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84-8992 IRB Santa Fe Office1 1 (Published in The Salina Journal, January 17, 1984). ORDINANCE NO. 84-8992 AN ORDINANCE AUTHORIZING THE CITY OF SALINA, KANSAS, TO PURCHASE AND ACQUIRE CERTAIN REAL ESTATE LOCATED WITHIN THE CORPORATE LIMITS OF THE CITY AND TO RECONSTRUCT AND REMODEL ON SAID REAL ESTATE CERTAIN BUILDINGS AND IMPROVEMENTS TO BE LEASED TO SANTA FE OFFICE PLAZA, A PARTNERSHIP OF SALINA, KANSAS; AUTHORIZING AND DIRECTING THE ISSUANCE OF $450,000.00 PRINCIPAL AMOUNT OF SALINA, KANSAS SANTA FE OFFICE PLAZA REVENUE BONDS OF 1983 OF SAID CITY FOR THE PURPOSE OF PROVIDING FUNDS FOR THE PURCHASE AND ACQUISITION OF THE REAL ESTATE AND THE RECONSTRUCTION AND REMODELING OF THE IMPROVEMENTS ON SAID REAL ESTATE TO BE USED FOR COMMERCIAL FACILITIES TO BE LEASED TO SANTA FE OFFICE PLAZA; AND PRESCRIBING THE FORM AND AUTHORIZING THE EXECUTION OF A LEASE BETWEEN THE CITY AND SANTA FE OFFICE PLAZA WHEREAS, the City of Salina, Kansas, hereinafter some- times referred to as "City", desires to promote, stimulate and develop the general economic welfare and prosperity of the City of Salina, Kansas, and its environs and thereby to further promote, stimulate and develop the general economic welfare and prosperity of the State of Kansas; and - 1 - WHEREAS, pursuant to the provisions of K.S.A. 12-1740 to K.S.A. 12-1749a inclusive, as amended, hereinafter some- times referred to as "Act", the City is authorized to issue revenue bonds of the City, and it is hereby found and deter- mined to be advisable and in the interest and for the welfare of the City and its inhabitants that revenue bonds of the City in the principal amount of $450,000.00 be autho- rized and issued, for the purpose of providing funds to purchase and acquire certain real estate located within the corporate limits of the City and to reconstruct and remodel on said real estate certain buildings and improvements, all to be used as commercial facilities to be leased to Santa Fe Office Plaza, a partnership, with its principal place of business at Salina, Kansas, hereinafter sometimes referred to as "Company", the proceeds of said Bonds to be used for - 1 - said purposes in conjunction with funds otherwise made available for said purposes: NOW, THEREFORE, BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF SALINA, KANSAS: SECTION 1. That the City is hereby authorized to purchase, lease or otherwise acquire the real estate de- scribed on Exhibit "A" attached hereto and by reference made a part hereof, and to reconstruct and remodel on said real estate certain buildings and improvements as hereinafter set forth, hereinafter sometimes referred to as the "project", to be used as commercial facilities in accordance with the provisions of a Lease dated as of December 1, 1983, between the City and the Company, hereinafter sometimes referred to as "Lease", said Lease being authorized by Section 16 of this Ordinance, all at a cost to be paid by the City from the proceeds of the revenue bonds herein authorized not in excess of $450,000.00. SECTION 2. That for the purpose of providing funds to pay the cost of the project there shall be issued and hereby are authorized and directed to be issued Salina, Kansas, Santa Fe Office Plaza Revenue Bonds of 1983, of the City of Salina, Kansas, in the aggregate principal amount of $450,000.00, hereinafter sometimes referred to as "Bonds" or "Revenue Bonds". The Bonds and interest thereon shall be paid solely and only from the money, revenues, fees, charges, rentals and other amounts received under the terms of the Lease of the project to the Company and not from any other fund or source. The City hereby pledges the project, the Lease and the amounts receivable thereunder to the payment of the Bonds and the interest thereon, so that payment thereof is secured by a first lien on the project. SECTION 3. The Salina, Kansas, Santa Fe Office Plaza Revenue Bonds of 1983, shall be dated as of December 1, 1983, and each Bond shall be fully registered, without coupons, and shall be in the denomination of $1,000.00 or any multiple thereof, not exceeding the aggregate principal amount of $450,000.00. The Bonds shall be numbered from one consecutively upward in order of issuance. Interest at the variable rate hereinafter provided shall be payable semi- annually on June lst and December 1st of each year commenc- ing June 1, 1984. The principal of and interest on the Bonds shall be payable by check or draft in lawful money of the United States of America at the principal office of The National Bank of America at Salina, a national banking association with its principal place of business at Salina, - 2 - W, Kansas, hereby designated as the fiscal agent for the Bonds and as the City's bond registrar and hereinafter sometimes referred to as the "Paying Agent" or as the "Bond Regis- trar". The variable rate of interest payable on the Bonds shall be equal to eighty percent (80%) of the "Base Rate" (published rate for commercial loans) of The National Bank of America at Salina, Salina, Kansas, in effect on the date of issuance of the Bonds, which rate shall be adjusted annually without notice on the first day of December each year commencing on December 1, 1984, to a rate equal to eighty percent (80%) of the Base Rate of The National Bank of America at Salina, Salina, Kansas, in effect on each such interest rate adjustment date, and the rate so determined on each such date shall remain in effect without further adjustment for a period of one year and until the next annual interest rate adjustment date. The Bonds shall be subject to redemption and payment, as follows: (a) The Bonds or portions thereof shall be subject to mandatory redemption and payment in specified semi- annual amounts pursuant to the terms of the sinking fund described herein, on June 1st and December 1st of each year commencing June 1, 1984, at the principal amount thereof plus accrued interest thereon to the date fixed for such redemption and payment, without premium. As and for a sinking fund for the retirement of the Bonds, but subject to the provisions hereof, the basic rent payments specified in Article II of the Lease which are to be deposited in the principal and interest account hereinafter created, on or before May 15th and November 15th of each year commencing May 15, 1984, shall be sufficient in amount to redeem and the City hereby agrees to redeem from the deposits thereunder, the following principal amounts of Bonds on each of the following dates: Principal Date Amount June 1, 1984 $ 6,000.00 December 1, 1984 7,000.00 June 1, 1985 7,000.00 December 1, 1985 8,000.00 June 1, 1986 8,000.00 December 1, 1986 8,000.00 - 3 - Total $450,000.00 (b) Each Bond or portion thereof shall be subject to redemption and payment prior to the date for the manda- tory redemption and payment thereof pursuant to the terms of the sinking fund described in sub -paragraph (a) of this Section 3, at the option of the City upon