonds, and any recovery of judg-
ment shall be for the equal and ratable benefit of the Owners of
the Outstanding Bonds.
SECTION 9.09. Rights and Remedies of Owners of Bonds. No
Owner of any Rond shall have any right to institute any suit,
action or proceeding at law or in equity for the enforcement of
this Ordinance or for the execution of any trust hereof or for the
appointment of a receiver or any other remedy hereunder, unless
(subject to the provisions of Section 9.02 hereof) (i) a Default
has occurred of which Trustee has been notified as provided in
Section 10.01(h) hereof, or of which by said subsection it is
deemed to have notice, (ii) the Owners of twenty-five percent
(25%) in aggregate principal amount of Outstanding Bonds shall
have made written request to Trustee and shall have offered it
reasonable opportunity either to proceed to exercise the powers
hereinbefore granted or to institute such action, suit or proceed-
ing in their own name or names and they have offered to Trustee
indemnity as provided in Section 10.01(l) and ( iii) Trustee shall
thereafter fail or refuse to exercise the powers hereinbefore
granted, or to institute such action, suit or proceeding in its
own name. Such notification, request and offer of indemnity are
hereby declared in every case at the option of Trustee to be con-
ditions precedent to the execution of the powers and trusts of
this Ordinance, and to any action or cause of action for the en-
forcement of this Ordinance, or for the appointment of a receiver
or for any other remedy hereunder; it being understood and intend-
ed that no one or more Owners of.. the Bonds shall have any right in
any manner whatsoever to affect, disturb or prejudice the liens
granted as herein provided by their action or to enforce any right
hereunder except in the manner herein provided, and that all pro-
ceedings at law or equity shall be instituted, had and maintained
in the manner herein provided and for the equal and ratable bene-
fit of the Owners of all Outstanding Bonds. However, nothing
contained in this Ordinance shall affect or impair the right of
any Owner of Bonds to enforce the payment of the principal of,
premium, if any, and interest on any Bond at and after the matur-
ity thereof, or the obligation of City to pay the principal of.,
premium, if any, and interest on each of the Bonds issued here-
under to the respective Owners thereof at the time and place, from
the source and in the manner in the Bonds expressed. No Owner of
any Bond shall have any right to institute any suit, action or
proceeding at equity or at law to enforce a drawing under the
Letter of Credit.
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SECTION 9.10. Termination
of Proceedings.
In case Trustee
shall have proceeded to enforce
any right under this
Ordinance by
the appointment of a receiver or otherwise, and
shall have been discontinued or abandoned for any
such proceedings
reason, or shall
have been determined adversely,
then and in every
such case, City,
Trustee and the Owners of Bonds
shall be restored
to their former
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positions and riqhts hereunder, respectively, with regard to the
property subject to this Ordinance, and all rights, remedies and
powers of Trustee shall continue as if no such proceedings had
been taken.
SECTION 9.11. Waivers of Default. Subject to the provisions
of the last paragraph of Section 9.02 hereof, Trustee may in its
discretion waive any Default hereunder and its consequences and
rescind any declaration of acceleration of principal, and shall do
so upon the written request of Bank and the Owners of (1) more
than two-thirds (2/3) in aggreqate principal amount of all Out-
standing Bonds in respect of which Default in the payment of prin-
cipal or interest, or both, exists or (2) more than two-thirds
(2/3) in aqgregate principal amount of Outstanding Bonds in the
case of any other Default; provided, however, that any Default
under subsection (e) of. Section 9.01 hereof may only be waived
upon the written request of Bank (and in such case the consent of
the Owners of the Bonds shall not be required); and provided fur-
ther that there shall not be waived any Default in the payment of
the principal of or interest on any Outstanding Ponds unless prior
to such waiver or rescission, all arrears of principal and inter-
est (other than principal of or interest on the Bonds which became
due and payable .by declaration of acceleration), with interest at
the Late Payment Rate on overdue installments, to the extent per-
mitted by law, and all expenses of Trustee in connection with such
Default shall have been paid or provided for. In case of any
waiver or rescission described above, or in case any proceeding
taken by Trustee on account of any such Default shall have been
discontinued or concluded or determined adversely, then and in
every such case City, Trustee, Bank and the Owners of Bonds shall
be restored to their former positions and riqhts hereunder, re-
spectively, but no such waiver or rescission shall extend to any
subsequent or other Default, or impair any right consequent there-
on.
SECTION 9.12. Notice of Defaults under Section 9.01(g);
Opportunity to Cure Such Defaults. Anything herein to the con-
trary notwithstanding, no Default under Section 9.01(g) hereof
shall be deemed a Default until notice of such Default shall be
given to City and Developer by Trustee or by the Owners of not
less than twenty-five percent (25%) in aggregate principal amount
of all Outstandinq Bonds, and City and Developer shall have had
thirty (30) days after receipt of such notice to correct said
Default or to cause said Default to be corrected and shall not
have corrected said Default or caused said Default to be corrected
within the applicable period; provided, however, if said Default
be such that it cannot be corrected within the applicable period,
it shall not constitute a Default if corrective action is insti-
tuted by City or Developer within the applicable period and dili-
gently pursued until the Default is corrected.
1
With regard to any Default concerning which notice is given
to City and Developer under the provisions of this Section, City
hereby grants Developer full authority for account of City to per-
form any covenant or obligation alleged in said notice to consti-
tute a Default, in the name and stead of City with full power to
do any and all things and acts to the same extent that City could
do and perform any such things and acts and with power of substi-
tution.
SECTION 9.13. Rights and Remedies of Bank. In the event of
a Default or Event of Default under the Credit Agreement the Bank
may pursue any available remedy at law or in equity or under any
provision of the Agreement to enforce the payment of all sums due
the Bank lander the Credit Agreement and this Ordinance. For pur-
poses thereof the Bank shall be deemed vested with all rights and
remedies of the Trustee hereunder (except that to the extent the
existence or exercise of such rights and remedies is or may be
determined or controlled by or reportable to the Owners of the
Bonds, or any thereof, such limitations shall not be applicable to
the Rank), PROVIDED, that from and after the payment of the prin-
cipal or redemption price of, and interest on, the Bonds, the Bank
shall be vested with full control in the enforcement of all lien
obligations then existing, provided, however, that the remaining
obligations, if any, owed to the Trustee or any Owners of the
Bonds shall continue to enjoy the order of priority; and to such
extent Rank, in the enforcement of its rights hereunder, shall
include and enforce the rights of the Trustee and such Owners,
acting in such capacity as agent and legal representative for such
purposes.
SECTION 9.14. Quiet Enjoyment of Developer. So _long as
Developer shall not be in default in the payment of the Payments
or any of the other covenants or conditions of. the Aqreement and
so long as the Payments, to the extent assigned hereunder, are
applied to the Secured Indebtedness, neither the Trustee nor the
Rank shall disturb the leasehold possession of the Facilities by
Developer or any persons holding under Developer, including with-
out limitation the Sublessees, nor terminate any interest of
Developer created by or existing under the Agreement by fore-
closure or otherwise; provided, however, this Section 9.14 shall
not in any manner_ be construed as preventing the Trustee or the
Bank, or nominee of either or both, from foreclosing_ the lein or
liens of this Ordinance in the terms hereof.
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ARTICLE X
TRUSTEE AND TENDER AGENT
SECTION 10.01. Acceptance of Trusts. Trustee shall in
writing accept the trusts, rights, duties, responsibilities and
obligations imposed upon it by this Ordinance and agree to perform
said trusts, and further, and as provided in Section 5.14 hereof,
to accept and agree to perform all duties, responsibilities and
obligations which are reserved to or imposed upon the City under
this Ordinance, the Agreement and the Ground Lease, excepting only
such of those duties, responsibilities and obligations as may only
be properly and lawfully exercised by or imposed upon the City,
but only upon and subject to the following express terms and
conditions:
( a) Trustee, prior to the occurrence of a Default and after
the curing of all Defaults which may have occurred, under-
takes to perform such duties and only such duties as are
specifically set forth in this Ordinance. In case a Default
has occurred (which has not been cured or waived), Trustee
shall exercise such of the rights and powers vested in it by
this Ordinance, and use the same degree of care and skill in
the exercise of such rights and powers as a corporate trustee
in the city in which the principal office of the Trustee is
located would exercise.
(b) Trustee may execute any of the trusts or powers hereof
and perform any of its duties by or through attorneys,
agents, receivers or employees, but shall be answerable for
the conduct of the same in accordance with the standard spe-
cified above, and shall be entitled to advice of counsel
concerning its duties hereunder, and may in all cases pay
such reasonable compensation to all such attorneys, agents,
.receivers and employees as may reasonably be employed in
connection with the trusts hereof. Trustee may act upon the
opinion or advice of any attorney (who may be the attorney or
attorneys for City or Developer) selected by Trustee in the
exercise of reasonable care. Trustee shall not be respon-
sible for any loss or damage resulting from any action or
inaction taken or not taken, as the case may be, in good
faith in reliance upon such opinion or advice.
(c) Except to the extent hereinabove provided, Trustee shall
not be responsible .for any recital herein or in the Bonds
(except with respect to the certificate of authentication
endorsed on the Bonds by the Trustee), or for insuring the
Facilities, or for collecting any insurance moneys, or for
the validity of the approval, nassage, adoption and publica-
tion by City of this Ordinance or of any supplements hereto
or instruments of further assurance, or for the sufficiency
of the security for the Bonds issued hereunder or intended to
be secured hereby, or for the value or title of the Facili-
ties or any lien waivers with respect to the Project or the
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Facilities, and Trustee shall not be bound to ascertain or
inquire as to the performance or observance of any covenants,
conditions or agreements on the part of Developer under the
Aq reement except as hereinafter set forth; but Trustee may
require of City and T`.eveloper full information and advice as
to the performance of the covenants, conditions and agree-
ments aforesaid and as to the condition of the property here-
in conveyed.
(d) Trustee shall not be accountable for the use of any
Bonds authenticated or delivered hereunder. Trustee may be-
come the Owner of Bonds secured hereto with the same rights
which it would have if not Trustee.
(e) Trustee shall be protected in acting upon any notice,
request, consent, certificate, order, affidavit, letter,
telegram or other paper or document believed to be genuine
and correct and to have been signed or sent by the proper
person or persons. Any action taken by Trustee pursuant to
this Ordinance upon the request or authority or consent of
any person who at the time of making such request or giving
such authority or consent is the Owner of. any Bond shall be
conclusive and binding upon all future owners of the same
Bond and upon Bonds issued in exchange therefor or in place
thereof_.
(f) As to the existence or nonexistence of any fact or as to
the sufficiency or validity of any instrument, paper or pro-
ceeding, Trustee shall be entitled to rely upon a certificate
signed by City Representative or Developer Representative as
sufficient evidence of the facts therein contained and prior
to the occurrence of a Default of which Trustee has been
notified as provided in Section 10.01(h) hereof, or of which
by said subsection Trustee is deemed to have notice, and
shall also be at liberty to accept a similar certificate to
the effect that any particular dealing, transaction or action
is necessary or expedient, but may at its discretion secure
such further evidence deemed by it to be necessary or advis-
able, but shall_ in no case be bound to secure the same.
Trustee may accept a certificate of such officials of City
who executed the Bonds (or their successors in office) to the
effect that a resolution in the form therein set forth has
been adopted by City as conclusive evidence that such resolu-
tion has been duly adopted and is in full force and effect.
(g) The permissive right of Trustee to do things so enumer-
ated in this Ordinance shall not be construed as a duty, and
Trustee shall not be answerable for other than its gross
negligence or willful default.
(h) Trustee shall not be required to take notice or be
deemed to have notice of any Default hereunder except for
- 61 -
1
n
Defaults specified in subsections (a), (b), (c), (d) or (e)
of Section 9.01 hereof, unless Trustee shall be specifically
notified in writing of such Default by City, Bank or by the
Owners of at least twenty-five percent (25%) in agqregate
principal amount of Outstandinq Bonds, and all notices or
other instruments required by this Ordinance to be delivered
to Trustee, must, in order to be effective, be delivered at
the Principal Office of Trustee, and in the absence of such
notice so delivered Trustee may conclusively assume there is
no Default except as aforesaid.
(i) At any and all reasonable times Trustee, and its duly
authorized agents, attorneys, experts, engineers, accountants
and representatives, shall have the right fully to inspect
any and all of the property herein conveyed, including all
books and records of City and Developer pertaining to the
Project and the Bonds, and to make such copies and memoranda
from and with reqard thereto as may be desired.
(j) Trustee shall not be required to give such bond or sure-
ty in respect of the execution of the said trusts and powers
or otherwise in respect of the premises.
(k) Notwithstanding anythinq elsewhere in this Ordinance
with respect to the authentication of. any Ponds, the with-
drawal of any cash, the release of any property or any action
whatsoever within the purview of. this Ordinance, Trustee
shall have the right, but shall not be required, to demand
any showings, certificates, opinions, appraisals or other
information, or corporate action or evidence thereof, in
addition to that by the terms hereof required as a condition
of such action, deemed desirable by Trustee for the purpose
of establishing the richt of. City to the authentication of
any Bonds, the withdrawal of any cash or the taking of any
other action by Trustee.
(1) Before taking any action under this Ordinance or under
the Agreement, the Trustee may require that a satisfactory
indemnity bond be furnished for the reimbursement of any
expenses to which it may be put and to protect it against all
liability, except liability which is adjudicated to have
resulted from its gross negligence or willful default in
connection with any such action.
(m) All moneys received by Trustee shall, until used or ap-
plied or invested as herein provided, be held in trust for
the purposes for which they were received but need not be
seqregated from other funds except to the extent otherwise
required herein or required by law.
- 62 -
SECTION 10.02. Fees, Charges and Expenses of Trustee. Trus-
tee shall be entitled to payment of and reimbursement for reason-
able fees for its services rendered hereunder and all advances,
counsel fees and other expenses reasonably made or incurred by
Trustee in connection with such services. Upon Default, but only
upon a Default, Trustee shall have a first lien with right of pay-
ment prior to payment on account of principal of, premium, if any,
and interest on any Bond upon the Trust Estate (exclusive of the
proceeds of any drawing under the Letter of Credit) for the fore-
going fees, charges and expenses incurred by Trustee. When Trus-
tee incurs expenses or _renders services after the occurrence of a
"Default" specified in Section 10.1(c) of the Agreement, the ex-
penses and the compensation for the services are intended to con-
stitute expenses of administration under any federal or state
bankruptcy, insolvency, arrangement, moratorium, reorganization or
other debtor relief law. The City shall have no _liability to pay
any fees, charges or other_ expenses of Trustee hereinabove
mentioned except from the amounts pledged under this Ordinance.
SECTION 10.03. Notice to Owners of Bonds if Default Occurs.
If a Default occurs of which Trustee has been notified as
provided in Section 10.01(h) hereof, or of which by said subsec-
tion it is deemed to have notice, then Trustee shall promptly give
notice thereof to Bank and the Owner of each mond.
SECTION 10.04. Intervention by Trustee. In any judicial
proceeding which in the opinion of Trustee and its counsel has a
substantial bearinq on the interests of Owners of. the Bonds, Trus-
tee may intervene on behalf of Owners of Bonds and shall do so if
requested in writing by Bank or the Owners of at least twenty-
five percent (25%) of the aggreaate principal amount of Outstand-
ing Bonds.
SECTION 10.05. Successor Trustee. Any corporation or asso-
ciation into which Trustee may be converted or merged, or with
which it may be consolidated, or to which it may sell or transfer
its trust business and assets as a whole or substantially as a
whole, or any corporation or association resulting from any such
conversion, sale, merger, consolidation or transfer to which it is
a party, shall be and become successor fiscal agent of the City
and Trustee hereunder and vested with all of the title to the
Trust Estate and all the trusts, powers, discretions, immunities,
privileges and all other matters as was its predecessor, without
the execution or filing of any instrument or any further act, deed
or conveyance on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
SECTION 10.06. Resignation by Trustee. Trustee and any
successor Trustee may at any time resign from the trusts hereby
- 63 -
created by giving thirty (30) days' notice to City, Bank, Develop-
er, Tender Agent, Remarketing Agent and to the Owner of each Bond.
Such resignation shall not take effect until the appointment of a
successor Trustee or temporary Trustee.
SECTION 10.07. Removal of Trustee. Trustee may be removed
at any time by an instrument or concurrent instruments in writing
delivered to Trustee and to Citv and signed by the Owners of a
majority in aggregate principal amount of Outstanding Bonds.
