82-8899 IRB Gary HarbinPu6,�`--� M(kV& - 1a1 1Zl'�Z
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ORDINANCE NO. 32-8899
AN ORDINANCE AUTHORIZING THE CITY OF SALINA, KANSAS, TO
ACQUIRE THE REAL PROPERTY HEREINAFTER DESCRIBED AND TO
CONSTRUCT, PURCHASE AND INSTALL BUILDINGS AND IMPROVEMENTS
AND FURNISHINGS AND EQUIPMENT TO BE LEASED TO GARY L.
HARBIN, AUTHORIZING AND DIRECTING THE ISSUANCE OF $361,000.00
PRINCIPAL AMOUNT OF MEDICAL CLINIC REVENUE BONDS, SERIES
1982-A, OF SAID CITY FOR THE PURPOSE OF PROVIDING FUNDS TO
PAY THE COST OF ACQUIRING SAID REAL PROPERTY AND
CONSTRUCTING, PURCHASING AND INSTALLING SAID BUILDINGS AND
IMPROVEMENTS AND FURNISHINGS AND EQUIPMENT TO BE LEASED TO
SAID GARY L. HARBIN; PRESCRIBING THE FORM AND AUTHORIZING
THE EXECUTION OF A LEASE BY AND BETWEEN SAID CITY AND SAID
GARY L. HARBIN; AND PRESCRIBING THE FORM AND APPROVING THE
EXECUTION OF A GUARANTY AGREEMENT BY SAID GARY L. HARBIN;
AND MAKING AN ELECTION UNDER SECTION 103(b)(6)(D) OF THE
INTERNAL REVENUE CODE.
WHEREAS, the City of Salina, Kansas, a municipal
corporation duly organized and existing under the
Constitution and laws of the State of Kansas, (hereinafter
sometimes referred to as the "CITY"), desires to promote,
stimulate and develop the general economic welfare and
prosperity of the CITY and its environs, and thereby to
further promote, stimulate and develop the general economic
welfare and prosperity of the State of Kansas; and
WHEREAS, pursuant to the provisions of K.S.A. 12-1740
to 12-1749a, as amended (hereinafter sometimes referred to
as the "ACT"), the CITY is authorized to issue medical
clinic 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 medical clinic
revenue bonds of the CITY be authorized and issued for the
purpose of providing funds to pay the cost of acquiring the
real property hereinafter described, and constructing,
purchasing and installing buildings and improvements and
furnishings and equipment to be leased to GARY L. HARBIN,
(hereinafter sometimes referred to as "HARBIN").
NOW, THEREFORE, BE IT ORDAINED BY THE GOVERNING BODY OF
THE CITY OF SALINA, KANSAS:
Section 1. Authority to Acquire Real Property and to
Construct, Purchase and Install the Facility. The CITY is
hereby authorized to acquire the real property described and
set forth on Schedule 1, attached hereto and made a part
hereof, and to construct, purchase and install the buildings
and improvements and furnishings and equipment as described
and set forth on said Schedule 1, attached hereto, in
accordance with the provisions of the Lease dated as of
March 17, 1982, between the CITY and HARBIN (hereinafter
sometimes referred to as the "LEASE"), the LEASE being
authorized by the provisions of this Ordinance (said real
property being hereinafter, and in the LEASE, referred to as
the "LAND", and the LAND, together with the buildings and
improvements and furnishings and equipment being
hereinafter, and in the LEASE, referred to as the
"FACILITY"), all at an amount which will not exceed the cost
of $361,000.00 to the City.
Section 2. Authorization of and Security for the
Bonds. For the purpose of providing funds to pay the cost
of acquiring, constructing, purchasing and installing the
E
FACILITY to be leased to HARBIN, there shall be issued, and
hereby are authorized and directed to be issued, a series of
Medical Clinic Revenue Bonds, Series 1982-A, of the City in
the principal amount of $361,000.00. The Bonds herein
authorized (hereinafter sometimes referred to as the
"BONDS"), and all interest thereon and any redemption
premium, shall be paid solely from the money and revenue
received from the fees charged and rental received for the
use of the FACILITY and not from any other fund or source
(except to the extent paid out of Bond proceeds or the
income from the temporary investment thereof, and under
certain circumstances, condemnation awards and the proceeds
of insurance), and the CITY hereby pledges the FACILITY and
the net earnings therefrom to the payment of the BONDS and
the interest thereon.
The payment of the principal of and interest and
redemption premium, if any, on the BONDS shall be guaranteed
by HARBIN pursuant to the terms of the Guaranty Agreement,
the form of which is approved by Section 29 of this
ORDINANCE.
Section 3.Description and Details of the Bonds,
Designation of Paying Agent. The BONDS shall be dated March
17, 1982, shall be numbered, shall become due on the dates,
and shall bear interest at the respective rates as follows:
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SERIAL BONDS
INTEREST RATE: Interest will be at four percent (4%) below
the prime rate charged by the First National Bank and Trust
Company of Salina, computed on the seventeenth day of each
month for the next succeeding month and paid on
September 17, 1982, and each March 17, and September 17,
thereafter.
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PRINCIPAL
MATURITY
NUMBERS
AMOUNT
DATE
001
$
91000.00
September
17,
1982
002
$
91000.00
March 17,
1983
003
$
91000.00
September
17,
1983
004
$
91000.00
March 17,
1984
005
$
9,000.00
September
17,
1984
006
$
91000.00
March 17,
1985
007
$
9,000.00
September
17,
1985
008
$
91000.00
March 17,
1986
009
$
91000.00
September
17,
1986
010
$
91000.00
March 17,
1987
011
$
91000.00
September
17,
1987
012
$
9,000.00
March 17,
1988
013
$
9,000.00
September
17,
1988
014
$
91000.00
March 17,
1989
015
$
91000.00
September
17,
1989
016
$
91000.00
March 17,
1990
017
$
91000.00
September
17,
1990
018
$
9,000.00
March 17,
1991
019
$
9,000.00
September
17,
1991
020
$
9,000.00
March 17,
1992
021
$
91000.00
September
17,
1992
022
$
91000.00
March 17,
1993
023
$
9,000.00
September
17,
1993
024
$
91000.00
March 17,
1994
025
$
91000.00
September
17,
1994
026
$
91000.00
March 17,
1995
027
$
9,000.00
September
17,
1995
028
$
91000.00
March 17,
1996
029
$
9,000.00
September
17,
1996
030
$
91000.00
March 17,
1997
031
$
9,000.00
September
17,
1997
032
$
91000.00
March 17,
1998
033
$
91000.00
September
17,
1998
034
$
91000.00
March 17,
1999
035
$
9,000.00
September
17,
1999
036
$
91000.00
March 17,
2000
037
$
9,000.00
September
17,
2000
038
$
9,000.00
March 17,
2001
039
$
91000.00
September
17,
2001
040
$10,000.00
March 17,
2002
INTEREST RATE: Interest will be at four percent (4%) below
the prime rate charged by the First National Bank and Trust
Company of Salina, computed on the seventeenth day of each
month for the next succeeding month and paid on
September 17, 1982, and each March 17, and September 17,
thereafter.