instructions from the Company, in whole or in part, in the principal amount of not less than $1,000.00 or any multiple thereof, on June 1, 1984, or on any interest payment date thereafter, at the principal amount thereof plus accrued interest thereon to the date specified for such redemption and payment, without premium or prepayment consideration. Any amounts prepaid hereunder shall be applied first to the payment of the Bonds with the longest maturity dates. (c) At least 15 days prior to the date fixed for redemption, the Company shall pay or cause to be paid to the Paying Agent the amounts required to pay the Bonds or portions thereof called for redemption, including accrued interest. - 4 - June 1, 1987 9,000.00 December 1, 1987 9,000.00 June 1, 1988 10,000.00 December 1, 1988 10,000.00 June 1, 1989 11,000.00 December 1, 1989 11,000.00 June 1, 1990 12,000.00 December 1, 1990 12,000.00 June 1, 1991 13,000.00 December 1, 1991 14,000.00 June 1, 1992 15,000.00 December 1, 1992 15,000.00 June 1, 1993 16,000.00 December, 19, 1993 17,000.00 June 1, 1994 18,000.00 December 1, 1994 19,000.00 June 1, 1995 20,000.00 December 1, 1995 20,000.00 June 1, 1996 22,000.00 December 1, 1996 23,000.00 June 1, 1997 25,000.00 December 1, 1997 25,000.00 June 1, 1998 30,000.00 . December 1, 1998 30,000.00 Total $450,000.00 (b) Each Bond or portion thereof shall be subject to redemption and payment prior to the date for the manda- tory redemption and payment thereof pursuant to the terms of the sinking fund described in sub -paragraph (a) of this Section 3, at the option of the City upon instructions from the Company, in whole or in part, in the principal amount of not less than $1,000.00 or any multiple thereof, on June 1, 1984, or on any interest payment date thereafter, at the principal amount thereof plus accrued interest thereon to the date specified for such redemption and payment, without premium or prepayment consideration. Any amounts prepaid hereunder shall be applied first to the payment of the Bonds with the longest maturity dates. (c) At least 15 days prior to the date fixed for redemption, the Company shall pay or cause to be paid to the Paying Agent the amounts required to pay the Bonds or portions thereof called for redemption, including accrued interest. - 4 - 1 (d) Upon the happening of the above conditions, the Bonds or portions thereof called for redemption from and after the redemption date shall cease to bear interest, shall no longer be entitled to the benefits and protection of the covenants herein contained and shall not be deemed to be outstanding hereunder. (e) If a Bond is redeemed in part, it need not be delivered to the Bond Registrar to note such partial redemption and payment, but in lieu thereof the owner of the Bond may endorse on the Bond an acknowledgement of partial redemption, such acknowledgement to be made in the form set out in Section 5 hereof. Such partial redemption shall be valid upon payment of the amount thereof to the registered owner of the Bond and the City and the Bond Registrar shall be fully released and discharged of all liability to the extent of such payment, regardless of whether such endorsement shall have been made upon the Bond by the registered owner thereof and irrespective of any error or omission in such endorsement. If a Bond is to be redeemed or paid in full, it shall be delivered to the Bond Registrar for payment. (f) Notice of any redemption of any Bond or portion thereof provided for or permitted by this Ordinance shall be given in the name of the City by the Company to the Bond Registrar by mail or by delivery in person to the Bond Registrar, such notice to be mailed or delivered in person at least 20 days prior to the date fixed for such redemption and payment and specify the amount of Bonds or portions thereof to be redeemed and paid on account of such payment. The Bond Registrar shall thereupon give notice of such redemption and payment to the registered owner of each Bond to be redeemed in full or in part at the address shown on the registration books to be maintained by the Bond Regis- trar, such notice to be given by mail or delivery in person at least 15 days prior to the date fixed for such redemption and payment and specify the number of each Bond to be redeemed and paid in whole or in part. Neither the Paying Agent nor the Bond Registrar shall be under any obligation to give any other notice of a redemption or payment hereunder. (g) In the event the interest on the Bonds is includ- able in the gross interest of the owners of the Bonds for federal income tax purposes by reason of the failure of such Bonds to qualify for the exemption - 5 - fl provided in Sec. 103(b)(6)(A) of the Internal Revenue Code of 1954, as amended, or by reason of the termi- nation of such exemption, then in either of such events the rate of interest payable on all of such Bonds then outstanding shall be adjusted to a rate equal to the Base Rate hereinbefore defined, effective as of the date upon which the Internal Revenue Service, the Company or the Fiscal Agent shall give written notice to the City, the Company and the Fiscal Agent of the inclusion of the interest on the Bonds in the gross income of the owners of the Bonds. (h) The City covenants that it will, so long as any Bond remains outstanding, keep at the office of the Bond Registrar books for the registration of the Bonds as herein provided. The Bond Registrar shall maintain a record of the name, address and series of the regis- tered owner of each Bond. Each Bond shall be made payable only to the registered owner as shown on the registration books and may not be registered to the bearer thereof. Each Bond shall be transferable only upon the books maintained by the Bond Registrar by the registered owner thereof in person or by his attorney duly authorized in writing upon surrender thereof together with a written instrument satisfactory to the Bond Registrar duly executed by the registered owner or his duly authorized attorney. Upon the transfer of any such Bond, the Bond Registrar shall issue in the name of the transferee a new Bond or Bonds of the same series and of the same aggregate principal amount in maturity as the unpaid principal amount of the surren- dered Bond, in any denomination herein authorized. Except for the costs and charges referred to below, any such transfer, registration or exchange of Bonds shall be without charge to the owner of the Bonds. Any Bond or Bonds upon surrender thereof to the Bond Registrar with a written instrument of transfer satisfactory to the Bond Registrar, duly executed by the registered owner or his duly authorized attorney, may, at the option of the registered owner thereof, be exchanged for an equal aggregate principal amount of the Bonds in any denomination herein authorized. The City, the Bond Registrar, the Paying Agent and the Company may deem and treat the person in whose name any Bond shall be registered as the absolute owner of such Bond, and the address