SECTION 10.08. Appointment of Successor Trustee by Owners of
Bonds. In case Trustee hereunder shall resign or be removed, or
be dissolved, or shall be in the course of dissolution or liquida-
tion, or otherwise become incapable of acting hereunder, or in
case it shall be taken under the control of any public officer or
officers, or of a receiver appointed by a court, a successor, not
unacceptable to the Tender Agent and the Bank, as appropriate, may
be appointed by City and Developer by an instrument or concurrent
instruments in writing signed by City and Developer, or by their
attorneys in fact duly authorized, a copy of which shall be deliv-
ered personally or sent by registered or certified mail to City,
Developer, Tender Agent, Remarketing Agent, Bank and each Owner of
Bonds. In rase of any such vacancy, City, by an instrument exe-
cuted by its officials who executed the Bonds or their successors
in office, may appoint a temporary successor fiscal agent of the
City and Trustee hereunder to fill such vacancy until a successor
fiscal agent of the City and Trustee hereunder shall be appointed
in the manner above provided; and such temporary successor Trustee
so appointed by City shall immediately and without further act be
superseded by the successor Trustee appointed by the Owners of
Bonds. If. no successor fiscal agent of the City and Trustee here-
under has accepted appointment in the manner provided in Section
10.09 hereof within ninety (90) days after the Trustee has given
notice of resignation to the City and the Owner of each Bond, the
Trustee may petition any court of competent jurisdiction for the
appointment of a temporary successor Trustee; provided that any
fiscal agent of the City and Trustee hereunder so appointed shall
immediately and without further act be superseded by a Trustee
appointed by City or the Owners of Bonds as provided above. Every
successor Trustee appointed pursuant to the provisions of this
Section shall be, if there be such an institution willing, quali-
fied and able to accept the trust upon customary terms, a bank or
trust company within or without the State, in good standing and
having reported capital and surplus of not less than $50,000,000.
SECTION 10.09. Acceptance by Any Successor Trustee. Every
successor fiscal agent of the City and Trustee appointed hereunder
shall execute, acknowledge and deliver to its or his predecessor
and also to City and Developer an instrument in writing accepting
such appointment hereunder and thereupon such successor, without
any further act, deed or conveyance, shall become fully vested
with all the estates, properties, rights, powers, trusts, duties
and obligations of its predecessor; but its predecessor shall,
nevertheless, on the written request of City, or of its successor,
mom ,=
xecute and deliver_ an instrument transferring to such successor
11 the estates, properties, rights, powers and trusts of such
redecessor hereunder; and every predecessor Trustee shall_ deliver
11 securities and moneys held by it as Trustee hereunder to its
uccessor. Should any instrument in writing from City be reason-
ably required by any successor Trustee for more fully and certain-
ly vesting in such successor the estate, rights, powers and duties
ereby vested or intended to be vested in the predecessor, any and
11 such instruments in writing shall, on request, be executed,
cknowledged and delivered by City.
SECTION 10.10. Right of Trustee to Pay Taxes and Other
Charges. In case any tax, assessment, governmental or other
barge upon or insurance premium with respect to, any part of the
Project or the Facilities is not paid as required herein, in the
Agreement, Trustee may pay such tax, assessment, qovernmental or
ther charge, or insurance premium, without prejudice, however, to
any rights of Trustee or the Owners of Bonds arising in conse-
quence of such failure; and any amount at any time so paid under
his Section, with interest thereon from the date of payment at
he Late Payment Rate, shall become so much additional indebted-
ess secured as hereinabove provided, and the same shall be given
preference in payment over any of the Bonds (except with respect
o the proceeds of any drawing under the Letter of Credit), and
hall be paid out of the proceeds of revenues collected from the
acilities, if not otherwise caused to be paid; but Trustee shall
of be under any obligation to make any such payment unless it
hall have been requested to do so by the Owners of at least
went_y-five percent (25%) of the aggreclate principal amount of
utstanding Bonds and shall have been provided with adequate funds
or the purpose of such payment.
SECTION 10.11. Appointment of Co -Trustee. It is the purpose
Df this Ordinance that there shall be no violation of any law of
any jurisdiction (including particularly the law of the State)
enying or restricting the right of banking corporations or asso-
iations to transact business as Trustee in such jurisdiction. It
's recognized that in case of litigation under this Ordinance, the
greement, the Subleases or the Cash Deficiency Agreement, and in
articular in case of the enforcement thereof on Default, or in
ase Trustee deems that by reason of any present or future law of
any jurisdiction it may not exercise any of the powers, rights or
remedies herein or therein granted to Trustee or hold title to the
roperties, in trust, as herein granted, or take any other action
hich may he desirable or necessary in connection therewith,
rustee may appoint an additional_ individual or institution as a
eparate or Co -Trustee, in which event each and every remedy,
htle,
wer, right, claim, demand, cause of action, immunity, estate,
interest and lien expressed in this Ordinance or the
q reement to be exercised by or vested in or conveyed to Trustee
ith respect thereto shall be exercisable by and vest in such
- 65 -
eparate or Co-Trustee, but only to the extent necessary to enable
uch separate or Co-Trustee to exercise such powers, rights and
emedies, and every covenant and obligation necessary to the exer-
ise thereof by such separate or Co-Trustee shall run to and be
nforceable by either_ of. them.
Should any deed, conveyance or instrument in writing from
ity be required by the separate or Co -Trustee so appointed by
rustee for more fully and certainly vesting in and confirming to
im or it such properties, rights, powers, trusts, duties and
b.ligations, any and all such deeds, conveyances and instruments
n writing shall, on request, be executed, acknowledged and
elivered by City. In case any separate or Co -Trustee, or a suc-
essor to either, shall die, become incapable of acting, resign or
e removed, all the estates, properties, rights, powers, trusts,
uties and obligations of such separate or Co -Trustee, so far as
ermitted by law, shall vest in and be exercised by Trustee until
he appointment of a new Trustee or successor to such separate or
o -Trustee. Any Co -Trustee appointed by Trustee pursuant to this
ection may be removed by Trustee, in which case all powers,
ights and remedies vested in Co -Trustee shall again vest in
rustee as if no such appointment of a Co -Trustee had been made.
SECTION 10.12.
Appointment of. and Successor to Tender
(b) Any corporation or association into which the Tender
Agent may be converted or merged, or with which it may be
consolidated, or to which it may sell or transfer its trust
business and assets as a whole or substantially as a whole,
or any corporation or association resulting from any such
conversion, sale, merger, consolidation or transfer to which
it is a party, shall be and become the successor Tender Agent
hereunder, without the execution or filing of any instrument
or any further act, deed or conveyance on the part of any of
the parties hereto, anything herein to the contrary notwith-
standing.
(c) The Tender Agent may at any time resign by giving thirty
(30) days' notice to the City, Trustee, Developer and
Remarketing Agent. Such resignation shall not take effect
until the appointment of a successor Tender Agent.
(d) The Tender Agent may be removed at any time by an in-
strument in writing delivered to the Trustee and the Tender
Agent by the Developer, with the prior written approval of
the Rank. In no event, however, shall any removal of the
Tender Aqent take effect until a successor Tender Agent shall
have been appointed by the Trustee subject to the approval of
the Developer and upon the acceptance of the duties of Tender
Agent by such successor pursuant to an agreement acceptable
to the Trustee and the Developer.
IMMINIM
gent.
(a)
The
Trustee hereby appoints Rankers Trust Company, of
New
York,
New York, as Tender Agent, hereunder.
(b) Any corporation or association into which the Tender
Agent may be converted or merged, or with which it may be
consolidated, or to which it may sell or transfer its trust
business and assets as a whole or substantially as a whole,
or any corporation or association resulting from any such
conversion, sale, merger, consolidation or transfer to which
it is a party, shall be and become the successor Tender Agent
hereunder, without the execution or filing of any instrument
or any further act, deed or conveyance on the part of any of
the parties hereto, anything herein to the contrary notwith-
standing.
(c) The Tender Agent may at any time resign by giving thirty
(30) days' notice to the City, Trustee, Developer and
Remarketing Agent. Such resignation shall not take effect
until the appointment of a successor Tender Agent.
(d) The Tender Agent may be removed at any time by an in-
strument in writing delivered to the Trustee and the Tender
Agent by the Developer, with the prior written approval of
the Rank. In no event, however, shall any removal of the
Tender Aqent take effect until a successor Tender Agent shall
have been appointed by the Trustee subject to the approval of
the Developer and upon the acceptance of the duties of Tender
Agent by such successor pursuant to an agreement acceptable
to the Trustee and the Developer.
IMMINIM
(d) In case the Tender Agent shall resign or be removed, or
be dissolved, or shall be in the course of dissolution or
liquidation, or otherwise become incapable of acting as Ten-
der Agent, or in case it shall be taken under the control of
any public officer or officers, or of a receiver appointed by
a court, a successor may be appointed by the Developer with
the prior written approval of the Trustee and the Bank.
Every successor Tender Agent appointed pursuant to the pro-
visions of this Section shall be, if there be such an insti-
tution willing, qualified and able to accept the duties of
Tender Agent upon customary terms, a bank or trust company
within or without the State, in _good standing and having
reported capital and surplus of not less than 550,000,000.
Any such successor shall have an office in the City of New
York, New York. TATritten notice of such appointment shall
immediately be given by the Developer to the Trustee and the
Trustee shall cause written notice of such appointment to be
given to the Owners of the Bonds. Any successor_ Tender Agent
shall execute and deliver an instrument accepting such
appointment and thereupon such successor, without any further
act, deed or conveyance, shall hecome fully vested with all
rights, powers, duties and obligations of its predecessor_,
with like effect as if originally named as Tender Agent, but
such predecessor shall, nevertheless, on the written request
of the Developer, the Trustee or the City, or of the succes-
sor, execute and deliver such instruments and do such other
things as may reasonably be required to more fully and cer-
tainly vest and confirm in such successor all rights, powers,
duties and obligations of such predecessor.
Section 10.13. Notice to Rating Agencies. The Trustee
shall provide Moody's or S&P, as appropriate, with written
notice, if possible, in advance of, and in any event promptly
following the effective date of such event of (i) any succes-
sor Trustee, (ii) any Substitute Bank, (iii) any material
amendments to this Ordinance or the Aqreement, (iv) any
modification with respect to or the termination of any Letter
of Credit, (v) any modification of the Credit Agreement of
which the Trustee has knowledge or (vi) the redemption in
whole of the Bonds. All notices to Moody's shall be sent to
Moody's at 99 Church Street, New York, New York 10007,
Attention: Structured Transaction Group.
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1
ARTICLE XI
SUPPLEMENTAL ORDINANCES
SECTION 11.01. Supplemental Ordinances Not Requiring Consent
of Owners of Bonds. The City may, upon the request of. the Trust-
ee, the Bank or the Developer and with the consent, as the case
may be, of Trustee and Bank, and without consent of, or notice to,
any of the Owners of Bonds, approve, pass and adopt an ordinance
or ordinances supplemental to this Ordinance for any one or more
of the following purposes:
(a) To cure any ambiguity or .formal defect or omission
in this Ordinance;
(b) To grant to or confer upon Trustee for the benefit
of the Owners of Bonds any additional rights, remedies, powers or
authorities that may lawfully be granted to or conferred upon the
Owners of Bonds or Trustee;
(c) To subject to this Ordinance additional revenues,
properties or collateral;
(d) To modify, amend or supplement this Ordinance or
any ordinance supplemental hereto in such manner as to permit the
qualification hereof_ and thereof_ under the Trust Indenture Act of
1939, as amended, or any similar federal statute hereafter in
effect or to permit the qualification of the Bonds for sale under
the securities laws of any of the states of the United States of
America;
(e) To evidence the appointment of a separate or Co -
Trustee or the succession of a new Trustee hereunder; or
(f.) To modify, amend or supplement this Ordinance in
such manner as to obtain from Moody's a securities rating on the
Bonds of at least Aa, MIG -1 or P-1 or from S&P a securities rating
on the Bonds of at least AA/A-1+; and/or
(g) To effect any other change herein which, in the
judgment of Trustee, is not to the prejudice of Trustee or the
Owners of Bonds, including without limitation any modification,
amendment or supplement required to increase the maximum Floating
Rate provided in Section 2.0.2(C.) , the T -Bill Percentage provided
in Section 2.02.(D) or the maximum premium permitted in Section
2.02(E).
SECTION 11.02. Supplemental Ordinances Requiring Consent of
Owners of Bonds. Fxclusive of supplemental ordinances permitted
by Section 11.01 hereof and subject to the terms and provisions
contained in this Section, and not otherwise, Bank and the Owners
of not less than two-thirds (2/3) in aggregate principal amount of
the Outstanding Bonds shall have the right, from time to time,
anything contained in this Ordinance to the contrary notwithstand-
ing, to consent to and approve the approval, passage and adoption
by City of such other ordinance or ordinances supplemenal hereto
as shall be deemed necessary and desirable by either Trustee, Bank
or Developer and is consented to by, as the case may be, the
Trustee and the Rank, for the purpose of modifying, altering,
amending, adding to or rescinding, in any particular, any of the
terms or provisions contained in this Ordinance or in any ordi-
nance supplemental hereto; provided, however, that nothing in this
Section or in Section 11.01 hereof_ contained shall permit, or be
construed as permitting, without the consent of Rank and the
Owners of all Bonds Outstanding, (a) an extension of the maturity
of the principal of, or the interest on, any Bond issued here-
under, or (b) a reduction in the principal amount or Purchase
Price of, or redemption premium on, any Bond or the rate of inter-
est thereon, or (c) a privilege or priority of any Bond or Bonds
over any other Bond or Bonds, or (d) a reduction in the aggregate
principal amount of the Bonds required for consent to such supple-
mental ordinances or any modifications or waivers of the provi-
sions of this Ordinance, or the Agreement, or (e) the creation of
any lien ranking prior to or on a parity with the lien of this
Ordinance on the Trust Estate or any part thereof, except as here-
inbefore expressly permitted, or (f) the deprivation of the Owner
of any Outstanding Bond of the lien hereby created against the
Trust Estate.
11 If at any time City shall be requested to approve, pass and
adopt any such supplemental ordinance for any of the purposes of
this Section, Trustee shall, upon being satisfactorily indemnified
with respect to expenses, cause notice of the proposed approval,
passage and adoption of such supplemental ordinance to he given to
Bank and to the Owners of the Bonds as provided in Section 3.03 of
this Ordinance. Such notice shall briefly set forth the nature of
the proposed supplemental ordinance and shall state that copies
thereof are on file at the Principal Office of Trustee for inspec-
tion by all Owners of Bonds. If, within sixty (60) days or such
longer period as shall be prescribed by City following such
notice, Bank and the Owners of not less than two-thirds (2/3) in
aggregate principal amount of the Bonds Outstanding at the time of
the execution of any such supplemental ordinance shall have con-
sented to and approved the approval, passage and adoption thereof
as herein provided, no Owner of any Bond shall have any right to
object to any of the terms and provisions contained therein, or
the operation thereof.., or in any manner to question the propriety
of the approval, passage and adoption thereof, or to enjoin or
restrain City from approving, passing and adopting the same or the
Trustee from accepting the amended or supplemented trusts thereun-
der or from taking any action pursuant to the provisions thereof.
Upon the approval, passage and adoption of any such supplemental
ordinance as in this Section permitted and provided, and upon the
Trustee's written acceptance of the amended or supplemented trusts
thereunder, this Ordinance shall be and be deemed to be modified
and amended in accordance therewith.
Anything herein to the contrary notwithstanding, so long as
the Developer is not in Default under this Agreement, a supple-
mental ordinance under this Article shall not become effective
unless and until Developer shall have consented to the approval,
- 69 -
J
�7
- 70 -
passage and adoption of such supplemental ordinance and (ii) the
Trustee shall have in writing accepted the amended or supplemented
trusts and its duties under such supplemental_ ordinance. In this
regard, Trustee shall cause notice of the proposed approval, pas-
sage and execution of any such supplemental ordinance together
with a copy of the proposed supplemental ordinance to be mailed to
Developer at .least fifteen (15) Business Days prior to the
proposed date of first reading of any such supplemental ordinance.
Developer shall be deemed to have consented to the approval, pas-
sage and adoption of any such supplemental ordinance if Trustee
does not receive a letter of protest or objection thereto signed
by or on behalf of Developer on or before the fifteenth (15th)
Business Day after the mailing of said notice. Any supplemental
ordinance approved, passed and adopted under this Article XI shall
be and become effective upon its first publication in the official
paper of the City and shall be deemed part of this Ordinance. It
shall not be necessary to note on any of the Outstanding Bonds any
reference to such supplemental ordinances, if any, upon payment of
the reasonable cost of preparing the same, a certified copy of the
Ordinance and every such supplemental ordinance, if any, will be
sent by the Clerk to any Owner_ of Bonds, or prospective owner of
Bonds, requestinq the same.
