82-8905 IRB WilburORDINANCE NO. '�2 oS OF THE CITY OF SALINA, KANSAS
INDEX
Page
Recitals--------------------------------------------------
1
Section
1.
Authority to Acquire Real Property and to
Construct and Purchase Facility ------------------
1
Section
2.
Authorization of and Security for the Bonds ------
2
Section
3.
Description and Details of the Bonds,
Designation of Paying Agent ----------------------
2
Section
4.
Redemption and Payment of Bonds Prior
to Maturity --------------------------------------
3
Section
5.
Notice of Redemption -----------------------------
4
Section
6.
Method of Execution of Bonds ---------------------
4
Section
7.
Form of Bond -------------------------------------
4
Section
8.
Execution and Delivery of the Bonds, Deposit of
Bond Proceeds, Designation of Fiscal Agent -------
7
Section
9.
Construction Fund --------------------------------
7
Section
10.
Principal and Interest Account -------------------
8
Section
11.
Covenant to Redeem Bonds -------------------------
8
Section
12.
Investments --------------------------------------
8
Section
13.
Particular Covenants of the City -----------------
9
Section
14.
Amendments ---------------------------------------
12
Section
15.
Enforcement --------------------------------------
12
Section
16.
Declaration of Maturity of Bonds in the
Event of Default ---------------------------------
13
Section
17.
Defeasance ---------------------------------------
13
Section
18.
List of Bondholders ------------------------------
14
Section
19.
Provisions Relating to the Fiscal Agent ----------
14
Section
20.
Waiver of Tax Exemption --------------------------
16
Section
21.
Bond Purchaser -----------------------------------
16
Section
22.
Authorization of Lease ---------------------------
17
Section
23.
Severability -------------------------------------
17
Section
24.
Conveyance of Facility ---------------------------
17
Section
25.
Effective Date -----------------------------------
17
it "A" Description of Property
i2 � M2 -
ORDINANCE NO. S2.'i9oS
AN ORDINANCE AUTHORIZING THE CITY OF SALINA, KANSAS, TO
ACQUIRE FOR DEVELOPMENT PURPOSES THE REAL PROPERTY HERE-
INAFTER DESCRIBED AND TO CONSTRUCT AND PURCHASE BUILDINGS,
IMPROVEMENTS, MACHINERY AND EQUIPMENT TO BE LEASED TO ROY M.
WILBUR AND VIRGINIA S. WILBUR; AUTHORIZING AND DIRECTING THE
ISSUANCE OF $153,000 PRINCIPAL AMOUNT OF REVENUE BONDS, ROY AND
VIRGINIA WILBUR SERIES OF 1982, OF SAID CITY FOR THE PURPOSE OF
PROVIDING FUNDS TO PAY THE COST OF ACQUIRING THE REAL
PROPERTY HEREINAFTER DESCRIBED AND TO CONSTRUCT AND
PURCHASE BUILDINGS, IMPROVEMENTS, MACHINERY AND EQUIPMENT TO
BE LEASED TO ROY M.. WILBUR AND VIRGINIA S. WILBUR; AND
PRESCRIBING THE FORM AND AUTHORIZING THE EXECUTION OF A LEASE
BY AND BETWEEN SAID CITY AND SAID INDIVIDUALS.