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The BONDS shall bear interest from their date, payable
on September 17, 1982, and thereafter semiannually on March
17 and September 17 in each year.
The BONDS and the interest thereon shall be payable to
bearer in lawful money of the United States of America upon
presentation and surrender of such BONDS or interest coupons
as they respectively become due at the principal office of
The First National Bank and Trust Company of Salina, Salina,
Kansas, such bank being hereby designated as the CITY'S
paying agent for the payment of the principal of and
interest on the BONDS herein authorized, and such bank
referred to herein as the "PAYING AGENT".
In the event the interest on the BONDS is includable in
the gross income of the recipients thereof for Federal
income tax purposes by reason of the failure of the BONDS to
qualify for the exemption provided in Section 103(b)(6)(D)
of the Internal Revenue Code of 1954, as amended, all of the
BONDS then outstanding shall mature and be due and payable
at the principal amount thereof, plus accrued interest to
the maturity date, together with a premium which shall be,
on each Bond, equal to the stated interest rate on such Bond
multiplied times the principal amount of such Bond for each
full year, or fraction of a year, which elapses from the
date on which the interest becomes includable in the gross
income of the recipients and the date of maturity '
established by the CITY (which date of maturity shall not be
earlier than forty-five (45) days, or later than one hundred
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twenty (120) days after the Internal Revenue Service,
HARBIN, or the Fiscal Agent hereinafter designated, shall
give written notice to the CITY of the inclusion of the
interest on the BONDS in the gross income of the recipients
thereof).
Section 4. Redemption and Payment of Bonds Prior to
Maturity. The BONDS shall be subject to redemption and
payment prior to the stated maturity thereof after the
notice specified in Section 5 of this ORDINANCE as follows:
(a) Each of the BONDS shall be subject to redemption
and payment at the option of the CITY, upon
instructions from HARBIN, on any interest payment date
upon any of the following conditions or events,
provided all of the BONDS are redeemed and paid
according to their terms: (1) if title to, or the use
for a limited period of, substantially all of the
FACILITY be condemned by any authority having the power
of eminent domain; (2) if substantially all of the
FACILITY is damaged or destroyed by fire or other
casualty; or (3) if, as a result of changes in the
Constitution of the State of Kansas, or of legislative
or administrative action by the State of Kansas, or any
political subdivision thereof, or by the United States,
or by reason of any action instituted in any Court, the
LEASE herein authorized shall become void or
unenforceable, or impossible of performance without
unreasonable delay, or in any other way, by reason of
such change of circumstances, unreasonable burdens or
excessive liabilities are imposed on HARBIN or the
CITY. The BONDS redeemed pursuant to this paragraph
shall be redeemed at the principal amount thereof, plus
accrued interest thereon to date fixed for redemption
and payment, without premium.
(b) Each of the BONDS maturing in the year 1982 and
thereafter is also subject to redemption and payment at
the option of the CITY upon instructions from HARBIN on
September 17, 1982, and on any interest payment date
thereafter, at the principal amount thereof plus the
accrued interest thereon.
Section 5. Notice of Redemption. Notice of any
redemption provided for by this ORDINANCE shall be given in
101
the name of the CITY by HARBIN or the Fiscal Agent, by
United States registered mail to the PAYING AGENT herein
designated; such notice to be mailed at least thirty (30)
days prior to the date fixed for redemption and payment, and
to specify the numbers of the BONDS to be redeemed and paid.
Notice of any such redemption shall also be published at
least once not less than thirty (30) days prior to the date
fixed for redemption in the official newspaper of the State
of Kansas and the Kansas Register. Notice of any such
redemption shall also be given by registered mail in the
manner hereinbefore specified to any bondholder who files
his name with the Fiscal Agent pursuant to Section 24 of
this ORDINANCE, provided that the failure to give any notice
by mail as herein specified shall not affect the validity of
any such call for redemption. Notice of any redemption as
herein provided shall be given upon, but only upon, written
instructions from HARBIN, as long as HARBIN is not in
default in the payment of Basic Rent due under the LEASE.
If, because of the temporary or permanent suspension of the
publication or general circulation of any financial journal
or for any other reason, it is impossible or impracticable
to publish such notice of call for redemption in the manner
herein provided, then such publication, in lieu thereof, as
shall be made with the approval of the PAYING AGENT, shall
constitute a sufficient publication of notice.
Section 6. Unclaimed Principal and Interest Held by
Fiscal Agent. Any monies deposited with the Fiscal Agent,
7
or the PAYING AGENT, for the payment of the principal of or
interest on the BONDS and remaining unclaimed for six (6)
years, after such principal and interest have become due
shall be paid to HARBIN, and any bondholder entitled thereto
shall thereafter, as an unsecured general creditor, look
only to HARBIN for payment thereof, and all liability of the
CITY, the Fiscal Agent and the PAYING AGENT with respect
thereto shall cease; provided, however, that the Fiscal
Agent and the PAYING AGENT, before being required to make
any such payment to HARBIN may, at HARBIN'S expense, cause
to be published once in the official newspaper of the State
of Kansas and the Kansas Register, notice that such monies
remain unclaimed, and that after a date specified therein,
which shall not be less than thirty (30) days after the date
of such publication, any such unclaimed monies then
remaining will be paid to HARBIN.
Section 7. Method of Execution and Authentication of
the Bonds. The BONDS, including any Bonds issued in
exchange, or as substitutions for the BONDS initially
delivered, shall be executed for and on behalf of the CITY
by the manual or facsimile signature of the Mayor and
attested by the manual or facsimile signature of the City
Clerk; provided, however, that one of said signatures shall
be manually executed, and the seal of the CITY shall be
affixed thereto or imprinted thereon. Interest coupons
attached to the BONDS representing the interest thereon
shall bear the facsimile signatures of said Mayor and City
0
R"S
UNITED STATES OF AMERICA
STATE OF KANSAS
COUNTY OF SALINE
CITY OF SALINA
MEDICAL CLINIC REVENUE BONDS
SERIES 1982-A
KNOW ALL MEN BY THESE PRESENTS: That the City of
Salina, in the County of Saline, State of Kansas (the
"CITY"), for value received, hereby promises to pay, solely
out of the revenues hereinafter specified, to the bearer,
the principal sum of:
DOLLARS
in lawful money of the United States of America, on the
first day of
, except as the provisions
hereinafter set forth with respect to redemption prior to
maturity may become applicable hereto, and to pay interest
thereon from the date hereof at the rate of 4% less than the
then current prime rate charged by The First National Bank
and Trust Company of Salina, computed on a monthly basis on
the seventeenth day of each month for the next succeeding
month and payable on September 17, 1982 and on each March
17, and September 17 in each year, until the said principal
and all accrued interest shall have been thereon paid.
The principal of and premium, if any, on this Bond and
the interest hereon are payable in lawful money of the
United States of America, at the principal office of The
First National Bank and Trust Company of Salina, in the City
of Salina, Kansas (the "PAYING AGENT").