J
�7
- 70 -
ARTICLE XII
AMENDMENT OF AGREEMENT
SECTION 12.02. Amendments to Agreement Requiring Consent of
Owners of Bonds. Fxcept for the amendments, changes or modifica-
tions as provided in Section 12.01 hereof_, neither City nor. Trus-
tee shall consent to anv other amendment, change or modification
of the Agreement without mailing of notice and the written approv-
al or consent of Bank and the Owners of at least two-thirds (2/3)
in aggregate principal amount of the Outstanding Bonds given as in
this Section provided, provided that the consent of Bank and the
Owners of all Bonds Outstandinq is .required for any amendment,
change or modification of the Agreement that would permit the
termination or cancellation of the Agreement or a reduction in or
postponement of the payments under the Agreement or any change in
the provisions relating to payment thereunder. If at any time
City and Developer shall request the consent of Trustee to any
such proposed amendment, change or modification of the Agreement,
Trustee shall, upon being satisfactorily indemnified with respect
to expenses, cause notice of such proposed amendment, change or
modification to be given in the same manner as provided by Section
11.02 hereof with respect to supplemental ordinances. Such notice
shall briefly set forth the nature of such proposed amendment,
change or modification and shall state that copies of the instru-
ment embodying the same
SECTION 12.01. Amendments to Agreement Not Requiring Consent
on file
at the Principal Office of
of Owners of Bonds. The City and Trustee may, with the consent of
Trustee for inspection by
all
Bank, and without the consent of or notice to the Owners of Bonds,
of Bonds.
consent to any amendment, change or modification of the Agreement
as may be required (i) by the provisions of the Agreement or this
Ordinance, (ii) for the purpose of curinq any ambiguity or formal
defect or omission in the Agreement, (iii) so as to more precisely
define the Project or the Facilities, or to substitute or add
additional improvements or equipment to the Project or Facilities,
or additional rights or interests in property acquired, con-
structed, installed or equipped in accordance with the provisions
of the Agreement, ( iv) so as to obtain from PRoody's a securities
rating on the Bonds of at least Aa, MIG -1 or P-1, or from S&P a
securities rating on the Bonds of at least AA/A-1+, (v) to ap-
prove, pass and adopt an ordinance or ordinances supplemental
hereto as provided in Section ll.nl hereof or (vi) in connection
with any other change therein which, in the judgment of Trustee,
is not to the prejudice of Trustee or the Owners of Bonds, includ-
ing without limitation any modification, amendment or supplement
required in connection with an increase in the maximum Floating
Rate provided in Section 2.02(C) of the Ordinance, the T -Bill
Percentage provided in Section 2.02(D) of. the Ordinance or the
maximum premium permitted in Section 2.02(E) of the Ordinance.
SECTION 12.02. Amendments to Agreement Requiring Consent of
Owners of Bonds. Fxcept for the amendments, changes or modifica-
tions as provided in Section 12.01 hereof_, neither City nor. Trus-
tee shall consent to anv other amendment, change or modification
of the Agreement without mailing of notice and the written approv-
al or consent of Bank and the Owners of at least two-thirds (2/3)
in aggregate principal amount of the Outstanding Bonds given as in
this Section provided, provided that the consent of Bank and the
Owners of all Bonds Outstandinq is .required for any amendment,
change or modification of the Agreement that would permit the
termination or cancellation of the Agreement or a reduction in or
postponement of the payments under the Agreement or any change in
the provisions relating to payment thereunder. If at any time
City and Developer shall request the consent of Trustee to any
such proposed amendment, change or modification of the Agreement,
Trustee shall, upon being satisfactorily indemnified with respect
to expenses, cause notice of such proposed amendment, change or
modification to be given in the same manner as provided by Section
11.02 hereof with respect to supplemental ordinances. Such notice
shall briefly set forth the nature of such proposed amendment,
change or modification and shall state that copies of the instru-
- 71 -
ment embodying the same
are
on file
at the Principal Office of
Trustee for inspection by
all
Owners
of Bonds.
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1
ARTICLE XIII
MISCELLANEOUS
SECTION 13.01. Consents of Owners of Bonds. Any consent,
request, direction, approval, objection or other instrument re-
quired by this Ordinance to he signed and executed by the Owners
of Bonds may be in any number of concurrent documents and may be
executed by such Owners of Bonds in person or by agent appointed
in writinq. Proof_ of the execution of any such consent, request,
direction, approval, objection or other instrument or of the writ-
ten appointment of any such agent or of the ownership of Bonds, if
made in the same manner as that of this Ordinance, shall he suf-
ficient for any of the purposes of this Ordinance, and shall be
conclusive in favor of Trustee with regard to any action taken by
it under such request or other instrument. The fact of ownership
of Bonds and the amount or amounts, numbers and other identifica-
tion of such Bonds, and the date of owning the same shall be
proved by the registration books of City maintained by Trustee
pursuant to Section 2.08 hereof.
SECTION 13.02. Limitation of Rights. With the exception of
any rights herein expressly conferred, nothing expressed or men-
tioned in or to be implied from this Ordinance or the Ponds is
intended or shall be construed to give to any person or Developer
other than the parties hereto, Tender Agent, Bank and the Owners
of the Ponds, any legal or equitable right, .remedy or claim under
or with respect to this Ordinance or any covenants, conditions and
provisions herein contained; this Ordinance and all of the cove-
nants, conditions and provisions hereof being intended to be and
being for the sole and exclusive benefit of the parties hereto,
Tender Agent, Bank and the Owners of. the Bonds as herein provided.
SECTION 13.03. Severability. If any provisions of this
Ordinance shall be held or deemed to be or shall, in fact, be
illegal, inoperative or unenforceable, the same shall not affect
any other provision or provisions herein contained or render the
same invalid, inoperative or unenforceable to any extent whatever.
SECTION 13.04. Notices. Any notice, request, complaint, de-
mand, communication or other_ paper shall be sufficiently given and
shall be deemed given when delivered or mailed by registered or
certified mail, postage prepaid or sent by telegram, addressed as
follows:
( a) if to City: City of.. Salina, Kansas, City -County Build-
ing, Salina, Kansas, 67401, Attention: City Clerk, with a
copy to City Attorney, City -County Building, Salina, Kansas
67401;
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(b) if to Trustee: Bank of Oklahoma, Tulsa, N.A., as Trus-
tee, P. O. Box 2300, Tulsa, Oklahoma 74192, Attention:
Corporate Trust Department, with a copy to Robinson, Roese &
Davidson, Attorneys for Bank of Oklahoma, N.A., as Trustee,
P.O. Box 1046, Tulsa, Oklahoma 74101, Attention: James
Orbison, Esq.;
(c) if to Developer, to SALINA CFNTRAL MALL LIMITED PARTNER-
SHIP (PENNEY'S), 258 Central Mall, Fort Smith, Arkansas,
72903, Attention: Ed Warmack, with a copy to Eichenbaum,
Scott, Miller, Crockett, Darr & Hawk, P.C., Attorneys for
Warmack Interests, 1400 Union National Bank Building, One
Union National Plaza, Little Rock, Arkansas 72201, Attention:
Gary F. Liles, Esq.;
(d) if to Bank, to Centerre Bank National Association, One
Centerre Plaza, St. Louis, Missouri 63166, Attention: Execu-
tive Vice President, with a copy to Bryan, Cave, McPheeters &
McRoberts, Attorneys for Centerre Bank, 500 North Broadway,
St. Louis, Missouri 63102, Attention: C. Perry Bascom, Esq.;
(e) if to Remarketing Agent, to Bankers Trust Company, One
Bankers Trust Plaza, 31st Floor, New York, New York 10015,
Attention: Public Finance Group; and
(f) if to Tender Agent, to Bankers Trust Company, Four
Albany Street, New York, New York 10015, Attention: Corporate
Trust and Agency Group.
A duplicate copy of each notice required to be given hereunder by
or to either Trustee, City or. Developer shall also be given to the
other, to Bank, and to the Landowner, addressed WARMACK-SALINA
PARTNERSHIP, 258 Central Mall, Ft. Smith, Arkansas 72903, Atten-
tion: Ed Warmack. City, Developer, Trustee, Bank, Remarketing
Agent and Tender Agent may designate any further or different
addresses to which subsequent notices, or copies thereof_ certifi-
cates or other communications shall be sent.
SECTION 13.05. Payments Due on Saturdays, Sundays and Holi-
days. In any case where the date of maturity of interest on or
principal of the Bonds or the date fixed for purchase or redemp-
tion of anv Bonds shall not be a Business Day, then payment or
principal, Purchase Price, premium, if any, or interest need not
be made on such date but may be made on the next succeeding Busi-
ness Day with the same force and effect as if made on the date of
maturity or the date fixed for purchase or redemption, and no in-
terest shall accrue for the period after such date.
SECTION 13.06. Waiver of Tax Exemption. The Bonds author-
ized herein are issued under condition that the provisions of the
Agreement will and do provide that the Developer and all persons
holding under Developer will waive and have waived any ad valorem
property tax exemption which would otherwise be available with
respect to the Facilities, or any portions thereof, under the pro-
visions of K.S.A. 79-201(a) Second, as amended.
- 73 -
SECTION 13.07. Financial Information. The City shall he
released from and disclaims any duty, obligation or commitment,
express or implied, to investigate or furnish the purchasers or
any subsequent Owners of the Bonds issued hereunder any financial
information respecting or concerning the financial status from
time to time of Developer, any Tenants, Landowner or the Bank.
SECTION 13.08. Applicable Provisions of Law. This Ordinance
shall be governed by and construed in accordance with the Laws of
the State; provided, however, the Trustee's performance of the
trust and its rights, duties, responsibilities and obligations
hereunder shall be governed by the laws of the State of Oklahoma.
SECTION 13.09. Rules of Interpretation. Unless expressly
indicated otherwise, references to Sections or Articles are to be
construed as references to Sections or Articles of this ordinance
as originally approved, passed and adopted. Use of the words
"herein" "hereby" "hereunder" "hereof" "hereinabove" "herein-
after" and other equivalent words refer to this Ordinance and not
solely to the particular portion in which such word is used.
SECTION 13.10. Captions. The captions and headings in this
Ordinance are for convenience only and in no way define, limit or
describe the scope or intent of any provisions or Sections of this
Ordinance.
SECTION 13.11. No Personal Liability. Notwithstanding any-
thing to the contrary contained herein or in any of the Bonds, or
the Agreement, or in any other instrument or document executed by
or on behalf of City in connection herewith, no stipulation,
covenant, agreement or obligation contained herein or therein
shall be deemed or construed to impose on the City any duty or
obligation to levy or impose any taxes either to meet any obliga-
tion contained herein or to pay the principal of premium, if any,
and interest on the Bonds or to he construed as a stipulation,
obligation or covenant, agreement or obligation of any present or
future elect, official, commissioner, officer, employee or agent
of City, the City Attorney, or of any incorporator, trustor,
member, director, trustee, elect, officer, official, employee or
agent of any successor to City, individually, in such official
capacities and no such person, in such capacity, shall be liable
personally for any breach or non -observance of or for any failure
to perform, fulfill or comply with any such stipulations, cov-
enants, agreements or obligations, nor shall any recourse be had
for the payment of the principal of, premium, if any, or interest
on any of the Bonds or for any claim based thereon or on any such
stipulation, covenant, agreement or obligation, against any such
person, in such capacity, either directly or through City or any
successor, under any rule of law or equity, statute or constitu-
tion or by the enforcement of any assessment or penalty or other-
wise, and al.l such liability of any such person, in such capacity,
is hereby expressly waived and released.
SECTION 13.12. Effective Date. This Ordinance shall take
effect and be in force from and after its approval, passage and
adoption and its publication in the official City paper.
- 74 -
1
APPROVED, PASSED AND ADOPTED by the governing body of the
City of Salina, Kansas, this 10th day of December, 1984.
ATTEST:
CITY OF SALINA, KANSAS
By: By:
City Clerk Mayor
- 75 -
EXHIBIT A
(PRE -CONVERSION FLOATING RATE FORM OF BOND)
UNITED STATES OF AMERICA
STATE OF KANSAS
CITY OF SALINA, KANSAS
REVENUE BOND
(SALINA CENTRAL MALL LIMITED PARTNERSHIP (PENNEY'S) PROJECT)
SERIES 1984
No . R -
THIS BOND IS SUBJECT TO MANDATORY TENDER FOR PURCHASE AT THE
TIME AND IN THE MANNER HEREINAFTER DESCRIBED, AND MUST BE SO TEN-
DERED OR WILL RE DEEMED TO HAVE BEEN SO TENDERED UNDER CERTAIN
CIRCUMSTANCES DESCRIBED HEREIN.
II KNOW ALL MEN BY THESE PRESENTS that the CITY OF SALINA, KAN-
SAS (the "City"), for value received, promises to pay, but only
from the sources and as hereinafter provided, to
or registered assigns ("Owner of
the Bond") , on December 1, 2014, upon surrender hereof, the prin-
cipal sum of Dollars,
and in like manner to pay interest on said sum at the rate de-
scribed below on March 1, June 1, September 1, and December 1 of
each year and on the Conversion Date (hereinafter defined) , com-
mencing March 1, 1985, from the interest payment date next preced-
ing the date of authentication hereof to which interest has been
paid or duly provided for, unless the date hereof_ is an interest
payment date to which interest has been paid or duly provided for,
in which case from the date hereof_, or unless no interest has been
paid or duly provided for on the Bonds (as hereinafter defined),
in which case from December 28, 1984, until payment of the prin-
cipal hereof has been made or duly provided for. Notwithstanding
the foregoing, if this Bond is dated after any date which is five
(5) Business Days (as defined in the Ordinance which is defined
hereinbelow) prior to any interest payment date (a "Record Date")
and before such interest payment date, this Bond shall bear inter-
est from such interest payment date; provided, however, that if
the City shall default in the payment of interest due on such
interest payment date, then this Bond shall bear interest from the
next preceding interest payment date to which interest has been
paid or duly provided for, or, if no interest has been paid or
duly provided for on the Bonds, from December 28, 1984. The prin-
cipal of this Bond is payable in lawful money of the United States
of America at the principal corporate trust office of Bank of
Oklahoma, Tulsa, N.A., of Tulsa, Oklahoma, as fiscal agent for the
City and as trustee (together with its successors in trust, the
"Trustee") or at the duly designated office of any successor Trus-
tee under a certain Ordinance No. 84-9055 of the City of Salina,
- 76 -
This Bond shall bear interest as follows:
(A) From the date of authentication of this Bond through
February 28, 1985, inclusive, this Bond shall bear interest at the
rate of 7.25% per annum; commencing March 1, 1985 and until ( but
not including) the earlier of (x) the effective date of any change
in the interest rate, as set forth in the Alternate Rate option
Notice (as hereinafter defined) or (y) the Conversion Date (as
hereinafter defined) this Bond shall bear interest at the "Float-
ing Rate." The "Floating Rate" shall be a variable rate of
interest equal to TENR plus an amount (as adjusted from time to
time as hereinafter provided, the "TENR Amount") initially equal
to that amount necessary to permit the Remarketing Agent to market
the Bonds at par, provided that:
(i) if the Trustee and Bankers Trust Company, as re-
marketing agent tinder the Remarketing Agreement hereinafter
defined (in such capacity, the "Remarketing Agent"), shall
have received a notice requiring the purchase of any Bond
pursuant to the exercise of the Demand Purchase Option (here-
inafter defined) and if the Remarketing Agent shall remarket
all or a portion of such Bond pursuant to the TENR Services
and Remarketing Agreement, dated as of December 28, 1984 be-
tween SALINA CENTRAL MALL LIMI`:CED PARTNERSHIP (PENNEY'S), an
Arkansas limited partnership (the "Developer") and the
Remarketing Agent (which remarketing agreement, as from time
to time amended and supplemented, is hereinafter .referred to
as the "Remarketing Agreement") , the TENR Amount for all
Bonds shall be the TENR Amount required for the Remarketing
Aq ent to remarket such Bonds at par, which adjusted TENR
Amount shall become effective as of the day next f_ollowinq
the next announcement of TENR, unless such announcement of
TENR occurs during the period of five Business Days prior to
an interest payment date or a date fixed for redemption, in
which case such adjusted TENR Amount shall become effective
- 77 -
Kansas ( said ordinance, as from time to time arlended and supple-
mented, is hereinafter referred to as the "Ordinance"). Payment
of interest on this Bond shall be made on each interest payment
date to the registered Owner hereof_ as of the applicable Record
Date and shall be Paid by check mailed by the Trustee to such
registered Owner at his address as it appears on the registration
books of the City or at such other address as is furnished to the
Trustee in writing by such registered Owner, or in such other
manner as may be mutually acceptable to the Trustee and the regis-
tered Owner of this Bond. The Purchase Price (hereinafter de-
fined) of this Bond shall be Payable by Bankers Trust Company, New
York, New York, as Tender Agent under a certain Tender Agent
Agreement, dated as of December 28, 1984 by and between Bankers
Trust Company, (together_ with any successor Tender Agent under the
ordinance the "Tender Agent"), Trustee and the Developer, as here-
inafter defined to the registered Owner hereof at his address as
it appears on the registration books of. the City or at such other
address as may be specified by such owner at least 24 hours prior
to the time such Purchase Price is due.
