ORDINANCE NO. 970873
Authorizing the issuance of $40,000,000.00 principal
amount of General Obligation Bonds (Streetlight Project), Series 1997B, of the
City of Kansas City, Missouri; prescribing the form and details of said bonds;
providing for the levy and collection of an annual tax for the purpose of
paying the principal of and interest on said bonds as they become due; and
authorizing certain other documents and actions in connection therewith.
WHEREAS, the City of Kansas City, Missouri (the
"City"), is authorized under the provisions of Article VI, Section 26
of the Constitution of Missouri, 1945, as amended, and its charter to incur
indebtedness and issue and sell general obligation bonds of the City to evidence
such indebtedness for lawful purposes, upon obtaining the approval of the
required majority of the qualified electors of the City voting on the question
to incur such indebtedness; and
WHEREAS, pursuant to such authority, an election was
duly held in the City on Tuesday, April 1, 1997 (the "Election"), on
the question whether to issue the general obligation bonds of the City in the
amount of $110,000,000.00 for the purpose of purchasing from Kansas City Power
& Light Company an existing street lighting system and for construction of
an upgraded and expanded street lighting system; and
WHEREAS, the votes cast at the Election were duly
canvassed as provided by law, and it was found and declared that not less than
four-sevenths of the qualified voters of the City voting at the Election on
said question voted in favor of the issuance of said bonds, the vote on said
question having been 22,176 votes for the issuance of said bonds and 8,754
votes against the issuance of said bonds; and
WHEREAS, the City has not issued any of the bonds
authorized at the Election, and desires to issue $40,000,000.00 principal
amount of the bonds so authorized at the Election; and
WHEREAS, it is hereby found and determined that it
is necessary and advisable and in the best interest of the City and its
inhabitants at this time to authorize the issuance and delivery of said bonds
for the purpose aforesaid; NOW, THEREFORE,
BE IT ORDAINED BY THE COUNCIL OF KANSAS CITY:
ARTICLE I
DEFINITIONS
Section 101. Definitions of Words and Terms. In
addition to words and terms defined elsewhere herein, the following words and
terms as used in this Ordinance shall have the following meanings:
"Arbitrage Instructions" means the
Arbitrage Instructions attached as Exhibit A to the City's Arbitrage
Certificate relating to the Bonds, as the same may be amended or supplemented
in accordance with the provisions thereof.
"Bond Counsel" means Gilmore & Bell,
P.C., Kansas City, Missouri, the Hardwick Law Firm, LLC, Kansas City, Missouri,
or other attorneys or firm of attorneys with a nationally recognized standing
in the field of municipal bond financing selected by the City.
"Bond Payment Date" means any date on
which principal of or interest on any Bond is payable.
"Bond Register" means the books for the
registration, transfer and exchange of Bonds kept at the office of the Paying
Agent.
"Bondowner," "Owner" or
"Registered Owner" when used with respect to any Bond means the
Person in whose name such Bond is registered on the Bond Register.
"Bonds" means the General Obligation Bonds
(Streetlight Project), Series 1997B, authorized and issued by the City pursuant
to this Ordinance.
"Business Day" means a day other than a
Saturday, Sunday or holiday on which the Paying Agent is scheduled in the
normal course of its operations to be open to the public for conduct of its
banking operations.
"Cede & Co." means Cede & Co., as
nominee name of The Depository Trust Company, New York, New York.
"City" means the City of Kansas City,
Missouri, and any successors or assigns.
"Code" means the Internal Revenue Code of
1986, as amended, and the applicable regulations of the Treasury Department
proposed or promulgated thereunder.
"Debt Service Fund" means the Series 1997B
Debt Service Fund created in Section 501.
"Defaulted Interest" means interest on any
Bond which is payable but not paid on any Interest Payment Date.
"Defeasance Obligations" means any of the
following obligations:
(a) United States Government Obligations that
are not subject to redemption in
advance of their maturity dates; or
(b) obligations of any state or political
subdivision of any state, the interest on
which is excluded from gross income for federal
income tax purposes and which meet the following conditions:
(1) the obligations are (i) not subject to
redemption prior to maturity or (ii)the
trustee for such obligations has been given
irrevocable instructions concerning their calling and redemption and the
issuer of such obligations has covenanted not to redeem such obligations
other than as set forth in such instructions;
(2) the obligations are secured by cash or
United States Government Obligations
that may be applied only to principal of, premium,
if any, and interest payments on such obligations;
(3) such cash and the principal of and
interest on such United States Government
Obligations (plus any cash in the escrow fund) are
sufficient to meet the liabilities of the obligations;
(4) such cash and United States Government
Obligations serving as security for
the obligations are held in an escrow fund by an
escrow agent or a trustee irrevocably in trust;
(5) such cash and United States Government
Obligations are not available to
satisfy any other claims, including those against
the trustee or escrow agent; and
(6) the obligations are rated in the highest
rating category by Moody's (presently
"Aaa") or Standard & Poor's Ratings
Group (presently ("AAA").
"Interest Payment Date" means the Stated
Maturity for an installment of interest on any Bond.
"Maturity" when used with respect to any
Bond means the date on which the principal of such Bond becomes due and payable
as therein and herein provided, whether at the Stated Maturity thereof or by
call for redemption or otherwise.
"Ordinance" means this Ordinance as from
time to time amended in accordance with the terms hereof.
"Outstanding" means, when used with
reference to Bonds, as of any particular date of determination, all Bonds
theretofore authenticated and delivered hereunder, except the following Bonds:
(a) Bonds theretofore cancelled by the Paying
Agent or delivered to the Paying
Agent for cancellation;
(b) Bonds deemed to be paid in accordance with
the provisions of Section 701
hereof; and
(c) Bonds in exchange for or in lieu of which
other Bonds have been
authenticated and delivered hereunder.
"Participants" means those financial
institutions for whom the Securities Depository effects book-entry transfers
and pledges of securities deposited with the Securities Depository, as such
listing of participants exists at the time of such reference.
"Paying Agent" means State Street Bank and
Trust Company of Missouri, N.A., in the City of St. Louis, Missouri, and any
successors or assigns.
"Permitted Investments" means any of the
following securities, if and to the extent the same are at the time legal for
investment of the moneys held in the funds and accounts listed in Section 501
hereof:
(a) United States Government Obligations;
(b) certificates of deposit or time deposits,
whether negotiable or nonnegotiable,
issued by any bank or trust company organized under
the laws of the United States and located in the City, provided that such
certificates of deposit or time deposits shall be either (1) continuously
and fully insured by the Federal Deposit Insurance Corporation, or (2)
continuously and fully secured by United States Government Obligations which
shall have a market value, exclusive of accrued interest, at all times at
least equal to 110% of the principal amount of such certificates of
deposit or time deposits; and
(c) any other securities or investments that
are lawful for the investment of
moneys held in such funds or accounts under the laws
of the State of Missouri and conform to the City's investment policy.
"Person" means any natural person,
corporation, partnership, joint venture, association, firm, joint-stock
company, trust, unincorporated organization, or government or any agency or
political subdivision thereof or other public body.
"Purchaser" means the manager of the
underwriting group that originally purchases the Bonds.
"Rebate Fund" means the fund by that name
referred to in Section 501.
"Record Date" for the interest payable on
any Interest Payment Date means the 15th day (whether or not a Business Day) of
the calendar month next preceding such Interest Payment Date.
"Redemption Date" when used with respect
to any Bond to be redeemed means the date fixed for such redemption pursuant to
the terms of this Ordinance.
"Redemption Price" when used with respect
to any Bond to be redeemed means the price at which such Bond is to be redeemed
pursuant to the terms of this Ordinance, including the applicable redemption
premium, if any, but excluding installments of interest whose Stated Maturity
is on or before the Redemption Date.
"Replacement Bonds" means Bonds issued to
the beneficial owners of the Bonds in accordance with Section 210(b).
"Securities Depository" means, initially,
The Depository Trust Company, New York, New York, and its successors and
assigns.
"Special Record Date" means the date fixed
by the Paying Agent pursuant to Section 204 hereof for the payment of Defaulted
Interest.
"Stated Maturity" when used with respect
to any Bond or any installment of interest thereon means the date specified in
such Bond and this Ordinance as the fixed date on which the principal of such
Bond or such installment of interest is due and payable.
"Streetlight Project" means purchasing
from Kansas City Power & Light Company an existing street lighting system
and construction of an upgraded and expanded street lighting system.
"Streetlight Project Fund" means the
Series 1997B Streetlight Project Fund created in Section 501.
"United States Government Obligations"
means bonds, notes, certificates of indebtedness, treasury bills or other
securities constituting direct obligations of, or obligations the principal of
and interest on which are fully and unconditionally guaranteed as to full and
timely payment by, the United States of America, including evidences of a
direct ownership interest in future interest or principal payments on
obligations issued or guaranteed by the United States of America (including the
interest component of obligations of the Resolution Funding Corporation).
ARTICLE II
AUTHORIZATION OF BONDS
Section 201. Authorization of Bonds. There shall
be issued and hereby are authorized and directed to be issued the General
Obligation Bonds (Streetlight Project), Series 1997B, of the City in the
principal amount of $40,000,000.00 (the "Bonds"), for the purpose of
paying part of the cost of purchasing from Kansas City Power & Light
Company an existing street lighting system and for construction of an upgraded
and expanded street lighting system.
Section 202. Description of Bonds. The Bonds
shall consist of fully registered bonds without coupons, numbered in a manner
determined by the Paying Agent, in denominations of $5,000.00 or any integral
multiple thereof. The Bonds shall be substantially in the form set forth in
Exhibit A attached hereto, and shall be subject to registration, transfer and exchange
as provided in Section 205. The Bonds shall be dated July 15, 1997, shall
become due in the amounts on the Stated Maturities set forth below, subject to
redemption and payment prior to their Stated Maturities as provided in Article
III, and shall bear interest at the rates per annum to be determined upon the
sale of the Bonds as set forth in a separate ordinance.
