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HomeMy WebLinkAbout163 - 11/20/1984 - RELATING TO THE ISSUANCE OF INDUSTRIAL DEVELOPMENT REVENUE BONDS SERIES 1984 (THE SYNGENE CORPORATIO BOND ORDINANCE NO. 163, 1984 CITY OF FORT COLLINS, COLORADO INDUSTRIAL DEVELOPMENT REVENUE BONDS SERIES 13004 (THE SYNGENE CORPORATION PROJECT) ADOPTED: November 20, ? 984 TABLE OF CONTENTS (This table of contents is not a part of the Ordinance but is included for convenience only. ) Pacre ARTICLE I DEFINITIONS, LEGAL AUTHORIZATION AND FINDINGS Section 1. 1 . Definitions 1 Section 1. 2. Legal Authorization 4 Section 1. 3. Findings 4 Section 1 . 4. Authorization and Ratification of Project 5 ARTICLE iI BONDS Section 2. 1. Authorized Amount and Form of Bonds 5 Section 2. 2. The Bonds 12 Section 2. 3. Execution 12 Section. 2. 4. Delivery of the Bonds 12 Section 2. 5. Issuance of New Bonds 13 Section 2. 6. Registration of Transfer 13 Section 2. 7 . Mutilated, Lost or Destroyed Bonds 13 Section 2. 8. Ownership of the Bonds 14 Section 2. 9. Limitation on Bond Transfers 14 Section 2. 10. Additional Bonds 14 Section 2. 11. Establishment of Funds 15 (i) Page ARTICLE III PREPAYMENT OF BONDS BEFORE MATURITY Section 3. 1. Prepayment 16 Section 3. 2. Termination of Interest 16 ARTICLE IV GENERAL COVENANTS Section 4. 1. Payment of Principal and Interest 16 Section 4. 2. Performance of and Authority for Covenants 16 Section 4. 3. Nature of Security 1; ARTICLE V MISCELLANEOUS Sectior. 5. 1. Severability 17 Section 5. 2. Authorization to Execute Agreements 17 Section 5. 3. Authority to Correct Errors, Etc. 18 Sectior. 5. 4. Further Authority 18 Section 5 . 5. Repealer 18 Section 5 . 6. Ordinance Irrepealable 18 Section 5. 7. Recording and Authentication 19 SIGNATURES 19 FXHIBIT A ii r • STATE OF COLORADO ) COUNTY OF LARIMER ) ss. CITY OF FORT COLLIt7S ) The City Council of the City of Fort Collins, Colorado, held a regular meeting in the Council Chambers , at 300 LaPorte Avenue, Fort Collins , Colorado, on Tuesday, the 30th day of October, 1984 , at the hour of 5 : 30 p.m. The following persons were present: Ccur cilmembers : Gerald C. Horak, Mavor E. John Clarke, Assistant Mayor John B. Knezovich William C. Elliott Ed Stoner Kelly Ohlson Barbara Rutstein City Manager: John E. Arnold City Clerk: Wanda M. Kraiicek The following persons were absent: None Councilmember Stoner introduced the following Ordinance , which was read by title, copies of the full Ordinance having been available in the office of the City Clerk at least forty-eight (48) hours prior to the time said Ordinance was introduced for each Councilmember and for inspection and copying by the general public. (iii) ORDINANCE NO. 163, 1984 AN ORDINANCE RELATING TO THE ISSUANCE OF INDUSTRIAL DEVELOPMENT REVENUE BONDS UNDER THE PROVISIONS OF THE COLORADO COUNTY AND MUNICIPALITY DEVELOPMENT REVENUE BOND ACT; PROVILING FOR THE ISSUANCE AND SALE OF CITY OF FORT COLLINS, COLORADO, INDUSTRIAL DEVELOPMENT REVENUE BONDS, SERIES 1984 (THE SYNGENE CORPORATION PROJECT) IN THE PRINCIPAL A14OUNT OF $2, 000, 000 FOR THE PURPOSE OF LOANING FUNDS TO SYNGENE CORPORATION TO FINANCE IMPROVEMENTS RELATING TO CONSTRUCTING, IMPROVING, INSTALLING AND EQUIPPING OF A.N OFFICE, RESEARCH, LABORATORY AND PIANUFACTURING BUILDING IN FORT CCLLINS, LARIMER COUNTY, COLORADO; APPROVING AND AUTHORIZING THE EXECUTION AND ASSIGNMENT OF P_ LOAN AGREEMENT AND NOTE BETWEEN SYNGFNF CORPORATION AND THE CITY; AND AUTHORIZING THE PREPARATION AND EXECUTION OF CERTAIN RELATED DOCUMENTS AND INSTRUMENTS. Be it ordained by the Council of the City of Fort Collins, Colorado: ARTICLE I DEFINITIONS, LEGAL AUTHORIZATION AND FINDINGS 1. 1 . Definitions The terms used herein, unless the context hereof shall require otherwise , shall have the following meanings , and any other terms defined in the Loan Agreement shall have the same meanings when used herein as assigned to them in the Loan Agreement unless the context or use thereof indicates another or different meaning or intent. 1. Act. The County and Municipality Development Revenue Bond Act, Article 3 , Title 29 , Colorado Revised Statutes , as amended. 2. Assignment of the Loan Agreement. The assignment to be executed by the City and the Lender assigning the City' s interest in. the Loan Agreement to the Lender. 3. Bonds. The $2 ,000 , 000 Industrial Development Revenue Bonds, Series 1984 (The Syngene Corporation Project) to be issued by the City pursuant to this Ordinance. 4. Bond Counsel. The firm of Fischer, Brown, Huddlescn, and Gunn, Fort Collins , Colorado. 5. Bond Register. The records kept by the City of Fort Collins , Colorado to provide for the registration and transfer of ownership of the Bonds. 6. City. City of Fort Collins, Colorado, its successors and assigns. 7. Collateral Assignments of Rents. The assignment to be executed by the Company assigning to the Lender as security for the Bonds the rents due the Company under any leases of the Project ana all cthl. r. rents and other income from the Project. 8 . Company. Syngene Corporation, a corporation, its successors and assigns, and any surviving, resulting or transferee business entity which may assume its obligations under the Loan Agreement. 9. Ccmpanv Note. Means the note of the Ccmpany delivered to the Issuer ara endorsed to the Lender which evidences the obligation of the Company to repay the loan of the issuer in accordance with Section 4. 1 of the Loan Agreement and which is in the form attached to the Loan Agreement as Exhibit D. 10 . Deed of Trust. The Deed of Trust to be executed by the Company in 2avor of the Lender securing payment of the Bonds and interest thereon. 11 . Ecuinment. The equipment described in Exhibit C to the Loan ?agreement and any substitutions therefor. 12. Guaranty. The Guaranty Agreement to be executed by the Company and TechD.merica Group , Inc, as security for the Bonds. 13 . Improvements. The structures and other improvements , including any tangible personal property, to be constructed or installed or. the Land in accordance with the Plans and Specifications and to be owned by the Company. 14 . Inducement Letter. The letter agreement from the Company to the City and the Lender dated December 1 , 1984 . 