This Bond shall bear interest as follows:
(A) From the date of authentication of this Bond through
February 28, 1985, inclusive, this Bond shall bear interest at the
rate of 7.25% per annum; commencing March 1, 1985 and until ( but
not including) the earlier of (x) the effective date of any change
in the interest rate, as set forth in the Alternate Rate option
Notice (as hereinafter defined) or (y) the Conversion Date (as
hereinafter defined) this Bond shall bear interest at the "Float-
ing Rate." The "Floating Rate" shall be a variable rate of
interest equal to TENR plus an amount (as adjusted from time to
time as hereinafter provided, the "TENR Amount") initially equal
to that amount necessary to permit the Remarketing Agent to market
the Bonds at par, provided that:
(i) if the Trustee and Bankers Trust Company, as re-
marketing agent tinder the Remarketing Agreement hereinafter
defined (in such capacity, the "Remarketing Agent"), shall
have received a notice requiring the purchase of any Bond
pursuant to the exercise of the Demand Purchase Option (here-
inafter defined) and if the Remarketing Agent shall remarket
all or a portion of such Bond pursuant to the TENR Services
and Remarketing Agreement, dated as of December 28, 1984 be-
tween SALINA CENTRAL MALL LIMI`:CED PARTNERSHIP (PENNEY'S), an
Arkansas limited partnership (the "Developer") and the
Remarketing Agent (which remarketing agreement, as from time
to time amended and supplemented, is hereinafter .referred to
as the "Remarketing Agreement") , the TENR Amount for all
Bonds shall be the TENR Amount required for the Remarketing
Aq ent to remarket such Bonds at par, which adjusted TENR
Amount shall become effective as of the day next f_ollowinq
the next announcement of TENR, unless such announcement of
TENR occurs during the period of five Business Days prior to
an interest payment date or a date fixed for redemption, in
which case such adjusted TENR Amount shall become effective
- 77 -
as of the day next following the first announcement of TENR
subsequent to such interest payment date or date fixed for
redemption, as the case may be. Tn connection with any such
remarketing, the Remarketing Agent shall determine what in-
crements of 1/8th of 1% per annum will, when added to or sub-
tracted from the TENR Amount at the time applicable to the
Bonds, produce the minimum interest rate per annum necessary
to enable the Remarketing Agent to remarket such Bonds at
par; provided, that the TENR Amount shall not be more than
two and one-half percent (2 1/2%);
(ii) if the TENR Amount is adjusted pursuant to the
preceding clause (i), such adjusted TENR Amount shall remain
in effect until the next succeeding interest payment date or
until a further adjustment to the TENR Amount is made pursu-
ant to such clause (i) or until the interest rate hereunder
is otherwise determined as provided for in the Ordinance;
provided that if the Remarketing Agent shall have advised the
Developer, the City and the Trustee prior to any interest
payment date that the return of the TENR Amount to three-
eighths of one percent (3/8 of. 1%) would result in the Bonds
bearing interest at a rate different from the minimum inter-
est rate per annum necessary to enable the Remarketing Agent
to remarket the Bonds at par, the TEMR Amount shall not re-
turn to three-eighths of one percent (3/8 of 1%) on such in-
terest payment date;
(iii) subject to the proviso contained in the preceding
clause (ii), beginning on each interest payment date, the
TENR Amount applicable to the Bonds shall again be three-
eighths of one percent (3/8 of 1%) until such time as the
TENR Amount may again be adjusted pursuant to the preceding
clause (i) or until the interest rate hereunder is otherwise
determined as provided for in the Ordinance; and
(iv) notwithstanding the foregoing, no adjustment shall
be made to the Floating Rate during the period of five Busi-
ness Days ( as defined in the Ordinance) prior to an interest
payment date or a date fixed for redemption.
TENR is the rate announced by Bankers Trust Company, New
York, New York at its principal office as the annual rate of in-
terest which is indicative of current bid -side yields on high-
quality, short-term, tax-exempt obligations, which rate shall be
announced by Bankers Trust Company as of the close of business on
Wednesday in each calendar week until the earlier of the Conver-
sion Date or payment in full of the Bonds or, if Wednesday in any
calendar week shall not be a business day in New York, New York,
on the next succeeding business day in New York, New York. TENR
shall be effective during the period from and including the day
next succeeding the day on which Bankers Trust Company announces
TENR, to and including the day on which Bankers Trust Company next
announces TENR. TENR is a service mark of Bankers Trust Company,
New York, New York.
Anything herein to the contrary notwithstanding, the Floating
Rate shall in no event exceed 15% per annum.
The announcement of. TENR and the determination of any
adjustments to the TENR Amount as contemplated by the foregoing
paragraphs shall be conclusive and binding upon the Trustee, the
Tender Agent, the City, the Developer_ and the Owners of the
Bonds.
(B) From the effective date of any change in the interest
rate, as set forth in the Alternate Rate Option Notice until (but
not including) the Conversion Date, this Bond shall bear interest
at the "Alternate Floating Rate." The "Alternate Floating Rate"
shall be a variable rate of interest equal to the T -Bill Rate
times a percentage (such percentage, as adjusted fromtime to time
as hereinafter provided, herein referred to as the "T -Bill Per-
centage") initially equal to the T -Bill Percentage set forth in
the Alternate Rate Option Notice (the "Initial T -Bill Percent-
age"), and provided further:
( i) if the Trustee and the Remarketing Agent shall have
received a notice requiring the purchase of. any Bond pur-
suant to the exercise of the Demand Purchase Option and
if the Remarketing Agent shall remarket all or a portion
of such Bond pursuant to the Remarketing Agreement, the
T -Bill Percentage for all Bonds shall be the T -Bill
Percentage required for the Remarketing Agent to remarket
such Bond at par, which adjusted T -Bill Percentage shall
become effective as of the day next following the next
determination of the T -Bill Pate, unless such determina-
tion occurs during the period of five Business Days prior
to an interest payment date or a date fixed for redemp-
tion, in which case such adjusted T -Bill Percentage shall
become effective as of the day next following the first
determination of the T -Bill Rate subsequent to such in-
terest payment date or date fixed for redemption, as the
case may be. In connection with any such remarketing,
the Remarketing Agent shall determine what T -Rill Per-
centage will produce the minimum interest rate per annum
necessary to enable the Remarketing Agent to remarket
such Bond at par; provided, that the T -Bill Percentage
shall at no time be less than 50% or greater than 90%;
(ii) if the T -Bill Percentage is adjusted pursuant to
the preceding clause (i), such adjusted T -Bill Percentage
shall remain in effect until the next succeeding interest
payment date or until a further_ adjustment to the T -Bill
Percentage is made pursuant to such clause (i), or until
the interest rate hereunder is otherwise determined as
provided for in the Ordinance; provided that if the
Remarketing Agent shall have advised the Developer, the
City and the Trustee prior to any interest payment date
that the return of the T -Bill Percentage to the Initial
T -Bill Percentage would result in the Bonds bearing
interest at a rate different from the minimum interest
rate per annum necessary to enable the Remarketing Agent
to remarket the Bonds at par, the T -Bill Percentage shall
not return to the Initial T -Bill Percentage on such
interest payment date;
- 79 -
(iii) subject to the proviso contained in the preceding
clause (ii), beginning on each interest payment date, the
T -Bill Percentage applicable to all Bonds shall be the
Initial T -Bill Percentage until such time as the T -Bill
Percentage may again he adjusted pursuant to the preced-
ing clause (i) or until the interest rate hereunder is
otherwise determined as provided for in the Ordinance;
and
(iv) notwithstanding the foregoing, no adjustment shall
be made to the Alternate Floating Rate during the period
commencing five Business Days prior to an interest pay-
ment date and/or a date fixed for redemption.
"T -Bill Rate" shall mean the average annual interest rate,
expressed as a coupon equivalent of the discount, at which 13 -week
United States Treasury Bills are sold at the United States Trea-
sury Auction thereof next preceding the date of determination as
reported in The Wall Street Journal or, if such newspaper is not
published or does not report such rate, then in any publication of
the Federal Reserve Bank of New York, any other Federal Reserve
Bank or any other Federal department or agency selected by the
Remarketing Agent.
Anything to the contrary notwithstanding, the Alternate
Floatinq Rate shall in no event exceed 15% per annum.
The Trustee shall determine the T -Bill Rate on the Business
Day next succeeding a United States Treasury Auction at which
13 -week United States Treasury Bills are sold and such T -Bill Rate
shall be effective from the Business Day of such determination to
the effective date of the next such determination. The determina-
tion of the T -Bill Rate and any adjustments to the T -Bill Percent-
age as contemplated by the foregoinq paragraphs shall be conclu-
sive and binding upon Trustee, Tender Agent, City, Developer and
the Owners of the Bonds.
( C) This Bond shall bear interest at the "Fixed Rate" or the
"Post -Conversion Floating Rate" from and after the Conversion Date
until the maturity of the Bonds. The "Fixed Rate" shall be a
fixed annual interest rate on the Bonds established by the
Remarketing_ Agent as the rate of interest for which the Remarket-
ing Agent has received commitments on or prior to the 20th day
preceding the Conversion Date, at a price of par without discount
or at a premium not to exceed the then customary underwriting dis-
count (but in no event may the premium exceed 3 percent). The
"Post -Conversion Floating Rate" shall he a floating annual inter-
est rate on the Bonds established by the Remarketing Anent as the
floating annual interest rate equal to a percentage of the T -Pill
Rate for which Remarketing Agent has received commitments on or
prior to the 20th day preceding the Conversion Date to purchase
all the Outstanding Bonds on the Conversion Date at price of par
without discount or at a premium not to exceed the then customary
underwriting discount (but in no event may the premium exceed
three percent) .
rim
Prior to the Conversion Date, interest on the Bonds shall be
computed on the basis of a 360 -day year, actual number of days
elapsed. On and after the Conversion Date, interest on the Bonds
shall be computed on the basis of a 360 -day year of twelve 30 -day
months.
As used herein, the term "Conversion Date" means the earlier
to occur of either the Optional Conversion Date or the Automatic
Conversion Date; the term "Automatic Conversion Date" means the
interest payment date immediately preceding the Letter of Credit
Termination Date; the term "Letter of. Credit Termination Date"
means the later of ( i) that date upon which the Letter of Credit
(hereinafter defined) shall expire or (ii) the expiration or ter-
mination of the Letter of Credit as such may be extended, from
time to time, either by extension or renewal of the existing Let-
ter of Credit or the issuance of a Substitute Letter of Credit or
Substitute Credit Facility (as defined in the Ordinance); the term
"Optional Conversion Date" means that date on or after September
1, 1985, which shall be a Business Day, from and after which the
interest rate on the Bonds is converted from the Floating Rate as
a result of the exercise by the Developer of the Conversion
Option; the term "Conversion Option" means the option granted to
the Developer in the Ordinance pursuant to which the interest rate
on the Bonds is converted from the Floating Rate or the Alternate
Floatinq Rate, as the case may be, to the Fixed Rate or the Post -
Conversion Floatinq Rate, as the case may be, as of the Optional
Conversion Date; the term "Purchase Price" means an amount equal
to 100% of the principal amount of any Bond tendered or deemed
tendered for purchase pursuant to the Ordinance or with respect to
which the Demand Purchase Option has been exercised, plus, in the
case of a purchase pursuant to the exercise of such Demand Pur-
chase Option, accrued and unpaid interest thereon to the date of
purchase; and the term "Alternate Rate Option Notice" shall mean
the notice to be delivered by the Developer pursuant to, and in
accordance with the provisions of, Section 5.6 of the Aq reement
(as hereinafter defined) in the event that Bankers Trust Company
ceases to announce TENR or is replaced as the Remarketing Agent.
The interest rate on the Bonds may be converted from the
Floating Rate, or the Alternate Floating Rate, as the case may be,
to the Fixed Rate or the Post -Conversion Floatinq Rate, as the
case may be, upon satisfaction of certain conditions and notice
given by the Trustee in accordance with the requirements of the
Ordinance, and the Bonds shall be subject to mandatory tender by
the Owners thereof on the Conversion Date. On and after the Con-
version Date the Demand Purchase Option will not be available to
the Owners of the Bonds. Any Owner of Bonds who desires to retain
Bonds after the Conversion Date must notify the Developer and the
Trustee in writing received no less than ten (10) days prior to
the Conversion Date in the form described in the notice given by
the Trustee at least twenty (20) days but not more than thirty
(30) days prior to the Conversion Date. Owners of Bonds who do
not provide the Trustee and the Developer with said notice shall
be required to tender their Bonds to the Tender Agent for purchase
at the Purchase Price. Accrued interest on the Bonds will. be pay-
able on the Conversion nate to the Owners of Bonds as of the
At any time prior to the first interest payment date follow-
ing the Conversion Date, an Owner of. Bonds who has given notice of
its desire to continue to hold Bonds as provided above, may de-
liver this Bond to the Trustee or the Tender Agent, and upon such
delivery, the Trustee or the Tender Agent shall exchange this Bond
for a replacement Bond evidencing interest at the Fixed Rate.
On and after March 1, 1985, this Bond shall be purchased, at
the option of the Owner hereof ( "Demand Purchase Option") at the
Purchase Price, upon:
(a) delivery to the Trustee at its principal corporate
trust office and the Remarketing Agent at its principal
office of a notice (said notice to be irrevocable and effec-
tive upon receipt) which states (i) the aqgreqate principal
amount and the numbers of Bonds to be purchased; and (ii) the
date on which such Bonds are to be purchased, which date
shall. be a Business Day not prior to the seventh (7th) day
next succeeding the date of delivery of such notice and which
date shall be after February 28, 1985, and prior to the Con-
version Date; and
(b) delivery to the Tender Agent at its office desig-
nated below at or prior to 10:00 A.M., New York City time, on
the date designated for such Bonds to be purchased with an
appropriate endorsement for transfer or accompanied by a bond
power endorsed in blank, and if such Bonds are to be pur-
chased prior to the next succeeding interest payment date and
after the Record Date in respect thereof, a due -bill check,
payable to bearer, for interest due on such interest payment
date.
Any delivery of a notice required to be made to the Trustee
at its principal corporate trust office pursuant to (a) above
shall be delivered to the Trustee at P.O. Box 2300, Tulsa, Okla-
homa 74192, Attention: Corporate Trust Department, or to the
office designated for such purpose by any successor Trustee; any
delivery of a notice required to be made to the Remarketing Agent
at its principal office pursuant to (a) above shall be delivered
to the Remarketing Agent at One Bankers Trust Plaza, 31st Floor,
New York, New York 10015, Attention: Public Finance Group, or to
applicable Record Date. Any Bonds not delivered to the Tender
Agent on or prior to the Conversion Date ("Undelivered Bonds"),
for which there has been irrevocably deposited in trust with the
Trustee an amount of moneys sufficient to pay the Purchase Price
of the undelivered Bonds, shall be deemed to have been tendered
and purchased at the Purchase Price. IAT THE EVENT OF A FAILURE BY
AN OWNER OF T3ONDS (OTHER THAN AN OWNER OF BONDS WHO HAS GIVEN
NOTICE AS PROVIDED ABOVE) TO DELIVER ITS BONDS ON OR PRIOR TO THE
CONVERSION DATE, SAID OWNER. SHALL NOT BE ENTITLED TO ANY PAYMENT
(INCLUDING ANY INTEREST TO ACCRUE SUBSEOUENT TO THE CONVERSION
DATE) OTHER THAN THE PURCHASE PRICE FOR SUCH UNDELIVERED BONDS,
AND ANY UNDELIVERED BONDS SHALL NO LONGER BE ENTITLED TO THE BENE-
FITS OF THE ORDINANCE, EXCEPT FOR THE PURPOSE OF PAYMENT OF THE
PURCHASE PRICE THEREFOR.
At any time prior to the first interest payment date follow-
ing the Conversion Date, an Owner of. Bonds who has given notice of
its desire to continue to hold Bonds as provided above, may de-
liver this Bond to the Trustee or the Tender Agent, and upon such
delivery, the Trustee or the Tender Agent shall exchange this Bond
for a replacement Bond evidencing interest at the Fixed Rate.
On and after March 1, 1985, this Bond shall be purchased, at
the option of the Owner hereof ( "Demand Purchase Option") at the
Purchase Price, upon:
(a) delivery to the Trustee at its principal corporate
trust office and the Remarketing Agent at its principal
office of a notice (said notice to be irrevocable and effec-
tive upon receipt) which states (i) the aqgreqate principal
amount and the numbers of Bonds to be purchased; and (ii) the
date on which such Bonds are to be purchased, which date
shall. be a Business Day not prior to the seventh (7th) day
next succeeding the date of delivery of such notice and which
date shall be after February 28, 1985, and prior to the Con-
version Date; and
(b) delivery to the Tender Agent at its office desig-
nated below at or prior to 10:00 A.M., New York City time, on
the date designated for such Bonds to be purchased with an
appropriate endorsement for transfer or accompanied by a bond
power endorsed in blank, and if such Bonds are to be pur-
chased prior to the next succeeding interest payment date and
after the Record Date in respect thereof, a due -bill check,
payable to bearer, for interest due on such interest payment
date.
Any delivery of a notice required to be made to the Trustee
at its principal corporate trust office pursuant to (a) above
shall be delivered to the Trustee at P.O. Box 2300, Tulsa, Okla-
homa 74192, Attention: Corporate Trust Department, or to the
office designated for such purpose by any successor Trustee; any
delivery of a notice required to be made to the Remarketing Agent
at its principal office pursuant to (a) above shall be delivered
to the Remarketing Agent at One Bankers Trust Plaza, 31st Floor,
New York, New York 10015, Attention: Public Finance Group, or to
the office designated for such purpose by any successor Remarket-
ing Agent; and any delivery of Bonds required to be made to the
Tender Agent pursuant to (h) above shall be delivered to the Ten-
der Agent at 123 Washington Street, lst Floor, New York, New York
10006, Attention: Securities Services Division, or to the office
designated for such purpose by any successor Tender Agent.
