82-8951 IRB Harry JettORDINANCE NO. 82-8951
AN ORDINANCE AUTHORIZING THE CITY OF SALINA, KANSAS, TO ACQUIRE THE
FACILITY HEREINAFTER DESCRIBED AND TO CONSTRUCT AND PURCHASE
BUILDINGS, IMPROVEMENTS, AND EQUIPMENT TO BE LEASED TO HARRY J. JETT,
D.D.S. ("DR. JETT"), AUTHORIZING AND DIRECTING THE ISSUANCE OF
$400,000 PRINCIPAL AMOUNT OF HARRY J. JETT, D.D.S., REVENUE BONDS,
SERIES OF 1982, OF SAID CITY FOR THE PURPOSE OF PROVIDING FUNDS TO PAY
THE COST OF ACQUIRING THE FACILITY HEREINAFTER DESCRIBED AND TO
CONSTRUCT AND PURCHASE BUILDINGS, IMPROVEMENTS, AND EQUIPMENT TO BE
LEASED TO DR. JETT, AND PRESCRIBING THE FORM AND AUTHORIZING THE
EXECUTION OF A LEASE BY AND BETWEEN SAID CITY AND DR. JETT
WHEREAS, the City of Salina, Kansas, hereinafter sometimes
referred to as the "City", desires to promote, stimulate and develop
the general economic welfare and prosperity of the City of Salina,
Kansas, and its environs and thereby to further promote, stimulate and
develop the general economic welfare and prosperity of the State of
Kansas; and
WHEREAS, pursuant to the provisions of K.S.A. 12-1740 to 12-1749a,
as amended, the 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 and to construct and
purchase buildings, improvements, and equipment to be leased to
Harry J. Jett, D.D.S., hereinafter referred to as "Dr. Jett"; and
WHEREAS, the City will acquire prior to or concurrently with the
issuance of the Bonds herein authorized the Facility hereinafter
described;
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 and
Purchase Facility. The City of Salina, Kansas, is hereby authorized to
acquire the real property described and set forth in Schedule 1 attached
hereto and made a part hereof and to construct and purchase buildings,
improvements, and equipment described in said Schedule 1, said real
property, buildings, improvements, and equipment being sometimes
hereinafter described as the "Facility", in accordance with the
provisions of the Lease dated as of December 1, 1982, between the City
and Dr. Jett, hereinafter sometimes referred to as the "Lease", said
Lease being authorized by the provisions of this Ordinance (said real
property being referred to in the Lease as the "Land," said buildings,
improvements, and equipment being referred to in the Lease as the
"Clinic," and the Land, together with the Clinic, being referred to in
the Lease as the "Facility"), all at an amount which will not exceed
the cost of $400,000 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 Schedule 1 and to construct and purchase
buildings, improvements, and equipment to be leased to Dr. Jett, there
shall be issued and hereby are authorized and directed to be issued a
series of Harry J. Jett, D.D.S., Revenue Bonds, Series of 1982, of the
City of Salina, Kansas, in the principal amount of $400,000. 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 of
Fiscal Agent. Said Harry J. Jett, D.D.S., Revenue Bonds, Series of
1982, of the City of Salina, Kansas, shall consist of 30 Bonds,
numbered from 1 to 30, inclusive. All of said Bonds shall be dated
December 1, 1982, and show their interest from that date at a rate
equal to seventy-five percent (75%) of the base lending interest rate
in effect at The National Bank of America at Salina, Salina, Kansas,
as of December 1, 1982, which rate of interest shall be adjusted
annually on each December 1 thereafter, so that such rate: of interest
payable for the ensuing year will equal seventy-five percent (75%) of
the base lending rate then prevailing and chargeable at The National
Bank of America at Salina, Salina, Kansas, as of said date. The Bonds
shall be in the following denominations and come due as follows:
Bond Number
Principal Amount
Maturity Date
1
$ 6,200.00
June 1,
1983
2
6,200.00
December
1,
1983
3
6,200.00
June 1,,
1984
4
6,200.00
December
1,
1984
5
6,200.00
June 1,
1985
6
8,000.00
December
1,
1985
7
8,000.00
June 1,
1986
8
8,000.00
December
1,
1986
9
8,000.00
June 1,
1987
10
8,000.00
December
1,
1987
11
10,600.00
June 1,
1988
12
10,600.00
December
1,
1988
13
10,600.00
June 1,
1989
14
10,600.00
December
1,
1989
15
10,600.00
June 1,
1990
16
13,800.00
December
1,
1990
17
13,800.00
June 1,
1991
18
13,800.00
December
1,
1991
19
13,800.00
June 1,
1992
20
13,800.00
December
1,
1992
21
18,000.00
June 1,
1993
22
18,000.00
December
1,
1993
23
18,000.00
June 1,
1994
24
18,000.00
December
1,
1994
25
18,000.00
June 1,
1995
26
23,400.00
December
1,
1995
27
23,400.00
June 1,
1996
28
23,400.00
December
1,
1996
29
23,400.00
June 1,
1997
30
23,400.00
December
1,
1997
The interest on said Bonds shall be payable semi-annually on June 1
and December 1 in each year, beginning on June 1, 1983, until maturity
or until called for redemption.