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Clerk. In the event either said Mayor or City Clerk, or
both of said officers, shall cease to hold such office
before the BONDS and coupons bearing their signatures shall
have been issued and delivered, the BONDS may be issued as
though said officers had not ceased to hold office, and such
signatures appearing on the BONDS and coupons shall be valid
and sufficient for all purposes as if they had remained in
office until such issuance.
Section 8. Form of Bond. The BONDS shall be in
substantially the following form:
9
In the event the interest on the Bonds of the series,
of which this Bond is one, is includable in the gross income
of the recipients thereof for Federal income tax purposes by
reason of the failure of said Bonds to qualify for the
exemption provided in Section 103(b)(6)(D) of the Internal
Revenue Code of 1954, as amended, all of said Bonds then
outstanding shall mature and be due and payable at the
principal amount thereof, plus accrued interest to the
maturity date, together with a premium which shall be, on
each Bond, equal to the stated interest rate on such Bond
multiplied times the principal amount of such Bond for each
full year, or fraction of a year, which elapses from the
date on which the interest becomes includable in the gross
income of the recipients and the date of maturity
established by the CITY (which date of maturity shall not be
earlier than forty-five (45) days or later than one hundred
twenty (120) days after the Internal Revenue Service, HARBIN
(hereinafter identified), or the Fiscal Agent designated in
the ORDINANCE authorizing this Bond shall give written
notice to the CITY and the holders of the Bonds of the
inclusion of the interest on the Bonds in the gross income
of the recipients thereof).
This Bond is one of an authorized series of Bonds
aggregating the principal amount of $361,000.00 (the
"BONDS") authorized by an Ordinance (the "ORDINANCE") of the
CITY for the purpose of providing funds to pay the cost of
acquiring real property, and constructing, purchasing and
11
installing buildings and improvements and furnishings
and equipment (the "FACILITY", the FACILITY being further
identified in the ORDINANCE) to be leased to GARY L.
HARBIN, ("HARBIN"), pursuant to a Lease dated as of
March 17, 1982, (the "LEASE") by and between the CITY
and HARBIN, by the authority of and in conformity with
the provisions, restrictions and limitations of the
constitution and statutes of the State of Kansas,
including K.S.A. 12-1740 to 12-1749a, and all amendments
thereof and acts supplemental thereto, and all other
provisions of the laws of said State applicable thereto,
and this Bond and all interest hereon are to be paid by the
CITY solely and only from the money and revenue received
from the fees charged and rental received for the use of
the FACILITY under the LEASE and not from any other
fund or source (except to the extent paid out of
Bond proceeds or the income from the temporary investment
thereof and, under certain circumstances, condemnation
awards and the proceeds of insurance). Pursuant to the
provisions of said statutes, the governing body of the CITY
has pledged the FACILITY and the net earnings therefrom to
the payment of the BONDS and the interest thereon. The
payment of the principal of and interest and redemption
premium, if any, on this Bond has been guaranteed by
HARBIN pursuant to the terms of a Guaranty Agreement (the
"GUARANTY") dated March 17, 1982, by and between
HARBIN and the Fiscal Agent designated in the ORDINANCE.
12
This Bond does not constitute a debt of the CITY within
the meaning of any constitutional or statutory limitation.
Reference is hereby made to the ORDINANCE, to the LEASE, and
to the GUARANTY for a description of the FACILITY and the
covenants of the CITY and HARBIN with respect to the
payment, collection, segregation and application of the
money and revenue received from the fees charged and rental
received for the use of the FACILITY, the rights, duties and
obligations of the CITY, HARBIN and the Fiscal Agent with
respect thereto and otherwise, and the rights of the holders
of this Bond.
Each of the BONDS is subject to redemption and payment
prior to maturity at the option of the CITY, upon
instructions from HARBIN, on any interest payment date upon
any of the following conditions or events, provided all of
the BONDS are redeemed and paid according to their terms.
(1) if title to, or the use for a limited period of,
substantially all of the FACILITY be condemned by any
authority having the power of eminent domain; (2) if
substantially all of the FACILITY is damaged or destroyed by
fire or other casualty; or (3) if, as a result of changes in
the Constitution of the State of Kansas, or of legislative
or administrative action by the State of Kansas, or any
political subdivision thereof, or by the United States, or
by reason of any action instituted in any Court, the LEASE
shall become void or unenforceable, or impossible of
performance without unreasonable delay, or in any other way
13
r
by reason of such change of circumstances, unreasonable
burdens or excessive liabilities are imposed on HARBIN or
the CITY. The BONDS redeemed, as provided in this
paragraph, shall be redeemed at the principal amount
thereof, plus accrued interest thereon to, and including the
date fixed for redemption and payment, without premium.
Each of the BONDS maturing on September 17, 1982 and
thereafter is also subject to redemption and payment prior
to maturity at the option of the CITY, upon instructions
from HARBIN, on September 17, and on any interest payment
date thereafter, at the principal amount thereof, plus
accrued interest thereon to and including the date of
redemption; without premium. BONDS to be redeemed and paid
pursuant to the provisions described in this paragraph shall
be selected by the Fiscal Agent designated in the ORDINANCE
in such equitable manner as it may determine.
Notice of the CITY'S intention to redeem and pay said
BONDS pursuant to any of the redemption provisions
aforesaid, specifying the numbers of the BONDS to be
redeemed and paid, shall be given by United States
registered mail to the PAYING AGENT not less than thirty
(30) days prior to the date fixed for redemption and
payment. Notice of any such redemption shall also be
published at least once not less than thirty (30) days prior
to the date fixed for redemption in the official newspaper
of the State of Kansas and the Kansas Register. If, because
of the temporary or permanent suspension of the publication
14
or general circulation of any financial journal or for any
other reason, it is impossible or impracticable to publish
such notice of call for redemption in the manner herein
provided, then such publication, in lieu thereof as shall be
made with the approval of the PAYING AGENT, shall constitute
a sufficient publication of notice.
This Bond and appurtenant coupons are transferable by
delivery.
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
facsimile 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, and the interest coupons
hereto attached to be signed with the facsimile signatures
15
of said officers, and this Bond to be dated this day
of
ATTEST:
City Clerk
16
Mayor
Section 9. Preparation, Authentication and Delivery of
the Bonds. The Mayor and City Clerk are hereby authorized
and directed to prepare and execute the Medical Clinic
Revenue Bonds, Series 1982-A, dated March 17, 1982, herein
authorized, and to deliver the BONDS to The First National
Bank and Trust Company of Salina, Salina, Kansas, on payment
of the purchase price.
Section 10.
Designation of Fiscal Agent. The First
National Bank and Trust Company of Salina, Salina, Kansas,
is hereby designated as the CITY'S Fiscal Agent under the
provisions of this ORDINANCE and of the LEASE, and the
proceeds of the BONDS shall be deposited with the Fiscal
Agent.
Section 11. Construction Fund.