This Bond is one of an authorized issue of. Bonds limited in
aggregate principal amount to $4,495,000 (the "Bonds") issued for
the purpose of financing the City's costs of constructing and
equipping two department stores and parking and other related
facilities located in the City of Salina, Kansas, (such facili-
ties, the "Facilities"), for lease to SALINA CENTRAL MALL LIMITED
PARTNERSHIP (PENNEY'S), an Arkansas limited partnership (the
"Developer") , under the terms of a certain Lease Agreement dated
as of December 28, 1984 by and between the City, as party lessor,
and the Developer, as party lessee, (which agreement, as from time
to time amended and supplemented, is hereinafter referred to as
the "Agreement"), under which the Developer is obligated to pay
amounts which are sufficient to pay the principal and Purchase
Price of, premium, if any, and interest on the Bonds and such
other sums as shall be payable under the Ordinance as the same
shall become due in accordance with their terms and provisions and
the terms and provisions of the Ordinance.
THE CITY SHALL BE RELEASED FROM AND DISCLAIMS ANY DUTY, OBLI-
GATION OR COMMITMENT, EXPRESS OR IMPLIED, TO INVESTIGATE OR FUR-
NISH THE PURCHASER OR ANY SUBSEQUENT OWNER OF THIS BOND ANY FINAN-
CIAL INFORMATION RESPECTING OR CONCERNING THE FINANCIAL STATUS
FROM TIME TO TIME DEVELOPER OR THE BANK, OR ANY TENANTS OR LAND-
OWNER, AS DEFINED IN THE AGREEMENT AND THE ORDINANCE.
The Bonds are all issued under and are equally secured by and
entitled to the protection of the Ordinance, pursuant to which all
payments due from the Developer to the City under the Aqreement
(other than certain indemnification payments and the payment of
certain expenses of the City), are assigned to the Trustee to
secure the payment of the principal and Purchase Price of, and
premium, if any, and interest on the Bonds. The Developer has
caused to be delivered to the Trustee an irrevocable Letter of
THIS BOND SHALI, NOT BE A GENERAL OBLIGATION OF THE CITY BUT A
LIMITED AND SPECIAL OBLIGATION PAYABLE SOLELY FROM THE AMOUNTS
PAYABLE UNDER THE AGREEMENT AND OTHER AMOUNTS SPECIFICALLY PLEDGED
THEREFOR UNDER THE ORDINANCE, AND SHALL BE A VALID CLAIM OF THE
OWNER HEREOF ONLY AGAINST THE BOND FUND AND OTHER MONEYS HELD BY
TRUSTEE AND THE AMOUNTS PAYABLE UNDER THE AGREEMENT OTHERWISE
PLEDGED THEREFOR, WHICH AMOUNTS ARE PLEDGED, ASSIGNED AND OTHER-
WISE SECURED FOR THE FOUAL PAYMENT OF THE BONDS AND SHALL BE USED
FOR NO OTHER PURPOSE THAN TO PAY THE PRINCIPAL OF, PREMIUM, IF
ANY, AND INTEREST ON THE BONDS, EXCEPT AS MAY BE OTHERWISE EX-
PRESSLY AUTHORIZED IN THE ORDINANCE. THE BONDS SHALL NOT IN ANY
RESPECT BE GENERAL OBLIGATIONS OF THE CITY NOR SHALL THEY BE PAY-
ABLE IN ANY MANNER BY TAXATION.
THE CITY SHALL BE RELEASED FROM AND DISCLAIMS ANY DUTY, OBLI-
GATION OR COMMITMENT, EXPRESS OR IMPLIED, TO INVESTIGATE OR FUR-
NISH THE PURCHASER OR ANY SUBSEQUENT OWNER OF THIS BOND ANY FINAN-
CIAL INFORMATION RESPECTING OR CONCERNING THE FINANCIAL STATUS
FROM TIME TO TIME DEVELOPER OR THE BANK, OR ANY TENANTS OR LAND-
OWNER, AS DEFINED IN THE AGREEMENT AND THE ORDINANCE.
The Bonds are all issued under and are equally secured by and
entitled to the protection of the Ordinance, pursuant to which all
payments due from the Developer to the City under the Aqreement
(other than certain indemnification payments and the payment of
certain expenses of the City), are assigned to the Trustee to
secure the payment of the principal and Purchase Price of, and
premium, if any, and interest on the Bonds. The Developer has
caused to be delivered to the Trustee an irrevocable Letter of
Credit (together with any Substitute Letter of Credit or Substi-
tute Credit Facility, the "Letter of Credit") issued by Bank dated
the date of original issuance of the Bonds, which will expire,
unless earlier terminated or extended, on December 15, 1989. Sub-
ject to certain conditions, the I.,etter_ of Credit may be replaced
by a Substitute Letter of Credit of another commercial bank or
savings and loan association or a Substitute Credit Facility.
Under the Letter of Credit, the Trustee will be entitled to draw
up to an amount sufficient to pay (a) the principal of the Bonds
or the portion of the Purchase Price corresponding to the princi-
pal of the Ponds; and ( h) up to 120 days' accrued interest ( at a
maximum rate of 15% per annum) on the Ponds or the portion of the
Purchase Price of. the Bonds corresponding to accrued interest
thereon. Reference is hereby made to the Ordinance for a descrip-
tion of the property pledged and assigned, the provisions, among
others, with respect to the nature and extent of the security, the
rights, duties and obligations of the City, the Trustee and the
Owners of the Bonds and the terms upon which the Bonds are issued
and secured.
This Bond is transferable by the registered Owner hereof in
person or by his attorney duly authorized in writing, at the prin-
cipal corporate trust office of the Trustee or at the principal
corporate trust office of the Tender Agent, but only in the man-
ner, subject to the limitations and upon payment of the charges
provided in the Ordinance, and upon surrender and cancellation of
this Bond. Upon such transfer a new registered Bond or Bonds of
authorized denomination or denominations for the same aggregate
principal amount will be issued to the transferee in exchange
heref_or. The City, the Tender Agent and the Trustee may deem and
treat the registered Owner hereof as the absolute Owner hereof_
(whether or not this Bond shall be overdue) for all purposes, and
neither the City, the Tender Agent nor the Trustee shall be bound
by any notice or knowledge to the contrary.
Prior_ to the Conversion Date, the Bonds are issuable as fully
registered bonds without coupons in the denominations of $100,000
or any integral multiple of $5,000 in excess thereof. From and
after the Conversion Date, the Bonds shall be issuable as fully
registered bonds without coupons in the denominations of $5,000 or
any integral multiple thereof.
The Bonds are callable for redemption in the event (1) the
Facilities or any portion thereof is damaged or destroyed or taken
in a condemnation proceeding to which Section 7.1 of the Agreement
is applied, or (2) the Developer shall exercise its option to
cause the Bonds to be redeemed as provided in Section 11.3 of the
Agreement, or (3) the Developer shall be obligated to cause the
Bonds to be redeemed as provided in Section 11.4 of the Agreement.
If called for redemption at any time pursuant to (1) or (2) above,
the Bonds shall be subject to redemption by the City on any inter-
est payment date, in whole or (in the rase of redemption pursuant
to Section 7.1 of the Agreement) in part, less than all of such
Bonds to be selected in such manner as the Trustee may determine
(except as otherwise provided in the Ordinance), at a redemption
In addition, the Bonds are subject to mandatory redemption,
in whole, on the Automatic Conversion Date, at 100% of the princi-
pal amount thereof, if on or prior to the 20th day prior to the
Automatic Conversion Date ( i) the Developer has failed to provide
the Trustee with an opinion of nationally recognized bond counsel
to the effect that the proposed conversion of the interest rate on
the Bonds to the Fixed Rate or the Post -Conversion Floating Rate,
as the case may be, on the Automatic Conversion Date will not
adversely affect the exemption of the interest on the Bonds from
federal income taxation, or (ii) the Fixed Rate or Post -Conversion
Floating Rate, as the case may be, of interest to be borne by the
Bonds on and after the Automatic Conversion Date has not been
�established in accordance with the terms of the Ordinance.
On or prior to the Conversion Date, the Bonds are subject to
redemption by the City, at the option of the Developer, at any
time on or after September 1, 1985, in whole or in part, less than
all of such Bonds to be selected in such manner as the Trustee
shall determine (except as otherwise provided in the Ordinance),
at a redemption price of 1000 of the principal amount thereof plus
accrued interest to the date of redemption.
After_ the Conversion Date, the Bonds are subject to redemp-
tion by the City, at the option of the Developer, on or after the
First Optional Redemption Date (hereinafter defined), in whole at
any time or in part on any interest payment date, less than all of
the Bonds to be selected in such manner as the Trustee shall
determine (except as otherwise provided in the Ordinance), at the
redemption prices (expressed as percentages of principal amount)
set forth in the following table }flus accrued interest to the
redemption date:
1
price of
of plus
one hundred percent (100%) of the principal amount there-
accrued interest to the redemption date. If called for
redemption
at any time pursuant to (3) above, the Bonds shall be
subject
to redemption by the City prior to maturity in whole or
any interest payment date within one hundred eighty (180) days
after_ a
"Determination of Taxability", as that term is defined in
Section
11.4 of the Agreement, at one hundred percent (100%) of
the aggregate principal amount of Bonds outstanding plus accrued
interest
to the redemption date. Reference is hereby made to
Section
7.1 of the Agreement for a description of the circum-
stances
under which certain net proceeds of insurance or condemna-
tion may
be paid into the Bond Fund (as defined in the Ordinance)
for full
or partial redemption of the Bonds and to Sections 11.3
and 11.4
of the Agreement for a description of the circumstances
under which
the Developer may cause or be required to cause the
Bonds to
be redeemed.
In addition, the Bonds are subject to mandatory redemption,
in whole, on the Automatic Conversion Date, at 100% of the princi-
pal amount thereof, if on or prior to the 20th day prior to the
Automatic Conversion Date ( i) the Developer has failed to provide
the Trustee with an opinion of nationally recognized bond counsel
to the effect that the proposed conversion of the interest rate on
the Bonds to the Fixed Rate or the Post -Conversion Floating Rate,
as the case may be, on the Automatic Conversion Date will not
adversely affect the exemption of the interest on the Bonds from
federal income taxation, or (ii) the Fixed Rate or Post -Conversion
Floating Rate, as the case may be, of interest to be borne by the
Bonds on and after the Automatic Conversion Date has not been
�established in accordance with the terms of the Ordinance.
On or prior to the Conversion Date, the Bonds are subject to
redemption by the City, at the option of the Developer, at any
time on or after September 1, 1985, in whole or in part, less than
all of such Bonds to be selected in such manner as the Trustee
shall determine (except as otherwise provided in the Ordinance),
at a redemption price of 1000 of the principal amount thereof plus
accrued interest to the date of redemption.
After_ the Conversion Date, the Bonds are subject to redemp-
tion by the City, at the option of the Developer, on or after the
First Optional Redemption Date (hereinafter defined), in whole at
any time or in part on any interest payment date, less than all of
the Bonds to be selected in such manner as the Trustee shall
determine (except as otherwise provided in the Ordinance), at the
redemption prices (expressed as percentages of principal amount)
set forth in the following table }flus accrued interest to the
redemption date:
1
1
Redemption Dates
First Optional Redemption Date
through the following November 30
First Anniversary of the First
Optional Redemption Date through
the following November 30
Second Anniversary of the First
Optional Redemption Date through
the following November 30
Third Anniversary of the First
Optional Redemption Date and
thereafter
Redemption
Prices
103%
102%
101%
100%
As used herein, the term "First Optional Redemption Date" means
the December 1 occurring in the year which is a number of years
after the Conversion Date equal_ to the number of years between the
December 1 immediately following the Conversion Date (unless the
Conversion Date is December 1, in which case from such December 1)
and December 1, 2014, multiplied by 1/2 and rounded up to the
nearest whole number_, but in no event less than seven (7) years
after the Conversion Date.
In the event any of the Bonds or portions thereof are called
for redemption as aforesaid, notice of the call for redemption,
identifying the Bonds or portions thereof to be redeemed, shall be
given by the Trustee by mailing a copy of the redemption notice by
registered or certified mail at least fifteen (15) days but not
more that sixty (60) days prior to the date fixed for redemption
to the owner of each Pond to be redeemed in whole or in part at
the address shown on the registration books. Any notice mailed as
provided above shall be conclusively presumed to have been duly
given, whether or not the owner receives the notice. No further
interest shall accrue on the principal of any Bond called for
redemption after the redemption date if Available Moneys (as
defined in the Ordinance) sufficient for such redemption have been
deposited with the Trustee. Notwithstanding the foregoing, the
notice requirements contained in the first sentence of this para-
graph may be deemed satisfied with respect to a transferee of a
Bond which has been purchased pursuant to the Demand Purchase
Option after such Bond has previously been called for redemption,
notwithstandinq the failure to satisfy the notice requirements of
the first sentence of this paragraph with respect to such trans-
feree, as more fully provided in Section 3.03 of the Ordinance.
The Bonds are issued pursuant
of, and in full compliance with the
ing and adopting the Ordinance and
particularly the Kansas Fconomic
K.S.A. Sections 12-1740, et sect., a
by appropriate action duty taken
execution and delivery of the
instruments.
to, subject to the restrictions
Constitution approving, pass -
laws of the State of Kansas,
Development Revenue Bond Act,
s amended and supplemented, and
by the City authorizing the
Agreement and certain other
THIS BOND SHALL NOT BE IN ANY WAY A DEBT OR LIABILITY OF THE
STATE OF KANSAS OR ANY POLITICAL SUBDIVISION OR INSTRUMENTALITY OF
THE STATE OF KANSAS (OTHER THAN THE CITY) AND SHALL NOT CREATE OR
CONSTITUTE ANY INDEBTEDNESS, LIABILITY OR OBLIGATION OF THE STATE
OF KANSAS OR OF ANY SUCH POLITICAL SUBDIVISION OR INSTRUMENTALITY
EITHER LEGAL, MORAL OR OTHERWISE, BUT THIS BOND SHALL BE A LIMITED
AND SPECIAL OBLIGATION OF THE CITY PAYABLE SOLELY FROM THE MONEYS
AND REVENUES RECEIVED FROM THE FEES CHARGED AND RENTAL RECEIVED
FOR THE USE OF THE PROPERTIES AND FACILITIES PURCHASED, ACQUIRED,
CONSTRUCTED, RECONSTRUCTED, IMPROVED, EQUIPPED, FURNISHED, RE-
PAIRED, ENLARGED OR REMODELED WITH THE PROCEEDS OF THE BONDS, IN
PART, .AND THE OTHER. FUNDS PROVIDED THEREFOR, AS SET FORTH HEREIN
AND IN THE ORDINANCE AND NOT FROM ANY OTHER FUND OR SOURCE.
NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER OF THE STATE OF
KANSAS OR ANY POLITICAL SUBDIVISION OR INSTRUMENTALITY OF THE
STATE OF KANSAS OR. OF THE CITY IS PLEDGED TO THE PAYMENT OF THE
PRINCIPAL OF THIS BOND OR. THE INTEREST OR ANY PREMIUM HEREON OR
OTHER COSTS INCIDENT HERETO NOR SHALL THE BONDS BE PAYABLE IN ANY
MANNER BY TAXATION.
Notwithstanding anything to the contrary contained herein or
in the Ordinance, the Agreement, or in any other instrument or
document executed by or on behalf_ of the City in connection here-
with, no stipulation, covenant, agreement or obligation contained
herein or therein shall be construed to impose on the City any
duty or obligation to levy or impose any taxes either to meet any
obligation contained herein or to pay the principal of, premium,
if any, and interest on the Bonds or he construed as a stipula-
tion, obligation or covenant, agreement or obligation of any
present of future elect, official, commissioner, member, trustee,
officer, official or employee or agent of the City or any incorp-
orator, trustor, member, director, trustee, officer or employee or
agent of any successor to the Issue, in any such person's indivi-
dual capacity, and no such person, in his individual capacity,
shall be liable personally for any breach or non -observance of or
for any failure to perform, fulfill or comply with any such stipu-
lations, covenants, agreements or the principal or, premium, if
any, or interest on any of the Bonds or for any claim based there-
on or on any such stipulation, covenant, agreement or obligation,
against any such person, in his individual capacity, either di-
rectly or through the City or any successor to the City under any
rule of law or equity, statute or constitution or by the enforce-
ment of any assessment or penalty or otherwise, and all such
liability of any such person, in his individual. capacity, is here-
by expressly waived and released.
The Owner of this Bond shall have no right to enforce the
provisions of the Ordinance or to institute action to enforce the
covenants therein, or to take any action with respect to any de-
fault under the Ordinance, or to institute, appear in or defend
any suit or other proceedings with respect thereto, unless certain
circumstances described in the Ordinance shall have occurred. In
certain events, on the conditions, in the manner and with the
effect set forth in the Ordinance, the principal of all the Bonds
issued under the Ordinance and then outstanding may become or may
be declared due and payable before the stated maturity thereof,
toqether with interest accrued thereon.