15. Land. The real property and any other easements and rights described in Exhibit A attached to the Loan Agreement. 16. Lender. First Interstate Bank of Fort Collins , N.A. , Fort Collins, Colorado, its successors and assigns . The Lender is the initial purchaser of the B(,nd--. 17. Loan Agreement. The agreement to be executed by the City and the Company, providing for the issuance of the Bonds and the loan of the proceeds thereof to the Company, including any amendments or supplements thereto made in accordance with its provisions. 2 - 18. Margin Pate Factor means the product of (a) one (1) minus the Maximum Federal Corporate Tax Rate times (b) 1. 85185. The Margin Factor shall be 1 . 0 so long as the Maximum Federal Corporate Tax Rate shall be 46% , and thereafter shall change from time to time effective as of the effective date of any change in the Maximum Federal Corporate Tax Rate. 19. Maximum. Federal Corporate Tax Rate means the maximum statutory rate of Federal income taxation imposed on the taxable income of corporations pursuant to Section 11 (b) of the Code , as in effect from time to time (or, if as a result of a chance in the Code the rate of income taxation imposed on corporations shall not be applicable to a bondholder, the maximum statutory .rate of Federal income taxation which could apply to a bondholder) . 20. Offer to Purchase. The letter agreement from the Lender to the City, dated December 1 , 1984. �i . Plans and Specifications. The plans and specifications for the construction and installation of the =mprovements on the I.a.nd, which are approved by the Lender, together with such modifications thereof and additions thereto as are reasonably 8etermined by the Company to be necessary or desirable for the completion of the Improvements and are approved by the Lender. 22. Principal Ralar_ce_. Sn much of the principal sum on the Bonds as from time to time remains unpaid. 23. Project. The Equipment and Improvements to be located on the Land. 24. Project Costs. All of costs the Project (i` ` j ) which are capitalized expenditures under generally accepted accounting principles and which must be or with a proper election may be capitalized for Federal income tax purposes and (ii) for which the Pond proceeds may be spent under the rct, including the following: (a) Payment for the preparation of plans and specifications for the Project (including any preliminary study or planning of the Project) , and for the acquisition., development, construction and installation of the Project (including architectural, engineering and supervisory services with respect to any of the foregoing) . (b) To the extent that they shall net be paid by a contractor, payment of the premiums on all insurance required to be maintained prior to the date the Project is completed. 3 - (c) Payment of any tares , assessments and other charges payable with respect to the Project prior to the date the Project is completed . jd) Payment of any fees and expenses for recording or filing_ such documents , instruments and firancina statements which the Company, the Lender or the City may deem desirable to perfect or protect the rights of the City and the Lender under the Loan Agreement, the Company Note and the �szignrent of the Loan Agreement. (e) Payment of any commitment or acceptance fee of the sender and the legal, accounting and financial advisory fees and expenses , and all other fees and expenses inci:rred in the preparation of related documents. (f) Interest accrued on the Bonds prier to completion of the Project. 25 . Crdinance. Thi-, Ordinance of the City, adopted November 20 , 1 884 , together with any supplement or amendment hereto. 1. 2. Legal Authorization The City is a political Subdivision of the State of Colorado and is authorized under the Act to finance the Project herein referred to, and to issue and sell the Bonds for the purpose, in the manner and upon the terms and conditions set forth in the Act and in this Ordinance. 1. 3 . Findings The City Council, based on the representations of the Company, has heretofore determined and found, and does hereby determine and find, as follows: (a) In authorizing the Project the City' s purpose is , and in its judgment the effect thereof will be, the promotion and development of trade and other economic activities within the City by inducing the Company to acquire and construct facilities in the City and to secure and maintain a balanced and stable eceromy within the City; (b) The amount estimated to be necessary to finance the Project Costs, including the costs and estimated costs permitted by the Act, will require the issuance of the Bonds in the principal amount of $2 , 000 ,000, as hereinafter provided; 4 - • • (c) It is desirable f ea.,iLle and consistent with the objects and purposes of the Act to issue the Bonds , for the purpose of financing the construction of the Project; (d) The Bonds and the interest accruing thereon shall never constitute the debt or indebtedness of the City within the meaning of any provision or limitation of the constitution or statutes of the State of Colorado or the Charter of the City of Fort Collins, Cc_.orado and shall not constitute nor give rise to a pecuniary liability of the City or a charce against its general credit or taxing powers; (e) Pursuant to Sections 113 and 114 of the Act the City hereby determines (1) the amount necessary ir_ each year to pay the principal of and the interest on the Bonds as set `orth in the Loan Agreement which requires such payments by the Company, (ii) the establishment by this Ordinance of a Bond reserve fund for the retirement of the Fonds is not deemed advisable, and (iii) since the Loan Agreement provides that the Company shall maintain the Project and carry all proper insurance with respect thereto, no determination of the estimated cost of maintaining the Project need be made; and (f) Pursuant to Section_ 120 of the Act , the City hereby determines that the revenues of the Company will be sufficient to, and that the Loan Agreement provides that the Company shall, pay all taxes which may he due and owing with respect to the Project. 1. 