WHEREAS, the City of Salina, Kansas, hereinafter sometimes
referred to as the "City," desires to promote, stimulate and develop the
general welfare and economic prosperity of the City of Salina, Kansas, and
its environs and thereby to further promote, stimulate and develop the
general welfare and economic prosperity of the State of Kansas; and
WHEREAS, pursuant to the provisions of K.S.A. 12-1740 to
12-1749a, as amended, said City is authorized to issue revenue bonds of the
City, and it is hereby found and determined to be advisable and in the
interest and for the welfare of the City and its inhabitants that revenue
bonds of the City be authorized and issued for the purpose of providing
funds to pay the cost of acquiring real property hereinafter described and
to construct and purchase buildings, improvements, machinery and equipment
to be leased to Roy M. Wilbur and Virginia S. Wilbur, husband and wife, of
Salina, Kansas, hereinafter sometimes referred to as the "Wilburs"; and
WHEREAS, the City will acquire prior to or concurrently with the
issuance of the Bonds herein authorized the real property hereinafter
described;
NOW, THEREFORE, BE IT ORDAINED BY THE GOVERNING BODY
F THE CITY OF SALINA, KANSAS:
Section 1. Authority to Acquire Real Property and to
Construct and Purchase Facility. The City of Salina, Kansas, is hereby
authorized to acquire the real property described and set forth in Exhibit
"A" attached hereto and made a part hereof and to construct and purchase
buildings, improvements, machinery and equipment described in said Exhibit
"A" (said real property, buildings, improvements, machinery and equipment
being sometimes hereinafter described collectively as the "Facility") , in
accordance with the provisions of the Lease dated as of May 1, 1982 between
said City and said Roy M. Wilbur and Virginia S. Wilbur (hereinafter
sometimes referred to as the "Lease") , said Lease being authorized by the
provisions of Section 20 of this Ordinance, all at an amount which will not
exceed the cost of $153,000 to said City.
Section 2. Authorization of and Security for the Bonds. For
the purpose of providing funds to pay the cost of acquiring the real
property described in said Exhibit "A" and to construct and purchase
buildings, improvements, machinery and equipment to be leased to Roy M.
Wilbur and Virginia S. Wilbur. There shall be issued and hereby are
authorized and directed to be issued a series of Revenue Bonds, Roy and
Virginia Wilbur Series of 1982, of the City of Salina, Kansas, in the
principal amount of $153,000. Said Bonds herein authorized, hereinafter
sometimes referred to as the "Bonds," and all interest thereon 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.
The City hereby pledges the Facility and the net earnings therefrom to the
payment of the Bonds and the interest thereon.
Section 3. Description and Details of the Bonds, Designation
Df Paying Agent. Said Revenue Bonds, Roy and Virginia Wilbur Series of
1982, of the City of Salina, Kansas, shall consist of 30 Bonds, numbered
from 1 to 30, inclusive. The said Bonds shall be in the denominations as set
forth below. All of said Bonds shall be dated as of May 1, 1982, and shall
year interest from date at a rate equal to sixty-five percent (65%) of tyle
crime interest rate in effect at The National Bank of America at Salina,
Salina, Kansas, as of May 1, 1982, which rate of interest shall be adjusted
innually, on each May 1 thereafter, so that such rate of interest payable for
:he ensuing year will equal sixty-five percent (65%) of the prime interest
-ate then prevailing and chargeable at The National Bank of America at
Salina, Salina, Kansas as of said date. Said Bonds shall become due as
bllows :
2
Aggregate
Bond
Principal
Numbers
Amount
Maturity
1
$2,100
11-1-82
2
2,200
5-1-83
3
2,300
11-1-83
4
2,500
5-1-84
5
2,600
11-1-84
6
2,800
5-1-85
7
2,900
11-1-85
8
3,100
5-1-86
9
3,200
11-1-86
10
3,400
5-1-87
11
3,600
11-1-87
12
3,800
5-1-88
13
4,000
11-1-88
14
4,200
5-1-89
15
4,500
11-1-89
16
4,700
5-1-90
17
5,000
11-1-90
18
5,200
5-1-91
19
5,500
11-1-91
20
5,800
5-1-92
21
6,200
11-1-92
22
6,500
5-1-93
23
6,900
11-1-93
24
7,200
5-1-94
25
7,700
11-1-94
26
8,100
5-1-95
27
8,500
11-1-95
28
9,000
5-1-96
29
9,500
11-1-96
30
10,000
5-1-97
The interest on said Bonds shall be payable semiannually on May 1
November 1 in each year, beginning on November 1, 1982 until maturity
called for redemption.
Said Bonds shall be payable to bearer in lawful money of the
United States of America at The National Bank of America at Salina, in the
City of Salina, Kansas, hereby designated as the City's paying agent for the
payment of the principal of and interest on the Bonds and herein sometimes
referred to as the. "Paying Agent."