The Ordinance permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights'
and obligations of the City and the rights of the Owners of the
Bonds at any time by the City with the consent, among others, of
the Rank and the holders of two-thirds in aggregate principal
amount of the Bonds at the time outstanding. Any such consent or
any waiver by the Bank and the holders of two-thirds in aggregate
principal. amount of the Bonds shall be conclusive and binding upon
the Owner and upon all future Owners of this Bond and of any Bond
issued in replacement hereof whether or not notation of such con-
sent or waiver is made upon this Bond. The Ordinance also
contains provisions which, subject to certain conditions, permit
or require the Trustee to waive certain past defaults under the
Ordinance and their consequences.
It is hereby certified, recited and declared that all acts,
conditions and things required to exist, happen and be performed
precedent to and in the execution and delivery of the Ordinance
and the issuance of this Bond do exist, have happened and have
been properly done and performed in due time, form and manner and
do exist in due and regular form and manner as required by the
Constitution and Laws of the State of Kansas; that the issuance of
this Bond and the issue of which it forms a part, together with
all other obligations of the City, does not exceed or violate any
constitutional or statutory limitation; and that the amounts pay-
able under the Agreement, and pledged to the payment of the prin-
cipal of and premium, if any, and interest on this Bond and the
issue of which it forms a part, as the same become due, will be
sufficient in amount for that purpose.
This Bond shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the Ordi-
nance until the certificate of authentication hereon shall have
been signed by the Trustee or the Tender Agent, as authenticating
agents, pursuant to the Ordinance.
IN WITNESS WHEREOF, the City of Salina, Kansas, by its gov-
erning body, has caused this Bond to be signed by the manual sig-
nature of its Mayor and attested by the manual signature of its
City Clerk, and its corporate seal to be affixed hereto or im-
printed hereon, the 28th day of December, 1984.
By
Clerk
(S E A L)
CITY OF SALINA, KANSAS
JIM
Mayor
TATE OF KANSAS, COUNTY OF SALINE: ss: I, the undersigned., City
lerk of the City of Salina, Salina, Kansas, hereby certify that
he within Revenue Bond (SALINA CENTRAL MALL LIMITED PARTNERSHIP
(PENNEY'S) PROJECT), Series 1984, of the City of Salina, Kansas,
as been duly registered in my office according to law.
WITNESSETH my hand and official seal this 28th day of Decem-
er, 1984.
(S E A L)
City Clerk
( Form of Certificate of Authentication)
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the issue described in the
ithin-mentioned Ordinance of the City of Salina, Kansas.
ANKERS TRUST COMPANY,
s Co -Authenticating Aqent
By
Authorized Officer
MW
BANK OF OKLAHOMA, TULSA,
N.A., as Trustee and as
Authenticating Agent
By
Authorized Officer
( Form for Transfer)
FOR VALUE RECEIVED, , the undersigned,
hereby sells, assigns and transfers unto
(Tax Identification or Social Security No. ) the
within Bond and all rights thereunder, and hereby irrevocably con-
stitutes and appoints ,
attorney to transfer the within Bond on the books kept for regis-
tration thereof, with full power of substitution in the premises.
TED:
Signature guaranteed:
NOTICE: The signature to
this assignment must corres-
pond with the name as it
appears upon the face of the
within Bond in every particu-
lar, without alteration or
enlargement or anv change
whatever.
NOTICE: Signatures) must he _guaranteed by a member firm of the
New York Stork Exchanqe or a commercial bank or trust company.
EXHIBIT B
(FIXED RATE FORM OF BOND)
UNITED STATES OF AMERICA
STATE OF KANSAS
CITY OF SALINA, KANSAS
REVENUE BOND
(SALINA CENTRAL MALL, LIMITED PARTNERSHIP (PENNEY'S) PROJECT)
SEPIES 1984
No . R -
KNOW ALL MEN BY THESE PRESENTS that the CITY OF SALINA, KAN-
SAS (the "City") , for value received, promises to pay, but only
from the sources and as hereinafter provided, to
or registered assigns (the "Owner of
the Bond"), on December 1, 2014, upon surrender hereof., the prin-
cipal sum of Dollars, and in like manner to
pay interest (calculated on the basis of a 360 -day year of twelve
30 -day months) on said sum at the rate of % per annum on lune 1
and December 1 of each year, commencing _, , or
from the interest payment date next preceding the date hereof to
which interest has been paid or duly provided for, unless the date
hereof is an interest payment date to which interest has been paid
or duly provided for, in which case from the date hereof or unless
no interest has been paid or duly provided for on the Bonds (as
hereinafter defined), in which case from December 28, 1984, until
payment of the principal hereof_ has been made or duly provided
for. Notwithstanding the foregoing, if this Bond is dated after
any date which is five (5) Rusiness Days (as defined in the
Ordinance which is defined hereinbelow) prior to any interest
payment date (a "Record nate") and before such interest payment
date, this Pond shall bear interest from such interest payment
date; provided, however, that if the City shall default in the
payment of interest due on such interest payment date, then this
Bond shall bear interest from the next preceding interest payment
date to which interest has been paid or duly provided for, or, if
no interest has been paid or duly Provided for on the Bonds, from
December 28, 1984. The principal of this Bond is payable in
lawful money of the United States of America at the principal
corporate trust office of Rank of Oklahoma, Tulsa, N.A., of Tulsa,
Oklahoma, as fiscal agent of the City and as trustee (together
with its successors in trust, the "Trustee") or at the duly
designated office of any successor Trustee under Ordinance No.
84-9055 of the City of Salina, Kansas (said Ordinance, as from
time to time amended and supplemented, is hereinafter referred to
as the "Ordinance"). Payment of interest on this Bond shall be
ra
ade on each interest payment date to the registered Owner hereof
s of the applicable Record Date and shall be paid by check mailed
- 90 -
This Bond is one of an authorized issue of Bonds limited in
ggregate principal amount to $4,495,000 (the "Bonds") issued for
he purpose of providing funds for financing the City's costs of
onstructing and equipping two department stores and parking and
elated facilities located in the corporate limits of the City of
alina, Kansas (such facilities, the "Facilities"), for lease to
ALINA CENTRAL MALL LIMITED PARTNERSHIP (PENNEY'S), an Arkansas
imited partnership ( the "Developer") , under the terms of a cer-
ain Lease Agreement dated as of December 28, 1984 by and between
he City, as party lessor, and the Developer, as party lessee
which agreement, as from time to time amended and supplemented,
s hereinafter referred to as the "Agreement"), under which the
eveloper is obligated to pay amounts which are sufficient to pay
he principal of, premium, if any, and interest on the Bonds and
uch other sums as shall be payable under the Ordinance as the
ame shall_ become due in accordance with their terms and provi-
ions and the terms and provisions of the Ordinance.
THIS BOND SHALL NOT BE A GENERAL OBLIGATION OF THE CITY BUT A
IMITED AND SPECIAL OBLIGATION PAYABLE SOLELY FROM THE AMOUNTS
PAYABLE UNDER THE AGREEMENT AND OTHER AMOUNTS SPECIFICALLY PLEDGED
HEREFOR UNDER THE ORDINANCE, AND SHALL RE A VALID CLAIM OF THE
WNER HEREOF ONLY AGAINST THE BOND FUND AND OTHER MONEYS HELD BY
RUSTEE AND THE AMOUNTS PAYABLE UNDER THE AGREEMENT OTHERWISE
LEDGED THERFOR, WHICH AMOUNTS ARE PLEDGED, ASSIGNED AND OTHERWISE
ECURED FOR THE EQUAL PAYMENT OF THE BONDS AND SHALL BE USED FOR
O OTHER PURPOSE THAN TO PAY THE PRINCIPAL OF, PREMIUM, IF ANY,
ND INTEREST ON THE BONDS, EXCEPT AS MAY BE OTHERWISE EXPRESSLY
UTHORI7ED IN THE ORDINANCE. THE BONDS SHALL NOT IN ANY RESPECT
E GENERAL OBLIGATIONS OF THE CITY NOR SHALL THEY BE PAYABLE IN
NY MANNER BY TAXATION.
THE CITY SHALL BE RELEASED FROM AND DISCLAIMS ANY DUTY,
BLIGATION OR COMMITMENT, EXPRESS OR IMPLIED, TO INVESTIGATE OR
URNISH THE PURCHASER OR ANY SUBSEQUENT OWNER. OF THIS BOND ANY
INANCIAL INFORMATION RESPECTING OR CONCERNING THF FINANCIAL
TATUS FROM TIME TO TIME OF DEVELOPER OR THE BANK, OR ANY TENANTS
R LANDOWNER., AS DEFINED IN THE AGREEMENT AND THE ORDINANCE.
The Bonds are all issued under and are equally secured by and
entitled to the protection of the Ordinance, pursuant to which all
avments due from the Developer to the City under the Aq reement
(other than certain indemnification payments and the payment of
ertain expenses of the City), made by the Developer are assigned
o the Trustee to secure the payment of the principal of and pre-
mium, if any, and interest on the Bonds. Reference is hereby made
to the Ordinance .for a description of the provisions, amonq
others, with respect to the nature and extent of the security, the
fights, duties and obligations of the City, the Trustee and the
lawners of the Bonds, and the terms upon which the Bonds are issued
nd secured.
- 91 -
y the Trustee
to such registered Owner
at his address as it ap-
ears on the
registration books of the
City or at such other
ddress as is
furnished to the Trustee
in writing by such regis-
ered Owner, or in such other manner as
may be mutually acceptable
o the Trustee
and the registered Owner
of this Bond.
This Bond is one of an authorized issue of Bonds limited in
ggregate principal amount to $4,495,000 (the "Bonds") issued for
he purpose of providing funds for financing the City's costs of
onstructing and equipping two department stores and parking and
elated facilities located in the corporate limits of the City of
alina, Kansas (such facilities, the "Facilities"), for lease to
ALINA CENTRAL MALL LIMITED PARTNERSHIP (PENNEY'S), an Arkansas
imited partnership ( the "Developer") , under the terms of a cer-
ain Lease Agreement dated as of December 28, 1984 by and between
he City, as party lessor, and the Developer, as party lessee
which agreement, as from time to time amended and supplemented,
s hereinafter referred to as the "Agreement"), under which the
eveloper is obligated to pay amounts which are sufficient to pay
he principal of, premium, if any, and interest on the Bonds and
uch other sums as shall be payable under the Ordinance as the
ame shall_ become due in accordance with their terms and provi-
ions and the terms and provisions of the Ordinance.
THIS BOND SHALL NOT BE A GENERAL OBLIGATION OF THE CITY BUT A
IMITED AND SPECIAL OBLIGATION PAYABLE SOLELY FROM THE AMOUNTS
PAYABLE UNDER THE AGREEMENT AND OTHER AMOUNTS SPECIFICALLY PLEDGED
HEREFOR UNDER THE ORDINANCE, AND SHALL RE A VALID CLAIM OF THE
WNER HEREOF ONLY AGAINST THE BOND FUND AND OTHER MONEYS HELD BY
RUSTEE AND THE AMOUNTS PAYABLE UNDER THE AGREEMENT OTHERWISE
LEDGED THERFOR, WHICH AMOUNTS ARE PLEDGED, ASSIGNED AND OTHERWISE
ECURED FOR THE EQUAL PAYMENT OF THE BONDS AND SHALL BE USED FOR
O OTHER PURPOSE THAN TO PAY THE PRINCIPAL OF, PREMIUM, IF ANY,
ND INTEREST ON THE BONDS, EXCEPT AS MAY BE OTHERWISE EXPRESSLY
UTHORI7ED IN THE ORDINANCE. THE BONDS SHALL NOT IN ANY RESPECT
E GENERAL OBLIGATIONS OF THE CITY NOR SHALL THEY BE PAYABLE IN
NY MANNER BY TAXATION.
THE CITY SHALL BE RELEASED FROM AND DISCLAIMS ANY DUTY,
BLIGATION OR COMMITMENT, EXPRESS OR IMPLIED, TO INVESTIGATE OR
URNISH THE PURCHASER OR ANY SUBSEQUENT OWNER. OF THIS BOND ANY
INANCIAL INFORMATION RESPECTING OR CONCERNING THF FINANCIAL
TATUS FROM TIME TO TIME OF DEVELOPER OR THE BANK, OR ANY TENANTS
R LANDOWNER., AS DEFINED IN THE AGREEMENT AND THE ORDINANCE.
The Bonds are all issued under and are equally secured by and
entitled to the protection of the Ordinance, pursuant to which all
avments due from the Developer to the City under the Aq reement
(other than certain indemnification payments and the payment of
ertain expenses of the City), made by the Developer are assigned
o the Trustee to secure the payment of the principal of and pre-
mium, if any, and interest on the Bonds. Reference is hereby made
to the Ordinance .for a description of the provisions, amonq
others, with respect to the nature and extent of the security, the
fights, duties and obligations of the City, the Trustee and the
lawners of the Bonds, and the terms upon which the Bonds are issued
nd secured.
- 91 -
The Bonds shall be issuable as fully registered Bonds without
coupons in the denomination of $5,000 or any integral multiple
thereof.
The Bonds are callable for redemption in the event (1) the
Facilities or any portion thereof is damaged or destroyed or taken
in a condemnation proceeding to which Section 7.1 of the Agreement
is applied, or (2) the Developer shall exercise its option to
cause the Bonds to be redeemed as provided in Section 11.3 of the
Agreement, or (3) the Developer shall be obligated to cause the
Bonds to he redeemed as provided in Section 11.4 of the Agreement.
If.. called for redemption at any time pursuant to (1) or (2) above,
the Bonds shall be subject to redemption by the City on any inter-
est payment cute, in whole or (in the case of redemption pursuant
to Section 7.1 of the Agreement) in part, less than a]_1 of such
Bonds to be selected in such manner as the Trustee may determine
(except as otherwise provided in the Ordinance), at a redemption
price of one hundred percent (100%) of the principal amount there-
of plus accrued interest to the redemption date. If called for
redemption at any time pursuant to ( 3 ) above, the Bonds shall be
subject to redemption by the City prior to maturity in whole on
any interest payment date within one hundred eighty (180) days
after a "Determination of Taxability," as that term is defined in
Section 11.4 of the Agreement, at one hundred percent (100%) of
the aggregate principal amount of Bonds outstanding plus accrued
interest to the redemption date. Reference is hereby made to Sec-
tion 7.1 of the Agreement for a description of the circumstances
under which certain net proceeds of insurance or condemnation may
be paid into the Bond Fund (as defined in the Ordinance) for full
or partial redemption of the Bonds and to Section 11.3 and Section
11.4 of the Agreement for a description of the circumstances under
which the neveloper may cause or be required to cause the Bonds to
be redeemed.
The Bonds are subject to redemption by the City, at the op-
tion of the Developer, on or after September 1, 1985, in whole at
any time or in part on any interest payment date, less than all of
the Bonds to be selected in such manner as the Trustee shall
determine (except as otherwise provided in the Ordinance), at the
redemption prices (expressed as percentages of principal amount)
set forth in the following table plus accrued interest to the
redemption date:
OEM=
This Bond is transferable by the registered Owner hereof in
person or by his attorney duly authorized in writing, at the prin-
cipal corporate trust office of the Trustee but only in the
manner, subject to the limitations and upon payment of the charges
provided in the Ordinance, and upon surrender and cancellation of
this Bond. Upon such transfer a new registered Bond or Bonds of
authorized denomination or denominations for the same aggregate
principal amount will be issued to the transferee in exchange
her_efor. The City and the Trustee may deem and treat the regis-
tered Owner hereof as the absolute Owner hereof (whether or not
this Bond shall be overdue) for all purposes, and neither the City
nor the Trustee shall be bound by any notice or knowledge to the
contrary.
The Bonds shall be issuable as fully registered Bonds without
coupons in the denomination of $5,000 or any integral multiple
thereof.
The Bonds are callable for redemption in the event (1) the
Facilities or any portion thereof is damaged or destroyed or taken
in a condemnation proceeding to which Section 7.1 of the Agreement
is applied, or (2) the Developer shall exercise its option to
cause the Bonds to be redeemed as provided in Section 11.3 of the
Agreement, or (3) the Developer shall be obligated to cause the
Bonds to he redeemed as provided in Section 11.4 of the Agreement.
If.. called for redemption at any time pursuant to (1) or (2) above,
the Bonds shall be subject to redemption by the City on any inter-
est payment cute, in whole or (in the case of redemption pursuant
to Section 7.1 of the Agreement) in part, less than a]_1 of such
Bonds to be selected in such manner as the Trustee may determine
(except as otherwise provided in the Ordinance), at a redemption
price of one hundred percent (100%) of the principal amount there-
of plus accrued interest to the redemption date. If called for
redemption at any time pursuant to ( 3 ) above, the Bonds shall be
subject to redemption by the City prior to maturity in whole on
any interest payment date within one hundred eighty (180) days
after a "Determination of Taxability," as that term is defined in
Section 11.4 of the Agreement, at one hundred percent (100%) of
the aggregate principal amount of Bonds outstanding plus accrued
interest to the redemption date. Reference is hereby made to Sec-
tion 7.1 of the Agreement for a description of the circumstances
under which certain net proceeds of insurance or condemnation may
be paid into the Bond Fund (as defined in the Ordinance) for full
or partial redemption of the Bonds and to Section 11.3 and Section
11.4 of the Agreement for a description of the circumstances under
which the neveloper may cause or be required to cause the Bonds to
be redeemed.