Stated Maturity Principal
February 1 Amount
1998 $1,820,000.00
1999 1,160,000.00
2000 1,225,000.00
2001 1,295,000.00
2002 1,370,000.00
2003 1,450,000.00
2004 1,535,000.00
2005 1,620,000.00
2006 1,715,000.00
2007 1,815,000.00
2008 1,920,000.00
2009 2,030,000.00
2010 2,145,000.00
2011 2,270,000.00
2012 2,400,000.00
2013 2,535,000.00
2014 2,685,000.00
2015 2,835,000.00
2016 3,000,000.00
2017 3,175,000.00
At the election of the Purchaser, a term Bond maturing in
the year 2017 may be issued in lieu of all or a portion of serial Bonds with
Stated Maturities, as in this paragraph provided, subject to the following
conditions: serial Bonds selected for conversion to a term Bond with mandatory
redemption requirements shall be chosen in inverse order of Stated Maturity,
beginning with Bonds scheduled to mature in the year 2017; all Bonds selected
as a term Bond shall bear the same rate of interest; and not less than all
Bonds of the same Stated Maturity shall be converted to a term Bond with
mandatory redemption requirements.
The Bonds shall bear interest (computed on the basis
of a 360-day year of twelve 30-day months) from the dated date thereof or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, payable semiannually on February 1 and August 1 in each year,
beginning on February 1, 1998.
Section 203. Designation of Paying Agent. State
Street Bank and Trust Company of Missouri, N.A., St. Louis, Missouri, is hereby
designated as the City's paying agent for the payment of principal of and
interest on the Bonds and as bond registrar with respect to the registration,
transfer and exchange of Bonds (the "Paying Agent").
The City will at all times maintain a Paying Agent
meeting the qualifications herein described for the performance of the duties
hereunder. The City reserves the right to appoint a successor Paying Agent for
any Paying Agent hereafter appointed by the Director of Finance by (1) filing
with the Paying Agent then performing such function a certified copy of the proceedings
giving notice of the termination of such Paying Agent and appointing a
successor, and (2) causing notice of the appointment of the successor Paying
Agent to be given by first class mail to each Bondowner. No resignation or
removal of the Paying Agent shall become effective until a successor has been
appointed and has accepted the duties of Paying Agent.
Every Paying Agent appointed hereunder shall at all
times be a commercial banking association or corporation or trust company
located in the State of Missouri organized and in good standing and doing
business under the laws of the United States of America or of the State of
Missouri and subject to supervision or examination by federal or state
regulatory authority.
Section 204. Method and Place of Payment of
Bonds. The principal of or Redemption Price and interest on the Bonds shall be
payable in any coin or currency of the United States of America that, on the
respective dates of payment thereof, is legal tender for the payment of public
and private debts.
The principal of or Redemption Price of each Bond
shall be paid at Maturity by check or draft to the Person in whose name such
Bond is registered on the Bond Register at the Maturity thereof, upon
presentation and surrender of such Bond at the principal payment office of the
Paying Agent.
The interest payable on each Bond on any Interest
Payment Date shall be paid to the Registered Owner of such Bond as shown on the
Bond Register at the close of business on the Record Date for such interest by
check or draft mailed by the Paying Agent to the address of such Registered
Owner shown on the Bond Register or, in the case of an interest payment to any
Registered Owner of $500,000.00 or more in aggregate principal amount of Bonds,
by electronic transfer to such Registered Owner upon written notice given to
the Paying Agent by such Registered Owner not less than 15 days prior to the
Record Date for such interest, containing the electronic transfer instructions
including the bank (which shall be in the continental United States), ABA
routing number and account number to which such Registered Owner wishes to have
such transfer directed.
Notwithstanding the foregoing provisions of this
Section, any Defaulted Interest with respect to any Bond shall cease to be
payable to the Registered Owner of such Bond on the relevant Record Date and
shall be payable to the Registered Owner in whose name such Bond is registered
at the close of business on the Special Record Date for the payment of such
Defaulted Interest, which Special Record Date shall be fixed as hereinafter
specified in this paragraph. The City shall notify the Paying Agent in writing
of the amount of Defaulted Interest proposed to be paid on each Bond and the date
of the proposed payment (which date shall be at least 30 days after receipt of
such notice by the Paying Agent) and shall deposit with the Paying Agent at the
time of such notice an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Paying Agent for such deposit prior to the date of the
proposed payment. Following receipt of such funds the Paying Agent shall fix a
Special Record Date for the payment of such Defaulted Interest which shall be
not more than 15 nor less than 10 days prior to the date of the proposed
payment. The Paying Agent shall promptly notify the City of such Special
Record Date and, in the name and at the expense of the City, shall cause notice
of the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, by first class mail, postage prepaid, to each Registered
Owner of a Bond entitled to such notice at the address of such Registered Owner
as it appears on the Bond Register not less than 10 days prior to such Special
Record Date.
The Paying Agent shall keep a record of payment of
principal and Redemption Price of and interest on all Bonds and at least
annually upon request shall forward a copy or summary of such records to the
City.
Section 205. Registration, Transfer and Exchange
of Bonds. The City covenants that, as long as any of the Bonds remain
Outstanding, it will cause the Bond Register to be kept at the office of the
Paying Agent as herein provided. Each Bond when issued shall be registered in
the name of the owner thereof on the Bond Register.
Bonds may be transferred and exchanged only on the
Bond Register as provided in this Section. Upon surrender of any Bond at the
principal payment office of the Paying Agent, the Paying Agent shall transfer
or exchange such Bond for a new Bond or Bonds in any authorized denomination of
the same Stated Maturity and in the same aggregate principal amount as the Bond
that was presented for transfer or exchange. Bonds presented for transfer or
exchange shall be accompanied by a written instrument or instruments of
transfer or authorization for exchange, in a form and with guarantee of
signature satisfactory to the Paying Agent, duly executed by the Registered
Owner thereof or by the Registered Owner's duly authorized agent.
In all cases in which the privilege of transferring
or exchanging Bonds is exercised, the Paying Agent shall authenticate and
deliver Bonds in accordance with the provisions of this Ordinance. The City
shall pay the fees and expenses of the Paying Agent for the registration,
transfer and exchange of Bonds provided for by this Ordinance and the cost of
printing a reasonable supply of registered bond blanks. Any additional costs
or fees that might be incurred in the secondary market, other than fees of the
Paying Agent, are the responsibility of the Registered Owners of the Bonds. In
the event any Registered Owner fails to provide a correct taxpayer identification
number to the Paying Agent, the Paying Agent may make a charge against such
Registered Owner sufficient to pay any governmental charge required to be paid
as a result of such failure. In compliance with Section 3406 of the Code, such
amount may be deducted by the Paying Agent from amounts otherwise payable to
such Registered Owner hereunder or under the Bonds.
The City and the Paying Agent shall not be required
(a) to register the transfer or exchange of any Bond after notice calling such
bond or portion thereof for redemption has been mailed by the Paying Agent
pursuant to Section 303 and during the period of 15 days next preceding the
date of mailing of such notice of redemption; or (b) to register the transfer
or exchange of any Bond during a period beginning at the opening of business on
the day after receiving written notice from the City of its intent to pay
Defaulted Interest and ending at the close of business on the date fixed for
the payment of Defaulted Interest pursuant to Section 204.
The City and the Paying Agent may deem and treat the
Person in whose name any Bond is registered on the Bond Register as the
absolute owner of such Bond, whether such Bond is overdue or not, for the
purpose of receiving payment of, or on account of, the principal or Redemption
Price of and interest on said Bond and for all other purposes. All payments so
made to any such Registered Owner or upon the Registered Owner's order shall be
valid and effective to satisfy and discharge the liability upon such Bond to
the extent of the sum or sums so paid, and neither the City nor the Paying
Agent shall be affected by any notice to the contrary.
At reasonable times and under reasonable regulations
established by the Paying Agent, the Bond Register may be inspected and copied
by the Registered Owners of 10% or more in principal amount of the Bonds then
Outstanding or any designated representative of such Registered Owners whose
authority is evidenced to the satisfaction of the Paying Agent.
Section 206. Execution, Registration,
Authentication and Delivery of Bonds. Each of the Bonds, including any Bonds
issued in exchange or as substitutions for the Bonds initially delivered, shall
be signed by the manual or facsimile signature of the Mayor and attested by the
manual or facsimile signature of the City Clerk and countersigned by the manual
or facsimile signature of the Director of Finance of the City and shall have
the official seal of the City affixed thereto or imprinted thereon. In case
any officer whose signature appears on any Bond ceases to be such officer
before the delivery of such Bond, such signature shall nevertheless be valid
and sufficient for all purposes, as if such person had remained in office until
delivery. Any Bond may be signed by such persons who at the actual time of the
execution of such Bond are the proper officers to sign such Bond although at
the date of such Bond such persons may not have been such officers.
The Mayor, the City Clerk and the Director of
Finance are hereby authorized and directed to prepare and execute the Bonds in
the manner herein specified and, when duly executed, to deliver the Bonds to
the Paying Agent for authentication.
The Bonds shall have endorsed thereon a certificate
of authentication substantially in the form set forth in Exhibit A attached
hereto, which shall be manually executed by an authorized officer or employee
of the Paying Agent, but it shall not be necessary that the same officer or
employee sign the certificate of authentication on all of the Bonds that may be
issued hereunder at any one time. No Bond shall be entitled to any security or
benefit under this Ordinance or be valid or obligatory for any purpose unless
and until such certificate of authentication has been duly executed by the
Paying Agent. Such executed certificate of authentication upon any Bond shall
be conclusive evidence that such Bond has been duly authenticated and delivered
under this Ordinance. Upon authentication, the Paying Agent shall deliver the
Bonds to the Purchaser upon payment of the purchase price for the Bonds to the
City.
Section 207. Mutilated, Destroyed, Lost and Stolen
Bonds. If (a) any mutilated Bond is surrendered to the Paying Agent or the
Paying Agent receives evidence to its satisfaction of the destruction, loss or
theft of any Bond, and (b) there is delivered to the City and the Paying Agent
such security or indemnity as may be required by the Paying Agent, then, in the
absence of notice to the City or the Paying Agent that such Bond has been
acquired by a bona fide purchaser, the City shall execute and, upon the City's
request, the Paying Agent shall authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Bond, a new Bond of the
same Stated Maturity and of like tenor and principal amount.
If any such mutilated, destroyed, lost or stolen
Bond has become or is about to become due and payable, the City, in its
discretion, may pay such Bond instead of issuing a new Bond.