Section 4. Redemption and Payment of Bonds Prior to
Maturity. Said Bonds and each of them shall be subject to redemption and
payment at the option of the City, upon instructions from the Wilburs, in
whole or in part, on November 1, 1982, or on any interest payment date
thereafter, at the par value thereof plus accrued interest to the date fixed
for redemption and payment, without premium. Bonds to be redeemed and
paid pursuant to this Section shall be redeemed in inverse numerical order.
3
Section 5. Notice of Redemption. Notice of any redemption
provided for by this Ordinance shall be given in the name of the City by
the Fiscal Agent by United States certified or registered mail to the Paying
Agent herein designated, such notice to be mailed at least 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 once not less than 30 days prior to the date fixed for redemption
in the official city paper of the City. Notice of any such redemption shall
also be given by mail in the manner hereinbefore specified to any bondholder
who files his name with the Fiscal Agent pursuant to Section 18 of the
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.
Interest shall cease on any of said Bonds so called for redemption and
payment as of the redemption date, provided funds are available to pay the
same according to their terms. Notice of any redemption as herein provided
shall be given upon, but only upon, written instructions from the Wilburs,
as long as the Wilburs are not in default in the payment of Basic Rent due
under the Lease.
Section 6. Method of Execution of bonds. Said Bonds and
each of them shall be executed for Ind on behalf of the City by the
signature of its Mayor and attested by the signature of its City Clerk, with
the seal of the City affixed. Said Bonds and each of them shall be
registered in the office of the City Clerk, which registration shall be
evidenced by a certificate on the reverse side thereof bearing the manual
signature of the City Clerk.
Section 7. Form of Bond. Each of said Bonds and the
certificate attached thereto shall be in substantially the following form:
4
INo.
UNITED STATES OF AMERICA
STATE OF KANSAS
COUNTY OF SALINE
CITY OF SALINA
REVENUE BOND
ROY AND VIRGINIA WILBUR
SERIES OF 1982
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
bearer, the sum of
in lawful money of the United States of America, on the first day of
, 19_, and to pay interest thereon from the date hereof at a rate
equal to sixty-five percent (65%) of the prime interest rate in effect at The
National Bank of America at Salina, Salina, Kansas on May 1, 1982, which
ate of interest shall be adjusted annually on May 1 in each year after date
hereof so that such rate of interest payable for the ensuing year will equal
sixty-five percent (65%) of the prime interest rate then prevailing and
hargeable at The National Bank of America at Salina, Salina, Kansas as of
said date. The interest on this Bond shall be payable semiannually on May 1
nd November 1 in each year after the date hereof, beginning on
ovember 1, 1982, until the said principal sum shall have been paid, both
rincipal of and interest on this Bond being payable at The National Bank of
merica at Salina, in the City of Salina, Kansas (hereinafter sometimes
eferred to as the "Paying Agent" or the "Fiscal Agent") .
THIS B014D is one of an authorized series of 30 Bonds aggregating
he principal amount of $153,000 authorized by Ordinance of said City (the
'Ordinance") for the purpose of providing funds to pay the cost of
cquiring real property and constructing and purchasing buildings,
mprovements, machinery and equipment (hereinafter sometimes referred to as
he "Facility," said Facility being further identified in the Ordinance) to be
eased to Roy M. Wilbur and Virginia S. Wilbur, husband and wife, of
Salina, Kansas, (the "Wilburs"), pursuant to a Lease dated May 1, 1982 (the
"Lease"), by and between said City and the Wilburs , by the authority of
nd in conformity with the provisions, restrictions and limitations of the
Constitution and statutes of the State of Kansas, including K.S.A. 12-1740
0 12-1749x, and all amendments thereof and acts supplemental thereto, and
Z.11 other provisions of the laws of said State applicable thereto, and this
and and all interest hereon are to be paid by said City of Salina, Kansas,
5
solely and only from the money and revenue received from the fees charged
and rental received for the use of the Facility under said Lease and not from
any other fund or source. Pursuant to the provisions of said statute, the
governing body of the City has pledged said Facility and the net earnings
therefrom to the payment of the series of Bonds of which this Bond is a part
and the interest thereon. This Bond does not constitue a debt of the City
within the meaning of any Constitutional or statutory limitations. Reference
is hereby made to the Ordinance and to the Lease for a description of the
covenants of the City with respect to the payment, collection, segregation
and application of the revenues derived from said Facility, the nature and
extent of the security for the Bonds, the rights, duties and obligations of
the City and the Fiscal Agent with respect thereto, and the rights of the
holders of this Bond.