of the registered owner as shown on the books of the Bond Registrar as the address 6 - 1 1 of such registered owner, whether such Bond shall be overdue or not, for the purpose of receiving any notice required or permitted under the terms of this Ordi- nance, the Lease or otherwise, for the purpose of receiving payment of or on account of the principal of and interest on such Bond and for all other purposes, and all such payments so made to such registered owner or upon his order shall be valid and effectual to satisfy and discharge the liability upon such Bond to the extent of the sum or sums so paid and neither the City, the Bond Registrar, the Paying Agent nor the Company shall be affected by any -notice to the con- trary, but such registration may be changed as herein provided. In all cases in which the privilege of trans- ferring the Bonds is exercised, the Bond Registrar shall authenticate and deliver a new Bond or Bonds in accordance with the provisions of this Ordinance. For every such exchange or transfer of a Bond, the Bond Registrar may make a charge to the owner of the Bond or Bonds sufficient to reimburse it for any tax or other governmental charge required to be paid with respect to such exchange or transfer. The fees and charges of the Bond Registrar for making any exchange or transfer provided for in this Ordinance and the expense of any Bond printing necessary to effect the subsequent exchange or transfer of the Bond will be paid by the Company. SECTION 4. The Bonds and each of them shall be exe- cuted for and on behalf of the City by the manual or facsim- ile signature of its Mayor and attested by the manual or facsimile signature of the City Clerk on the face of each Bond, with the seal of the City affixed. The Bonds shall not be valid obligations under the provisions of this Ordinance until authenticated by the Bond Registrar by the execution of the Certificate of Authentication appearing on each such Bond. SECTION 5. Each of the Bonds and the certificates attached thereto shall be in substantially the following form: - 7 - No. $ UNITED STATES OF A4ERICA STATE OF KANSAS COUNTY OF SALINE CITY OF SALINA SALINA, KANSAS, SANTA FE OFFICE PLAZA REVENUE BONDS OF 1983 December 1, 1983 KNOW ALL MEN BY THESE PRESENTS: That the City of Salina, in the County of Saline, State of Kansas, for value received, hereby promises to pay, solely out of the revenues hereinafter specified, to: the registered owner thereof, or registered assigns, the principal sum of: in lawful money of the United States of America, on: 1, 19 , except as the provisions hereinafter set forth with respect to redemption prior to maturity may become applicable thereto, and to pay to the registered owner hereof interest thereon at the variable rate hereinafter provided semi- annually on June 1st and December 1st of each year commenc- ing on June 1, 1984, with the principal and interest on this Bond to be payable at the principal office of The National Bank of America at Salina, a national banking association with its principal place of business at Salina, Kansas (hereinafter sometimes referred to as the "Paying Agent"). The variable rate of interest payable on this Bond shall be equal to eighty percent (80%) of the "Base Rate" (published rate for commercial loans) of The National Bank of America at Salina, Salina, Kansas, in effect on the date 1 of issuance of this Bond, which rate shall be adjusted annually without notice on the first day of December each year commencing on December 1, 1984, to a rate equal to eighty percent (80%) of the Base Rate of The National Bank of America at Salina, Salina, Kansas, in effect on each such interest rate adjustment date, and the rate so determined on each such date shall remain in effect without further adjustment for a period of one year and until the next annual interest rate adjustment date. THIS BOND is one of the Bonds aggregating the principal amount of $450,000.00, authorized by Ordinance of said City, issued for the purpose of providing funds to purchase and acquire certain real estate located within the corporate limits of the City, and to reconstruct and remodel on said real estate certain buildings and improvements (hereinafter referred to as the "project") to be used as a commercial facility to be leased to Santa Fe Office Plaza, a partner- ship with its principal place of business at Salina, Kansas, hereinafter sometimes referred to as the "Company", pursuant to a Lease dated as of December 1, 1983, by and between the City and the Company, for commercial purposes, by the authority of and in conformity with the provisions and limitations of the Constitution and the Statutes of the State of Kansas, including K.S.A. 12-1740 to K.S.A. 12-1749a, and all amendments thereof and acts supplemental thereto, and all other provisions of the laws of the State of Kansas applicable thereto, and in accordance with a Lease dated as of December 1, 1983, between the City and the Company (hereinafter sometimes referred to as the "Lease"). This Bond does not constitute a debt of the City within the meaning of any constitutional or statutory limitation. This Bond and all interest thereon shall be payable by the City of Salina, Kansas, solely and only from the money and revenue received from the fees charged and rental received for the use of the project and not from any other fund or source. Pursuant to the provisions of said statute, the governing body of the City does hereby pledge the project and the net earnings therefrom to the payment of the Bonds of which this Bond is a part and the interest thereon. Reference is hereby made to the Lease for a description of the covenants of the City with respect to the collection, segregation and application of the revenues derived from the project, the nature and extent of the security for the Bonds, the rights, duties and obligations of the City and of the Paying Agent with respect thereto, and the rights of the holders thereof. 