4. Authorization and Ratification of Project The City hereby authorizes the Company to provide for the construction and installation of the Improvements to be included in the Project pursuant to the Plans and Specifications by such means as shall be available to the Company and in the manner determined by the Company, and the City hereby ratifies, affirms and approves ali actions heretofore taken by the Company. ARTICLE 11 BONDS 2. 1. Authorized Amount and Form of Bonds The Bonds issued pursuant to this Ordinance shall be in substantially the form set forth herein, with such appropriate variations, omissions and insertions as are permitted or required by this Ordinance, and in accordance with the further provisions hereof; and the total principal amount of the Bonds that may be outstanding hereunder is expressly limited to $2, 000 , 000. The Bonds shall be in substantially the following fozm: 5 - UNITED STATES OF A14ERICA STAT-Fi OF COLORADO CITY OF FCRT COLLINS, COLORADO 1NDUSTPIPL DEVELOPMENT PEVENUE BOND iThh SYNGENE_ COP.POPATICN PROJECT) SERIES 1984 December 1, 1584 R-1 52 , 000 , 000 FOR VALUE RECEIVED, CITY OF FORT COLLINS, COLORADO (the "City") hereby promises to pay to the order ofFIRST INTERSTATE BANK OF FORT COLLINS, N.A. , Fort Collins , Colorado (the "Lender" ) , its successors or registered a:aigns , from the source and in the manner hereinafter provided , the principal sum of TWO 2fILLICN DOLLARS ($2, 000 , 000) (the "Principal Balance" ) , and to pay interest thereon from the date hereof in consecutive quarterly installments beginning March 1 , 1985 , and on the first day of June , the first day of September, the `first day of December and the first day of March of each year during the term hereof through and including December 1 , Z004 , at a per annum rate equal to 'S % of the rate of interest publicly announced by First Interstate Bank of California, N.A. from time to time as its "Prime Rate" (computed on the basis of a 360 day year) (the "Prime Rate" ) multiplied by the "Margin Rate Factor" (hereinafter defined) ; in any coin or currency which at the time or times cf payment is legal tender for the payment cf public or private debt in the United States of America, in accordance with the terms hereinafter set forth. ":Margin Rate Factor" means the product of (a) one (1) minus the "Maximum Federal Corporate Tax Rate" (hereinafter defined) times (b) 1 . 85185. The Margin Factor shall be 1 . 0 so long as the Maximum Federal Corporate Tax Pate shall be 46% , and thereafter shall change from time to time effective as of the effective date of any change in the Maximum Federal Corporate Tax Rate. "Maximum Federal Corporate Tax Rate" means the raximum statutory rate of Federal income taxation imposed on the taxable income of corporations pursuant to Section 11 (b) of the Internal Pevenue Code of 1954 , as amended (the "Code" ) , as in effect from tire to time (or, if as a result of a chance in the Code the rate of income taxation imposed on corporations shall not be applicable to a bondholder, the maximum statutory rate of Federal income taxation which could apply to the holder of this bond) (a) The principal of this Bond shall mature and be repayable in 80 quarterly installments in the amounts and on the dates as follows: 6 - PAYMENT DATE (First Day of March, June, September and December of 7U!GUNT OF QUARTERLY each of the Followinq Years PRINCIPAL PP_YbIENT 1985 $ 8,620 1986 9 , 495 1987 10 , 455 1988 11 ,510 1989 12,67E 1990 13, 955 15, 370 1992 16, 920 1993 18 ,635 1994 20 ,515 1995 22 ,590 1996 24 , 875 1997 27, 390 1998 30, 160 1999 33 , 210 2000 36, 570 2001 40 , 270 2002 44, 340 2003 48 , 825 2004 53 , 62C Interest on the principal amount of this Note outstanding shall be payable during the term„ of the Bonds in consecutive quarterly installments beginning (-:arch 1 , 1985 , and on the first day of June, the first day of September, the first day of December, and the first day of March of each year during the term hereof through and including December 1 , 2004 , at a per annum rate equal to 75% of the Prime Pate (interest to be calculated on the basis of a 30-day month and a 360-day year) as defined in the Loan Agreement by and between the Payee and the Company (the "Agreement" ) multiplied by the "Margin Rate Factor" (defined in the Agreement) . Anything in this Note to the contrary notwithstanding, the obligations of the Company under this Note shall be subject to the limitation that payments of interest hereunder shall not be required to the extent that receipt of any such payment by the Lender would be contrary to provisions of law applicable to the Lender which limit the maximum rate of interest which may be charged or collected by the Lender. (b) This Bond must be redeemed in whole within six. (6) months after the date of a "Determination of Taxability" (defined in the Loan Agreement) at a redemption price equal to (i) the principal amount of the Bond to he redeemed, plus (ii) an additional amount equal to the difference between (A) the interest on the Bend during the "Taxable Period" (defined in the Loan Agreement) if the Bond had borne interest during such Taxable Period at an interest rate equal to the Prime Rate plus 2% per annum and (B) the 7 interest actually paid on the Bond during such Taxable Period plus (iii) an amount equal to any interest , penalties on overdue interest and additions to tax as referred to in Subchapter A of Chapter 68 of the Internal Revenue Code of 1954 , as amended, owed by the Lender. In the event of a Determination of Taxability the net effective interest rate on this Bond shall not exceed thirty (30%) percent per annum. (c) This Bond is also subject to redemption and payment , without premium, prior to maturity at the option of the City, upon instructions from the Company, as a whole at anvtime , or in part in $5 ,000 multiples of principal on any interest payment date in inverse order of maturity, plus accrued interest thereon to the date fixed for redemption and payment. (d) This Bond is aleo subject to mandatory purchase by the Company, in whole but not in part, as directed by the City, upon election by and instructions from any Bondholder, on December 1 , 1991 and December 1 , 