Each of the Bonds of the series of which this Bond is one is
subject to redemption and payment in whole or in part, on November 1, 1982,
or on any interest payment date thereafter, at the par value thereof plus
accrued interest to the redemption and payment date, without premium.
Bonds to be redeemed pursuant to this paragraph shall be redeemed in
inverse numerical order.
Notice of the City's intention to redeem and pay said Bonds
pursuant to the redemption provision aforesaid, specifying the numbers of
the Bonds to be redeemed and paid, shall be given by United States
certified or registered mail to the Paying Agent not less than 30 days prior
o the date fixed for redemption and payment.
AND IT IS HEREBY DECLARED AND CERTIFIED that all acts,
onditions and things required to be done and to exist precedent to and in
he 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 signature of its
Mayor and attested by the signature of its City Clerk, and its corporate seal
o be hereto affixed to be signed with the signatures of said officers, and
his Bond to be dated this first day of May, 1982.
TTEST:
City Clerk
6
Mayor
STATE OF KANSAS, COUNTY OF SALINE, ss:
I, the undersigned, City Clerk of the City of Salina, Salina,
Kansas, hereby certify that the within Revenue Bond, Roy and Virginia
Wilbur Series of 1982 of the City of Salina, Kansas, has been duly registered
in my office according to law.
WITNESS my hand and official seal this day of ,
1982.
City Clerk
Section 8. Execution and Delivery of the Bonds, Deposit of
Bond Proceeds, Designation of Fiscal Agent. The Mayor and City Clerk are
hereby authorized and directed to prepare and execute, in the manner
hereinbefore specified, the Bonds herein authorized, and to deliver said
Bonds to the purchasers thereof on payment of the purchase price. The
proceeds of said Bonds shall be deposited with The National Bank of America
it Salina, in the City of Salina, Kansas, hereby designated as the City's
Fiscal Agent and herein referred to as the "Fiscal Agent," the rights and
iuties of said Fiscal Agent being further specified in Section 19 of this
ce.
Section 9. Construction Fund. There is hereby authorized
and ordered to be established in the hands of the Fiscal Agent a separate
and or account designated as "City of Salina, Kansas, Salina, Roy and
Virginia Wilbur Construction Fund," hereinafter referred to as the
'Construction Fund." The Fiscal Agent shall, first, promptly pay from the
roceeds of the sale of said Bonds into the Principal and Interest Account,
jhe amount of any accrued interest and premium, if any, received from such
ale. Further, the Fiscal Agent is authorized to pay fiscal and legal fees
nd other expenses relating to the issuance of said Bonds. The balance of
he proceeds of the sale of said Bonds shall be deposited in said
onstruction Fund. Said Construction Fund shall be used for the purpose
f providing funds to pay the construction and acquisition costs of the
acility to be leased to Roy M. Wilbur and Virginia S. Wilbur as provided in
aid Lease, and the Fiscal Agent shall make disbursements from said
7
Construction Fund in accordance with this Ordinance and the Lease. Any
moneys not required for said purpose shall, when the Facility is complete as
provided in the Lease, be deposited by the Fiscal Agent in said Principal
and Interest Account.