There is hereby
authorized and ordered to be established in the hands of the
Fiscal Agent a separate fund or account designated as "City
of Salina, Kansas - Gary L. Harbin, Construction Fund",
hereinafter referred to as the "CONSTRUCTION FUND". The
Fiscal Agent shall, first, promptly pay from the proceeds of
the sale of the BONDS into the Principal and Interest
Account hereinafter created the accrued interest and
premium, if any, received upon such sale, together with an
additional amount of $
, representing a portion
of the interest to become due during the estimated period of
construction of the FACILITY. The Fiscal Agent shall also
promptly pay from the proceeds of the sale of the BONDS into
the Debt Service Reserve Account hereinafter created the sum
17
of $ The balance of the proceeds of the sale
of the BONDS shall be deposited in the CONSTRUCTION FUND.
The CONSTRUCTION FUND shall be used for the purpose of
providing funds to pay the cost of acquiring the LAND and
constructing, purchasing and installing the FACILITY to be
leased to HARBIN as provided in the LEASE. Any monies not
required for said purpose shall, when the FACILITY is
complete as provided in the LEASE, be deposited by the
Fiscal Agent to the Principal and Interest Account.
Section 12.
Principal and Interest Account. There is
hereby authorized and ordered to be established in the hands
of the Fiscal Agent a separate account to be known as the
"City of Salina, Kansas, Principal and Interest Account for
Medical Clinic Revenue Bonds, Series 1982-A, dated March 17,
1982", herein referred to as the "PRINCIPAL AND INTEREST
ACCOUNT". The CITY covenants and agrees that from and after
the delivery of any of the BONDS, the CITY will maintain
said account with the Fiscal Agent. All payments of Basic
Rent and Additional Rent (except to the extent provided
under Section 13 hereof) due under the LEASE, and all other
monies intended to pay the principal of and interest on the
BONDS and the charges of the Fiscal Agent and the PAYING
AGENT, shall be applied and allocated by the Fiscal Agent to
the PRINCIPAL AND INTEREST ACCOUNT. Except as hereinafter
provided, all amounts credited to and deposited in the
PRINCIPAL AND INTEREST ACCOUNT shall be used by the Fiscal
Agent and forwarded to the PAYING AGENT for the sole purpose
WE
of paying the principal of and interest on the BONDS as and
when the same become due, or are called for redemption and
payment, and for paying the charges of the Fiscal Agent and
PAYING AGENT for acting hereunder. The Fiscal Agent shall
make appropriate arrangements with and shall transmit funds
to the PAYING AGENT to pay such principal and interest as
the same become due and the charges of the Fiscal Agent and
PAYING AGENT herein referred to. Any balance remaining in
the PRINCIPAL AND INTEREST ACCOUNT shall, when the BONDS
have been paid, or payment provided for in accordance with
Section 23 of this ORDINANCE, be paid to HARBIN.
Section 13. Debt Service Reserve Account. There is
hereby authorized and ordered to be established in the hands
of the Fiscal Agent a separate account to be known as the
"City of Salina, Kansas, Debt Service Reserve Account for
Medical Clinic Revenue Bonds, Series 1982-A, dated March 17,
1982", hereinafter referred to as the "DEBT SERVICE RESERVE
ACCOUNT". The CITY covenants and agrees that from and after
the delivery of any of the BONDS it will maintain said
account with the Fiscal Agent. All payments of Additional
Rent due under the LEASE for deposit into the DEBT SERVICE
RESERVE ACCOUNT shall be applied and allocated by the Fiscal
Agent to the DEBT SERVICE RESERVE ACCOUNT. Monies in the
DEBT SERVICE RESERVE ACCOUNT shall be used solely and
exclusively by the Fiscal Agent and forwarded to the PAYING
AGENT to prevent any default in the payment of the principal
of, or interest on the BONDS, and any redemption premium, if
19
monies in the PRINCIPAL AND INTEREST ACCOUNT are
insufficient to pay the same as they become due or are
payable, provided that when the monies in the PRINCIPAL AND
INTEREST ACCOUNT and the DEBT SERVICE RESERVE ACCOUNT are
sufficient to pay at the times required, the principal of
and redemption premium, if any, and interest on all the
BONDS outstanding, the monies in the DEBT SERVICE RESERVE
ACCOUNT shall be transferred to the PRINCIPAL AND INTEREST
ACCOUNT.
Section 14. Investments. Monies in the CONSTRUCTION
FUND shall, upon instructions from HARBIN, be invested by
the Fiscal Agent in (i) direct obligations of the United
States of America, or agencies thereof, or in (ii)
certificates of deposit secured by such obligations,
becoming due within twelve (12) months from the date of
purchase. Monies allocated and credited to and deposited in
the PRINCIPAL AND INTEREST ACCOUNT in any amount in excess
of the amount necessary to pay principal and interest next
becoming due and monies on deposit in the DEBT SERVICE
RESERVE ACCOUNT shall be invested by the Fiscal Agent, upon
instructions from HARBIN, in (i) direct obligations of the
United States of America, or agencies thereof, or in (ii)
certificates of deposit secured by such obligations becoming
due not later than March 17, 1982. No investment shall be
made pursuant to this Section for a period longer than the
time the Fiscal Agent shall determine that said funds are
not required for the purpose of which they are intended.
20
T
All interest, or income, on investments held in the
CONSTRUCTION FUND shall accrue to and become a part of the
PRINCIPAL AND INTEREST ACCOUNT. Until March 17, 1982, all
interest or income on investments held in the DEBT SERVICE
RESERVE ACCOUNT shall accrue to and become a part of the
PRINCIPAL AND INTEREST ACCOUNT. Beginning on March 17,
1982, all interest or income on investments held in the DEBT
SERVICE RESERVE ACCOUNT shall accrue to and become a part of
the DEBT SERVICE RESERVE ACCOUNT, provided that so long as a
sum equal to the maximum annual principal and interest
requirement for the BONDS is on deposit in the DEBT SERVICE
RESERVE ACCOUNT, all income, or interest, on investments in
such account shall be deposited in the PRINCIPAL AND
INTEREST ACCOUNT. All interest, or income, on investments
held in the PRINCIPAL AND INTEREST ACCOUNT shall accrue to
and become a part of said account so invested. Any losses
suffered on investments held in any fund or account shall be
charged to such fund or account. Whenever the Fiscal Agent
determines that the cash balance in any fund or account is
insufficient for the purposes of such fund or account, it
shall sell and reduce to cash securities held in such fund
or account until the cash balance is sufficient for such
purposes. Any investments made by the Fiscal Agent pursuant
to this ORDINANCE may be made through its own bond
department, and any certificates of deposit may be those of
the Fiscal Agent.
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Section 15.
Covenant to Pay Principal and Interest on
the Bonds. The CITY covenants that it will promptly pay, or
cause to be paid, the principal of and interest and
redemption premium, if any, on the BONDS issued under this
ORDINANCE on the dates and in the manner provided herein and
in the BONDS, according to the true intent and meaning
thereof. The principal and interest and redemption premium,
if any, are payable solely from the revenues received from
the fees charged and rental received for the use of the
FACILITY (except to the extent paid out of monies
attributable to Bond proceeds or the income from the
temporary investment thereof and, under certain
circumstances, condemnation awards and proceeds of
insurance), and the FACILITY and the net earnings therefrom
are pledged to the payment of the BONDS and the interest
thereon as provided in Section 2 hereof. The CITY further
covenants that it will make, or cause to be made, all other
payments and deposits required under the provisions of this
ORDINANCE from funds made available for such purpose under
the LEASE.