1996 , at a purchase price of 100% of the Principal Balance then outstanding, plus accrued interest thereon to the date fixed for purchase and payment. Notice of the Bondholder' s election to rec_uire the Company to purchase the Bonds hereunder shall be given to the Company by first class mail , postage prepaid, mailed not less than six (6) months prior to the applicable purchase date. (e) This Bord is also subject to purchase by the Company , in whole but not in part, on any interest payment date , solely at the option of the Company , in an amount equal to the Principal Balance then outstanding plus accrued interest to the purchase date and without premium. Written notice of such purchase by the Ccmpany shall be given to the Bondholder at least sixty (60) days before such interest payment date. (f) This Bond is also subject to mandatory redemption and payment in whole or in part, without premium, in the event and to the extent proceeds of this Bond are not disbursed in accordance with the Loan Agreement on or before December 11 1986. (g) In the event this Bond is to be redeemed in whole or in part pursuant to the provisions of the Loan Agreement, the Company shall give notice of the redemption to the Issuer and the Lender by first class nail, postage prepaid, mailed net less than. thirty (30) days prior to the redemption. date. No prior notice of redemption shall be required in connection with a partial redemption of this Bond from moneys remaining in the Construction. Fund (defined in the Loan Agreement) after the Completion Date. 8 - (h) On the first day following twenty (20) years after the date hereof (such date to be the "Final Maturity Date") , the entire remaining Principal Balance and any interest accrued to the Final Maturity Date shall be due and payable. 2. Interest shalt he con•:-:rted cn the basis of a 360 day year, but charged for the actual number of days principal is unpaid. Anything in this Bond to the contrary notwithstanding, the obligations of the City under this Fend shall be subject to the limitation that payments of interest hereunder shall not be required to the extent that receipt of any Euch payment by the Lender would be contrary to provisions of law applicable to the Lender which limit the maximum rate of interest which may be charged or collected by the Lender. 3. Principal and interest due hereunder shall be payable at the principal office of the Lender, or at such other place as the Lender may designate in writing. This Bond is issued by the City to provide funds- for a project, as defined in Section 103 of Article 3 , Title 29, Colorado Revised Statutes, as amended (the "Act" ) , consisting of the acquisition, construction and equipping of a building on real estate located in the City or within eight miles of the boundary of the City as provided in the Act defined in the Loan Agreement, pursuant to a Loan Agreement dated as of December 1 , 1984, between the City and Syngene Corporation (the "Company") (the "Loan Agreement") , and, further, this Bond is issued pursuant to and in full compliance with the Constitution and laws of the State of Colorado, particularly the Act and an ordinance of the Council of the City duly adopted on November 20 , 1984 (the "Ordinance") 5 . This Bond is secured by (i) an assignment of the Loan Agreement and the Company Note by the City to the Lender, (ii) a Deed of Trust from the Company as grantor, in favor of the Lender, (iii) a Security Agreement under the Uniform Commercial Code , (iv) a Guaranty Agreement between the Company and TechAmerica Group, Inc. , as guarantors , and the Lender, and (v) the Collateral Assignment of Rents dated as of the date hereof. This Bond is subject to all the terms , conditions and provisions of said Loan Agreement and Company Note, Deed of Trust , Security Agreement, Guaranty Agreement and the Collateral Assignment of Rents . 6. The Lender may waive an event of default hereunder caused by the nonpayment of interest and/or principal due on this Bond without notice to or consent of any party liable hereon and without releasing any such party. However, in no evert shall the Final Maturity Date be beyond forty (40) years from the date hereof. 7. The City may prepay, without a premium, all or a portion of the Principal Balance at any time upon ten (10) days ' 9 - written notice to the Lender, but c•nly from funds available therefor uncer the Loan Agreement. 1:o partial prepayment shall change r„e amount or extend the time of payment of any installment payable hereunder. 8. This Bond is further subject to prepayment, without a premium, in whole , upon the occurrence of certain events of damage to, or destruction or condemnation of the Prcject as specified in the Loan Agreement, the Deed of Trust and the Ordinance. 0. The quarterly payments due under the first paragraph hereof shall continue to be due and payable in full until the entire Principal Balance and accrued interest due on the Bond have been paid, regardless of any partial prepayment made hereurder. 10. As provided in the Ordinance and subject to certain limitations set forth therein., this Bond is transterable upon the books of the City at the office cf the City Clerk, by the Lender in person or by its agent duly authorized in writing, at the Lender ' s expense , upon surrender hereof together with a written instrument of transfer satisfactory to the City Clerk, duly executed by the Lender or its duly authorized agent . Upon such transfer the City Clerk will note the (late of registration and the name and address of the new registered Lender in the registration blank appearing below. The City may deem and treat the person in whose name the Bond is last registered upon the books of the City as the absolute owner hereof, whether or not overdue, for the purpose of receiving payment of or on the account of the Principal Balance, prepayment price or interest and for all other purposes , and, all such payments so made to the Lender or upon its order shall be valid and effective to satisfy and discharge the liability upon the Bond to the extent of the sum or sums so paid, and the City shall net be affected by any notice to the contrary. - 11 . THIS BOND AND _INTEREST THEI:EON AND ANY PENALTY OR PREMIUM DUh HEREUNDER ARE PAYABLE SOLELY FROM THE REVENUES AND PROCEEDS DERIVED FRCM THE LOAN AGREEMENT, THE NOTE, THE DEED OF TRUST, THE GUARANTY, THE COLLATERAL ASSIGNF'_EN-T OF RENTS AND THE SECliRITY AGREEMENT, AND SHALL NEVER CCNSTITUTE THE DEBT OR INDEBTEDNESS OF THE CITY WITHIN THE MEANING OF ANY PROVISION OR LIMITATION OF THE STATE CCNSTITUTION CR STATUTES OR THE CHARTER. OF THE CITY OF FORT COLLINS, COLORADO, AND SHALL NOT CONSTITUTE NOR GIVE RISE TO A PECUNIARY LIABILITY OF THE CITY OR A CHARGE AGAINST ITS GENERAL CREDIT OR TAXING POWERS. 