1 Each of the Bonds or portions thereof is subject to mandatory redemption and payment in specified semi-annual amounts pursuant to the terms of the sinking fund provided for in the Ordinance, on June 1st and December 1st of each year commencing June 1, 1984, to and including the maturity date of this Bond, without premium. Each of the Bonds or portions thereof may be called for redemption and payment prior to maturity at the option of the City upon instructions from the Company and in the manner specified in the Ordinance of the City authorizing the issuance of the Bonds, on June 1, 1984, or any interest payment date thereafter (in the principal amount of $1,000.00 or any multiple thereof), at the par value thereof and accrued interest to date of redemption, without premium or prepayment consideration. Bonds or portions of Bonds to be redeemed and paid prior to maturity shall be selected by the Bond Registrar in the manner specified in the Ordinance. All Bonds or portions of Bonds subject to or called for redemption will cease to bear interest on the specified redemption date provided funds for their redemption and payment are on deposit with the Paying Agent prior to the redemption date. If this Bond is redeemed in part it need not be presented to the Bond Registrar but such partial redemption shall be marked on the form provided hereon. Notice of the City's intention to redeem and pay said Bonds pursuant to any of the redemption provisions aforesaid, specifying the number of the Bonds or portions thereof to be redeemed and paid, shall be given by the Bond Registrar not less than 15 days prior to the date fixed for redemption and payment. Notice of any such redemption may be given by certified mail or by personal delivery to the registered owner of the Bond and shall be deemed to have been given when mailed or delivered to the registered owner of the Bond at the address shown on the registration books maintained by the Bond Registrar. In the event the interest on the Bonds is includable in the gross interest of the owners of the Bonds for federal income tax purposes by reason of the failure of such Bonds to qualify for the exemption provided in Sec. 103(b)(6)(A) of the Internal Revenue Code of 1954, as amended, or by reason of the termination of such exemption, then in either of such events the rate of interest payable on all of such Bonds then outstanding shall be adjusted to a rate equal to the Base Rate hereinafter defined, effective as of the date upon which the Internal Revenue Service, the Company or the Fiscal Agent shall give written notice to the City, the - 10 - 1 Company and the Fiscal Agent of the inclusion of the inter- est on the Bonds in the gross income of the owners of the Bonds. This Bond is transferable, as provided in the Ordi- nance, only upon the books of the City kept for that purpose at the office of the Bond Registrar, by the registered owner hereof in person, or by his attorney duly authorized in writing, upon surrender of this Bond together with a written instrument of transfer satisfactory to the Bond Registrar duly executed by the registered owner or his duly authorized attorney, and upon payment of any charges prescribed in the Ordinance, and thereupon a new Bond or Bonds, shall be issued to the transferee in exchange therefor as provided in the Ordinance. The City, the Bond Registrar, the Paying Agent and the Company may deem and treat the person in whose name this Bond is registered as the absolute owner hereof for the purpose of receiving payment of, or on account of, the principal hereof and interest due hereon and for all other purposes. The Bonds are issuable in the form of fully registered Bonds without coupons in the denomination of $1,000.00 or any multiple thereof. The owner of any Bond or Bonds may surrender the same to the Bond Registrar, together with a written instrument of transfer satisfactory to the Bond Registrar duly executed by the registered owner or his duly authorized attorney, in exchange for a Bond or Bonds of the same maturity in an equal aggregate principal amount, in any denomination authorized by the Ordinance. This Bond shall not be valid or binding on the City until this Bond shall have been authenticated by the execu- tion by the Bond Registrar of the Certificate of Authentica- tion hereof. AND IT IS HEREBY DECLARED AND CERTIFIED that all acts, conditions and things required to be done and to exist precedent to and in the issuance of this Bond have been properly done and performed and do exist in due and regular form and manner as required by the Constitution and laws of the State of Kansas. IN WITNESS WHEREOF, The City of Salina, Kansas, by its governing body, has caused this Bond to be signed by the manual or facsimile signature of its Mayor and attested by 1 the manual or facsimile signature of its City Clerk, and its seal to be hereto affixed or imprinted hereon, and this Bond to be dated this 1st day of December, 1983. John F. Burgess, Mayor Attest: D. L. Harrison, City Clerk CERTIFICATE OF AUTHENTICATION This Bond is one of the Bonds described in the within mentioned Ordinance. The effective date of registration of this Bond is THE NATIONAL BANK OF AMERICA AT SALINA, SALINA, KANSAS BY: Authorized Signature ASSIGNMENT FOR VALUE RECEIVED, the undersigned sells, assigns and transfers unto: the within Revenue Bond, Salina, Kansas, Santa Fe Office Plaza Revenue Bonds of 1983, of the City of Salina, Kansas, and hereby authorizes the transfer of this Bond on the Registration Books of the Bond Registrar. The undersigned certifies that the transferee has read the notice contained in the Acknowledgment of Partial Redemption which consti- tutes a part of this Bond. - 12 - 1 Dated: SIGNATURE GUARANTEED BY (Name of Bank) BY: Title: ACKNOWLEDGMENT OF PARTIAL REDEMPTION 11 Notice: Under the provisions of the Ordinance, partial payment or prepayment of the principal of this Bond may be made directly to the owner hereof without surrender hereof to the Bond Registrar. The owner hereof may record any such prepayment on the table set forth below. Accordingly, any purchaser or other transferee of this Bond should verify with the Bond Registrar the principal hereof outstanding prior to such purchase or transfer, and the records of the Bond Registrar shall be conclusive for such purposes. Payment Amount Payment Amount Date Paid Signature Date Paid Signature - 13 - 1 SECTION 6. The Mayor and City Clerk are hereby autho- rized and directed to prepare and execute in the manner hereinbefore specified the Salina, Kansas, Santa Fe Office Plaza Revenue Bonds of 1983, of the City herein authorized and to sell and deliver said Bonds to The National Bank of America at Salina, a national banking association with its principal place of business at Salina, Kansas, upon full payment of the purchase price therefore and upon compliance with Section 23 of this Ordinance, and to pay the proceeds from the sale thereof to the Paying Agent hereinafter desig- nated to be deposited in the City of Salina, Kansas, Con- struction Fund for Santa Fe Office Plaza Revenue Bonds of 1983 (hereinafter referred to as "Construction Fund") and disbursed by the Paying Agent for the purposes set forth in Article III and Article IV of the Lease dated as of Decem- ber 1, 1983, for the acquisition and construction of the project. Upon receipt of the following documents, the Bond Registrar shall authenticate and deliver Bonds in the principal amount of $450,000.00, as directed by the City: (a) A copy of this Ordinance duly executed by the Mayor and sealed and attested by the City Clerk. (b) An original executed counterpart of the Lease authorized by this Ordinance and evidence of the authority of the Company to enter into the Lease. (c) A request and authorization to the Bond Registrar on behalf of the City and signed by the Mayor or City Treasurer, directing the Bond Registrar and the Paying Agent to authenticate and deliver the Bonds to the purchaser or purchasers therein identified upon payment