Upon the issuance of any new Bond under this
Section, the City may require the payment by the Registered Owner of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Paying Agent) connected therewith.
Every new Bond issued pursuant to this Section shall
constitute a replacement of the prior obligation of the City, and shall be
entitled to all the benefits of this Ordinance equally and ratably with all
other Outstanding Bonds.
Section 208. Cancellation and Destruction of Bonds
Upon Payment. All Bonds that have been paid or redeemed or that otherwise have
been surrendered to the Paying Agent, either at or before Maturity, shall be
cancelled by the Paying Agent immediately upon the payment, redemption and
surrender thereof to the Paying Agent and subsequently destroyed in accordance
with the customary practices of the Paying Agent. The Paying Agent shall
execute a certificate in duplicate describing the Bonds so cancelled and
destroyed and shall file an executed counterpart of such certificate with the
City.
Section 209. Preliminary and Final Official
Statement. The Preliminary Official Statement dated June 19, 1997, is hereby
ratified and approved, and the final Official Statement is hereby authorized
and approved by supplementing, amending and completing the Preliminary Official
Statement, with such changes and additions thereto as are necessary to conform
to and describe the transaction. The Director of Finance is hereby authorized
to execute the final Official Statement as so supplemented, amended and
completed, and the use and public distribution of the final Official Statement
by the Purchaser in connection with the reoffering of the Bonds is hereby
authorized. The proper officials of the City are hereby authorized to execute
and deliver a certificate pertaining to such Official Statement as prescribed
therein, dated as of the date of payment for and delivery of the Bonds.
For the purpose of enabling the Purchaser to comply
with the requirements of Rule 15c2-12(b)(1) of the Securities and Exchange
Commission, the City hereby deems the information regarding the City contained
in the Preliminary Official Statement to be "final" as of its date,
except for the omission of such information as is permitted by Rule
15c2-12(b)(1), and the appropriate officers of the City are hereby authorized,
if requested, to provide the Purchaser a letter or certification to such effect
and to take such other actions or execute such other documents as such officers
in their reasonable judgment deem necessary to enable the Purchaser to comply
with the requirement of such Rule.
The City agrees to provide to the Purchaser within
seven business days of the date of the sale of Bonds sufficient copies of the
final Official Statement to enable the Purchaser to comply with the
requirements of Rule 15c2-12(b)(4) of the Securities and Exchange Commission
and with the requirements of Rule G-32 of the Municipal Securities Rulemaking
Board.
Section 210. Book-Entry Bonds; Securities
Depository.
(a) The Bonds shall initially be registered to Cede
& Co., the nominee for the Securities Depository, and no beneficial owner
will receive certificates representing their respective interests in the Bonds,
except in the event the Paying Agent issues Replacement Bonds as provided in
subsection (b) hereof. It is anticipated that during the term of the Bonds,
the Securities Depository will make book-entry transfers among its Participants
and receive and transmit payment of principal of, premium, if any, and interest
on, the Bonds to the Participants until and unless the Paying Agent
authenticates and delivers Replacement Bonds to the beneficial owners as
described in subsection (b).
(b) (1) If the City determines (A) that the
Securities Depository is unable to properly discharge its responsibilities, or
(B) that the Securities Depository is no longer qualified to act as a
securities depository and registered clearing agency under the Securities and
Exchange Act of 1934, as amended, or (C) that the continuation of a book-entry
system to the exclusion of any Bonds being issued to any Owner other than Cede
& Co. is no longer in the best interests of the beneficial owners of the
Bonds, or (2) if the Paying Agent receives written notice from Participants
having interests in not less than 50% of the Bonds Outstanding, as shown on the
records of the Securities Depository (and certified to such effect by the
Securities Depository), that the continuation of a book-entry system to the
exclusion of any Bonds being issued to any Owner other than Cede & Co. is
no longer in the best interests of the beneficial owners of the Bonds, then the
Paying Agent shall notify the Owners of such determination or such notice and
of the availability of certificates to Owners requesting the same, and the
Paying Agent shall register in the name of and authenticate and deliver
Replacement Bonds to the beneficial owners or their nominees in principal
amounts representing the interest of each, making such adjustments as it may
find necessary or appropriate as to accrued interest and previous calls for
redemption; provided, that in the case of a determination under (1)(A) or
(1)(B) of this subsection (b), the City, with the consent of the Paying Agent,
may select a successor securities depository in accordance with Section 210(c)
hereof to effect book-entry transfers. In such event, all references to the
Securities Depository herein shall relate to the period of time when the
Securities Depository has possession of at least one Bond. Upon the issuance
of Replacement Bonds, all references herein to obligations imposed upon or to be
performed by the Securities Depository shall be deemed to be imposed upon and
performed by the Paying Agent, to the extent applicable with respect to such
Replacement Bonds. If the Securities Depository resigns and the City, the
Paying Agent or Owners are unable to locate a qualified successor of the
Securities Depository in accordance with Section 210(c) hereof, then the Paying
Agent shall authenticate and cause delivery of Replacement Bonds to Owners, as
provided herein. The Paying Agent may rely on information from the Securities
Depository and its Participants as to the names of the beneficial owners of the
Bonds. The cost of printing, registration, authentication and delivery of
Replacement Bonds shall be paid for by the City.
(c) In the event the Securities Depository resigns,
is unable to properly discharge its responsibilities, or is no longer qualified
to act as a securities depository and registered clearing agency under the
Securities and Exchange Act of 1934, as amended, the City may appoint a
successor Securities Depository provided the Paying Agent and the City receive
written evidence with respect to the ability of the successor Securities
Depository to discharge its responsibilities. Any such successor Securities
Depository shall be a securities depository which is a registered clearing
agency under the Securities and Exchange Act of 1934, as amended, or other
applicable statute or regulation that operates a securities depository upon
reasonable and customary terms. The Paying Agent upon its receipt of a Bond or
Bonds for cancellation shall cause the delivery of Bonds to the successor
Securities Depository in appropriate denominations and form as provided herein.
ARTICLE III
REDEMPTION OF BONDS
Section 301. Optional and Mandatory Redemption of
Bonds.
(a) Optional Redemption by City. At the option of
the City, Bonds or portions thereof maturing on February 1, 2008, and
thereafter may be called for redemption and payment prior to their Stated
Maturity on February 1, 2007, and thereafter in whole at any time or in part on
any Interest Payment Date in such amounts for each Stated Maturity as shall be
determined by the City at the Redemption Prices set forth below, expressed as
percentages of principal amount, plus accrued interest thereon to the
Redemption Date:
Redemption Dates Redemption Prices
February 1, 2007 to January 31, 2008 101%
February 1, 2008 to January 31, 2009 100 % February 1, 2009 and
thereafter 100%
(b) Mandatory Redemption. In the event term Bonds
are issued as provided in Section 202, such Bonds shall be subject to mandatory
redemption and payment prior to their Stated Maturity pursuant to the mandatory
redemption requirements of this Section on the dates of the Stated Maturities
for serial Bonds set forth in Section 202 (except the year 2017) at the
principal amount thereof plus accrued interest to the Redemption Date, without
premium. The taxes levied in Article IV which are to be deposited in the Debt
Service Fund shall be sufficient to redeem any Bonds, and the City shall redeem
on such dates the principal amounts set forth in Section 202 and the remaining
$3,175,000.00 principal amount of Bonds maturing on February 1, 2017, shall be
paid at their Stated Maturity.
At its option, to be exercised on or before the 45th
day next preceding any mandatory Redemption Date, the City may: (1) deliver to
the Paying Agent for cancellation Term Bonds subject to mandatory redemption on
said mandatory Redemption Date, in any aggregate principal amount desired; or
(2) furnish the Paying Agent funds, together with appropriate instructions, for
the purpose of purchasing any Term Bonds subject to mandatory redemption on
said mandatory Redemption Date from any Registered Owner thereof whereupon the
Paying Agent shall expend such funds for such purpose to such extent as may be
practical; or (3) receive a credit with respect to the mandatory redemption
obligation of the City under this Section for any Term Bonds subject to
mandatory redemption on said mandatory Redemption Date which, prior to such
date, have been redeemed (other than through the operation of the mandatory
redemption requirements of this subsection (b)) and cancelled by the Paying
Agent and not theretofore applied as a credit against any redemption obligation
under this subsection (b). Each Term Bond so delivered or previously purchased
or redeemed shall be credited at 100% of the principal amount thereof on the
obligation of the City to redeem Term Bonds of the same Stated Maturity on such
mandatory Redemption Date, and any excess of such amount shall be credited on
future mandatory redemption obligations for Term Bonds of the same Stated
Maturity in chronological order, and the principal amount of Term Bonds of the
same Stated Maturity to be redeemed by operation of the requirements of this
Section shall be accordingly reduced. If the City intends to exercise any option
granted by the provisions of clauses (1), (2) or (3) above, the City will, on
or before the 45th day next preceding each mandatory Redemption Date, furnish
the Paying Agent a written certificate indicating to what extent the provisions
of said clauses (1), (2) and (3) are to be complied with respect to such
mandatory redemption payment.
Section 302. Selection of Bonds to be Redeemed.
(a) The Paying Agent shall call Bonds for
redemption and payment and shall give notice of such redemption as herein
provided upon receipt by the Paying Agent at least 45 days prior to the
Redemption Date of written instructions from the City specifying the principal
amount, Stated Maturities, Redemption Date and Redemption Prices of the Bonds
to be called for redemption. If the Bonds are refunded more than 90 days in
advance of such Redemption Date, any escrow agreement entered into by the City
in connection with such refunding shall provide that such written instructions
to the Paying Agent shall be given by the escrow agent on behalf of the City
not more than 90 days prior to the Redemption Date. The Paying Agent may in
its discretion waive such notice period so long as the notice requirements set
forth in Section 303 are met. The foregoing provisions of this paragraph shall
not apply to any mandatory redemption of Bonds hereunder, and Bonds shall be
called by the Paying Agent for redemption pursuant to such mandatory redemption
requirements without the necessity of any action by the City and whether or not
the Paying Agent shall hold in the Debt Service Fund moneys available and
sufficient to effect the required redemption.
(b) Bonds shall be redeemed only in the principal
amount of $5,000.00 or any integral multiple thereof. Bonds of less than a
full Stated Maturity shall be selected by the Paying Agent in $5,000 units of
principal amount in such equitable manner as the Paying Agent may determine.