Section 10. Principal and Interest Account. There is hereby
authorized and ordered to be established in the hands of the Fiscal Agent an
additional separate account to be known as the "City of Salina, Kansas,
Principal and Interest Account for Revenue Bonds, Roy and Virginia Wilbur
Series of 1982, dated May 1, 1982," hereinafter referred to as the "Principal
and Interest Account." The City covenants and agrees that from and after
the delivery of any of the Revenue Bonds herein authorized and continuing
so long as any of said Bonds shall remain outstanding, said City will
maintain said Account with the Fiscal Agent. All payments of Basic Rent
and Additional Rent due under said Lease between the City and the Wilburs
intended to pay the principal of and interest on the Bonds shall be applied
and allocated by the Fiscal Agent to said Principal and Interest Account.
All amounts credited to and deposited in said Principal and Interest Account
shall be used by the Fiscal Agent and forwarded to the Paying Agent for the
sole purpose of paying the principal of and interest on the Revenue Bonds
herein authorized as and when the same become due or are called for
redemption and payment. Any balance remaining in said Principal and
Interest Account, including interest earned on deposits made into said
Account as prepayments of rent due under Article II of said Lease, shall,
when said Bonds have been paid, or payment provided for, be paid to
Roy M. Wilbur and Virginia S. Wilbur
Section 11. Covenant to Redeem Bonds. When moneys
ccumulated in said Principal and Interest Account shall aggregate an amount
ufficient to pay the principal of all of the Bonds then outstanding, and all
knterest accrued to date fixed for redemption and payment, and redemption
premium, if any, and when said Bonds become subject to redemption, said
City shall, upon receipt of instructions from the Wilburs, proceed to give
notice of such redemption in the manner herein specified, and said Fiscal
Agent shall use such funds for said purpose.
Section 12. Investments. Subject to the provisons of
?aragraph (A) of Section 13 of the Ordinance, moneys in the Construction
Fund and the Principal and Interest Account shall, upon instructions from
:he Wilburs, be invested by the Fiscal Agent in obligations of the United
States Government or any agency or instrumentality thereof, or in
;ertificates of Deposit or other savings or time deposits of a state or
rational bank, including the Fiscal Agent, in such amounts and maturing at
N.
such times as shall reasonably provide for monies to be available when
required in said Construction Fund and Principal and Interest Account. All
income from investment of the Construction Fund and Principal and Interest
Account shall accrue to and become a part of and be transferred to the
Principal and Interest Account.
Section 13. Particular Covenants of the City. So long as
any of the principal of and interest on the Bonds herein authorized remain
outstanding and unpaid, or until provisions are made for the payment
thereof, the City covenants with each of the holders and owners of said
Bonds as follows:
(A) The City will use the proceeds of the series of
Bonds herein authorized as soon as practicable and with all reasonable
dispatch for the purpose for which said 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, as amended. The City further covenants that
the proceeds of the series of Bonds herein authorized will not be used
to acquire securities or obligations 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 holds that an acquisition of securities or obligations
producing a yield higher than said Bonds will not cause said Bonds to
be Arbitrage Bonds as defined in said Subsection (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 that it will not permit any default to
occur on the part of the City; that it will fully and promptly enforce all
of the terms, provisions and conditions of the Lease which require
performance by, or impose duties on, the Wilburs 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 lease provisions
which will provide funds sufficient in amount to make the rental
payments and other charges which the Wilburs are required to make
9
under the Lease. If the City is unable to procure a new tenant who
will enter into such a lease the City may, with the consent of the
holders of not less than sixty-six and two-thirds percent (66 2/30) of
the Bonds herein authorized at the time outstanding, sell the Facility
leased at a price not less than the amount of the then outstanding
Bonds plus interest then unpaid.
(C) The City will enforce collection of the rental
payment and other charges in the amounts and at the time set forth in
the Lease authorized hereby 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 said Lease, except as
provided therein, which will in any manner affect adversely the rights,
remedies or interest of the bondholder.
(E) Any purchase price of the lease property, any
proceeds of condemnation awards or insurance proceeds, any of which
are received by the City pursuant to the termination 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 herein authorized 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 herein authorized, accrued interest thereon, any premium
provided for by this Ordinance and the charges of the Paying Agent
and the Fiscal Agent for paying the same.