12 . The remedies of the Lender, as provided herein and in the Loan Agreement, the Deed of Trust , the Security Agreement, the Collateral Assignment of Rents, and the Guaranty, are not exclusive and shall be cumulative and concurrent and may be pursued singly, successively or together, at the sole discretion 10 - of the Lender, and may be exerci.sea as often as occasion therefor shall occur; and the railure to exercise any such right or remedy shall in no event be construed as a �:.,aiver or release thereof. 13. The Lender shall nct be deemed, by any act of omission or commission, to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by the Lender, and then only to the extent specifically set forth in writing. A waiver with reference to one event shall not be construed as continuing or as a bar to or waiver of any right or remedy as to a subsequent event. 14 . This Bond has been issued without registration under state or federal or other securities laws , pursuant to an exemption for such issuance; and accoraingly the Bond may not be assigned or transferred in whole or part, nor may a participation int:�rest in the Bond be given pursuant to any participation agreement, except in accordance with applicable registration requirements or an applicable exemption from such registration requirements , and the City Clerk may require an opinion of qualified counsel as to the existence of suc an exemption before transferring this Bond on the books of the Citv. Furthermore, this Bond may not be transferred or exchanged except with such disclosure as may be appropriate under the circumstances or facts material to the investment decision of a. prudent investor documented to the reasonable satisfaction of the City and its counsel. IT IS HEREBY CERTIFIED AND RECITED that all conditions , acts and things required to exist, happen and be performed precedent to or in the issuance of this Bond do exist, have happened and have been performed in regular and due form as required by law. T_N WITNESS wEEREOF, the City has caused this Bond to be duly executed in its name by the manual signature of the Mayor of the City, to be sealed with the Seal of the City, to be signed and attested with the manual signature of the City Clerk and to be countersigned with the manual signature of the Finance Director of the City and has caused this Bond to be dated December 1, 1984 . CITY OF FORT COLLINS, COLORADO ATTEST: By: Gerry Horak, Mayor Wanda M. Krajicek, City Clerk PROVISIONS AS TO REGISTRATION The ownership of the unpaid Principal Balance of this Bond and the interest accruing thereon is registered on the books of - li City of Fort Collins, Colorado , in the name of the holder last noted below. Date of Fare and Address Signature of City af�gistraticn of Registered Owner Clerk or Deputy 2. 2. The Ecnds The Bonds shall be payable at the times and in the manner, and shall be subject to such other terms ana conditions as are set forth in the form thereof included as Section 2. 1 cl this Ordinance. The net effective interest rate on the Bonds shall not exceed twenty percent (20%) per annum, unless there shall have been a "Determination of Taxability, " in which case the net effective interest rate on the Bonds shall net exceed Thirty percent (30%) per annum. Subject to the foregoing, the Ponds shall bear interest at the rate set forth in the form thereof included as Section 2. 1 of this Ordinance. 2. 3. Execution The Bonds shall be executed on behalf of the City by the manual signature of the Mayor of the City, shall bear the sea! of the City, shall be signed and attested with the manual signature of the City Clerk, and shall be countersigned with the manual signature of the Finance Director of the City. In case any officer whose signature shall appear on the Bends ceases to be an officer before deliver; of the Bonds to the Lender, such signature shall nevertheless be valid and sufficient for all purposes , the same as if he had remained in, office until delivery. 2. 4 . Delivery of the Bonds Before delivery of the Bonds there shall be delivered to the City Clerk the following items: 1 . Executed copies of the Loan Agreement, Company rote, the Assicnment of the Loan Agreement, the Deed of Trust , the Security Agreement, the Collateral Assignment of Rents , the 'nducement Letter, the Offer to Purchase and the Guaranty; 2. An opinion of Counsel for the Company in scope and substance satisfactory to Bond Counsel as to the authority of the Company to enter into the transaction and other related matters; 12 - 3 . tin opinion of Counsel for the Issuer in scope and substance satisfactory to Bond Ccunsei as to the authority of the Issuer to enter into the transaction, issue the Fonds and other related matters; and 4. The opinion of Bond Counsel as to the validity and tax exempt status of the Bonds; and S . Such other documents and opinions as Pend Ccunsel may reasonably require for purposes of rendering its opinion required in subsection (4) above or that the Lender may require for the closing. 2. 5 . Issuance of New Bonds Suhiect to the provisions of Section 2. 9 hereof, the City shall , at the request and expense of the Lender, issue new Bonds , in aggregate outstanding principal amount equal to that of the Bonds surrendered , and of like tenor except as to number , principal amount and the amount of the monthly installments Payable thereunder, and registered in the name of the Lender or such transferee as may be designated by the Lender. 2. 