The Bonds are subject to redemption by the City, at the op-
tion of the Developer, on or after September 1, 1985, in whole at
any time or in part on any interest payment date, less than all of
the Bonds to be selected in such manner as the Trustee shall
determine (except as otherwise provided in the Ordinance), at the
redemption prices (expressed as percentages of principal amount)
set forth in the following table plus accrued interest to the
redemption date:
OEM=
In the event any of. the Bonds or portions thereof are called
for redemption as aforesaid, notice of the call for redemption,
identifying the Bonds or portions thereof to be redeemed, shall be
_given by the Trustee by mailing a copy of the redemption notice by
registered or certified mail at least fifteen (15) days but not
more than sixty (60) days prior to the date fixed for redemption
to the Owner of each Bond to be redeemed in whole or in part at
the address shown on the registration books. Any notice mailed as
provided above shall be conclusively presumed to have been duly
given, whether or not the Owner receives the notice. No further
interest shall accrue on the principal of any Bond called for re-
demption after the redemption date if moneys sufficient for such
redemption have been deposited with the Trustee.
The Bonds are issued pursuant to, subject to the limitations
of, and in full compliance with the Constitution approving, pas-
sing and adopting this Ordinance and laws of the State of Kansas,
particularly, the Kansas Economic Development Revenue Bond Act,
K.S.A. Sections 12-1740, et seq., as amended and supplemented, and
by appropriate action duly taken by the City, which authorizing
the execution and delivery of the Agreement and certain other in-
struments.
THIS BOND SHALL NOT BE IN ANY WAY A DEBT OR LIABILITY OF THE
STATE OF KANSAS OR ANY POLITICAL SUBDIVISION OR INSTRUMENTALITY OF
THE STATE OF KANSAS (OTHER THAN THE CITY) AND SHALL NOT CREATE OR
CONSTITUTE ANY INDEBTEDNESS, LIABILITY OR OBLIGATION OF THE STATE
OF KANSAS OR OF ANY SUCH POLITICAL SUBDIVISION OR INSTRUMENTALITY
EITHER LEGAL, MORAL OR OTHERWISE, BUT THIS BOND SHALL RE A LIMITED
AND SPECIAL OBLIGATION OF THE CITY PAYABLE SOLELY FROM THE MONEYS
AND REVENUES RECEIVED FROM THE FEES CHARGED AND RENTALS RECEIVED
FOR THE USE OF THE PROPERTIES AND FACILITIES PURCHASED, ACQUIRED,
CONSTRUCTED, RECONSTRUCTED, IMPROVED, EQUIPPED, FURNISHED, RE-
PAIRED, ENLARGED, OR REMODELED WITH THE PROCEEDS OF THE BONDS, IN
PART, AND THE OTHER FUNDS PROVIDED THEREFOR, AS SET FORTH HEREIN
AND IN THE ORDINANCE, AND NOT FROM ANY OTHER FUND OR SOURCE.
NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER OF THE STATE OF
KANSAS OR ANY POLITICAL SUBDIVISION OR INSTRUMENTALITY OF THE
STATE OF KANSAS OR OF THE CITY IS PLEDGED TO THE PAYMENT OF THE
PRINCIPAL OF THIS BOND OR THE INTEREST OR ANY PREMIUM HEREON OR
OTHER COSTS INCIDENT HERETO NOR SHALL THE BONDS BE PAYABLE IN ANY
MANNER BY TAXATION.
Notwithstanding anything to the contrary contained herein or
in the Ordinance, the Agreement, or in any other instrument or
document executed by or on behalf_ of the City in connection here-
with, no stipulation, covenant, agreement or obligation contained
herein or therein herein shall be construed to impose on the City
- 93 -
Redemption
Redemption
Dates
Prices
1,
through
103%
1,
through
102%
1,
through
101%
1,
and thereafter
100%
In the event any of. the Bonds or portions thereof are called
for redemption as aforesaid, notice of the call for redemption,
identifying the Bonds or portions thereof to be redeemed, shall be
_given by the Trustee by mailing a copy of the redemption notice by
registered or certified mail at least fifteen (15) days but not
more than sixty (60) days prior to the date fixed for redemption
to the Owner of each Bond to be redeemed in whole or in part at
the address shown on the registration books. Any notice mailed as
provided above shall be conclusively presumed to have been duly
given, whether or not the Owner receives the notice. No further
interest shall accrue on the principal of any Bond called for re-
demption after the redemption date if moneys sufficient for such
redemption have been deposited with the Trustee.
The Bonds are issued pursuant to, subject to the limitations
of, and in full compliance with the Constitution approving, pas-
sing and adopting this Ordinance and laws of the State of Kansas,
particularly, the Kansas Economic Development Revenue Bond Act,
K.S.A. Sections 12-1740, et seq., as amended and supplemented, and
by appropriate action duly taken by the City, which authorizing
the execution and delivery of the Agreement and certain other in-
struments.
THIS BOND SHALL NOT BE IN ANY WAY A DEBT OR LIABILITY OF THE
STATE OF KANSAS OR ANY POLITICAL SUBDIVISION OR INSTRUMENTALITY OF
THE STATE OF KANSAS (OTHER THAN THE CITY) AND SHALL NOT CREATE OR
CONSTITUTE ANY INDEBTEDNESS, LIABILITY OR OBLIGATION OF THE STATE
OF KANSAS OR OF ANY SUCH POLITICAL SUBDIVISION OR INSTRUMENTALITY
EITHER LEGAL, MORAL OR OTHERWISE, BUT THIS BOND SHALL RE A LIMITED
AND SPECIAL OBLIGATION OF THE CITY PAYABLE SOLELY FROM THE MONEYS
AND REVENUES RECEIVED FROM THE FEES CHARGED AND RENTALS RECEIVED
FOR THE USE OF THE PROPERTIES AND FACILITIES PURCHASED, ACQUIRED,
CONSTRUCTED, RECONSTRUCTED, IMPROVED, EQUIPPED, FURNISHED, RE-
PAIRED, ENLARGED, OR REMODELED WITH THE PROCEEDS OF THE BONDS, IN
PART, AND THE OTHER FUNDS PROVIDED THEREFOR, AS SET FORTH HEREIN
AND IN THE ORDINANCE, AND NOT FROM ANY OTHER FUND OR SOURCE.
NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER OF THE STATE OF
KANSAS OR ANY POLITICAL SUBDIVISION OR INSTRUMENTALITY OF THE
STATE OF KANSAS OR OF THE CITY IS PLEDGED TO THE PAYMENT OF THE
PRINCIPAL OF THIS BOND OR THE INTEREST OR ANY PREMIUM HEREON OR
OTHER COSTS INCIDENT HERETO NOR SHALL THE BONDS BE PAYABLE IN ANY
MANNER BY TAXATION.
Notwithstanding anything to the contrary contained herein or
in the Ordinance, the Agreement, or in any other instrument or
document executed by or on behalf_ of the City in connection here-
with, no stipulation, covenant, agreement or obligation contained
herein or therein herein shall be construed to impose on the City
- 93 -
The Owner of this Bond shall have no right to enforce the
provisions of the Ordinance or to institute action to enforce the
covenants therein, or to take any action with respect to any de-
fault under the Ordinance, or to institute, appear in or defend
any suit or other proceedings with respect thereto, unless certain
circumstances described in the Ordinance shall have ocurred. In
certain events, on the conditions, in the manner and with the
effect set forth in the Ordinance, the principal of all the Bonds
issued under the Ordinance and then outstanding may become or may
be declared due and payable before the stated maturity thereof,
together with interest accrued thereon.
The Ordinance permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights
and obligations of the City and the rights of the Owners of the
Bonds at any time by the City with the consent, among others, of
the Owners of two-thirds in aggregate principal amount of the
Bonds at the time outstanding. Any such consent or any waiver by
the Owners of two- thirds in aggregate principal amount of the
Bonds shall be conclusive and binding upon the Owner and upon all
future Owners of this Pond and of any Bond issued in replacement
hereof whether or not notation of such consent or waiver is made
upon this Bond. The Ordinance also contains provisions which,
subject to certain conditions, permit or require the Trustee to
waive certain past defaults under the Ordinance and their conse-
quences.
It is hereby certified, recited and declared that all acts,
conditions and things required to exist, happen and be performed
precedent to and in the execution and delivery of the Ordinance
and the issuance of this Bond do exist, have happened and have
been properly done and performed in due time, form and manner and
do exist in due and regular form and manner as required by the
- 94 -
any duty or obligation to levy or impose any taxes either to meet
any obligation contained herein or to pay the principal of,
premium, if any, and interest on the Bonds or be construed as a
stipulation, obligation or covenant, agreement or obligation of
any present or future elect, official, commissioner, member,
trustee, officer, employee or agent of the City, or of any incor-
porator, trustor, member, director, trustee, elect, officer,
official, employee or agent of any successor to the City in any
such person's individual capacity, and no such person, in his
individual capacity, shall be liable personally for any breach or
non -observance of or for any failure to perform, fulfill or comply
with any such stipulations, covenants, agreements or obligations,
nor shall any recourse be had for the payment of the principal of,
premium, if any, or interest on any of the Bonds or for any claim
based thereon or to any such stipulation, covenant, agreement or
obligation against any such person, in his individual capacity,
either directly or through the City or any successor to the City
under any rule of law or equity, statute or constitution or by the
enforcement of any assessment or penalty or otherwise, and all
such liability of any such person, in his individual capacity, is
hereby expressly waived and released.
The Owner of this Bond shall have no right to enforce the
provisions of the Ordinance or to institute action to enforce the
covenants therein, or to take any action with respect to any de-
fault under the Ordinance, or to institute, appear in or defend
any suit or other proceedings with respect thereto, unless certain
circumstances described in the Ordinance shall have ocurred. In
certain events, on the conditions, in the manner and with the
effect set forth in the Ordinance, the principal of all the Bonds
issued under the Ordinance and then outstanding may become or may
be declared due and payable before the stated maturity thereof,
together with interest accrued thereon.
The Ordinance permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights
and obligations of the City and the rights of the Owners of the
Bonds at any time by the City with the consent, among others, of
the Owners of two-thirds in aggregate principal amount of the
Bonds at the time outstanding. Any such consent or any waiver by
the Owners of two- thirds in aggregate principal amount of the
Bonds shall be conclusive and binding upon the Owner and upon all
future Owners of this Pond and of any Bond issued in replacement
hereof whether or not notation of such consent or waiver is made
upon this Bond. The Ordinance also contains provisions which,
subject to certain conditions, permit or require the Trustee to
waive certain past defaults under the Ordinance and their conse-
quences.
It is hereby certified, recited and declared that all acts,
conditions and things required to exist, happen and be performed
precedent to and in the execution and delivery of the Ordinance
and the issuance of this Bond do exist, have happened and have
been properly done and performed in due time, form and manner and
do exist in due and regular form and manner as required by the
- 94 -
1
1
constitution and the Laws of the State of Kansas; that the issu-
ance of this Bond and the issue of which it forms a part, together
with all other obligations of the City does not exceed or violate
any constitutional or statutory limitation; and that the amounts
payable under the Agreement and pledged to the payment of the
principal of or premium, if any, and interest on this Bond and the
issue of which it forms a hart, as the same become due, will be
sufficient in amount for that purpose.
This Bond shall not be valid or become obligatory for any
purpose or he entitled to any security or benefit under the
Ordinance until the certificate of authentication hereon shall
have been signed by the Trustee or the Tender Agent, as authenti-
cating agents, pursuant to the Ordinance.
IN WITNESS WHEREOF, the City of. Salina, Kansas, by its
governing body, has caused this Bond to be signed by the manual
signature of its Mayor and attested by the manual signature of.. its
City Clerk, and its corporate seal to be affixed hereto or
imprinted hereon, the day of , 19_.
ATTEST: CITY OF SALINA, KANSAS
By
Clerk
(S E A L)
By
Mayor
- 95 -
1
U
(Form of Certificate of Authentication)
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the issue described in the
within -mentioned Ordinance of. the City of Salina, Kansas.
BANKERS TRUST COMPANY,
as Co -Authenticating Aqent
By
Authorized Officer
AN
BANK OF OKLAHOMA, TULSA,
N.A., as Trustee and
Authenticatinq Agent
By
Authorized Officer
( Form for Transfer)
11 FOR VALUE RECEIVED, , the undersigned,
hereby sells, assigns and transfers unto
(Tax Identification or Social Security No. ) the
within Bond and all rights thereunder, and hereby irrevocably con-
stitutes and appoints ,
attorney to transfer the within Bond on the books kept for regis-
tration thereof, with full power of substitution in the premises.
DATED:
NOTICE: The signature to
this assignment must corres-
pond with the name as it
appears upon the face of the
within Bond in every particu-
lar, without alteration or
enlargement or any change
whatever.
Siqnature guaranteed:
NOTICE: Signatures) must be guaranteed by a member firm of the
New York Stock Exchanqe or a commercial bank or trust company.
EXHIBIT C
(POST -CONVERSION FLOATING RATE FORM OF BOND)
UNITED STATES OF AMERICA
STATE OF KANSAS
CITY OF SALINA, KANSAS
REVENUE BOND
(SALINA CENTRAL MALL LIMITED PARTNERSHIP (PENNEY'S) PROJECT)
SERIES 1984
No . R -
KNOW ALL MEN BY THESE PRESENTS that the CITY OF SALINA, KAN-
SAS (the "City") for value received, promises to pay, but only
from the sources and as hereinafter provided, to
or registered assigns (the "Owner
of the Bond"), on December 1, 2014, upon surrender hereof, the
principal sum of Dollars, and in like
manner to pay interest (calculated on the basis of a 360 -day year
of twelve 30 -day months) on said sum at the rate described below
on June 1 and December 1 of each year, commencing _,
, or from the interest payment date next preceding the date
hereof to which interest has been paid or duly provided for,
unless the date hereof is an interest payment date to which inter-
est has been paid or duly provided for, in which case from the
date hereof or unless no interest has been paid or duly provided
for on the Bonds (as hereinafter defined), in which case from
December 28, 1984, until payment of the principal hereof has been
made or duly provided for. Notwithstanding the foregoing, if this
Bond is dated after any date which is five (5) Business Days (as
defined in the Ordinance which is defined hereinbelow) prior to
any interest payment date (a "Record Date") and before such inter-
est payment date, this Bond shall bear interest from such interest
payment date; provided, however, that if the City shall default in
the payment of interest due on such interest payment date, then
this Bond shall bear interest from the next preceding interest
payment date to which interest has been paid or duly provided for,
or, if no interest has been paid or duly provided for on this
Bond, from December 28, 1984. The principal of this Bond is pay-
able in lawful money of the United States of America at the prin-
cipal corporate trust office of Bank of Oklahoma, Tulsa, N.A., of
Tulsa, Oklahoma, as fiscal agent of the City and as trustee (to-
gether with its successors in trust, the "Trustee") or at the duly
designated office of any successor Trustee under Ordinance No.
84-9055 of the City of Salina, Kansas, (said Ordinance, as from
time to time amended and supplemented, is hereinafter referred to
as the "Ordinance") . Payment of interest on this Bond shall be
made on the interest payment date to the registered Owner hereof
as of the Record Date and shall be paid by check mailed by the
- 97 -
Trustee to such registered Owner at his address as it appears on
the registration books of the City or at such other address as is
furnished to the Trustee in writing by such registered Owner, or
in such other manner as may be mutually acceptable to the Trustee
and the registered Owner of this Bond.
This Bond shall bear interest at a variable rate of interest
per annum equal to % of the T -Bill Rate. "T -Bill Rate" shall
mean the average annual interest rate, expressed as a coupon
equivalent of the discount, at which 13 -week United States Trea-
sury Bills are sold at the United States Treasury Auction thereof_
next preceding the date of determination. The determination of
the T -Bill Rate shall be made by the Trustee in accordance with
the terms of the Ordinance.
Anything to the contrary notwithstanding the T -Bill Rate
shall in no event exceed 15% per annum.
This Bond is one of an authorized issue of Bonds limited in
aggregate principal amount to $4,495,000 (the "Bonds") issued for
the purpose of providing funds for financing the City's costs of
constructing two department stores, parking and related facilities
located in the corporate limits of the City of Salina, Kansas
(such facilities, the "Facilities") for lease to SALINA CENTRAL
MALL LIMITED PARTNERSHIP (PENNEY'S), an Arkansas limited partner-
ship ( the "Developer") under the terms of a certain Lease Agree-
ment dated as of December 28, 1984 by and between the City, as
party lessor, and Developer, as party lessee (which agreement, as
from time to time amended and supplemented, is hereinafter re-
ferred to as the "Agreement"), under which the Developer is obli-
gated to pay amounts which are sufficient to pay the principal of,
premium, if any, and interest on the Bonds and such other sums as
shall be payable under the Ordinance as the same shall become due
in accordance with their terms and provisions and the terms and
provisions of. the Ordinance.