(c) In the case of a partial redemption of Bonds at
the time outstanding in denominations greater than $5,000.00, then for all
purposes in connection with such redemption each $5,000.00 of face value shall
be treated as though it were a separate Bond of the denomination of $5,000.00.
If it is determined that one or more, but not all, of the $5,000.00 units of
face value represented by any Bond are selected for redemption, then upon
notice of intention to redeem such $5,000.00 unit or units, the Registered
Owner of such Bond or the Registered Owner's duly authorized agent shall
present and surrender such Bond to the Paying Agent (1) for payment of the
Redemption Price and interest to the Redemption Date of such $5,000.00 unit or
units of face value called for redemption, and (2) for exchange, without charge
to the Registered Owner thereof, for a new Bond or Bonds of the aggregate
principal amount of the unredeemed portion of the principal amount of such
Bond. If the Registered Owner of any such Bond fails to present such Bond to
the Paying Agent for payment and exchange as aforesaid, such Bond shall,
nevertheless, become due and payable on the redemption date to the extent of
the $5,000.00 unit or units of face value called for redemption (and to that
extent only).
Section 303. Notice and Effect of Call for
Redemption. Unless waived by any Registered Owner of Bonds to be redeemed,
official notice of any redemption shall be given by the Paying Agent on behalf
of the City by mailing a copy of an official redemption notice by first class
mail at least 30 days prior to the Redemption Date to the State Auditor of
Missouri, the Purchaser of the Bonds and each Registered Owner of the Bond or
Bonds to be redeemed at the address shown on the Bond Register.
All official notices of redemption shall be dated
and shall contain the following information:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding Bonds of a
maturity are to be redeemed, the
identification (and, in the case of partial
redemption of any Bonds, the respective principal amounts) of the Bonds to
be redeemed;
(d) a statement that on the Redemption Date
the Redemption Price will become
due and payable upon each such Bond or portion
thereof called for redemption and that interest thereon shall cease to
accrue from and after the Redemption Date; and
(e) the place where such Bonds are to be
surrendered for payment of the
Redemption Price, which shall be the principal
payment office of the Paying Agent.
The failure of any Registered Owner to receive
notice given as heretofore provided or any defect therein shall not invalidate
any redemption.
Prior to any Redemption Date, the City shall deposit
with the Paying Agent an amount of money sufficient to pay the Redemption Price
of all the Bonds or portions of Bonds that are to be redeemed on that date.
Official notice of redemption having been given as
aforesaid, the Bonds or portions of Bonds to be redeemed shall become due and
payable on the Redemption Date, at the Redemption Price therein specified, and
from and after the Redemption Date (unless the City defaults in the payment of
the Redemption Price) such Bonds or portion of Bonds shall cease to bear
interest. Upon surrender of such Bonds for redemption in accordance with such
notice, the Redemption Price of such Bonds shall be paid by the Paying Agent.
Installments of interest due on or prior to the Redemption Date shall be
payable as herein provided for payment of interest. Upon surrender for any
partial redemption of any Bond, there shall be prepared for the Registered
Owner a new Bond or Bonds of the same Stated Maturity in the amount of the
unpaid principal as provided herein. All Bonds that have been surrendered for
redemption shall be cancelled and destroyed by the Paying Agent as provided
herein and shall not be reissued.
The Paying Agent is also directed to comply with any
mandatory or voluntary standards established by the Securities and Exchange
Commission and then in effect for processing redemptions of municipal
securities. Failure to comply with such standards shall not affect or
invalidate the redemption of any Bond.
For so long as the Securities Depository is
effecting book-entry transfers of the Bonds, the Paying Agent shall provide the
notices specified in this Section to the Securities Depository. It is expected
that the Securities Depository shall, in turn, notify its Participants and that
the Participants, in turn, will notify or cause to be notified the beneficial
owners. Any failure on the part of the Securities Depository or a Participant,
or failure on the part of a nominee of a beneficial owner of a Bond (having
been mailed notice from the Paying Agent, the Securities Depository, a
Participant or otherwise) to notify the beneficial owner of the Bond so
affected, shall not affect the validity of the redemption of such Bond.
ARTICLE IV
SECURITY FOR AND PAYMENT OF BONDS
Section 401. Security for the Bonds. The Bonds
shall be general obligations of the City payable as to both principal and
interest from ad valorem taxes which may be levied without limitation as to
rate or amount upon all the taxable tangible property, real and personal,
within the territorial limits of the City. The full faith, credit and
resources of the City are hereby irrevocably pledged for the prompt payment of
the principal of and interest on the Bonds as the same become due.
Section 402. Levy and Collection of Annual Tax.
For the purpose of providing for the payment of the principal of and interest
on the Bonds as the same become due, there is hereby levied upon all of the
taxable tangible property within the City a direct annual tax sufficient to
produce the amounts necessary for the payment of such principal and interest as
the same becomes due and payable in each year.
The taxes referred to above shall, to the extent
that other funds of the City are not available and earmarked for the purpose of
paying the principal of and interest on the Bonds, be extended upon the tax
rolls in each of the several years, respectively, and shall be levied and
collected at the same time and in the same manner as the other ad valorem taxes
of the City are levied and collected. The proceeds derived from said taxes
shall be deposited in the Debt Service Fund, shall be kept separate and apart
from all other funds of the City and shall be used solely for the payment of
the principal of and interest on the Bonds as and when the same become due,
taking into account any scheduled mandatory redemptions, and the fees and
expenses of the Paying Agent.
If at any time said taxes are not collected in time
to pay the principal of or interest on the Bonds when due, the Director of
Finance is hereby authorized and directed to pay said principal or interest out
of the general funds of the City and to reimburse said general funds for money
so expended when said taxes are collected.
ARTICLE V
ESTABLISHMENT OF FUNDS; DEPOSIT AND APPLICATION OF
MONEYS
Section 501. Establishment of Funds. There have
been or shall be established in the treasury of the City and shall be held and
administered by the Director of Finance of the City the following separate
funds and account:
(a) Series 1997B Streetlight Project Fund (the
"Streetlight Project Fund").
(b) Series 1997B Debt Service Fund (the
"Debt Service Fund").
(c) Rebate Fund.
Section 502. Deposit of Bond Proceeds. The net
proceeds received from the sale of the Bonds shall be deposited simultaneously
with the delivery of the Bonds as follows:
(a) All accrued interest and premium, if any,
received from the sale of the Bonds
shall be deposited in the Debt Service Fund and
applied in accordance with Section 504.
(b) The remaining balance of the proceeds
derived from the sale of the Bonds
shall be deposited in the Streetlight Project Fund
and shall be applied in accordance with Section 503 hereof.
Section 503. Application of Moneys in the
Streetlight Project Fund. Moneys in the Streetlight Project Fund shall be used
by the City solely and for the purpose of (a) paying costs of the Streetlight
Project for which the Bonds have been voted and authorized, as hereinbefore
provided; and (b) paying the costs and expenses of issuing the Bonds.
Withdrawals of moneys from the Streetlight Project
Fund shall be made only upon a requisition certificate executed by the City's
Director of Public Works certifying that such payment is being made for a
purpose within the scope of this Ordinance and that the amount of such payment
represents only the contract price of the property, equipment, labor, materials
or service being paid for or, if such payment is not being made pursuant to an
express contract, that such payment is not in excess of the reasonable value
thereof. Nothing hereinbefore contained shall prevent the payment out of the
Streetlight Project Fund of all costs and expenses incident to the issuance of
the Bonds without a certificate from the City's Director of Public Works.
Upon completion of the purpose for which the Bonds
have been issued, any surplus remaining in the Streetlight Project Fund shall
be transferred to and deposited in the Debt Service Fund and applied to the
next installment of principal and/or interest due on the Bonds.
Section 504. Application of Moneys in Debt Service
Fund. All amounts paid and credited to the Debt Service Fund shall be expended
and used by the City for the sole purpose of paying the principal [or
Redemption Price] of and interest on the Bonds as and when the same become due
and the usual and customary fees and expenses of the Paying Agent. The
Director of Finance is authorized and directed to withdraw from the Debt
Service Fund sums sufficient to pay both principal [or Redemption Price] of and
interest on the Bonds and the fees and expenses of the Paying Agent as and when
the same become due, and to forward such sums to the Paying Agent in a manner
which ensures that the Paying Agent will receive immediately available funds in
such amounts on or before the business day immediately preceding the dates when
such principal, interest and fees of the Paying Agent will become due. If,
through the lapse of time or otherwise, the Registered Owners of Bonds are no
longer entitled to enforce payment of the Bonds or the interest thereon, the
Paying Agent shall return said funds to the City. All moneys deposited with
the Paying Agent shall be deemed to be deposited in accordance with and subject
to all of the provisions contained in this Ordinance and shall be held in trust
by the Paying Agent for the benefit of the Registered Owners of the Bonds
entitled to payment from such moneys.
Any moneys or investments remaining in the Debt
Service Fund after the retirement of the indebtedness for which the Bonds were
issued and all other indebtedness of the City shall be transferred and paid
into the general fund of the City.
Section 505. Deposits and Investment of Moneys.
Moneys in each of the funds created by and referred to in this Ordinance shall
be deposited in a bank or banks or other legally permitted financial
institutions located in the State of Missouri that are members of the Federal
Deposit Insurance Corporation. All such deposits shall be continuously and
adequately secured by the banks or financial institutions holding such deposits
as provided by the laws of the State of Missouri. All moneys held in the funds
created by this Ordinance shall be kept separate and apart from all other funds
of the City so that there shall be no commingling of such funds with any other
funds of the City.
Moneys held in any fund referred to in this
Ordinance may be invested in accordance with this Ordinance and the Arbitrage
Instructions in Permitted Investments; provided, however, that no such
investment shall be made for a period extending longer than to the date when
the moneys invested may be needed for the purpose for which such fund was
created. Earnings on any investments held in the Streetlight Project Fund
shall be transferred to and deposited in the Debt Service Fund. Earnings on
any investments held in any other fund shall accrue to and become a part of
such fund.