(F) The City will not issue any other obligations
payable from payments by the Wilburs, pursuant to the Lease, nor
voluntarily create or cause to be created any debt, lien, pledge,
assignment, encumbrance, or anv other charge on said payments or on
10
the property subject to said Lease nor will it, unless required by law
or by the terms of said Lease, sell or otherwise dispose of the Facility
or any part thereof; provided, however, that said City may issue from
time to time additional industrial revenue bonds for the purpose of
completing the construction or acquistion thereof on the land herein
referred to, provided the following terms and conditions are met:
(i) The City shall have entered into a lease or
agreement with the Wilburs with rentals or payments at least
sufficient to pay the principal of and interest on said additional
bonds as the same become due.
(ii) Wilburs are not in default in the payment of rent
due under the Lease.
(iii) 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, fixtures and equipment and the
net earnings therefrom, constructed or purchased out of the proceeds
of such additional bonds, to the payment of the Bonds herein
authorized and the interest thereon.
(G) The City will cause the Wilburs to keep constantly
insured all buildings and improvements from time to time constituting a
part of the property and premises leased to the Wilburs in the manner
provided for by the Lease herein authorized. 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 any such insurance policies shall be used and applied in
the manner set forth in said Lease.
- (H) The City will cause the Fiscal Agent to maintain
adequate records and accounts relating to the Facility, separate and
apart from all other records of accounts of the City or the Fiscal
Agent, and such records and accounts shall be maintained in accordance
with generally accepted principles of accounting and shall include
complete -details of all financial transactions related to the Bonds
authorized herein and the leased facilities. 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
11
by the Wilburs or their agents or any of the holders of the Bonds
authorized herein during the regular business hours of the City or the
Fiscal Agent.
Section 14. Amendments. The provisions of the Bonds
authorized by this Ordinance and the 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 sixty-six and two-thirds percent (66 2/30) in
aggregate principal amount of the Bonds herein authorized 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 issued
hereunder, or the extension of the maturity of the interest on any Bonds
issued hereunder, (c) a reduction in the principal amount of any Bonds or
the rate of interest thereon, or (d) a reduction in the aggregate principal
amount of Bonds, the consent of the holder of which is 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.
Amendments to this Ordinance which correct omissions or ambiguities or
which add to the security of the bondholders may be made by the City when
greed to by the Wilburs. Every amendment or modification of a provision of
he Bonds or of this Ordinance to which the written consent of the
bondholders is given as above provided shall be expressed in an ordinance
f the City amending or supplementing the provisions of this Ordinance and
hall 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
edification, if any. Upon payment of the reasonable cost of preparing the
ame, a certified copy of every such amendatory or supplemental ordinance,
f any, and a certified copy of this Ordinance will be sent by the City Clerk
o any such bondholder or prospective bondholder requesting the same.
The Lease herein authorized may be amended by the City and the
Nilburs as provided therein, except as to rent or certain other matters
hich may be made only with the consent of a specified percentage of the
olders of the then outstanding Bonds.
Section 15. Enforcement. The provisions of this Ordinance
hall constitue a contract between the City and the holders of the Bonds
erein authorized, and the holder of any one or more of said Bonds may sue
o recover interest or principal which has not been paid according to the
erms of said Bond. The holders of twenty-five percent (25%) of the
12
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 said City or by the Wilburs. Nothing
contained in this Ordinance shall, however, be construed to impose on said
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 of the
City herein authorized.
Section 16. Declaration of Maturity of Bonds in the Event of
Default. In the event the principal of or interest on the Bonds herein
authorized is not paid according to the terms thereof either on maturity or
upon call for redemption, then the holders of twenty-five percent (25%) of
the principal amount of Bonds then outstanding may, by written notice given
to the Fiscal Agent, declare the principal of all the Bonds herein authorized
then outstanding to be due and payable immediately, and upon such
declaration given as aforesaid, all of said Bonds shall be immediately due and
payable, anything in said Bonds or in the Ordinance contained to the
contrary notwithstanding. Upon receipt of any such written notice from
such Bond Holders, the Fiscal Agent shall immediately notify the City in
writing of the receipt of such notice. 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
peen paid in full, then in every such case, the holders of a majority in
?rincipal amount of the Bonds then outstanding, by written notice to the
Fiscal Agent, may rescind and annul such declaration and its consequences,
)ut no such rescission or annulment shall extend to or affect any subsequent
iefault or impair any rights consequent thereon. The Fiscal Agent shall
mmediately notify the City in writing in the event of such rescission or
annulment.