Said Bonds and the interest thereon shall be payablein lawful
money of the United States of America at The National Bank of America
at Salina, in the City of Salina, Kansas, which is hereby designated
as the City's paying agent for the payment of the principal and the
interest on the Bonds which bank is herein sometimes referred to as
the "Fiscal 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 Dr. Jett, in whole
or in part, on June 1, 1983, or on any interest payment date
thereafter, at the par value thereof plus accrued interest to the date
fixed for redemption and payments, without premium. Bonds to be
redeemed and paid pursuant to this section shall be redeemed in
inverse numerical order.
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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 City, Dr. Jett, or the Fiscal Agent by United States certified
or registered mail or by delivery to the Fiscal Agent herein
designated, such notice to be mailed or delivered 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 once not less than thirty (30) days
prior to the date fixed for redemption in the official 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 19 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.- 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 written instruction
from Dr. Jett, as long as Dr. Jett is not in default in the payment of
Basic Rent due under the Lease, or upon written instruction from the
Fiscal Agent in the event of taxability under Section 17 'hereof.
Section 6. Method of Execution of Bonds. Said Bonds and each of
them shall be executed for and 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 face thereof bearing the
signature of the City Clerk.
Section 7. Form of Bond. Each of said Bonds and the certificate
attached thereto all be in substantially the following form:
No.
UNITED STATES OF AMERICA
STATE OF KANSAS
COUNTY OF SALINE
CITY OF SALINA
HARRY J. JETT, D.D.S., REVENUE BOND
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 DOLLARS
($ ) 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 seventy-five percent (75%) of
the base lending interest rate in effect at The National Bank of
America at Salina, Salina, Kansas, on December 1, 1982, which rate of
interest shall be adjusted annually on December 1 in each year after
the date hereof so that such rate of interest payable for the ensuing
year will equal seventy-five percent (75%) of the base lending rate
then prevailing and chargeable at The National Bank of America at
Salina, Salina, Kansas, as of said date. The interest on this bond
shall be payable semi-annually on June 1 and December 1 in each year
hereafter, beginning on June 1, 1983, until the said principal sum
shall have been paid, both the principal of and interest on this bond
being payable at The National Bank of America at Salina, in the City
of Salina, Kansas.
THIS BOND is one of an authorized series of Bonds aggregating the
principal amount of $400,000 authorized by Ordinance of said City (the
"Ordinance") for the purpose of providing funds to pay the cost of
acquiring real property and constructing and purchasing buildings,
improvements, and equipment (hereinafter sometimes referred to as the
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"Facility", said Facility being further identified in the Ordinance)
to be leased to Harry J. Jett, D.D.S. ("Dr. Jett"), pursuant to a
Lease dated as of December 1, 1982 (the "Lease"), by and between said
City and Dr. Jett, 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 said City of Salina,
Kansas, solely and only from the money and revenue received from the
fees charged and rental received for the use of the 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 constitute 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 Facility
and the covenants of the City and Dr. Jett with respect to the revenue
received for the use of said Facility, the nature and extent of the
security for the Bonds, the rights, duties and obligations of the
City, the Fiscal Agent, and Dr. Jett with respect thereto and otherwise,
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 June 1,
1983, or on any interest payment date thereafter, at the par value
thereof plus accrued interest to the redemption and payment date,
without premium. Bonds 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 any of the redemption provisions aforesaid, specifying the
numbers of the Bonds to be redeemed and paid, shall be given by United
States certified or registered mail or by delivery to the Fiscal
Agent, being The National Bank of America at Salina, Salina, Kansas,
not less than thirty (30) days prior to the date fixed for redemption
and payment.
AND IT IS HEREBY DECLARED AND CERTIFIED that all acus, 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 signature of its Mayor
and attested by the signature of its City Clerk, and its corporate
seal to be hereto affixed and this Bond to be dated this 1st day of
December, 1982.
Mayor
ATTEST:
City Clerk
STATE OF KANSAS, COUNTY OF SALINE, ss.
I, the undersigned, City Clerk of the City of Salina, Kansas,
hereby certify that the within Harry J. Jett, D.D.S., Revenue Bond,
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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 National Bank of America at Salina, in the City of
Salina, Kansas, the purchaser thereof, on payment of the purchase
price. The proceeds of said Bonds shall be deposited with The
National Bank of America at 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 duties of said Fiscal Agent
being further specified in Section 20 of this Ordinance.