Section 16. Particular Covenants of the City. So long
as any of the principal of and interest on any of the BONDS
remains outstanding and unpaid, or until provisions are made
for the payment thereof, in accordance with Section 23 of
this ORDINANCE, the CITY covenants with each of the holders
and owners of the BONDS as follows:
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(a) The CITY will use the proceeds of the BONDS as
soon as practicable and with all reasonable dispatch
for the purpose for which the BONDS are issued as
hereinbefore set forth. Said proceeds will 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 the BONDS herein authorized
to be or become "Arbitrage Bonds" within the meaning of
Section 103(c) of the Internal Revenue Code of 1954.
The CITY further covenants that the proceeds of the
BONDS will not be used to acquire securities or
obligations (other than obligations described in
subsection (a)(1) of such Section) that will produce a
yield higher than the yield of the BONDS herein
authorized unless a statute, regulation of the Treasury
Department of the United States, ruling by the Internal
Revenue Service of the United States, or a decision by
a Court of ultimate jurisdiction hold's that the
acquisition of securities or obligations producing a
yield higher than the BONDS will not cause the BONDS to
be Arbitrage Bonds as defined in said Section 103(c).
(b) The CITY will comply fully with all the terms,
provisions and conditions of the LEASE which require
performance by, or impose duties on, the CITY and it
will not permit any default to occur on the part of the
CITY; it will fully and promptly enforce all of the
terms, provisions and conditions of the LEASE which
require performance by, or impose duties on, HARBIN,
and in the event of the occurrence of a default, as
defined in the LEASE, will exercise all rights and
remedies conferred by the LEASE for the full and
complete protection of the security and rights of the
bondholders 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 provisions which
will provide funds sufficient in amount to make the
rental payments and other payments which HARBIN is
required to make under the LEASE. If the CITY is
unable to procure a new tenant who will enter into such
a lease, the CITY may sell the FACILITY at a price not
less than the amount sufficient to pay the then
outstanding BONDS plus interest then unpaid. If the
CITY is unable to procure a new tenant who will enter
into such a lease, the CITY may take such action as
shall be in the best interest of the bondholders, which
may include the sale of the FACILITY, and any monies
derived from such sale shall be used for the purpose of
paying the BONDS, the interest thereon and any
redemption premium.
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(c) The CITY will enforce collection of the rental
payments and other charges in the amounts and at the
time set forth in the LEASE and will not reduce, or
cause or permit to be reduced, the rental payments and
other charges fixed, established and required by the
LEASE, nor change or alter the time or times when the
same are due and payable under the LEASE. The CITY'S
obligation to pay the expenses of such enforcement
shall be limited to funds made available to it for that
purpose by the holders of the BONDS or other interested
parties.
(d) Until payment of all the BONDS and interest
thereon has been duly made or provided for, the CITY
will not consent to any change, amendment, modification
or termination of the LEASE, except as provided
therein, which will in any manner affect adversely the
rights, remedies or interest of the bondholders, nor
will it consent to any merger, consolidation,
dissolution or liquidation by HARBIN, except to the
extent provided in the LEASE.
(e) Any purchase price of the FACILITY, any
condemnation awards, or any insurance proceeds, any of
which are received by the CITY pursuant to the terms of
the LEASE, or any other funds intended for the purpose
of paying the BONDS will be used solely and exclusively
to pay the BONDS and the interest thereon according to
their terms or to redeem and pay any of the BONDS then
outstanding and unpaid then subject to redemption and
payment. Upon receipt of any such funds, and as soon
as the BONDS are subject to redemption and payment, the
CITY shall proceed promptly to call the BONDS for
redemption and payment according to their terms, and
shall give notice, or cause notice to be given thereof,
as provided for by the terms of this ORDINANCE. Such
funds shall be deposited with the Fiscal Agent, and the
same shall be used solely for the payment of the BONDS
and the accrued interest thereon, and the charges of
the Fiscal Agent and the PAYING AGENT for paying the
same.
(f) The CITY will cause HARBIN to keep constantly
insured all buildings and improvements and furnishings
and equipment from time to time constituting a part of
the property leased to HARBIN in the manner provided
for by the LEASE. The CITY'S share of the proceeds of
any such insurance policies shall be payable to and
deposited with the Fiscal Agent as Insurance Trustee.
Any of the proceeds of such policies shall be used and
applied in the manner set forth in the LEASE.
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(g) The CITY will cause the Fiscal Agent to maintain
adequate records and accounts relating to the FACILITY,
separate and apart from all other records or accounts
of the CITY or the Fiscal Agent, which records and
accounts shall be maintained in accordance with
generally accepted principles of trust accounting and
shall include complete details of all financial
transactions related to the BONDS authorized herein and
the leased property. Such records and accounts shall
be specifically designed and maintained to show whether
or not the provisions of this ORDINANCE and the LEASE
referred to herein are being complied with. Such books
and records shall be available for inspection by the
agents of HARBIN, or any of the holders of the BONDS,
during the regular business hours of the Fiscal Agent.
Section 17. Additional Bonds. The CITY covenants with
each of the holders and owners of the BONDS that it will not
issue any other obligations payable from payments by HARBIN
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, unless required by law or
by the terms of the LEASE, sell or otherwise dispose of the
FACILITY or any part thereof; provided, however, that the
CITY may issue from time to time additional industrial
revenue bonds for the purpose of extending and improving the
Project, which extensions and improvements may be located in
whole or in part on the LAND, or for the purpose of
completing the acquisition, construction, purchase and
installation of the FACILITY, or adding additions thereto,
provided that the following terms and conditions are met:
(a) The CITY shall have entered into an amendment to
the LEASE or a new lease or agreement with HARBIN
providing for rentals or payments which, together with
any rentals under the LEASE, will be at least
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sufficient to pay the principal of and interest on the
BONDS and said additional bonds as the same become due.
(b) HARBIN is not in default in the payment of rent
due under the LEASE.
(c) The issuance of said additional bonds shall not
affect the exemption from Federal income taxation of
the interest on the BONDS herein authorized.
In the event of the issuance of any such additional bonds,
the CITY may pledge the FACILITY and the net earnings
therefrom to the payment of such additional bonds and the
interest thereon, provided the CITY also pledges the
additional construction, furnishings and equipment and the
net earnings therefrom purchased out of the proceeds of such
additional bonds to the payment of the BONDS herein
authorized and the interest thereon.
Section 18. Amendments.