Section 17. Defeasance. When all of the Bonds of the City
erein authorized shall have been paid and discharged, then the
equirements contained herein and the pledge of revenues made hereunder
nd all other rights granted hereby, shall cease and determine. Bonds shall
e deemed to have been paid and discharged within the meaning of this
rdinance when there shall have been deposited with the Fiscal Agent at or
rior to the maturity or redemption date of said Bonds in trust for and
rrevocably appropriated thereto, sufficient moneys for the payment of the
rincipal thereof and interest accrued to the date of maturity or redemption,
s the case may be, or if default in such payment shall have occurred on
uch date, then to the date of the tender of such payments; provided,
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always, that if any such Bonds shall be redeemed prior to the maturity
thereof, the City shall have elected to redeem such Bonds and notice of such
redemption shall have been given. Any moneys which at any time shall be
deposited with the said Fiscal Agent by or on behalf of the City, for the
purpose of paying and discharging any of the Bonds, shall be, and are
hereby, assigned, transferred and set over to such Fiscal Agent in trust for
the respective holders of the Bonds and such moneys shall be and are
hereby irrevocably appropriated to the payment and discharge thereof. If,
through lapse of time or otherwise, the holders of said Bonds shall no longer
be entitled to enforce payment of their obligations, then, in such event, it
shall be the duty of said bank forthwith to return said funds to the City.
All moneys deposited with such Fiscal Agent shall be deemed to be deposited
in accordance with and subject to all of the provisions contained in this
Ordinance.
Section 18. List of Bondholders. To the extent that such
Information shall be made known to the Fiscal Agent under the terms of this
ection 18, the Fiscal Agent will keep on file at its principal office a list of
ames and addresses of the last known holders of all Bonds payable to
Barer and believed to be held by each of such last known holders. Any
ondholder may request that his name and address be placed on said list by
iling 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
umbers of such Bonds. The Fiscal Agent shall be under no responsibility
With regard to the accuracy of said list. At reasonable times and under
reasonable regulations, established by the Fiscal Agent, said list may be
nspected and copied by the Wilburs or by the holders and owners (or a
esignated representative thereof) of twenty- five percent (25%) or more in
rincipal amount of Bonds then outstanding, such ownership and the
uthority of any such designated representative to be evidenced to the
atisfaction of the Fiscal Agent.
Section 19. Provisions Relating to the Fiscal Agent.
(A) Prior to the receipt of the Bond proceeds pursuant
to the provisions of Section 8 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.
(B) The Fiscal Agent's duties and responsibilities 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
14
obligations as may only be properly and lawfully exercised by or acted
upon by the City.
(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.
(D) The Fiscal Agent shall not be liable with respect to
any action taken or omitted to be taken by it in good faith and, if
appropriate, upon advice of counsel who may be counsel for the Fiscal
Agent or the City or the Wilburs.
(E) 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.
(F) The Fiscal Agent shall have the right to buy, sell,
own, deal or trade in the Bonds without giving notice thereof to the
City or the Wilburs or any bondholder and without incurring any
liability whatsoever with respect thereto.
(G) The Fiscal Agent may resign by an instrument in
writing delivered to the City and the Wilburs to take effect not sooner
than 90 days after its delivery, whereupon the City, with the consent
of the Wilburs, 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 has a capital stock and surplus aggregating
at least that of the Fiscal Agent at the time of its designation
hereunder. 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
15
form referred to in subparagraph (A) hereof with the City Clerk within
10 days of its appointment.