Section 9. 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, Harry J.
Jett, D.D.S., Construction Fund", hereinafter referred to as the
"Construction Fund". The Fiscal Agent shall, first, promptly pay from
the proceeds of the sale of said Bonds into the Principal. and Interest
Account, hereinafter created, the amount of any accrued interest and
premium, if any, received from such sale. The Fiscal Agent is further
authorized to pay fiscal, legal, and other fees and expenses relating
to the issuance of the Bonds. The balance of the proceeds of the sale
of said Bonds shall be deposited in said Construction Fund. Said
Construction Fund shall be used for the purpose of providing funds to
pay the cost of acquiring real property and to construct buildings,
improvements, and equipment to be leased to Dr. Jett, as provided in
said Lease. The Fiscal Agent shall make disbursements from said
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 a separate account to be known as the "City of Salina, Kansas,
Principal and Interest Account for Harry J. Jett, D.D.S., Revenue
Bonds, Series of 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
Dr. Jett 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 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 shall, when said Bonds have been paid, or payment
provided for, be paid to Dr. Jett.
Section 11. Covenant to Redeem Bonds. When moneys accumulated
in said Principal and Interest Account shall aggregate an amount
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sufficient to pay the principal of all of the Bonds then outstanding,
and all interest 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
Dr. Jett, proceed to cause notice to be given of such redemption in
the manner herein specified, and said Fiscal Agent shall use such
funds for said purpose.
Section 12. Investments. Moneys allocated and credited to and
deposited in the Principal and Interest Account in any amount in
excess of the amount necessary to pay the amount of principal and
interest next becoming due shall be invested by the Fiscal Agent, upon
instructions from Dr. Jett, in direct or indirect obligations of the
United States Government, or agencies thereof, or in certificates of
deposit or other savings or time deposits of a state or national bank,
including the Fiscal Agent (inclusive of but not limited to
transactions in which the Federal Deposit Insurance Corporation
guarantees the principal of the investment), becoming due not later
than the due date of the next principal and interest payment. 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 for which they are intended. Interest in
investments in any fund or account shall accrue to and become a part
of such fund or account so invested.
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 the 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 Section 103(c) of
the Internal Revenue Code of 1954, as amended.
(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, Dr. Jett 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 Dr. Jett is required to make under
the Lease. If the City is unable to procure a new tenant who will
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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 2/3%) 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 leased 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 Fiscal Agent
for paying the same.
(F) The City will not issue any other obligations payable
from payments by Dr. Jett, 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 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 revenue bonds for the purpose of completing the
construction or acquisition 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 Dr. Jett with rentals or payments at least sufficient
to pay the principal of and interest on said additional bonds as the
same become due.
(ii) Dr. Jett is 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
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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 Dr. Jett to keep constantly insured
all buildings and improvements from time to time constituting a part
of the property and premises leased to Dr. Jett 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 such
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 or 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 by the agents of Dr. Jett 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 2/3%) 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 standard of interest rate 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 agreed to by Dr. Jett. Every amendment or modification of a
provision of the Bonds or of this Ordinance to which the written
consent of the bondholders is given as above provided shall be
expressed in an ordinance of the City amending or supplementing the
provisions of this Ordinance and shall be deemed to be a part of this
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 the Fiscal Agent and to any such bondholder or prospective
bondholder requesting the same.
The Lease herein authorized may be amended by the City and
Dr. Jett as provided therein, except as to rent or certain other
matters which may be made only with the consent of a specified
percentage of the holders of the then outstanding Bonds.
Section 15. Enforcement. The provisions of this Ordinance shall
constitute a contract between the City and the holders of the Bonds
herein authorized, and the holder of any one or more of said Bonds may
sue to recover interest or principal which has not been paid according
to the terms of said Bonds. The holders of twenty- five percent (25%)
of the principal amount of Bonds then outstanding may sue in any
action, in mandamus, injunction or other proceedings, whether 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 Dr. Jett. 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 notice from such 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 been. paid in
full, then in every such case, the holders of a majority in principal
amount of the Bonds then outstanding, by written notice to the Fiscal
Agent, 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. The
Fiscal Agent shall immediately notify the City in writing in the event
of such rescission or annulment.
Section 17. Accelerated Maturity of Bonds in the Event of Taxability.
In the event the interest on the Bonds is includable by the bondholders
for federal income tax purposes by reason of the failure of such Bonds
to qualify for the exemption provided in Section 103(b)(6)(A) of the
Internal Revenue Code of 1954, as amended, or by reason of the termination
of such exemption, then in either of such events all of such 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 then outstanding, equal to
thirty-three percent (33%) of the interest otherwise paid or payable
on such Bond for each year the interest on such Bond is includable in
the gross income of the bondholders for federal income tax purposes.