The provisions of the BONDS
and the provisions of this ORDINANCE may be modified or
amended at any time by the CITY with the written consent of
HARBIN (if it is not in default under the LEASE) and the
holders of not less than sixty-six and two-thirds percent
(66-2/3%) in aggregate principal amount of the BONDS at the
time outstanding, provided that no such modification or
amendment shall permit, or be construed as permitting: (a)
the modification of any duties or responsibilities of the
Fiscal Agent unless it consents thereto; (b) the extension
of the maturity of the principal of any of the BONDS, or the
extension of the maturity of the interest on any BONDS; (c)
a reduction in the principal amount of any of the BONDS, or
the rate of interest thereon; or (d) a reduction in the
KID
aggregate principal amount of BONDS, the consent of the
holders of which is required for any such amendment or
modification. Any provision of the BONDS or of this
ORDINANCE (other than those referred to in (a) above) may,
however, be modified or amended in any respect with the
written consent of HARBIN (if it is not then in default
under the LEASE) and the holders of all of the BONDS then
outstanding. Amendments to this ORDINANCE which, in the
opinion of the CITY, correct omissions or ambiguities, or
which add to the security of the bondholders, may be made by
the CITY when agreed to by HARBIN. Every amendment or
modification of a provision of the BONDS, or of this
ORDINANCE, to which the written consent of the bondholders
is required 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 ORDINANCE. It shall not be necessary to note
on any of the outstanding BONDS any reference to such
amendment or modification, if any. Upon payment of the
reasonable cost of preparing the same, a certified copy of
every such amendatory or supplemental ordinance, if any, and
a certified copy of this ORDINANCE will be sent by the City
Clerk to any bondholder, or prospective bondholder,
requesting the same.
The LEASE may be amended by the CITY and HARBIN, except
as to rent, or certain other matters, which may be made only
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with the consent of a specified percentage of the holders of
the then outstanding BONDS, as provided therein.
Section 19. Enforcement. The provisions of this
ORDINANCE shall constitute a contract between the CITY and
the holders of the BONDS, and the holder of any one or more
of the BONDS may sue to recover interest or principal which
has not been paid according to the terms of said Bond. The
holders of twenty-five percent (250) of the principal amount
of BONDS then outstanding 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 or HARBIN. 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 BONDS.
Section 20. Default, Events of Default. If any of the
following events occur, it is hereby defined as, and
declared to be and to constitute, an "event of default"
within the meaning of this ORDINANCE:
(a) Default in the due and punctual payment of any
interest on any Bond;
(b) Default in the due and punctual payment of the
principal of or redemption premium, if any, on any
Bond, whether at the stated maturity thereof, or upon
any redemption, or upon the maturity thereof by
declaration as provided in Section 22 hereof; or
(c) Default in the performance or observance of any
other of the covenants, agreements or conditions on the
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part of the CITY in this ORDINANCE or in the BONDS
contained, or default on the part of HARBIN under the
LEASE in failing to pay, or causing to be paid, the
rentals or other payments provided in the LEASE, or its
failure to maintain continuance thereof for a period of
thirty (30) days after written notice given to the CITY
by the Fiscal Agent, or by the holders, of not less
than twenty-five percent (25%) of the aggregate
principal amount of BONDS then outstanding.
Section 21. Acceleration of Maturity in Event of
Default. Upon the happening of an event of default, as
defined in Section 20 hereof, the holders of twenty-five
percent (250) or more of the aggregate principal amount of
BONDS then outstanding may, by written notice given to the
Fiscal Agent to the Mayor or City Clerk of the CITY and to
HARBIN, declare the principal of and interest on all of the
BONDS then outstanding to be due and payable immediately,
and upon such declaration given as aforesaid, said principal
and interest shall be immediately due and payable, anything
in the BONDS or this ORDINANCE contained to the contrary,
notwithstanding. This provision, however, is subject to the
condition that if, at any time thereafter, all arrears of
interest, except interest accrued, but not yet due, and all
arrears of principal shall have been paid in full, or such
default otherwise cured, then in every such case the holders
and owners of a majority in principal amount of the BONDS
then outstanding, by written notice to the Fiscal Agent, to
the Mayor or City Clerk and to HARBIN, may rescind and annul
such declaration and its consequences, but no such
rescission or annulment shall extend to or affect any
subsequent default or impair any rights consequent thereon.
Section 22.
Application of Monies. Anything in this
ORDINANCE to the contrary, notwithstanding, if, at any time,
the monies in the PRINCIPAL AND INTEREST ACCOUNT shall not
be sufficient to pay the principal of, or premium, if any,
and interest on the BONDS as they become due and payable,
all monies received by the Fiscal Agent shall, after payment
of the cost and expenses of the proceedings resulting in the
collection of such monies and of the expenses, liabilities
and advances incurred or made by the Fiscal Agent, be
applied by the Fiscal Agent as follows:
(a) Unless the principal of all the BONDS shall have
become or shall have been declared due and payable, all
such monies 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 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 thereto, 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 called for redemption for the payment of
which monies are held pursuant to the provisions of
this ORDINANCE), in the order of their due dates, with
interest on such BONDS from the respective dates upon
which they become due and, if the amount available
shall not be sufficient to pay in full the principal
of, or premium, if any, and such interest on the BONDS
due on any particular date, then to the payment
ratably, according to the amount of the principal,
interest 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 monies shall be applied to the payment of the
principal, or premium, if any, and interest then due
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and unpaid upon the BONDS, without preference or
priority, ratably, according to the amounts due
respectively for principal, or premium, if any, and
interest, to the persons entitled thereto without any
discrimination or privilege.
(c) If the principal of all the BONDS shall have been
declared due and payable, and if such declaration shall
thereafter have been rescinded and annulled under the
provisions of Section 22 hereof then, subject to the
provisions of paragraph (b) of this Section 23 in the
event that the principal of all the BONDS shall later
become due, or be declared due and payable, the monies
shall be applied in accordance with the provisions of
paragraph (a) of this Section.
Whenever monies are to be applied pursuant to the provisions
of this Section, such monies shall be applied at such times,
and from time to time, as the Fiscal Agent shall determine,
having due regard to the amount of such monies available for
such application in the future. Whenever the Fiscal Agent
shall apply such funds, it shall fix the date (which shall
be an interest payment date unless it shall deem another
date more suitable) upon which such application is to be
made, and upon such date interest on the amounts of
principal to be paid on such date shall cease to accrue.
The Fiscal Agent shall give such notice as it may deem
appropriate of the deposit with it of any such monies and of
the fixing of any such date, and shall not be required to
make payment to the bearer of any unpaid coupon, or the
owner or holder of any Bond, until such coupon or such Bond
and all unmatured coupons, if any, appertaining to such Bond
shall be presented to the Fiscal Agent for appropriate
endorsement or for cancellation if fully paid.