to the Paying Agent, but for the account of the City, of a specified sum plus accrued interest. SECTION 7. There is hereby authorized and ordered to be established in the hands of the Paying Agent a sinking fund to be designated as the "City of Salina, Kansas, Prin- cipal and Interest Account for Santa Fe Office Plaza Revenue - 14 - Bonds of 1983" (hereinafter referred to as "Principal and Interest Account"). In addition, there is hereby authorized and ordered to be established in the hands of the Paying Agent a separate account to be designated as the "City of Salina, Kansas, Revenue Account for Santa Fe Office Plaza Revenue Bonds of 1983" (hereinafter referred to as "Revenue Account"). In addition, there is hereby authorized and ordered to be established in the hands of the Paying Agent a separate account to be designated as the City of Salina, Kansas, Construction Fund for Santa Fe Office Plaza Revenue Bonds of 1983 (hereinafter referred to as "Construction Fund"). Prior to receipt of the proceeds from the issuance of the Bonds as herein set forth, the Paying Agent shall file with the City Clerk its written acceptance of the duties specified in this Ordinance and in the Lease and its agreement to act in said capacity. The duties and respon- sibilities of the Paying Agent shall be limited to those expressly set forth in this Ordinance and under the Lease and shall further include those duties, responsibilities and obligations which are imposed upon the City under this Ordinance and the Lease, excepting only such of those duties, responsibilities and obligations as may only be properly and lawfully exercised by or acted upon by the City. SECTION 8. The City covenants and agrees that from and after the delivery of the revenue Bonds herein authorized and so long as any of the Bonds shall remain outstanding the City will maintain the Principal and Interest Account and the Revenue Account referred to in Section 7. The City shall cause the Bond Registrar to keep on file at the principal office of the Bond Registrar the name and address of the holder of the Bonds issued hereunder. At reasonable times and under reasonable regulations established by the Bond Registrar, said list may be inspected and copied by the Company, or its representatives, or by the holders of 25% or more in principal amount of the Bonds then outstanding, or their representatives, with any such ownership and the authority of any designated representative to be evidenced to the satisfaction of the Bond Registrar. SECTION 9. So long as any of the .Bonds herein autho- rized remain outstanding and unpaid, the Paying Agent shall deposit in the Principal and Interest Account, solely from funds paid to the Paving Agent under the terms of the Lease, semi-annually, prior to the 1st day of June and prior to the 1st day of December of each year, commencing June 1, 1984, the amount of the basic rent payable under the terms of the Lease, in an amount equal to (a) the interest becoming due - 15 - L on the Bonds on the next succeeding interest payment date, and (b) such additional amounts as may be necessary to pay the principal of the Bonds when the same becomes due as set forth in Article II of the Lease, and as set forth in Section 3 of this Ordinance. All amounts credited to and deposited in the Principal and Interest Account shall be expended and used for the sole purpose of paying the princi- pal of and interest on the Bonds herein authorized. SECTION 10. So long as any of the Bonds herein autho- rized remain outstanding and unpaid, the Paying Agent shall deposit in the Revenue Account all amounts received under the Lease, from time to time as required, and upon demand of the Paying Agent, such amount or amounts of money as may be necessary to pay when due the fees, taxes, insurance premi- ums and other costs and expenses required to be paid as additional rent under the provisions of Article II of the Lease. The Paying Agent shall make disbursements from funds deposited with it in the Construction Fund to the extent thereof or from funds deposited with it in the Revenue Account for the payment of any expenses incurred by the City in connection with the issuance and sale of the Bonds, including but not limited to underwriting expenses, legal fees, expenses of counsel and publication expenses, which expenses shall be paid by the Paying Agent as directed by the City, and for the payment of all fees, charges and expenses of the Paying Agent, and for the payment of taxes, assessments, insurance premiums and the like required to be paid from amounts received from the Company as additional rent under the provisions of Article II of the Lease. If at any time the Paying Agent determines that there are more than sufficient funds in the Revenue Account to pay such fees, taxes, premiums and other expenses for the succeeding six months, the amount of such excess may be paid to the Company, provided that such excess shall not be paid to the Company if at such time the Principal and Interest Account is insufficient to fully pay interest and principal to become due on the next succeeding payment date in accordance with Section 9 of this Ordinance. SECTION 11. When money accumulated in the Principal and Interest Account shall aggregate an amount sufficient to pay the principal of any of the Bonds then outstanding, and all interest accrued to the date fixed for redemption and payment, and when the Bonds become subject to redemption as herein set forth, the Paying Agent shall proceed to give notice of such redemption in the manner herein specified, if - 16 - such notice is required hereunder, and the Paying Agent shall use moneys in said account for said purpose. After - 16 - full payment of the Bonds and interest thereon, any balance in the Principal and Interest Account shall be returned to the Company. SECTION 12. Subject to the provisions of Section 21 of this Ordinance, money credited to and deposited in the Construction Fund and moneys credited to and deposited in the Principal and Interest Account may be invested by the Paying Agent, upon instructions from the Company, in savings accounts and certificates of deposit of the Paying Agent or others or in direct obligations of the United States Govern- ment becoming due not later than the date funds in the Construction Fund are to be disbursed or not later than ten days prior to the next interest payment date with respect to funds in the Principal and Interest Account. No investment shall be made hereunder for a longer period of time than the Paying Agent determines is reasonably necessary or required for the purpose for which they are intended. All interest on any Bonds or other investments held in the Construction Fund or the Principal and Interest Account shall accrue to and become a part of such respective fund or account. Any investments made by the Paying Agent pursuant to this Ordinance may be made through its own bond department. SECTION 13. So long as any of the principal of and interest on