Section 506. Nonpresentment of Bonds. If any Bond
is not presented for payment when the principal thereof becomes due at
Maturity, if funds sufficient to pay such Bond have been made available to the
Paying Agent all liability of the City to the Registered Owner thereof for the
payment of such Bond shall forthwith cease, determine and be completely
discharged, and thereupon it shall be the duty of the Paying Agent to hold such
funds, without liability for interest thereon, for the benefit of the
Registered Owner of such Bond, who shall thereafter be restricted exclusively
to such funds for any claim of whatever nature on his part under this Ordinance
or on, or with respect to, said Bond. If any Bond is not presented for payment
within six years following the date when such Bond becomes due at Maturity, the
Paying Agent shall repay to the City the funds theretofore held by it for
payment of such Bond, and such Bond shall, subject to the defense of any
applicable statute of limitation, thereafter be an unsecured obligation of the
City, and the Registered Owner thereof shall be entitled to look only to the
City for payment, and then only to the extent of the amount so repaid to it by the
Paying Agent, and the City shall not be liable for any interest thereon and
shall not be regarded as a trustee of such money.
Section 507. Application of Moneys in the Rebate
Fund.
(a) There shall be deposited in the Rebate Fund such
amounts as are required to be deposited therein pursuant to the Arbitrage
Instructions. All money in the Rebate Fund shall be held in trust, to the
extent required to satisfy the Rebate Amount (as defined in the Arbitrage
Instructions), for payment to the United States of America, and neither the
City nor the Registered Owner of any Bond shall have any rights in or claim to
such money. All amounts deposited into or on deposit in the Rebate Fund shall
be governed by this Section and the Arbitrage Instructions.
(b) The City shall periodically determine the
rebatable arbitrage under Section 148(f) of the Code in accordance with the
Arbitrage Instructions, and the City shall make payments to the United States
of America at the times and in the amounts determined under the Arbitrage
Instructions. Any moneys remaining in the Rebate Fund after redemption and
payment of all of the Bonds and the interest thereon and payment and
satisfaction of any Rebate Amount, or provision made therefor, shall be released
to the City.
(c) Notwithstanding any other provision of this
Ordinance, including in particular Article VII, the obligation to pay rebatable
arbitrage to the United States and to comply with all other requirements of
this Section and the Arbitrage Instructions shall survive the defeasance or
payment in full of the Bonds.
ARTICLE VI
REMEDIES
Section 601. Remedies. The provisions of this
Ordinance, including the covenants and agreements herein contained, shall
constitute a contract between the City and the Registered Owners of the Bonds,
and the Registered Owner or Owners of not less than 10% in principal amount of
the Bonds at the time Outstanding shall have the right for the equal benefit
and protection of all Registered Owners of Bonds similarly situated:
(a) by mandamus or other suit, action or
proceedings at law or in equity to
enforce the rights of such Registered Owner or
Owners against the City and its officers, agents and employees, and to
require and compel duties and obligations required by the provisions of
this Ordinance excluding Section 806 or by the constitution and laws of
the State of Missouri;
(b) by suit, action or other proceedings in
equity or at law to require the City, its
officers, agents and employees to account as if they
were the trustees of an express trust; and
(c) by suit, action or other proceedings in
equity or at law to enjoin any acts or
things which may be unlawful or in violation of the
rights of the Registered Owners of the Bonds.
Section 602. Limitation on Rights of Bondowners.
The covenants and agreements of the City contained herein and in the Bonds
shall be for the equal benefit, protection and security of the legal owners of
any or all of the Bonds. All of the Bonds shall be of equal rank and without
preference or priority of one Bond over any other Bond in the application of
the funds herein pledged to the payment of the principal of and the interest on
the Bonds, or otherwise, except as to rate of interest, or date of Maturity or
right of prior redemption as provided in this Ordinance. No one or more
Bondowners secured hereby shall have any right in any manner whatever by his or
their action to affect, disturb or prejudice the security granted and provided
for herein, or to enforce any right hereunder, except in the manner herein
provided, and all proceedings at law or in equity shall be instituted, had and
maintained for the equal benefit of all Registered Owners of such Outstanding
Bonds.
Section 603. Remedies Cumulative. No remedy
conferred herein upon the Bondowners is intended to be exclusive of any other
remedy, but each such remedy shall be cumulative and in addition to every other
remedy and may be exercised without exhausting and without regard to any other
remedy conferred herein. No waiver of any default or breach of duty or
contract by the Registered Owner of any Bond shall extend to or affect any
subsequent default or breach of duty or contract or shall impair any rights or
remedies consequent thereon. No delay or omission of any Bondowner to exercise
any right or power accruing upon any default shall impair any such right or
power or shall be construed to be a waiver of any such default or acquiescence
therein. Every substantive right and every remedy conferred upon the
Registered Owners of the Bonds by this Ordinance may be enforced and exercised
from time to time and as often as may be deemed expedient. If any suit, action
or proceedings taken by any Bondowner on account of any default or to enforce
any right or exercise any remedy has been discontinued or abandoned for any
reason, or has been determined adversely to such Bondowner, then, and in every
such case, the City and the Registered Owners of the Bonds shall be restored to
their former positions and rights hereunder, respectively, and all rights,
remedies, powers and duties of the Bondowners shall continue as if no such
suit, action or other proceedings had been brought or taken.
ARTICLE VII
DEFEASANCE
Section 701. Defeasance. When any or all of the
Bonds or scheduled interest payments thereon have been paid and discharged,
then the requirements contained in this Ordinance and the pledge of the City's
faith and credit hereunder and all other rights granted hereby shall terminate
with respect to the Bonds or scheduled interest payments thereon so paid and
discharged. Bonds or scheduled interest payments thereon shall be deemed to
have been paid and discharged within the meaning of this Ordinance if there has
been deposited with the Paying Agent, or other commercial bank or trust company
located in the State of Missouri and having full trust powers, at or prior to
the Stated Maturity or Redemption Date of said Bonds or the interest payments
thereon, in trust for and irrevocably appropriated thereto, moneys and/or
Defeasance Obligations which, together with the interest to be earned thereon,
will be sufficient for the payment of the principal or Redemption Price of said
Bonds and/or interest to accrue on such Bonds to the Stated Maturity or
Redemption Date, or if default in such payment has occurred on such date, then
to the date of the tender of such payments; provided, however, that if any such
Bonds are to be redeemed prior to their Stated Maturity, (1) the City shall
have elected to redeem such Bonds, and (2) either notice of such redemption
shall have been given, or the City shall have given irrevocable instructions,
or shall have provided for an escrow agent to give irrevocable instructions, to
the Paying Agent to redeem such Bonds in compliance with Section 302(a) of this
Ordinance. Any moneys and Defeasance Obligations that at any time shall be
deposited with the Paying Agent or other commercial bank or trust company by or
on behalf of the City, for the purpose of paying and discharging any of the
Bonds or the interest payments thereon, shall be and are hereby assigned,
transferred and set over to the Paying Agent or other bank or trust company in
trust for the respective Registered Owners of such Bonds, and such moneys shall
be and are hereby irrevocably appropriated to the payment and discharge
thereof. All moneys and Defeasance Obligations deposited with the Paying Agent
or other bank or trust company shall be deemed to be deposited in accordance
with and subject to all of the provisions of this Ordinance.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 801. Tax Covenants.
(a) The City covenants and agrees that (1) it will
comply with all applicable provisions of the Code, including Sections 103 and
141 through 150, necessary to maintain the exclusion from federal gross income
of the interest on the Bonds and (2) it will not use or permit the use of any
proceeds of Bonds or any other funds of the City, nor take or permit any other
action, or fail to take any action, if any such action or failure to take
action would adversely affect the exclusion from federal gross income of the
interest on the Bonds. The City will also pass such other ordinances or
resolutions and take such other actions as may be necessary to comply with the
Code and with all other applicable future law in order to ensure that the
interest on the Bonds will remain excluded from federal gross income, to the
extent any such actions can be taken by the City.
(b) The City covenants and agrees that (1) it will
use the proceeds of the Bonds as soon as practicable for the purposes for which
the Bonds are issued, and (2) it will not invest or directly or indirectly use
or permit the use of any proceeds of the Bonds or any other funds of the City in
any manner, or take or omit to take any action, that would cause the Bonds to
be "arbitrage bonds" within the meaning of Section 148(a) of the
Code.
(c) The City covenants that it will pay or provide
for the payment from time to time of all rebatable arbitrage to the United
States pursuant to Section 148(f) of the Code and the Arbitrage Instructions.
This covenant shall survive payment in full or defeasance of the Bonds. The
Arbitrage Instructions may be amended or replaced if, in the opinion of Bond
Counsel, such amendment or replacement will not adversely affect the exclusion
from federal gross income of interest on the Bonds.
(d) The City covenants that it will not use any
portion of the proceeds of the Bonds, including any investment income earned on
such proceeds, directly or indirectly, in a manner that would cause any Bond to
be a "private activity bond" within the meaning of Section 141 of the
Code.
(e) The foregoing covenants shall remain in full
force and effect notwithstanding the defeasance of the Bonds pursuant to
Article VII or any other provision of this Ordinance, until the final Maturity
of all Bonds Outstanding.
Section 802. Annual Audit. In accordance with the
provisions of Section 85, Article IV, of the City's Charter, the Council will
provide that an independent certified audit of the City's books and records
will be made annually by certified public accountants, experienced and
qualified in municipal and governmental accounting. Each such audit shall be
detailed in scope and said accountants shall certify as to the correctness of
the schedules contained in the audit report. All such schedules shall be
incorporated in the annual financial report relating to the City's finances,
required by Section 96, Article IV, of the City's Charter. A copy of each such
annual report will be filed with the City Clerk and will be open for public
inspection, and a copy will be forwarded promptly without cost to the manager
of the underwriting group purchasing the Bonds.
Section 803. Amendments. The rights and duties of
the City and the Bondowners, and the terms and provisions of the Bonds or of
this Ordinance, may be amended or modified at any time in any respect by
Ordinance of the City with the written consent of the Registered Owners of not
less than a majority in principal amount of the Bonds then Outstanding, such
consent to be evidenced by an instrument or instruments executed by such
Registered Owners and duly acknowledged or proved in the manner of a deed to be
recorded, and such instrument or instruments shall be filed with the City
Clerk, but no such modification or alteration shall:
(a) extend the maturity of any payment of
principal or interest due upon any
Bond;
(b) effect a reduction in the amount which the
City is required to pay as principal
of or interest on any Bond;
(c) permit preference or priority of any Bond
over any other Bond; or
(d) reduce the percentage in principal amount
of Bonds required for the written
consent to any modification or alteration of the
provisions of this Ordinance.