6. Reoi stra.tion of TrarsfPr The City will cause to be kept at the office of the City Clerk a record of the Bond or Bonds outstanding upon and subject to which it will provide for the registration: of transfers of ownership of the Bonds. The Bones shall be transferable by the registered owner -in person. or by its attorney duly authorized in writing, upon surrender of the Bonds together with a written instrument of transfer, duly executed by the Lender or its duly authorized agent, a legal opinion as to exemption from registration satisfactory to the City Clerk and evidence of compliance with all of the provisions cf Section 3 . 2 of the Loan. Agreement. Upon such transfer the City Clerk shall note the date of registration and the name and address of the new Lender in such record and in the registration blank appearing on the Bends. 2. 7. Mutilated, Lost or. Destroyed Bond in case any Bonds issued hereunder shall become mutilated or Le destroyed or lost, the City shall , if not then prohibited by law, cause to be executed and delivered , a new Bond of like outstanding principal amount , number and tenor in exchange and substitution for and upon cancellation of such mutilated Bend, or in lieu of and in substitution for such Bond destroyed or lost, upon the Lender ' s paying the reasonable expenses and charges of the City in connection -therewith, and in the case of a Bond destroyed or lost, the filing with the City of evidence satisfactory to the City that such Bore: was destroyed or lost, - 13 - and furnishing the City with inder.r.ity satisfactory to it. I£ the mutilated, destroyed or lost Bond has already matured or been called for redemption in accordance with its terms it shall not be necessary to issue a new Bond prior to payment. 2. 8. Ownership of the Bonds The City may deem and treat the person in whose name the Bond is last recorded as the absolute owner of such Bond for the purpose of making payment of or on account of the Principal Balance, prepayment price and interest and for all other purposes whatsoever, and the City shall not be affected by any notice to the contrary. Z. 9 . Limitation of Bond Transfers The Bonds have beer,. issued without registration under state or other securities laws, pursuant to an exemption for such issuance; and accordingly the Ecrrds may r:ct he assigned or transferred in whole or part , nor may a participation interest in the Bonds be given pursuant to any participation agreement, except in accordance with applicable registration requirements or an applicable exenipti.on from such registration recuirements and or: such terms and subject to such conditions as the .T..—Ler and its counsel may require. 2. 10. Additional Bonds So long as the Loan Agreement is in effect and subject to Lender' s prior written consent, which shall not be unreasonably withheld , one or more series of Additional Bonds may be issued, authenticated and delivered for the purpose provided in the Loan Agreement. Such Additional Bonds shall be payable solely from the amounts payable under the Loan Agreement (except to the extent paid out of moneys attributable to the proceeds derived from the sale of the Additional Bonds or to income from the temporary investment thereof and, under certain circumstances , to proceeds from insurance and condemnation awards) . If the City, in its sole discretion, decides to issue such Additional Bonds, the Additional Bonds of each such series shall be delivered to or upon the order of the purchasers thereof, but oniv upon there being filed with the City. (a) Original , executed counterparts of a supplemental ordinance, an amendment of the Loan Aareement and Note and an amendment of the Deed of Trust expressly providing that, for all purposes of this Ordinance, the Loan Agreement and the Deed of Trust, the Project shall include any facilities being financed by the Additional Bonds . The date or crates of the Additional Bonds, the rate or rates of interest on the Additional Bonds , the time or times of payment of the - 14 - interest thereon and the principal thereof, and the prepayment previsions , if any , with respect thereto, all shall be as provided in the supplemental ordinance, rather I as provided in this Ordinance, and may differ from the Provisions with respect to the Series 1984 Bonds set forth in this Ordinance. (b) A written opinion by an attorney or firm of attorneys of nationally recognized standing on the subject of municipal bonds, to the effect that the issuance of the Additional Bonds and the execution thereof have been duly authorized, all conditions precedent to the delivery thereof have beer_ fulfilled, and that the exemption from federal income tax of the interest on the Series 1964 Bonds and anv Additional Bonds theretofore issued will not be affected by the issuance of the Additional Bonds being issued. Each series of Additional Bonds issued pursuant to this Section shall be equally and ratably secured under this Ordinance with the Series 1984 Bonds and all other series of Additional Bonds, if any, theretofore issued pursuant ir, ihis Section, without preference, priority or distinction of any Bonds over any other thereof. Notwithstanding anything herein to the ccr.trarv, no Additional Bonds shall be issued unless (i) the Loan Agreement and Company Note are in effect, (ii) there is no Default at the time of issuance under the Loan Agreement; the Company Note , the Deed of Trust or under this Ordinance, and (iii) all current City regulations are complied with. 2. 11.. Establishment of Funds The City hereby establishes with the Lender two funds, to be called the "City of Fort Collins , Colorado :he Syngene Corporation Prclect Bond Fund" and the City of Fort Collins, Colorado "The Syngene Corporation Project Construction Fund. " Accrued interest will be paid into the Bond Fund out of the proceeds of the Bonds and the remaining proceeds shall be deposited into the Construction Fund. The City hereby authorizes the Lender (a) to make disbursements from the Construction Fund in accordance with Section 3. 3 of the Loan Agreement , (b) to make the payments required by the Bonds to the Bondholders from the Bond Fund and (c) invest the moneys on deposit in the Funds in accordance with Section 3. i of the Loan Agreement. 15 - ARTICLE !II PREPA.YVENT OF BONDS BEFORE I`ATURITY 3. 