the revenue Bonds herein authorized remain outstanding and unpaid, the City covenants with each of the purchasers and owners of the Bonds as follows: (a) The City will comply fully with all the terms, provisions and conditions of the Lease to the extent it requires performance by or imposes duties on the City and it will not permit any default to occur on the part of the City; that it will fully and promptly enforce, and permit the Paying Agent to enforce on its behalf and on behalf of the bondholders, all of the terms, provisions and conditions of the Lease to the extent it requires performance by or imposes duties on the Company; and, in the event of the occurrence of a default as defined in the Lease, that it will exercise, and permit the Paying Agent to exercise on its behalf and on behalf of the bondholders, all rights and remedies conferred by the Lease for the full and complete protection of the security and the rights of the bond- holders, and, to the extent permitted by the Lease, will use its best efforts to procure a new tenant or tenants for the leased property under lease provisions which will provide funds sufficient in amount to make the rental payments and . other charges which the Company is required to make under the Lease. If the City is unable to procure a new tenant 17 1 who will enter into such a lease, the City may, with the consent of the holders of not less than seventy-five per cent (750) in principal amount of the Bonds herein autho- rized at the time outstanding, sell the project without any right of redemption at a price which is not less than the amount of the then outstanding revenue Bonds plus interest then unpaid. If the City is unable to sell the project at such a price, the City shall transfer and convey the project to the various bondholders without any right of redemption in the same proportions that the Bonds are then owned and held by them. The obligation of the City to enforce any provision of the Lease, or of this Ordinance, shall be conditioned upon the availability of funds for such purposes with such funds to be provided by the bondholders or other interested parties. (b) The City will enforce, and will permit the Paying Agent to enforce on its behalf and on behalf of the bond- holders, collection of the rental payments and other charges in the amounts and at the times set forth in the Lease and II will not reduce or cause of payments and other charges by the Lease nor change or same are due and payable obligation to pay the exper limited to funds made avai the bondholders or other in permit to be reduced the rental fixed, established and required alter the time or times when the under said Lease. The City's ses of such enforcement shall be Table to it for that purpose by :erested parties. (c) Until payment of all the Bonds and interest there- on has been duly made or provided for, the City will not consent to any change, amendment, modification or termi- nation of the Lease, except as provided therein, which will in any manner adversely affect the rights, remedies, securi- ty or interest of the bondholders. (d) Any purchase price of the leased property received by the City pursuant to the termination of the Lease, any proceeds of condemnation awards, any insurance proceeds and any other funds received by the City and intended for the payment of the Bonds and the interest thereon will be promptly deposited with the Paying Agent and used solely and exclusively to pay the Bonds herein authorized and the interest thereon according to their terms or to redeem and pay any of the Bonds then outstanding and unpaid and then subject to redemption and payment. Upon receipt of any such funds, if the Bonds are then subject to redemption and payment, the Paying Agent shall proceed promptly to call the revenue Bonds for redemption and payment according to their terms and shall give notice thereof as required in this - 18 - 1 Ordinance. Such funds shall be deposited in the Principal and Interest Account maintained by the Paying Agent, and the same shall be used solely for the payment of the revenue Bonds herein authorized, accrued interest thereon and the charges of the Paying Agent for paying the same, and after full payment of such amounts, the balance of such funds, if any, shall be allocated and credited to the Revenue Account. (e) The City will not issue any other obligations payable from payments to be made by the Company, pursuant to the Lease, nor voluntarily create or cause to be created any debt, lien, pledge, assignment, encumbrance, or any other charge on said payments or on the property subject to the Lease nor will it sell or otherwise dispose of the project or any part thereof, unless required by law or required by the terms of the Lease. (f) The City will use the proceeds of the Bonds as soon as practicable and with all reasonable dispatch for the purposes for which such series of Bonds are issued as here- inbefore set forth. Said proceeds shall not be invested in any securities or obligations except for the temporary period pending such use and said proceeds will not be used directly or indirectly so as to cause all or any part of such series of Bonds to be or become "arbitrage Bonds" within the meaning of Section 103(c) of the Internal Revenue Code of 1954, as amended. The City further covenants that the proceeds of the Bonds will not be used to acquire securities or obligations [other than obligations described in Section 103(a)(1) of the Internal Revenue Code of 1954, as amended] that will produce a yield higher than the yield of the Bonds of such series herein authorized unless a regulation of the Treasury Department of the United States, ruling by the Internal Revenue Service of the United States or a decision of a Court of ultimate jurisdiction holds the acquisition of securities or obligations producing a yield higher than the Bonds of such series will not cause the Bonds to be arbitrage Bonds as defined in said Section 103(c) of the Internal Revenue Code of 1954, as amended. SECTION 14. The provisions of the Bonds authorized by this Ordinance and provisions of this Ordinance may be modified or amended at any time by the City with the written consent of the holders of not less than seventy-five per cent (75%) in principal amount of the Bonds herein autho- rized at the time outstanding; provided, that no such modi- fication or amendment shall permit or be construed as - 19 - permitting; (a) the extension of the maturity of the principal of any of the Bonds issued hereunder, or the - 19 - 1 extension of the maturity of any interest on any Bonds issued hereunder; (b) the reduction in the principal amount of any Bonds or the rate of interest thereon, or (c) the reduction in the aggregate principal amount of Bonds; the consent of all of the holders of which are required for any such amendment or modification. Any provision of the Bonds or of this Ordinance may, however, be modified or amended in any respect with the written consent of the