THIS BOND SHALL NOT BE A GENERAL OBLIGATION OF THE CITY BUT A
LIMITED AND SPECIAL OBLIGATION PAYABLE SOLELY FROM THE AMOUNTS
PAYABLE UNDER THE AGREEMENT AND OTHER AMOUNTS SPECIFICALLY PLEDGED
THEREFOR UNDER THE ORDINANCE, AND SHALL BE A VALID CLAIM OF THE
OWNER HEREOF ONLY AGAINST THE BOND FUND AND OTHER MONEYS HELD BY
TRUSTEE AND THE AMOUNTS PAYABLE UNDER THE AGREEMENT OTHERWISE
PLEDGED THEREFOR, WHICH AMOUNTS ARE PLEDGED, ASSIGNED AND OTHER-
WISE SECURED FOR THE EQUAL PAYMENT OF THE BONDS AND SHALL BE USED
FOR NO OTHER PURPOSE THAN TO PAY THE PRINCIPAL OF, PREMIUM, IF
ANY, AND INTEREST ON THE BONDS, EXCEPT AS MAY BE OTHERWISE EX-
PRESSLY AUTHORIZED IN THE ORDINANCE. THE BONDS SHALL NOT IN ANY
RESPECT BE GENERAL OBLIGATIONS OF THE CITY NOR SHALT, THEY BE PAY-
ABLE IN ANY MANNER BY TAXATION.
THE CITY SHALL BE RELEASED FROM AND DISCLAIMS ANY DUTY, OBLI-
GATION OR COMMITMENT, EXPRESS OR IMPLIED, TO INVESTIGATE OR
FURNISH THE PURCHASER OR ANY SUBSEQUENT OWNER OF THIS BOND ANY
FINANCIAL INFORMATION RESPECTING OR CONCERNING THE FINANCIAL
STATUS FROM TIME TO TIME OF DEVELOPER. OR THE RANK, OR ANY TENANTS
OR LANDOWNER, AS DEFINED I" THE AGREEMENT AND THE ORDINANCE.
The Bonds are all issued under and are equally secured by and
entitled to the protection of the Ordinance, pursuant to which all
payments due from the Developer to the City under the Agreement
(other than certain indemnification payments and the payment of
certain expenses of the City) are assigned to the Trustee to
secure the payment of the principal of and premium, if any, and
interest on the Bonds. Reference is hereby made to the Ordinance
for a description of the provisions, among others, with respect to
the nature and extent of the security, the rights, duties and ob-
ligations of the City, the Trustee and the Owners of the Bonds,
and the terms upon which the Bonds are issued and secured.
This Bond is transferable by the registered Owner hereof in
person or by his attorney duly authorized in writing, at the prin-
cipal corporate trust office of the Trustee but only in the man-
ner, subject to the limitations anrl upon payment of the charges
provided in the Ordinance, and upon surrender and cancellation of
this Bond. Upon such transfer a new registered Bond or Bonds of
authorized denomination or denominations for the same aggregate
principal amount will be issued to the transferee in exchange
herefor. The City and the Trustee may deem and treat the regis-
tered Owner hereof as the absolute Owner hereof (whether or not
this Bond shall he overdue) for all purposes, and neither the City
nor the Trustee shall be bound by any notice or knowledge to the
contrary.
The Bonds shall be issuable as fully registered Bonds without
coupons in the denomination of $5,000 or any integral multiple
thereof.
The Bonds are callable for redemption in the event (1) the
Facilities or any portion thereof is damaged or destroyed or taken
in a condemnation proceeding to which Section 7.1 of the Agreement
is applied, or (2) the Developer shall exercise its option to
cause the Bonds to be redeemed as provided in Section 11.3 of the
Agreement, or (3) the Developer shall be obligated to cause the
Bonds to be redeemed as provided in Section 11.4 of the Agreement.
If called for redemption at any time pursuant to (1) or (2) above,
the Bonds shall be subject to redemption by the City on any inter-
est payment date, in whole or (in the case of redemption pursuant
to Section 7.1 of the Agreement) in part, less than all of. such
Bonds to be selected in such manner as the Trustee may determine
(except as otherwise provided in the Ordinance), at a redemption
price of one hundred percent (100%) of the principal amount there-
of plus accrued interest to the redemption date. If called for
redemption at any time pursuant to (3) above, the Bonds shall be
subject to redemption by the City prior to maturity in whole on
any interest payment date within one hundred eighty (180) days
after a "Determination of Taxability," as that term is defined in
Section 11.4 of the Agreement, at one hundred percent (100%) of
the aggregate principal. amount of Bonds outstanding plus accrued
interest to the redemption date. Reference is hereby made to
Section 7.1 of the Agreement for a description of the circum-
stances under which certain net proceeds of insurance or condemna-
tion may be paid into the Bond Fund (as defined in the Ordinance)
for full or partial redemption of the Bonds and to Section 11.3
and Section 11.4 of the Agreement for a description of the circum-
stances under which the Developer may cause or be required to
cause the Bonds to be redeemed.
The Bonds are subject to redemption by the City, at the
option of the Developer, on or after September 1, 1985, in whole
at any time or in part on any interest payment date, less than all
of the Bonds to be selected in such manner as the Trustee shall
determine (except as otherwise provided in the Ordinance), at the
redemption prices (expressed as percentages of principal amount)
set forth in the following table plus accrued interest to the
redemption date:
Redemption
Redemption Dates Prices
11
through
103%
1,
through
102%
1,
through
101%
1,
and thereafter
100%
In the event any of the Bonds or portions thereof are called
for redemption as aforesaid, notice of the call for redemption,
identif_yinq the Bonds or portions thereof to be redeemed, shall be
given by the Trustee by mailing a copy of the redemption notice by
registered or certified mail at least fifteen (15) days but not
more than sixty (60) days prior to the date fixed for redemption
to the Owner of each Bond to be redeemed in whole or in part at
the address shown on the registration books. Any notice mailed as
provided above shall be conclusively presumed to have been duly
given, whether or not the Owner receives the notice. No further
interest shall accrue on the principal of any Bond called for
redemption after the redemption date if moneys sufficient for such
redemption have been deposited with the Trustee.
The Ponds are issued pursuant to, subject to the limitations
of, and in full compliance with the Constitution approving, pass-
ing and adopting the Ordinance and laws of the State of. Kansas,
particularly the Kansas Economic Revenue Bond Act, K.S.A. Sec-
tions 12-1740, et seq., as amended and supplemented, and by appro-
priate action duly taken by the City which authorizes the execu-
tion and delivery of the Agreement and certain other instruments.
THIS BOND SHALL NOT BE IN ANY 14AY A DEBT OR LIABILITY OF THE
STATE OF KANSAS OR ANY POLITICAL SUBDIVISION OR INSTRUMENTALITY OF
THE STATE OF KANSAS (OTHER THAN THE CITY) AND SHALL NOT CREATE OR
CONSTITUTE ANY INDEBTEDNESS, LIABILITY OR OBLIGATION OF THE STATE
OF KANSAS OR OF ANY SUCH POLITICAL SUBDIVISION OR INSTRUMENTALITY
EITHER LEGAL, MORAL OR OTHERWISE, BUT THIS BOND SHALL RE A LIMITED
AND SPECIAL OBLIGATION OF THE CITY PAYABLE SOLELY FROM THE MONEYS
AND REVENUES RECEIVED FROM THE FEES CHARGED AND RENTALS RECEIVED
FOR THE USE OF THE PROPERTIES AND FACILITIES PURCHASED, ACQUIRED,
CONSTRUCTED, RECONSTRUCTED, IMPROVED, EQUIPPED, FURNISHED, RE-
PAIRED, ENLARGED, OR REMODELED WITH THE PROCEEDS OF THE BONDS, IN
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PART, AND THE OTHER FUNDS PROVIDED THEREFOR, AS SET FORTH HEREIN
AND IN THE ORDINANCE AND NOT FROM ANY OTHER FUND OR SOURCE.
NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER OF THE STATE OF
KANSAS OR ANY POLITICAL SUBDIVISION OR INSTRUMENTALITY OF THE
STATE OF KANSAS OR OF THE CITY IS PLEDGED TO THE PAYMENT OF THE
PRINCIPAL OF THIS BOND OR THE INTEREST OR ANY PREMIUM HEREON OR
OTHER COSTS INCIDENT HERETO NOR SHALL THE BONDS BE PAYABLE IN ANY
MANNER BY TAXATION.
Notwithstanding anything to the contrary contained herein or
in the Ordinance, the Agreement, or in any other instrument or
document executed by or on behalf of. the City in connection here-
with, no stipulation, covenant, agreement or obligation contained
herein or therein shall be construed to impose on the City any
duty or obligation to levy or impose any taxes either to meet any
obligation contained herein or to pay the principal of, premium,
if any, and interest on the Bonds or be construed as a stipula-
tion, obligation or covenant, agreement or obligation of any
present or future elect, official, commissioner, member, trustee,
officer, employee or agent of the City or of any incorporator,
trustor, member, director, trustee, elect, officer, official,
employee or agent of any successor to the City, in any such per-
son's individual capacity, and no such person, in his individual
capacity, shall be liable personally for any breach or non-
observance of or for any failure to perform, fulfill or comply
with any such stipulations, covenants, agreements or obligations,
nor shall any recourse be had for the payment of the principal of,
premium, if any, or interest on any of. the Bonds or for any claim
based thereon or to any such stipulation, covenant, agreement or
obligation against any such person, in his individual capacity,
either directly or through the City or any successor to the City
under any rule of law or equity, statute or constitution or by the
enforcement of any assessment or penalty or otherwise, and all
such liability of any such person, in his individual capacity, is
hereby expressly waived and released.
The Owner of this Bond shall have no right to enforce the
provisions of the Ordinance or to institute action to enforce the
covenants therein, or to take any action with respect to any de-
fault under_ the Ordinance, or to institute, appear in or defend
any suit or other proceedings with respect thereto, unless certain
circumstances described in the Ordinance shall have ocurred. In
certain events, on the conditions, in the manner and with the
effect set forth in the Ordinance, the principal of all the Bonds
issued under the Ordinance and then outstanding may become or may
be declared due and payable before the stated maturity thereof,
together with interest accrued thereon.
The Ordinance permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights
and obligations of the City and the rights of the Owners of the
Bonds at any time by the City with the consent, among others, of
the Owners of two-thirds in aggregate principal amount of the
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1
Bonds at the time outstanding. Any such consent or any waiver by
the Owners of two-thirds in aggregate principal amount of the
Bonds shall be conclusive and binding upon the Owner and upon all
future Owners of. this Bond and of any Bond issued in replacement
hereof whether or not notation of such consent or waiver is made
upon this Bond. The Ordinance also contains provisions which,
subject to certain conditions, permit or require the Trustee to
waive certain past defaults under the Ordinance and their conse-
quences.
It is hereby certified, recited and declared that all acts,
conditions and things required to exist, happen and be performed
precedent to and in the execution and delivery of the Ordinance
and the issuance of this Bond do exist, have happened and have
been properly done and performed in due time, form and manner and
do exist in due and regular form and manner as required by the
Constitution and the laws of the State of Kansas; that the issu-
ance of this Bond and the issue of which it forms a part, together
with all other obligations of the City does not exceed or violate
any constitutional or statutory limitation; and that the amounts
payable under the Agreement and pledged to the payment of the
principal of or premium, if any, and interest on this Bond and the
issue of which it forms a part, as the same become due, will be
sufficient in amount for that purpose.
This Bond shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the Ordi-
nance until the certificate of authentication hereon shall have
been siqned by the Trustee or the Tender Agent, as authenticating
agents, pursuant to the Ordinance.
IN
WITNESS WHEREOF,
the City of
Salina, Kansas, by its gov-
erninq
body, has caused
this Bond to
be signed by the manual sig-
nature
of its Mayor and
attested by
the manual signature of its
City Clerk,
and its corporate
seal
to be affixed hereto or im-
printed
hereon, the ji '
day of l�u er `��v lqg;,.
ATTEST:
Clerk
(S E A L)
CITY OF SALINA, KANSAS
By
f
y
Mayor
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1
C
( Form of Certificate of Authentication)
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the issue described in the
within -mentioned Ordinance of the City of Salina, Kansas.
BANKERS TRUST COMPANY,
as Co -Authenticating Agent
By
Authorized Officer
AN
BANK OF OKLAHOMA, TULSA,
N.A., as Trustee and
Authenticatinq Agent
By
Authorized Officer
( Form for Transfer)
FOR VALUE RECEIVED, , the undersigned,
hereby sells, assigns and transfers unto
(Tax Identification or Social Security No. ) the
within Bond and all rights thereunder, and hereby irrevocably con-
stitutes and appoints ,
attorney to transfer the within Bond on the books kept for regis-
tration thereof, with full power of substitution in the premises.
DATED:
NOTICE: The signature to
this assignment must corres-
pond with the name as it
appears upon the face of the
within Bond in every particu-
lar, without alteration or
enlargement or any change
whatever.
Signature guaranteed:
NOTICE: Siqnature(s) must be guaranteed by a member firm of the
New York Stock Exchange or a commercial bank or trust company.
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EXHIBIT "D"
Legal Description
TRACT NO. 2
A tract of land situated in the Southwest Quarter of Section 25,
Township 14 South, Range 3 West of the Sixth Principal Meridian in
Saline County, Kansas, more particularly described as follows:
Commencing at the Southwest corner of said Quarter; thence East on
an assumed bearing of S 891134128" E along the South line of said
Quarter_ a distance of 590.93 feet; thence 7\7 00025132" E a distance
of 222.05 feet to the Point of Beginning; thence alone a curve to
the left a distance of 105.42 feet, said curve having a radius of
175.00 feet and a long chord of 103.83 feet on a bearing of
N 57130'05" W; thence N 74°45130" W a distance of 283.37 feet;
thence along a curve to the right a distance of 163.68 feet said
curve having a radius of 125.00 feet and a long chord of 152.23
feet on a bearing of N 37°14'48" W; thence N 00115'54" E a dis-
tance of 172.68 feet (Note: Courses and distances from the Point
of Beginning to this point, are along the East Pight-of-way line
of Century Plaza Drive) ; thence S 89044106" E a distance of 771.25
feet; thence N 00°15154" E a distance of 23.75 feet; thence
N 89044106" W a distance of 117.25 feet; thence S 00°15'54" W a
distance of 64.00 feet; thence N 00015154" E a distance of. 64
feet; thence N 89044106" W a distance of 30.00 feet; thence
N 44°44'06" W a distance of 15.50 feet; thence N 89044106" W a
distance of 30.00 feet; thence N 00115154" E a distance of 38.00
feet; thence S 89144'06" E a distance of 30.00 feet; thence
N 00°15'54" E a distance of 15.50 feet; thence S 89044106" E a
distance of 45.00 feet; thence S 89°44106" E a distance of 130.00
feet; thence N 00°15'54" E a distance of 1.25 feet; thence
S 89044106" E a distance of 21.25 feet; thence N 00°15'54" E a
distance of 203.75 feet; thence S 89144106" E a distance of 279.00
feet; thence along a curve to the right a distance of 177.77 feet,
said curve having a radius of 637.73 feet and a long chord of
177.19 feet on a bearing of S 8°15103" W; thence S 16°14'10" W a
distance of 222.43 feet; thence along a curve to the left a dis-
tance of 248.00 feet, said curve having a radius of 1,835.00 feet
and a long chord of 247.81 feet on a bearing of S 12°21152" W;
thence S 8029133" W a distance of 12.4.82 feet; thence along a
curve to the right a distance of 79.77 feet, said curve having a
radius of 55.78 feet and a long chord of 73.14 feet on a. bearing
of S 49°27'33" W; thence N 89034128" W a distance of 355.00 feet
to the Point of Beginning; containing 453,548 square feet or
10.412 acres more or less.
The above tract includes part of lots 4, 5 and 6, block 9; part of
lots 1. and 2., block 14; part of lots 4, 5, 6, 8, 9, 10, 11, 18,
all of lot 7, block 15, of Meadowlark Acres Addition No. 3, to the
City of Salina, Kansas.
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1
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EXHIBIT "E"
Equipment
All Equipment and Inventory (as those terms are defined in the
Uniform Commercial Code) now owned or hereafter acquired by the
City now or hereafter located on the premises described in Exhibit
"D" attached hereinabove (hut excluding all furniture, furnish-
ings, appliances, trade fixtures, fixtures, and other personal
property owned by tenants and installed for the purpose of their
tenancies with right of removal at or before the expiration of the
terms of their leases) whether or not constituting fixtures,
including, without limitation, all street, water, sewer, storm
sewer, electric, telephone communications and related lines,
systems and facilities; all furniture, furnishings, floor cover-
ings, office equipment, goods, machinery, appliances, tools,
building material, gas and electric fixtures, radiators, heaters,
air conditioning equipment, boilers, ranges, refrigerators, dish-
washers, elevators and motors, bathtubs, sinks, water closets,
water basins, pipes, faucets, and other plumbing and heating fix-
tures and other Equipment and Inventory similar or dissimilar,
used or usable in connection with the premises described in
Exhibit "D" attached hereinabove.
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