(H) 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 the Wilburs as
Additional Rent as specified in Article II of the Lease.
Section 20. Waiver of Tax Exemption. These revenue bonds
re issued under the conditions that the provisions of the Lease will provide
that the Wilburs will waive any ad valorem property tax exemption which
would otherwise be available to the project under the provisions of K.S.A.
9-201(a) Second, as amended.
Section 21. Bond Purchaser. 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
Durchaser of the Bonds, prior to the issuance thereof, represents and
2ertifies that:
(a) The Bonds to be acquired by the purchaser are
acquired for investment purposes only and not for resale or further
iistribution to any person other than a bank and such Bonds shall not be
)ffered for resale in a public offering without obtaining the prior written
;onsent of the City or an opinion of counsel acceptable to the City. At the
ime of the execution and delivery of each Bond, the purchaser thereof shall
;ertify that it has no present intention, agreement or arrangement for
iistribution, transfer, assignment, resale or division of its interest in such
3ond in a manner inconsistent with the provisions hereof.
(b) All materials and information requested by the
iurchaser or its counsel or others representing its interests, including any
nformation requested to verify any such information furnished, has been
urnished and there has been direct communication between Wilburs and their
epresentatives on the one hand and the purchaser of such Bonds and its
epresentatives and advisers on the other hand in connection with all of the
'iformation furnished hereunder and otherwise requested and the terms of
he acquisition of the Bond from the City as set forth herein. There has
een made available to the satisfaction of the purchaser and its advisers
dequate opportunity to ask questions of and receive answers from Wilburs
nd their representatives thereof concerning the terms and conditions of the
onds to obtain all additional information desired or necessary to verify the
ccuracv of the information furnished.
we
(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 Wilburs or to investigate and furnish such purchaser
or any subsequent holder with any information concerning the financial
status of Wilburs. Each purchaser shall represent that it is relying upon its
own resources and expertise to obtain and evaluate all such information.
Section 22. Authorization of Lease. The tract of land herein
referred to and the buildings and improvements to be acquired and
constructed thereon pursuant to this Ordinance shall be leased to Roy M.
Wilbur and Virginia S. Wilbur under and pursuant to a Lease dated as of
May 1, 1982, substantially in the form attached to this Ordinance and
incorporated herein by reference, 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.
Section 23. 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
?olicy, or should for any reason whatsoever be held invalid, then such
,ovenants, agreements or provisions shall be null and void and shall be
ieemed separate from the remaining covenants, agreements or provisions,
ind 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 24. Conveyance of Facility. Upon receipt by the
:ity of the purchase price of the property subject to said Lease, title to
;aid property shall be transferred and conveyed to the Wilburs as provided
n the Lease and the Mayor and other appropriate officers of said City are
iereby authorized and directed to execute such deeds, bills of sale and
ether instruments as may be necessary to effect such conveyance and
ransfer.
Section 25. 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
alina, Kansas, this I c" day of 4 Y ` 1982.
ay "r
TTEST:
er
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EXHIBIT "A" TO LEASE DATED MAY 1, 1982
BETWEEN THE CITY OF SALINA, KANSAS, AND
ROY M. WILBUR AND VIRGINIA S. WILBUR
AND TO ORDINANCE NO. S2 - 0;) S OF SAID
CITY RELATING THERETO
(a) The South 95' of the West 125' of Block Two (2), in Hansen
Court, an addition to the City of Salina, Saline County, Kansas, also
described as the South 5' of Lot Fourteen (14), all of Lots Sixteen (16) and
Eighteen (18), and the South 95' of the West 25' of Lot Twenty (20), Block
Two (2), Hansen Court Addition to the City of Salina, Saline County,
Kansas.
Subject to: (i) easements, restrictions and reservations now of
record, (ii) the rights of the public in and to any part of the premises lying
or being in public roads, alleys or highways, and (iii) taxes and
assessments, general and special, not now due or payable; and
(b) All buildings and improvements and machinery and equipment
tructed or located thereon pursuant to Article IV of said Lease.