holders of all of the Bonds then outstanding. Every amendment or modifica- tion of a provision of the Bonds or of this Ordinance to which the written consent of the bondholders is given as above provided shall be expressed in an ordinance of the City amending or supplementing the provisions of this Ordinance and shall be deemed to be a part of this Ordi- nance. It shall not be necessary to note on any of the outstanding Bonds any reference to any such amendment or modification. A certified copy of every such amendatory or supplemental ordinance, and a. certified copy of this Ordi- nance shall always be kept on file in the office of the City Clerk and shall be made available for inspection by the holder of any Bond or prospective purchaser or holder of any Bond authorized by this Ordinance, and upon payment of the reasonable cost of preparing the same, a certified copy of any such amendatory or supplemental ordinance or of this Ordinance will be sent by the City Clerk to any such bond- holder or prospective bondholder. SECTION 15. The provisions of this Ordinance shall constitute a contract between the City of Salina, Kansas, and the holders of the revenue Bonds herein authorized, and the holder of any one or more of said Bonds may sue, in any action, in mandamus, injunction, or other proceedings, either at law or in equity, to enforce or compel performance of all duties and obligations required by this Ordinance to be done or performed by the City. Nothing contained in this Ordinance shall, however, be construed to impose on the City any duty or obligation to levy any taxes either to meet any obligation contained herein or to pay the principal of or interest on the revenue Bonds of the City herein authorized. SECTION 16. The tract of land herein referred to, the improvements to be constructed thereon and the machinery and equipment to be purchased pursuant to this Ordinance shall be leased to the Company, under and pursuant to a Lease, substantially in the form filed with the City Clerk, which Lease the Mayor and City Clerk are hereby authorized and directed to execute for and on behalf of and as the act and deed of the City. �41M u 1 SECTION 17. The City of Salina, Kansas, shall have the right, if it shall find it desirable, to refund any of the revenue Bonds herein authorized then subject to redemption or becoming due under the provisions of any law then avail- able. Said Bonds or any part thereof may be refunded and the refunding Bonds so issued shall enjoy complete equality of pledge with any of the revenue Bonds issued hereunder, which are not refunded, if any there be, upon the revenues of the project, provided, however, that if only a portion of the revenue Bonds herein authorized be refunded and if said Bonds are refunded in such manner that the refunding Bonds bear a higher rate of interest or become due on a date earlier than that of any of the Bonds issued hereunder which are not refunded, then said Bonds may be refunded only by and with the written consent of the holders of seventy-five per cent (75%) in principal amount of the Bonds herein authorized not refunded. SECTION 18. If any one or more of the covenants, agreements or provisions of this Ordinance or of the Lease, should be held contrary to any express provisions of law or contrary to the policy of express law, though not expressly prohibited, or against public policy, or shall for any reason whatsoever be held invalid, then such covenants, agreements or provisions shall be null and void and shall be deemed separate from the remaining covenants, agreements or provisions, and shall in no way affect the validity of the other provisions of this Ordinance or of the Bonds issued hereunder or of the Lease. SECTION 19. Under the provisions of the Lease, the Company has waived any ad valorem property tax exemption which would otherwise be available to the project under the provisions of K.S.A. 79-201(a) Second, as amended. SECTION 20. Upon receipt by the City of the purchase price of the property subject to said Lease title to said property shall be transferred and conveyed to the Company, or its successors and assigns, as provided in the Lease and the Mayor, the City Clerk and other appropriate officers of the City are hereby authorized and directed to execute such deeds, bills of sale and other instruments as may be neces- sary to effect such conveyance and transfer. SECTION 21. The City hereby certifies that, on the basis of the facts, estimates and circumstances in existence on the date hereof, it is not expected that the proceeds of the issue of the Bonds will be used in a manner which would cause such obligations to be "arbitrage Bonds" within the - 21 - meaning of Section 103(c) of the Internal Revenue Code of 1954, as amended, and the Mayor and City Clerk are hereby authorized and directed to execute an Arbitrage Certificate which shall set forth the facts, estimates and circumstances in brief and summary terms, and state that to the best of their knowledge and belief there are no other facts, esti- mates or circumstances that would materially change such expectation. The Mayor and City Clerk shall furnish such Arbitrage Certificate to the Company, the Paying Agent and any of the holders of the Bonds authorized herein. - 22 - SECTION 22. The National Bank of America at Salina, a national banking association with its principal place of business at Salina, Kansas, is hereby designated as the Paying Agent for the Bonds (herein referred to as "Paying Agent"). References herein to The National Bank of America at Salina as Paying Agent under this Ordinance shall include not only said bank but also its successor and successors, any surviving corporation or association into which it may be merged, any new corporation or association resulting from its consolidation with any other corporation or association, the successor and successors of any such surviving or new corporation or association, and any corporation or associa- tion to which the fiduciary business of The National Bank of America at Salina may at any time be transferred. Prior to receipt of the proceeds of the sale of the Bonds as set forth in this Ordinance and Article III of the Lease, the Paying Agent shall file with the City Clerk its written acceptance of the duties specified in the Ordinance and the Lease and its agreement to act in said capacity. The duties and responsibilities of the Paying Agent shall be limited to those expressly set forth in this Ordinance and under the Lease. All resolutions, opinions, certificates and other instruments referred to or provided for herein or in the Lease may be accepted by the Paying Agent as conclu- sive evidence of the facts, opinions and conclusions stated therein and shall be full warrant, protection and authority to the Paying Agent for any action reasonably taken pursuant thereto. The Paying Agent shall be under a duty to examine any such resolutions, opinions, certificates and other instruments to determine whether or not