1. Prepayment 1. In the event of damage to or destruction of the Project or condemnation of the Project or any part thereof, the Bonds shall be subject to prepayment to the extent and in the manner set iorth in Article V of the Lcar e'.ureement and in the Leed of Trust. 2. The Bonds may be otherwise prepaid in accordance with the provisions of the bondc. 3. 2. Termination of Interest Upon payment of any prepayment amount to the Lender and the giving cf requisite notice , if anv, the principal amounts prepaid sha71, after such date; cease to bear interest. ARTICLE IV GENERAL COVENANTS 4. 1. Payment of Principal and Interest The City covenants that it will promptly pay or cause to be paid the principal of and interest on the Bonds at the place, on the dates, from the source and in the nian:ec provided herein and in said Boi,ds. The principal and interest are payable solely from and secured by revenues and proceeds derived from the Project and payable pursuant to the Loan Agreement , the Company Not;, the Guaranty, the Collateral Assignment of Rents and the Deed of Trust; and nothing in the Bonds or in this ordinance shalt be considered as assigning, pledging or otherwise encumbering any other funds cr assets of the City. 4 . 2. Performance of and Authority for Covenants The City covenants that it will faithfully perform at all times any and all covenants, undertakings, stipulations and previsions contained in this Ordinance, the Loan Agreement, in the Bonds executed, authenticated and delivered hereunder and in all proceedings of the City Council pertaining thereto; that it is duly authorized under the Constitution and laws of the State of Colorado, including particularly and without limitation the Act, to issue the Bonds authorized hereby; pledge the revenues and assign the Loan Agreement and endorse the Company Note in the manner and to the extent set forth in this Grdinance , the Bonds and the Loan Agreement and Assignment of Lean Agreement; that all 16 - • Y � action on its part for the issuance of the Bonds and for the execution and delivery thereof has been duly and effectively taken; and that the Bonds in the hai,dc of the Lender are and will be a valid and enforceable obligation of the City according to the terms thereof. in making these representations , the City relies upon the opinion of Bond Ccunsel as to the truth of matters asserted and the efficacy of actions taken. 4. 3. Nature of Security Notwithstanding anything contained in the Eond, the Deed of Trust, the Loan Agreement or any ether document referred to in Section 2. 4 of this Ordinance , the Bonds shall never constitute the debt or indebtedness of the City within the meaning of any provision or limitation of the constitution cr statutes of the State of Colorado or Charter of the City of Fort Collins, Colorado and shall not constitute nor give rise to a pecuniary liability of the City or a charge against its general credit or taxing powers; and the City, its agents , officers and employees s+hall not be subject to any personal or pecuniary liability thereon. ARTICLE V liISCELLANEOUS 5. 1 . Severability If any provision of this Ordinance , except Section 4.3 of Article IV, hereof, shall be held or deemed to he , or shall , in fact , be, inoperative or unenforceable as applied in any particular case in any 'Jurisdictions or in all. cases because it conflicts with any provisions of any constitution or statute or rule or public policy, or for any other reason, such circum- stances shall not have the effect of rendering the provision in question inoperative or unenforceable in any other case or circumstance, or of rendering any other provision or previsions herein contained invalid, inoperative or unenforceable to any extent whatever. The invalidity of any one or more phrases , sentences , clauses or paracraphs in this Ordinance , except Section. 4 .3 of Article IV hereof, shall not affect the remaining portions of this Ordinance or any part hereof. 5 . 2. Authorization to Execute Aareements The forms of the proposed Loan Agreement , the Assignment of Loan Agreement, the Company Note, the Inducement Letter and the Offer tc Purchase are hereby approved in substantially the form presented to the City Council; and the Navor and the City Clerk are authorized to endorse the Company Note and execute the Loan. Agreement, the Assignment of Loan. Agreement, the Inducement 17 - LetteY and the offer to Purchase in the name of and cn behalf of the City and such other documents as Bond Counsel considers appropriate in connection with the issuance of the bonds . In the =-vent of the absence or disability of the Mayor or the City Clerk, such officers of the City as, in the opinion of the City Attorney, may act in their behalf, shall without iurtl,er act or authorization of the City Council do all things and execute all instruments and. documents required to he done or executed by such absent or disabled officers. 5 .3 . Authority to Correct Errors, Etc. The Mayer and the City Clerk are hereby authcrized and directed to make or agree to any alterations, changes or additions in the instruments hereby approved as the Ile:or and the City Attorney deem necessary er proper to accomplish the purposes of this Crdinance , the signatures of the Iiayor and the City Clerk on the instruments to be conclusive evidence of such approval; proviCed, however, no alteration, change or addition shall be made which shall alter the maximum net effective interest rate, s denomination, date, maturities , form, interet rates , recistra- ticn privileges, manner of execution., places of payment of terns of prepayment of the Bonds or which shall increase the agcregate principal amount oL the Fonds authorized by the City Council or in any way give rise to a pecuniary liability of the City or a charup against its genteel credit or taxing powers with respect to the Bonds. 5. 4. Further Authority The Mayor and the City Clerk and other proper City offi- cials, and each of them, are hereby authorized to execute and deliver for and on behalf of the City any and all additional certificates. , documents and other papers and to perform all other acts they may aeem necessary or appropriate in order to implement and carry out the matters herein authorized. 