Any provision of the Bonds or of this Ordinance may,
however, be amended or modified by Ordinance duly adopted by the governing body
of the City at any time in any legal respect with the written consent of the
Registered Owners of all of the Bonds at the time Outstanding.
Without notice to or the consent of any Bondowners,
the City may amend or supplement this Ordinance for the purpose of curing any
formal defect, omission, inconsistency or ambiguity therein or in connection
with any other change therein which is not materially adverse to the interests
of the Bondowners.
Every amendment or modification of the provisions of
the Bonds or of this Ordinance, to which the written consent of the Bondowners
is given, as above provided, shall be expressed in an ordinance adopted by the
governing body of the City amending or supplementing the provisions of this
Ordinance and shall be deemed to be a part of this Ordinance. A certified copy
of every such amendatory or supplemental Ordinance, if any, and a certified
copy of this Ordinance shall always be kept on file in the office of the City
Clerk, and shall be made available for inspection by the Registered Owner of
any Bond or a prospective purchaser or owner of any Bond authorized by this
Ordinance, and upon payment of the reasonable cost of preparing the same, a
certified copy of any such amendatory or supplemental Ordinance or of this
Ordinance will be sent by the City Clerk to any such Bondowner or prospective
Bondowner.
Any and all modifications made in the manner
hereinabove provided shall not become effective until there has been filed with
the City Clerk a copy of the Ordinance of the City hereinabove provided for,
duly certified, as well as proof of any required consent to such modification
by the Registered Owners of the Bonds then Outstanding. It shall not be
necessary to note on any of the Outstanding Bonds any reference to such
amendment or modification.
The City shall furnish to the Paying Agent a copy of
any amendment to the Bonds or this Ordinance which affects the duties or
obligations of the Paying Agent under this Ordinance.
Section 804. Notices, Consents and Other
Instruments by Bondowners. Any notice, consent, request, direction, approval
or other instrument to be signed and executed by the Bondowners may be in any
number of concurrent writings of similar tenor and may be signed or executed by
such Bondowners in person or by agent appointed in writing. Proof of the
execution of any such 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 and the Paying Agent with regard to any action taken,
suffered or omitted under any such instrument, namely:
(a) The fact and date of the execution by any
person of any such instrument may
be proved by a certificate of any officer in any
jurisdiction who by law has power to take acknowledgments within such
jurisdiction that the person signing such instrument acknowledged before
such officer the execution thereof, or by affidavit of any witness to such
execution.
(b) The fact of ownership of Bonds, the amount
or amounts, numbers and other
identification of Bonds, and the date of holding the
same shall be proved by the Bond Register.
In determining whether the Registered Owners of the
requisite principal amount of Bonds Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver under this Ordinance, Bonds
owned by the City shall be disregarded and deemed not to be Outstanding under
this Ordinance, except that, in determining whether the Bondowners shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Bonds which the Bondowners know to be so owned
shall be so disregarded. Notwithstanding the foregoing, Bonds so owned which
have been pledged in good faith shall not be disregarded as aforesaid if the
pledgee establishes to the satisfaction of the Bondowners the pledgee's right
so to act with respect to such Bonds and that the pledgee is not the City.
Section 805. Further Authority. The officers of
the City, including the Mayor and City Clerk, are hereby authorized and
directed to execute all documents and take such actions as they may deem
necessary or advisable in order to carry out and perform the purposes of this
Ordinance and to make ministerial alterations, changes or additions in the
foregoing agreements, statements, instruments and other documents herein
approved, authorized and confirmed which they may approve, and the execution or
taking of such action shall be conclusive evidence of such necessity or
advisability.
Section 806. Continuing Disclosure. The City covenants
and agrees to enter into a Continuing Disclosure Agreement for the benefit of
the Bondholders or similar undertaking intended to satisfy the ongoing
disclosure requirements of Securities and Exchange commission Rule 15c2-12.
The Director of Finance is authorized to enter in a Continuing Disclosure
Agreement substantially in the form attached hereto as Exhibit B, with such
changes therein as she deems necessary or desirable.
Section 807. Severability. If any section or
other part of this Ordinance, whether large or small, is for any reason held
invalid, the invalidity thereof shall not affect the validity of the other
provisions of this Ordinance.
Section 808. Governing Law. This Ordinance shall
be governed exclusively by and construed in accordance with the applicable laws
of the State of Missouri.
Section 809. Effective Date. This Ordinance shall
take effect and be in full force ten (10) days after its passage.
__________________________________________________________________
Approved as to form and
legality:
_________________________________________
Assistant City Attorney
EXHIBIT
A TO ORDINANCE
FORM OF BOND
EXCEPT AS OTHERWISE PROVIDED IN THE ORDINANCE (DESCRIBED
HEREIN), THIS GLOBAL BOND MAY BE TRANSFERRED, IN WHOLE BUT NOT IN PART, ONLY TO
ANOTHER NOMINEE OF THE SECURITIES DEPOSITORY (DESCRIBED HEREIN) OR TO A
SUCCESSOR SECURITIES DEPOSITORY OR TO A NOMINEE OF A SUCCESSOR SECURITIES
DEPOSITORY.
UNITED STATES OF AMERICA
STATE OF MISSOURI
Registered Registered
No. ______ $_______
THE CITY OF KANSAS CITY, MISSOURI
GENERAL OBLIGATION BOND
(STREETLIGHT PROJECT)
SERIES 1997B
Interest Rate Maturity Date Dated
Date CUSIP Number
July 15, 1997
REGISTERED OWNER: CEDE & CO.
PRINCIPAL AMOUNT: DOLLARS
THE CITY OF KANSAS CITY, MISSOURI, for value
received, hereby acknowledges itself to be indebted and promises to pay to the
Registered Owner shown above, or registered assigns, the Principal Amount shown
above on the Maturity Date shown above, unless called for redemption prior to
said Maturity Date, and to pay interest thereon at the Interest Rate per annum
shown above (computed on the basis of a 360-day year of twelve 30-day months)
from the Dated Date shown above or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, payable semiannually on
February 1 and August 1 in each year, beginning on February 1, 1998, until said
Principal Amount has been paid.
The Principal Amount or Redemption Price of this
Bond shall be paid at Maturity or upon earlier redemption by check or draft to
the Person in whose name this Bond is registered at the Maturity or Redemption
Date thereof, upon presentation and surrender of this Bond at the payment office
of STATE STREET BANK AND TRUST COMPANY OF MISSOURI, N.A., in the City of St.
Louis, Missouri (the "Paying Agent"). The interest payable on this
Bond on any Interest Payment Date shall be paid to the Person in whose name
this Bond is registered on the Bond Register maintained by the Paying Agent at
the close of business on the Record Date for such interest by check or draft
mailed by the Paying Agent to the address of such Registered Owner shown on the
Bond Register or, in the case of an interest payment to any Registered Owner of
$500,000 or more in aggregate principal amount of Bonds, by electronic transfer
to such Registered Owner upon written notice given to the Paying Agent by such
Owner not less than 15 days prior to the Record Date for such interest,
containing the electronic transfer instructions including the bank (which shall
be in the continental United States), ABA routing number and account number to
which such Registered Owner wishes to have such transfer directed.
This Bond is one of an authorized series of bonds of
the City designated "General Obligation Bonds (Streetlight Project),
Series 1997B," aggregating the principal amount of $40,000,000 (the
"Bonds"), issued by the City for the purpose of paying part of the
cost of purchasing from Kansas City Power & Light Company an existing
street lighting system and for construction of an upgraded and expanded street
lighting system, under the authority of and in full compliance with the
Constitution and laws of the State of Missouri, and pursuant to an election
duly held in the City and an Ordinance duly passed (the "Ordinance")
and proceedings duly and legally had by the Council of the City. Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Ordinance.
At the option of the City, Bonds or portions thereof
maturing on February 1, 2008, and thereafter may be redeemed and paid prior to
maturity on February 1, 2007, and thereafter in whole at any time or in part on
any Interest Payment Date in such amounts for each maturity as shall be
determined by the City (Bonds of less than a full maturity to be selected in
multiples of $5,000 principal amount in such equitable manner as the Paying
Agent shall designate) at the Redemption Prices set forth below, expressed as
percentages of principal amount, plus accrued interest thereon to the
Redemption Date:
Redemption Dates Redemption Prices
February 1, 2007 to January 31, 2008 101% February
1, 2008 to January 31, 2009 100 % February 1, 2009 and
thereafter 100%
**Bonds maturing on February 1, 2017, are subject to
mandatory redemption and payment prior to maturity pursuant to the mandatory
redemption requirements of the Ordinance on February 1, _____, and on each
February 1 thereafter prior to maturity, at a redemption price equal to 100% of
the Principal Amount thereof plus accrued interest to the Redemption Date.**
Notice of redemption, unless waived, is to be given
by the Paying Agent by mailing an official redemption notice by first class
mail at least 30 days prior to the Redemption Date to the State Auditor of
Missouri, the original purchaser of the Bonds and to each Registered Owner of
each of the Bonds to be redeemed at the address shown on the Bond Register
maintained by the Paying Agent. Notice of redemption having been given as
aforesaid, the Bonds or portions of Bonds to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified, and from and after such date (unless the City defaults in the
payment of the Redemption Price) such Bonds or portions of Bonds shall cease to
bear interest.