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Section 23. Defeasance. When all of the BONDS and all
coupons representing interest thereon shall have been paid
and discharged, then the agreements, obligations, covenants
and requirements contained in this ORDINANCE (other than
those set forth in this Section), and the pledge of the
rents and revenues derived from the FACILITY made hereunder,
and all other rights granted hereby, shall cease and
terminate. The BONDS and coupons shall be deemed to have
been paid and discharged within the meaning of this
ORDINANCE and within the meaning of the LEASE when there
shall have been deposited with the Fiscal Agent at or prior
to the maturity or redemption date of the BONDS and coupons,
in trust for and irrevocably appropriated thereto, monies
and/or direct obligations of, or obligations the principal
of and interest on which are guaranteed by, the United
States of America, which monies and obligations, together
with the interest to be earned on such obligations, will be
at least sufficient for the payment of the principal of and
premium, if any, on the BONDS and interest to accrue thereon
to the date of maturity or redemption, as the case may be,
or if default in such payment shall have occurred on such
date, then to the date of the tender of such payments, and
provision shall also have been made for all other sums
payable under the provisions of this ORDINANCE; provided,
always, that if any of the BONDS are to be redeemed prior to
the maturity thereof, the CITY (and HARBIN, if required
hereunder) shall have elected to redeem such BONDS, and such
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BONDS shall have been called for redemption or irrevocable
instructions to call such BONDS for redemption shall have
been given. Any monies and obligations which at any time
shall be deposited by, or on behalf of, the CITY for the
purpose of paying and discharging any of the BONDS or
coupons shall be, and are hereby assigned, transferred and
set over to the Fiscal Agent in trust for the respective
holders of the BONDS and coupons, and such monies and
obligations shall be and are hereby irrevocably appropriated
to the payment and discharge thereof. If, through lapse of
time or otherwise, the holders of the BONDS or coupons shall
no longer be entitled to enforce payment of their
obligations, then in such event, it shall be the duty of the
holder of such monies and obligations forthwith to pay such
monies and obligations to HARBIN, as provided in Section 6
above.
Section 24. List of Bondholders. To the extent that
such information shall be made known to the Fiscal Agent
under the terms of this Section, the Fiscal Agent will keep
on file at its principal office a list of names and
addresses of the last known holders of all BONDS, provided
that any bondholder must request that his name and address
be placed on said list by filing a written request with the
Fiscal Agent, which request shall include a statement of the
principal amount of BONDS held by such holder and the
numbers of such BONDS. The Fiscal Agent shall be under no
responsibility with regard to the accuracy of said list. At
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reasonable times and under reasonable regulations
established by the Fiscal Agent, said list may be inspected
and copied by HARBIN, or by the holders and/or owners (or a
designated representative thereof) of twenty-five percent
(25%) or more in principal amount of BONDS then outstanding,
such ownership and the authority of any such designated
representative to be evidenced to the satisfaction of the
Fiscal Agent.
Section 25. Consents, Etc., of Bondholders. Any
consent, request, direction, approval, objection or other
instrument required by this ORDINANCE or the LEASE herein
authorized to be signed and executed by the bondholders may
be in any number of concurrent writings of similar tenor and
may be signed or executed by such bondholders in person or
by agent appointed in writing. Proof of the execution of
any such consent, request, direction, approval, objection or
other instrument or of the writing appointing any such agent
and of the ownership of BONDS, if made in the following
manner, shall be sufficient for any of the purposes of this
ORDINANCE, and shall be conclusive in favor of the CITY, the
Fiscal Agent, the PAYING AGENT and HARBIN with regard to any
action taken under such request or other instrument, namely:
(a) The fact and date of the execution by any person
of any such writing may be proved by the certificate of
any officer in any jurisdiction who by law has power to
take acknowledgments within such jurisdiction that the
person signing such writing acknowledged before him the
execution thereof, or by affidavit of any witness to
such execution.
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(b) The fact of the holding by any person of BONDS
and/or coupons transferable by delivery and the amounts
and numbers of such BONDS, and the date of the holding
of such may be proved by a certificate executed by any
trust company, bank or bankers, wherever situated,
stating that at the date thereof, the party named
therein did exhibit to an officer of such trust company
or bank or to such bankers, as the property of such
party, the BONDS and/or coupons therein mentioned, if
such certificate shall be deemed by the person to whom
such consent is addressed to be satisfactory. Such
person may, in his discretion, require evidence that
such BONDS have been deposited with a bank, bankers or
trust company before taking any action based on such
ownership. In lieu of the foregoing, such person may
accept other proofs of the foregoing as he shall deem
appropriate.
For all purposes of this ORDINANCE and of the proceedings
for the enforcement hereof, such person shall be deemed to
continue to be the holder of such Bond until the PAYING
AGENT shall have received notice in writing to the contrary.
Section 26. Provisions Relating to the Fiscal Agent.
(a) Prior to the receipt of the Bond proceeds pursuant
to the provisions of Section 10 hereof, the Fiscal
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, and further accept and acknowledge the
assignment by the CITY to FISCAL AGENT of the CITY'S
interest in the LEASE.
(b) The Fiscal Agent's duties and responsibilities
shall be limited to those expressly set forth in this
ORDINANCE, the LEASE and the GUARANTY.
(c) All resolutions, opinions, certificates and other
instruments referred to or provided for herein or in
the LEASE may be accepted by the Fiscal Agent as
conclusive evidence of the facts, opinions and
conclusions stated therein and shall be full warrant,
protection and authority to the Fiscal Agent for any
action reasonably taken pursuant thereto. The Fiscal
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.
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(d) No provision contained in this Section shall be
construed to relieve the Fiscal Agent from liability
for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that this
subsection shall not be construed to limit the effect
of subsections (b) , (c) and (d) of this Section, and
the Fiscal Agent shall not be liable for any error of
judgment made in good faith unless it shall be proved
that the Fiscal Agent was negligent in ascertaining the
pertinent facts.
(e) The Fiscal Agent shall have the right to buy,
sell, own, deal or trade in the BONDS or the coupons
relating thereto without giving notice thereof to the
CITY or HARBIN or any bondholder and without incurring
any liability whatsoever with respect thereto.
(f) The Fiscal Agent may be removed at any time by the
CITY with the consent of HARBIN and may resign by an
instrument in writing delivered to the CITY and HARBIN
to take effect not sooner than ninety (90) days after
its delivery, and upon such removal or resignation the
CITY, with the consent of HARBIN, shall immediately, in
writing, designate a successor fiscal agent. Such
successor fiscal agent shall be a bank, trust company
or national banking association which is a member of
the Federal Reserve System and which has a capital
stock and surplus aggregating at least $10,000.00.
Such successor fiscal 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 Fiscal Agent. Any
such successor fiscal agent shall file an acceptance in
the form referred to in subsection (a) hereof with the
City Clerk within ten (10) days of its appointment.
(g) The Fiscal 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
HARBIN as Additional Rent as specified in Article II of
the LEASE.
(h) The Fiscal Agent shall have the right to continue,
or to enter into, banking relationships with HARBIN,
with the CITY, and with any corporation, all or any
part of the stock of which is owned by HARBIN or the
CITY, including without limitation, the acceptance of
deposits of funds from, or the making of, secured or
unsecured loans to HARBIN or the CITY and any such
corporation, without giving either notice thereof or
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notice of any information concerning HARBIN or the CITY
or any such corporation which comes to the attention of
the Fiscal Agent as a result thereof, to the CITY or to
any bondholder, and the Fiscal Agent shall not incur
any liability whatsoever to the CITY or to any
bondholder as a result thereof, or as a result of the
collection or other enforcement by the Fiscal Agent of
its rights with respect to any such transaction.