The date of maturity shall be sixty (60) days after the Internal
Revenue Service, Dr. Jett or the Fiscal Agent shall give written
notice to the City of the inclusion of the interest on the Bonds in
the gross income of the bondholders.
Section 18. Defeasance. When all of the Bonds of the City
herein authorized shall have been paid and discharged, then the
requirements contained herein and the pledge of revenues made
hereunder and all other rights granted hereby, shall cease and
determine. Bonds shall be deemed to have been paid and discharged
within the meaning of this Ordinance when there shall have been
deposited with the Fiscal Agent at or prior to the maturity or re-
demption date of said Bonds, in trust for and irrevocably appropriated
Cm
thereto, sufficient moneys for the payment of the principal thereof
and interest accrued 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; provided,
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 other-
wise, 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 the Fiscal Agent 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 19. List of Bondholders. To the extent that such
information shall be made known to the Fiscal Agent under the terms of
this Section 19, 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 payable to bearer and believed to be held by each of such last
known holders. Any bondholder may 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 reasonable times and under reasonable
regulations, established by the Fiscal Agent, said list may be
inspected and copied by Dr. Jett 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 20. 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; provided, however, that such duties and responsibilities shall
include those duties, responsibilities, and obligations which are
imposed upon the City under this Ordinance and the Lease, excepting
only such of those duties, responsibilities, and obligations as may
only be properly and lawfully exercised by or acted upon by the City.
(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) 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 Dr. Jett.
(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 Dr. Jett 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 Dr. Jett to take effect not sooner than
ninety (90) days after its delivery, whereupon the City, with the
consent of Dr. Jett, 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 form referred to in subparagraph (A) hereof with the City Clerk
within ten (10) days of its appointment.
(H) The Fiscal Agent shall be entitled to payment or
reimbursement for reasonable fees for its ordinary servicers 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 Dr. Jetzt as
Additional Rent as specified in Article II of the Lease.
Section 21. Waiver of Tax Exemption. These revenue bonds are
issued under the condition that the provisions of the Lease will
require Dr. Jett to waive any ad valorem property tax exemption which
would otherwise be available to the project under the provisions of
K.S.A. 79-201a Second, as amended.
Section 22. 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 in Salina,
Kansas, as the purchaser of the Bonds, prior to issuance thereof,
represents and certifies that:
(A) The Bonds to be acquired by the purchaser are acquired
for investment purposes only and not for resale or further
distribution to any person other than a bank and such Bonds shall not
be offered for resale in a public offering without obtaining the prior
written consent of the City or an opinion of counsel acceptable to the
City. At the time of the execution and delivery of each Bond, the
purchaser thereof shall certify that it has no present intention,
agreement or arrangement for distribution, transfer, assignment,
resale or division of its interest in such Bond in a manner
inconsistent with the provisions hereof.
(B) All materials and information requested by the
purchaser or its counsel or others representing its interest,
including any information requested to verify any such information
furnished, has been furnished and there has been direct communication
between Dr. Jett and his representatives on the one hand and the
purchaser of the Bonds and its representatives and advisors on the
other hand in connection with all of the information furnished
hereunder and otherwise requested and the terms of the acquisition of
the Bonds from the City as set forth herein. There has been made
available to the satisfaction of the purchaser and its advisors
adequate opportunity to make inquiry and receive information from Dr.
Jett and his representatives concerning the terms and conditions of
the Bonds and to obtain all additional information desired or
necessary to verify the accuracy of the information furnished.
(C) The City shall be released from any requirement, duty,
obligation or commitment, express or implied, to furnish the purchaser
or any subsequent holder of any Bond issued hereunder any financial in-
formation concerning Dr. Jett or to investigate and furnish such purchaser
or any subsequent holder with any information concerning his financial
status. Each purchaser shall represent that it is relying upon its
own resources and expertise to obtain and evaluate all such information.
Section 23. 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
Dr. Jett under and pursuant to a Lease dated as of December 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 24. 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 for any reason whatsoever be held invalid,
then such covenants, agreements or provisions shall be null and void
and shall be deemed separate from the remaining covenants, agreements
or provisions, and shall in no way affect the validity of the other
provisions of this Ordinance or of the Bonds issued hereunder, or of
the Lease.
Section 25. Conveyance of Facility. Upon receipt by the City of
the purchase price of the property subject to said Lease, title to
said property shall be transferred and conveyed to Dr. Jett as
provided in the Lease and the Mayor and other appropriate officers of
said 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 26. 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 13th day of December 1982.
Mafor "�—
ATTEST:
D. L. Harrison, City Clerk
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