The Bonds are being issued by means of a book-entry
system with no physical distribution of bond certificates to be made except as
provided in the Ordinance. One Bond certificate with respect to each date on
which the Bonds are stated to mature, registered in the nominee name of the
Securities Depository, is being issued and required to be deposited with the
Securities Depository and immobilized in its custody. The book-entry system
will evidence positions held in the Bonds by the Securities Depository's
participants, beneficial ownership of the Bonds in authorized denominations
being evidenced in the records of such participants. Transfers of ownership
shall be effected on the records of the Securities Depository and its
participants pursuant to rules and procedures established by the Securities
Depository and its participants. The City, the Bond Registrar and the Paying
Agent will recognize the Securities Depository nominee, while the registered
owner of this Bond, as the owner of this Bond for all purposes, including (i)
payments of principal of, and redemption premium, if any, and interest on, this
Bond, (ii) notice, and (iii) voting. Transfers of principal, interest and any
redemption premium payments to participants of the Securities Depository, and
transfers of principal, interest and any redemption premium payments to
beneficial owners of the bonds by participants of the Securities Depository
will be the responsibility of such participants and other nominees of such
beneficial owners. The City and the Paying Agent will not be responsible or
liable for such transfers of payments or for maintaining, supervising or
reviewing the records maintained by the Securities Depository, the Securities
Depository nominee, its participants or persons acting through such
participants. While the Securities Depository nominee is the owner of this
bond, notwithstanding the provision hereinabove contained, payments of
principal of and interest on this Bond shall be made in accordance with
existing arrangements among the City, the Paying Agent and the Securities
Depository.
The Bonds constitute general obligations of the City
payable as to both principal and interest from ad valorem taxes which may be
levied without limitation as to rate or amount upon all the taxable tangible
property, real and personal, within the territorial limits of the City. The
full faith, credit and resources of the City are irrevocably pledged for the
prompt payment of the principal of and interest on the Bonds as the same become
due.
This Bond may be transferred or exchanged, as
provided in the Ordinance, only on the Bond Register kept for that purpose at
the principal payment office of the Paying Agent, upon surrender of this Bond
together with a written instrument of transfer or authorization for exchange
satisfactory to the Paying Agent duly executed by the Registered Owner or the
Registered Owner's duly authorized agent, and thereupon a new Bond or Bonds in
any authorized denomination having the same Maturity Date and in the same
aggregate principal amount shall be issued to the transferee in exchange
therefor as provided in the Ordinance and upon payment of the charges therein
prescribed. The City and the Paying Agent may deem and treat the person in
whose name this Bond is registered on the Bond Register as the absolute owner
hereof for the purpose of receiving payment of, or on account of, the principal
or Redemption Price hereof and interest due hereon and for all other purposes.
This Bond shall not be valid or become obligatory
for any purpose or be entitled to any security or benefit under the Ordinance
until the Certificate of Authentication hereon has been executed by the Paying
Agent.
IT IS HEREBY CERTIFIED AND DECLARED that all acts,
conditions and things required to exist, happen and be performed precedent to
and in the issuance of the Bonds have existed, happened and been performed in
due time, form and manner as required by law; that a direct annual tax upon all
taxable tangible property situated in the City has been levied for the purpose
of paying the principal of and interest on the Bonds when due; and that the
total indebtedness of the City, including this Bond and the series of which it
is one, does not exceed any constitutional or statutory limitation.
IN WITNESS WHEREOF, THE CITY OF KANSAS CITY,
MISSOURI, has caused this Bond to be executed by the manual or facsimile
signature of its Mayor and attested by the manual or facsimile signature of its
City Clerk and countersigned by the manual or facsimile signature of its
Director of Finance and its official seal to be affixed or imprinted hereon.
CERTIFICATE OF AUTHENTICATION THE CITY OF KANSAS CITY,
MISSOURI
This Bond is one of the Bonds of the issue described in
the within-mentioned Ordinance.
By:
__________________________________
Mayor
Registration Date:
_______________________ (SEAL)
STATE STREET BANK AND TRUST COMPANY OF MISSOURI, N.A.,
Paying Agent ATTEST:
By _______________________________
_______________________________________ Authorized Officer or
Signatory City Clerk
COUNTERSIGNED:
_______________________________________
Director of Finance
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto
________________________________________________________________________________
Print or Type Name, Address and Social Security Number or other Taxpayer
Identification Number of Transferee the within Bond and all rights thereunder,
and hereby irrevocably constitutes and appoints
________________________________ agent to transfer the within Bond on the Bond
Register kept by the Paying Agent for the registration thereof, with full power
of substitution in the premises.
Dated: _______________________ ______________________________________
NOTICE: The signature to this assignment
must correspond with
the name of the Regis-
tered Owner as it
appears upon the face of the
within Bond in every
particular.
Signature Guaranteed
By:
______________________________________
(Name of Eligible
Guarantor Institution as
defined by SEC Rule 17
Ad-15 (17 CFR
240.17 Ad-15))
By
__________________________________
Title:
LEGAL OPINION
The following is a true and correct copy of the
approving legal opinions of Gilmore & Bell, P.C. and the Hardwick Law Firm,
LLC, Co-Bond Counsel, which were dated and issued as of the date of original
issuance and delivery of the Bonds:
(LEGAL OPINIONS OF CO-BOND COUNSEL)
EXHIBIT B TO ORDINANCE
FORM OF DISCLOSURE AGREEMENT
$40,000,000
CITY OF KANSAS CITY, MISSOURI
GENERAL OBLIGATION BONDS
(STREETLIGHT PROJECT), SERIES 1997B
CONTINUING DISCLOSURE AGREEMENT
This Continuing Disclosure Agreement (the
"Disclosure Agreement") is executed and
delivered by the City of Kansas City, Missouri (the
"City"), in connection with the issuance of $40,000,000 principal
amount of General Obligation Bonds (Streetlight Project), Series 1997B (the
"Bonds"). The Bonds are being issued pursuant to Ordinance Nos.
_________ and __________ (collectively, the "Ordinance"). The City
covenants and agrees as follows:
In order to permit the Underwriters to comply
with the provisions of Rule 15c2-12 of the
Securities and Exchange Commission, as amended, in
connection with the public offering of the Bonds, the City, in consideration of
the mutual covenants herein contained and other good and lawful consideration,
hereby agrees, for the sole and exclusive benefit of holders and Beneficial
Owners of the Bonds, as follows:
Section 1. Definitions. Capitalized terms
used but not defined herein as follows shall have
the meaning ascribed to them in the Ordinance.
"Annual Financial Information" shall
mean the information specified in Section 3 hereof.
"Beneficial Owner" shall mean any
person which (a) has the power, directly or indirectly,
to vote or consent with respect to, or to dispose of
ownership of, any Bonds (including persons holding Bonds through nominees,
depositories or other intermediaries), or (b) is treated as owner of any Bonds
for federal income tax purposes.
"Bonds" shall mean the General
Obligation Bonds (Streetlight Project), Series 1997B, of the
City.
"City" shall mean the City of Kansas
City, Missouri, a municipality of the State of Missouri
constituting a political subdivision, and any successor
thereto.
"GAAP" shall mean generally accepted
accounting principles as prescribed from time to time
for governmental units by the Governmental Accounting
Standards Board.
"GAAS" shall mean generally accepted
auditing standards as in effect from time to time in
the United States.
"MSRB" shall mean the Municipal
Securities Rulemaking Board established in accordance
with the provisions of Section 15B(b)(1) of the
Securities Exchange Act of 1934, as amended.
"Obligated Person" shall mean the
person (including an issuer of separate securities) that is
committed by contract or other arrangements structured to
support payment of all or part of the obligations under the municipal
securities.
"Official Statement" shall mean the
Official Statement relating to the Bonds dated _______,
1997.
"Ordinance" shall mean the respective
Ordinance of the City authorizing the Bonds, as
originally executed or as it may be supplemented or
amended from time to time.
"Repository" shall mean each nationally
recognized municipal securities repository within
the meaning of Rule 15c2-12.
"Rule 15c2-12" shall mean Rule
15c2-12 promulgated under the Securities Exchange Act
of 1934, as amended and as in effect on the date of this
Disclosure Agreement, including any official interpretations thereof issued
either before or after the effective date of this Disclosure Agreement which
are applicable to this Disclosure Agreement.
"State Depository" shall mean the
state information depository for the State of Missouri, if
and to the extent it has been established and is in
existence and operating as a state information depository within the meaning of
Rule 15c2-12.
"Underwriters" shall mean
____________________, as representative of the Underwriters.
Section 2. Obligations to Provide Continuing
Disclosure.
(i) Obligations of the City.
(a) The City hereby undertakes, for the
benefit of holders and Beneficial Owners
of the Bonds, to provide, no later than 180
days after the end of each of its fiscal years,
commencing with the fiscal year ending April
30, 1997, to each Repository and to the State
Depository, if any, the Annual Information
relating to such fiscal year.
(b) The City hereby undertakes, for the
benefit of the holders and Beneficial
Owners of the Bonds, to provide, no later than
180 days after the end of each of its fiscal
years, commencing with the fiscal year ending
April 30, 1997, audited financial statements
to each Repository and to the State Depository,
if any, provided, however, that if audited
financial statements are not then available,
unaudited financial statements shall be provided
no later than 180 days after the end of each of
its fiscal years and the audited financial
statements shall be delivered to each
Repository and to the State Depository if and when they
become available.
(c) The Paying Agent, if other than an
officer of the City, shall notify the City of
the occurrence of any of the eleven events with
respect to the Bonds listed in Section
2(i)(d)(1) through (11) hereof, if material,
promptly upon becoming aware of the occurrence
of any such event.
(d) The City hereby undertakes, for the
benefit of the holders and Beneficial
Owners of the Bonds, to provide to each
Repository or to the MSRB, and to the State
Depository, if any, in a timely manner, notice
of any of the following eleven events with
respect to the Bonds, if material:
(1) Principal and interest payment
delinquencies;
(2) Non-payment related defaults;
(3) Unscheduled draws on debt
service reserves reflecting financial
difficulties;
(4) Unscheduled draws on debt
service reserves reflecting financial
difficulties;
(5) Substitution of credit or
liquidity providers, or their failure to perform;
(6) Adverse tax opinions or events
affecting the tax-exempt status of the
Bonds;
(7) Modifications to the rights of
holders of the Bonds;
(8) Bond calls;
(9) Defeasance;
(10) Release, substitution, or sale
of property securing repayment of the
securities; and
(11) Rating changes.
(e) The City shall also provide to the
SID, if any, and to each NRMSIR or to the
MSRB, as promptly as practicable notice of any
failure of the City to provide the NRMSIRs
and the SID, if any, the Annual Information or
financial statements required by paragraphs
(a) and (b) of this Section 2(i) on or before
the date specified.