(i) The Fiscal Agent is hereby authorized and directed
to bill and collect from HARBIN any and all payments
made by HARBIN in lieu of taxes, due upon the FACILITY
whether under the LEASE or under any other agreement
and to promptly deliver said payments to the CITY.
(j) The Fiscal Agent's duties and responsibilities
shall include those expressly set forth in this
ORDINANCE and in the LEASE and shall further include
those rights, duties, responsibilities and obligations
which are reserved to or imposed upon the CITY under
this ORDINANCE and the LEASE, excepting only such of
those rights, duties, responsibilities and obligations
as may only be properly and lawfully exercised by or
imposed upon the CITY. In the case of a default in the
payment of principal or interest on any of the BONDS,
or in the case of a default under the LEASE, the FISCAL
AGENT shall be and is hereby authorized to bring
appropriate action for judgment or such other relief as
may be appropriate and such action may be brought
solely in the name of the FISCAL AGENT or in the name
of the CITY and FISCAL AGENT jointly; but in such case
the CITY shall have no obligation for any fees and
expenses of such action except out of any funds which
might come into the hands of the CITY by reason of its
ownership of the FACILITY and this ORDINANCE and the
LEASE. In addition, the FISCAL AGENT may file such
proofs of claim and such other documents as may be
necessary and advisable in order to have the claims of
the FISCAL AGENT and the bondholders relative to the
BONDS or the obligations relating thereto allowed in
any judicial proceeding. In the event of a default in
the payment of either principal or interest on any of
the BONDS, the FISCAL AGENT shall take reasonable steps
to ascertain the names of the holders of the BONDS
outstanding or their representatives, and notification
of those persons presenting interest coupons and BONDS
not honored for payment; and upon ascertainment of any
holders by such methods, the FISCAL AGENT shall give
such holders, by mail, copies of all previous and
future notices sent to the holders of the BONDS
pursuant to the foregoing provisions.
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Section 27.
Payments Due on Saturdays, Sundays and
Holidays. In any case where the date of maturity of
interest on or principal of the BONDS or the date fixed for
redemption of any BONDS shall be a Saturday, a Sunday or a
legal holiday, or a day on which banking institutions are
authorized by law to close, then payment of interest or
principal need not be made on such date, but may be made on
the next succeeding business day not a Saturday, a Sunday or
a legal holiday, or a day upon which banking institutions
are authorized by law to close, with the same force and
effect as if made on the date of maturity or the date fixed
for redemption, and no interest shall accrue on the amount
being paid for the period after such date.
Section 28. Authorization of Lease. The FACILITY
shall be leased to HARBIN under and pursuant to a LEASE
dated as of March 17, 1982, substantially in the form
attached to this ORDINANCE and marked Exhibit "A", which
LEASE (with such corrections and changes therein as the
officers executing the same deem appropriate) 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.
Section 29.
Approval of Guaranty Agreement. The
Guaranty Agreement dated as of March 17, 1982, pursuant to
which HARBIN guarantees to the Fiscal Agent, for the benefit
of the bondholders, the payment of the prinicipal of and
interest and redemption premium, if any, on the BONDS, is
hereby approved in the form attached to this ORDINANCE and
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marked Exhibit "B", which Guaranty Agreement the Fiscal
Agent is authorized to accept. The Fiscal Agent shall
enforce the Guaranty Agreement for the benefit and
protection of the owners and holders of the BONDS as long as
the BONDS remain outstanding and unpaid, and prevent any
default or prospective default in the payment of the BONDS,
or the interest thereon, at the stated maturity thereof or
the redemption, as the case may be, or in the observance of
any covenant, agreement or undertaking contained in the
Guaranty Agreement. The Fiscal Agent shall not permit or
consent to any change, amendment, modification or
termination of the Guaranty Agreement except to the extent
provided therein.
Section 30.
Election Under Section 103(b)(6)(D) of the
Internal Revenue Code. The CITY hereby elects that Section
103(b)(6)(D) of the Internal Revenue Code of 1954, as
amended, shall apply to the BONDS, and the Mayor and City
Clerk are hereby authorized and directed to file evidence of
said election with any appropriate officer of the United
States, including the Secretary of the Treasury, or his
delegate, and to take such other action as may be necessary
to make effective the election made herein.
Section 31.
Severability. 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 provision
of law, or contrary to the policy of express law, though not
expressly prohibited, or against public policy, or should
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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, or of the LEASE.
Section 32. Agreements of the City. All covenants,
stipulations and obligations of the CITY contained in this
ORDINANCE and the LEASE shall be deemed to be the covenants,
stipulations, obligations and agreements of the CITY to the
full extent authorized or permitted by law, and all such
covenants, stipulations, obligations and agreements shall be
binding upon the CITY and its successors from time to time
and upon any board, body or agency to which any powers or
duties affecting such covenants, stipulations, obligations
and agreements shall be transferred by or in accordance with
law. Except as otherwise provided in this ORDINANCE, all
rights, powers and privileges conferred, and duties and
liabilities imposed upon the CITY, or any officials thereof,
by the provisions of this ORDINANCE or the LEASE, shall be
exercised or performed by the CITY or by such officers as
may be required by law to exercise such powers and to
perform such duties. No covenant, stipulation, obligation
or agreement herein contained, or contained on the LEASE,
shall be deemed to be a covenant, stipulation, obligation or
agreement of any official, officer, agent or employee of the
CITY in his individual capacity, and neither the officials
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of the CITY, nor any officer executing the BONDS, shall be
liable personally on the BONDS or by such for any personal
liability or accountability by reason of the issuance
thereof.
Section 33.
Conveyance of Facility. Upon receipt by
the CITY of the purchase price of all or any part of the
property subject to the LEASE, title to said property shall
be transferred and conveyed to HARBIN as provided in the
LEASE, and the Mayor 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
necessary to effect such conveyance and transfer.
Section 34. Performance of Acts. All acts, conditions
and things required by the Constitution and laws of the
State of Kansas relating to the enactment of this ORDINANCE
to the issuance of the BONDS, to the execution of the LEASE,
and to the approval of the Guaranty Agreement, to happen,
exist and be performed precedent to and in the enactment of
this ORDINANCE, precedent to the issuance of the BONDS,
precedent to the execution of the LEASE, and precedent to
the approval of the Guaranty Agreement have happened, exist
and have been performed as required by law.
Section 35. Further Authority. The officials of the
CITY, and the attorneys, 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
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the terms, covenants and agreements contained in the BONDS,
the LEASE and this ORDINANCE.
Section 36. Effective Date. This ORDINANCE shall take
effect and be in force from and after its passage and
publication in the official CITY paper.
PASSED AND APPROVED by the governing body of the CITY
of Salina, Kansas, this 15th day of March 1982
ATTEST:
City Clerk
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`Mayor �T