they conform to the requirements of this Ordinance and the Lease. The Paying Agent shall not be liable with respect to any action taken or omitted to be taken by it in good faith and, if appro- priate, upon advice of counsel who may be counsel for the Paying Agent or the Lessor or the Lessee. The Paying Agent shall not be liable for any error of judgment made in good faith unless it shall be established that the Paying Agent - 22 - D SECTION 23. The Bonds are issued on the condition that The National Bank of America at Salina, a national banking association with its principal place of business at Salina, Kansas, as the purchaser of the Bonds, prior to the issuance thereof, represents and certifies that: was negligent in ascertaining the pertinent facts. Nothing The Bonds to be acquired by the purchaser are herein shall be construed to relieve the Paying Agent from acquired liability for its own negligent action, its own negligent resale or failure to act or its willful misconduct. The Paying Agent further shall have the right to buy, sell, own, deal or trade in the bank and Bonds without giving notice thereof to the Lessor or the such Bonds shall not be offered for resale in Lessee or the holders of any of the Bonds and without incurring any liability whatsoever with respect thereto; and offering without obtaining the prior written consent of the Paying Agent shall have the right to loan money to the Lessor or the Lessee or the holder of any of the Bonds an opinion of counsel acceptable to the City. without incurring any liability whatsoever with respect thereto on account of its acting as the Paying Agent here- of the execution and delivery of each Bond, under. The Paying Agent may resign by an instrument in writing delivered to the Lessor and the Lessee to take effect not sooner than ninety days after the delivery of such written instrument, whereupon the Lessor, with the consent of the Lessee, shall immediately, in writing, designate a successor paying agent. Such successor paying agent shall be a bank, trust company or national banking association which has a capital stock and surplus aggregat- ing at least that of the initial Paying Agent at the time of its designation hereunder. Such successor paying agent shall be subject to the same duties and obligations and shall have the same rights, privileges and immunities specified in this Ordinance and in the Lease for the Paying Agent. Any such successor paving agent shall file an acceptance in the form referred to herein with the City Clerk within ten days of its appointment. The Paying Agent shall be entitled to payment or reimbursement for reasonable fees for its ordinary services and all advances, counsel fees and other ordinary expenses reasonably and necessarily made or incurred by it in connection with its ordinary services, all such fees and expenses to be paid by the Lessee as additional rent as specified in Article II of the Lease. SECTION 23. The Bonds are issued on the condition that The National Bank of America at Salina, a national banking association with its principal place of business at Salina, Kansas, as the purchaser of the Bonds, prior to the issuance thereof, represents and certifies that: - 23 - (a) The Bonds to be acquired by the purchaser are acquired for investment purposes only and not for resale or further distribution to any person other than a bank and such Bonds shall not be offered for resale in a public offering without obtaining the prior written consent of the City or an opinion of counsel acceptable to the City. At the time of the execution and delivery of each Bond, the - 23 - 1 purchaser thereof shall certify that it has no present intention, agreement or arrangement for distribution, transfer, assignment, resale or division of its interest in such Bond in a manner inconsistent with the provisions hereof. (b) All materials and information requested by the purchaser or its counsel or others representing its inter- ests, including any information requested to verify any such information furnished, has been furnished and there has been direct communication between Santa Fe Office Plaza, of Salina, Kansas, and its representatives on the one hand and the purchaser of such Bond and its representatives and advisers on the other hand in connection with all of the information furnished hereunder and otherwise requested and the terms of the acquisition of the Bond from the City as set forth herein. There has been made available to the satisfaction of the purchaser and its advisers adequate opportunity to ask questions of and receive answers from Santa Fe Office Plaza, of Salina, Kansas, and its officers and employees and representatives thereof concerning the terms and conditions of the Bonds to obtain all additional information desired or necessary to verify the accuracy of the information furnished. (c) The City shall be released from any requirement, duty, obligation or commitment, express or implied, to furnish the purchaser or any subsequent holder of any Bond issued hereunder any financial information concerning Santa Fe Office Plaza, of Salina, Kansas, or to investigate and furnish such purchaser or any subsequent holder with any information concerning the financial status of Santa Fe Office Plaza, of Salina, Kansas. Each purchaser shall represent that it is relying upon its own resources and expertise to obtain and evaluate all such information. SECTION 24. The officials of the City and the attor- neys, engineers and other agents or employees of the City are hereby authorized to do all acts and things required of them by this Ordinance and the Lease for the full, punctual and complete performance of all of the terms, covenants and agreements contained in the Bonds, the Lease and this Ordinance. SECTION 25. This Ordinance shall take effect and be in force from and after its passage and publication in the official City paper. - 24 - u PASSED two-thirds APPROVED by 9th day of Attest: AND ADOPTED by tt of the members the Mayor of the January, 1984. e City Council, not less than elected voting thereon, and City of Salina, Kansas, this Joh F. Burgess,,Ma r r D. L. Harrison, City Clerk 1 - 25 - 1 n 1 SANTA FE OFFICE PLAZA Description of Real Estate Exhibit "A" The real estate to be acquired by the City of Salina, Kansas, and leased to Santa Fe Office Plaza in accordance with the Ordinance to which this Exhibit "A" is attached, is described as follows: Lot Sixty -Four (64) and the North Half (N/2) of Lot Sixty -Six (66) on Santa Fe Avenue, in the original town (now City) of Salina, Saline County, Kansas. lJ J SANTA FE OFFICE PLAZA Description of Real Estate Exhibit "A" The real estate to be acquired by the City of Salina, Kansas, and leased to Santa Fe Office Plaza in accordance with the Ordinance to which this Exhibit "A" is attached, is described as follows: Lot Sixty -Four (64) and the North Half (N/2) of Lot Sixty -Six (66) on Santa Fe Avenue, in the original town (now City) of Salina, Saline County, Kansas.