5. 5. Repealer All ordinances or parts thereof in conflict with this Ordinance are hereby repealed. 5. 6. ordinance Irrepealable After said bonds are issued this Ordina nce shall be and remain irrepealable until said herds and the interest thereon shall have been fully paid, satisfied and discharged. - i8 - 5. 7. Recording and Authentication This Ordinance, as adopted by the City Council, shall be numbered and recorded, and the adoption and publication shall be authenticated by the signatures of the Mayor and City Clerk and by the certificate of the publisher, respectively. -introduced, considered favorably on first reading and ordered published this 30th day of Cctober, 1984, and to be presented for final passage on the 20th day of November, 1984. Mayor (SEAL) ATTE„ City Clerk g"- Passed and adopted on final reading or. this 20th day of Ncvember, 1984. Mayor ATTEST; City Clerk Ccuncilmember Stoner moved that the foregoing Ordinance heretofore introduced and read by title be approved en first reading. Councilmember Clarke seconded the motion.The question being upon the approval on first reading of the Ordinance, the roll was called with the following results: Councilmembers voting "AYE" : Gerald. C. Horak, Mayor E. John Clarke, Assistant Mayor John B. Knezovich Pulliam C. Elliott Ed Stoner Kelly Ohlson Barbara Rutstein Councilmembers voting "MAY" : None The Mayor thereupon declared that, a majority of the Councilmembers present having voted in favor thereof, the motion was carriea ant the Ordinance duly appruve(I (, : :'irst reading. Thereupon the Mayor ordered said Ordinance published once in full togethe_ h a notice giving the date when said Crdinance will be presented for final passage in The Colcradcan, a newspaper of general circulation published in the City, at least seven (7) days before presentation_ tot final passage. After consideration of other business tc come before the Council, the meeting was adjourned. Manor City o Fort Collins , Colorado ATTEST: u� City Clerk City of Fort Collins, Colorado 20 _ 4 y � STATE OF COLORADO ) COUNTY OF LARIMER CITY OF FORT COLLINS ) The Council of the City of Fort Collins , Colorado regular meeting at 300 LaPorte Avenue , Fcrt Collins, Colorado, on, held a Tuesday, the 20th day of November, 1984, at the hour of 5: 30 p.m, The following persons were present: Councilmembers: Gerald C. Horak, Mayor E. John Clarke, Assistant Mayor Jchn B. Knezcvich Y?illiam C. Elliott Ed Stoner Kelly Ohlscn Barbara Rutstein City Manager: John E. Arnold City Clerk: Wanda M. Kraiicek The following persons were absent: The Mayor informed the Council that Ordinance pTo. which was ordered shed once inulledataap regular roved r meeting first eofl he and Council held on October 30 , 1984, was duly published in. The Coioradoan , a newspaper of general circulation published in the City, in its issue of November 4, 1984. Councilmember they_ read said Ordinance by its title. Thereupon, Councilmember Passage of Ordinance No. the moved the fii:ing u the final passage of said1Ordinnce, �the aroll wasscalled tion ewith uthe following results : - 21 - Councilmembers voting "AYE" : Councilmembers : Gerald C. Horak, Mayor E. John Clarke, Assistant Mayor . John B. K.nezovich William C. Elliott Fd Stoner Kelly Ohlson Barbara Rutstein Councilmembers voting "NAY" : The Mayor thereupon declared that a majority of the Councilmembers present having voted in favor thereof, the motion was carried and the Ordinance finally passed. Thereupon. the Mayor ordered said Ordinance published by number and title only together with a notice of the final passage of the Ordinance in. The Ccloradoan, a newspaper of general circulation published in the City, within five (5) days after said final passage. After consideration of other business to come before the Council the meeting was adjourned. Mayor City o Fort Collins , Colorado ATTEST: Z City Clerk City of Fort Collins, Colorado - 22 - I STATE OF COLORADO ) ss. COUNTY OF LARID_ER ) CITY OF FORT COLLINS ) I , Wanda Y'. Krajicek, City Clerk of the City of Fort Collins, Colorado, do hereby certify that the attached copy of Ordinance No. 161. 7984 , is a true and correct copy; that said Ordinance was introduced and approved on first reaaing by the Council of the City of Fort Collins , Colorado, at a regular meeting thereof held at 300 LaPorte Avenue , Fort Collins, Colorado, the regular meeting place thereof, on Tuesday, the 30th day of October , 1984 , that said Ordinance was finally passed on second reading by said Council at a regular meeting thereof held at 300 LaPorte Avenue, Fort Collins , Colorado, the regular meeting place thereof, on Tuesday, the 20th day of November, 1984 , that a true copy of said Ordinance has been authenticated by the signatures of the Mayor of said City and myself as recorded in a book marked "Ordinance Record" kept for such purpose in my office; and that said Ordinance was duly published once in full together with a notice giving the date when said Ordinance would be presented for final passage and once by number and title only together with a notice stating the date when said Ordinance would be presented for the final passage thereof, in the The Coloradoan, a newspaper of general circulation published in the City, in its issues of November 4, 1984 and November 25 , 1984 , as evidenced by the certificates of the publisher attached hereto at pages 23 and 24 . I further certify that the foregoing pages 1 through 21, inclusive , constitute a true and correct copy of the record of the proceedings of said Council at its regular meetings of October 30, 1984, and November 20 , 1984 , insofar as said proceedings relate to said Ordinance; and that said proceedings were duly had and taken, that the meetings were duly 111a; and that the persons were present at said meetings as therein show. IN WITNESS WHEREOF, I have hereunto sat my hand and the seal of the City of Fort Collins, Colorado this 26th day of November 1984 City Clerk City of Fort Collins , Colorado (Attach affidavit of publication in full of Ordinance and notice giving date when. Ordinance to be presented for final passage. ) GYN3 : 20 - 23 -