(ii) Termination or Modification of Disclosure
Obligation. The obligations of the City
hereunder may be terminated if the City is no longer an
"obligated person" with respect to the Bonds within the meaning of
Rule 15c2-12, as amended from time to time. Upon any such termination, the City
shall provide written notice thereof to each Repository, the State Depository,
if any, and the MSRB.
(iii) Other Information. Nothing herein
shall be deemed to prevent the City from
disseminating any other information in addition to that
required hereby in the manner set forth herein or in any other manner. If the
City should disseminate any such additional information, the City shall have no
obligation hereunder to update such information or include it in any future
materials disseminated hereunder.
Section 3. Annual Information.
(i) Specified Information. The Annual
Financial Information shall consist of the (a)
financial and operating data of the type included in
Appendix A to the Official Statement under the heading "Audited General
Purpose Financial Statements" and (b) the data of the type included in
Appendix C to the Official Statement under the heading "Information
Concerning the City of Kansas City."
(ii) Incorporation by Reference. All or any
portion of the Annual Financial Information
of the City may be provided in the Annual Information by
specific incorporation by reference to any other documents which have been
filed with the Repositories, the State Depository, if any, the Securities and
Exchange Commission and the MSRB.
(iii) Informational Categories. The
requirements contained in this Agreement under
Section 3(i) are intended to set forth a general
description of the type of financial information and operating data to be
provided by the City, such descriptions are not intended to state more than
general categories of financial information and operating data; and where the
provisions of Section 3(i) call for information that no longer can be generated
or is no longer relevant because the operations to which it related have been
materially changed or discontinued, a statement to that effect shall be
provided.
Section 4. Financial Statements.
The annual financial statements of the City for
each fiscal year shall be prepared in
accordance with GAAP (unless applicable accounting
principles are otherwise disclosed) and audited by an independent accounting
firm in accordance with GAAS (but only if audited financial statements are
otherwise available for such fiscal year). The annual financial statements may
be provided by specific incorporation by reference to any other documents which
have been filed with the Repositories, the State Depository, if any, the
Securities and Exchange Commission and the MSRB.
Section 5. Remedies.
If the City should fail to comply with any
provision of this Disclosure Agreement, then any
holder or Beneficial Owner of Bonds may enforce, for the
equal benefit and protection of all the holders or Beneficial Owners of the
Bonds similarly situated, by mandamus or other suit or proceeding at law or in
equity, against such party and any of its officers, agents and employees, and
may compel such party or any such officers, agents or employees to perform and
carry out their duties under this Disclosure Agreement; provided that the sole
and exclusive remedy for breach of this Disclosure Agreement shall be an action
to compel specific performance of the obligations of such party hereunder, and
no person or entity shall be entitled to recover monetary damages hereunder
under any circumstances; and provided, further, that the rights of any holder
or Beneficial Owner to challenge the adequacy of the information provided in
accordance with Sections 2 and 3 hereunder are conditioned upon the provisions
of the Ordinance with respect to the enforcement of remedies of holders upon
the occurrence of an Event of Default under Section 26 thereof as though such
provisions applied hereunder. Failure of any party to perform its obligations
hereunder shall not constitute an Event of Default under the Ordinance or any
agreement executed and delivered in connection with the issuance of the Bonds.
Section 6. Parties in Interest.
The provisions of this Disclosure Agreement
shall inure solely to the benefit of holders and
Beneficial Owners from time to time of the Bonds, the
City and the Trustee and shall create no rights in any other person or entity.
Section 7. Amendments.
(i) Without the consent of any of the holders
or Beneficial Owners of the Bonds, the
City, and the Trustee, at any time and from time to time,
may together enter into amendment or changes to this Disclosure Agreement for
any purpose, if:
(a) the amendment is made in connection with a
change in circumstances that arises from
a change in legal requirements, change in law, or change
in the identity, nature, or status of the City or any type of business or
affairs it conducts;
(b) the undertakings set forth herein, as
amended, would, in the opinion of nationally
recognized bond counsel, have complied with the
requirements of Rule 15c2-12 on the date hereof, after taking into account any
amendments to, or interpretation by the staff of the Securities and Exchange
Commission of, Rule 15c2-12, as well as any change in circumstances; and
(c) the amendment, in the opinion of
nationally recognized bond counsel, does not materially impair the interests of
the holders or Beneficial Owners of the Bonds.
(ii) Annual Information for any fiscal year
containing any amended operating data or
financial information for such fiscal year shall explain,
in narrative form, the reasons for such amendment and the impact of the change
in the type of operating data or financial information in the Annual
Information being provided for such fiscal year. If a change in accounting
principles is included in any such amendment, such Annual Information shall
present a comparison between the financial statements or information prepared
on the basis of the amended accounting principles and those prepared on the
basis of the former accounting principles. Such comparison shall include a
qualitative discussion of the differences in the accounting principles and the
impact of the change in the accounting principles on the presentation of the
financial information. To the extent reasonably feasible such comparison shall
also be quantitative. A notice of any such change in accounting principles
shall be sent in a timely manner by the City to each Repository or to the MSRB,
and to the State Depository, if any.
Section 8. Termination.
This Disclosure Agreement shall remain in full
force and effect until such time as all
principal, redemption premiums, if any, and interest on
the Bonds shall have been paid in full or the Bonds shall have otherwise been
paid or legally defeased pursuant to the Ordinance; provided, however, that if
Rule 15c2-12 (or successor provision) shall be amended, modified or changed so
that all or any part of the information currently required to be provided
thereunder shall no longer be required to be provided thereunder, then such
information shall no longer be required to be provided hereunder; and provided,
further, that if and to the extent Rule 15c2-12 (or successor provision), or
any provision thereof, shall be declared by a court of competent and final
jurisdiction to be, in whole or in part, invalid, unconstitutional, null and
void, or otherwise inapplicable to the Bonds, then the information required to
be provided hereunder, insofar as it was required to be provided by a provision
of Rule 15c2-12 so declared, shall no longer be required to be provided
hereunder. Upon any legal defeasance, the City shall provide notice of such
defeasance to each Repository or to the MSRB, and the State Depository, and
such notice shall state whether the Bonds have been defeased to maturity or to
redemption and the timing of such maturity or redemption.
Section 9. Notices.
Any notices or communications to the City may
be given as follows:
City of Kansas City, Missouri
414 E. 12th Street, 1st Floor
Kansas City, Missouri 64106
Attention: City Treasurer
Telephone: (816) 274-1317
Fax: (816) 274-1773
Any person may, by written notice to the other persons
listed above, designate a different address or telephone number(s) to which
subsequent notices or communications should be sent.
Section 10. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF
THE STATE OF
MISSOURI DETERMINED WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAW; PROVIDED, HOWEVER THAT TO THE EXTENT THIS AGREEMENT ADDRESSES
MATTERS OF FEDERAL SECURITIES LAWS, INCLUDING RULE 15c2-12, THIS AGREEMENT
SHALL BE GOVERNED BY SUCH FEDERAL SECURITIES LAWS AND OFFICIAL INTERPRETATIONS
THEREOF.
Section 11. Counterparts.
This Disclosure Agreement may be executed in
several counterparts, each of which shall be
an original and all of which shall constitute but one and
the same instrument.
IN WITNESS WHEREOF, the undersigned have duly
authorized, executed and delivered
this Disclosure Agreement as of the date first above
written.
DATED: _______________, 1997.
CITY OF KANSAS CITY,
MISSOURI
as the Issuer of the
Bonds and Obligated Person
By:
Name: Janice M.
Reed
Title: Director
of Finance
EXHIBIT C TO ORDINANCE
FORM OF CO-BOND COUNSEL OPINION
[Closing Date]
City of Kansas City, Missouri Kansas City, Missouri
[Purchaser Name] [Purchaser City, State]
Re: $40,000,000, City of Kansas City, Missouri,
General Obligation Bonds (Streetlight Project), Series 1997B
Ladies and Gentlemen:
We have acted as co-bond counsel with the firm of
_______________ in connection with the issuance by the City of Kansas City,
Missouri (the "City"), of the above-captioned bonds (the
"Bonds").
We have examined the law and such certified
proceedings and other documents as we deem necessary to render this opinion.
As to questions of fact material to our opinion, we have relied upon the
certified proceedings and other certifications of public officials furnished to
us without undertaking to verify the same by independent investigation.
Based upon the foregoing, we are of the opinion,
under existing law, as follows:
1. The Bonds are valid and legally binding general
obligations of the City, payable as to both principal and interest from ad
valorem taxes which may be levied without limitation as to rate or amount upon
all the taxable tangible property, real and personal, within the territorial
limits of the City.
2. The interest on the Bonds **[INCLUDE THE
FOLLOWING LANGUAGE IF ANY MATURITY OF THE BONDS WILL BE OFFERED TO THE PUBLIC
AT A PRICE BELOW PAR:] (including any original issue discount properly
allocable to an owner thereof)** is excluded from gross income for federal and
Missouri income tax purposes and is not an item of tax preference for purposes
of the federal alternative minimum tax imposed on individuals and
corporations. It should be noted, however, that for the purpose of computing
the alternative minimum tax imposed on corporations (as defined for federal
income tax purposes), such interest is taken into account in determining
adjusted current earnings. The opinions set forth in this paragraph are
subject to the condition that the City comply with all requirements of the
Internal Revenue Code of 1986, as amended (the "Code"), that must be
satisfied subsequent to the issuance of the Bonds in order that interest
thereon be, or continue to be, excluded from gross income for federal and
Missouri income tax purposes. The City has covenanted to comply with each such
requirement. Failure to comply with certain of such requirements may cause the
inclusion of interest on the Bonds in gross income for federal and Missouri
income tax purposes retroactive to the date of issuance of the Bonds. The
Bonds have not been designated as "qualified tax-exempt obligations"
for purposes of Section 265(b) of the Code. We express no opinion regarding
other federal tax consequences arising with respect to the Bonds.
We have not been engaged or undertaken to review the
accuracy, completeness or sufficiency of the Official Statement or other
offering material relating to the Bonds (except to the extent, if any, stated
in the Official Statement) and we express no opinion relating thereto
(excepting only the matters set forth as our opinion in the Official
Statement).
The rights of the owners of the Bonds and the
enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting creditors' rights
heretofore or hereafter enacted to the extent applicable and their enforcement
may be subject to the exercise of judicial discretion in appropriate cases.
Very truly yours,