GILMORE & BELL, P.C.
Execution Copy
NATIONAL COOPERATIVE
REFINERY ASSOCIATION
AS PURCHASER
AND
CITY OF MCPHERSON,
KANSAS
AS ISSUER
BOND PURCHASE
AGREEMENT
$325,000,000
TAXABLE INDUSTRIAL REVENUE BONDS
SERIES 2006
(NATIONAL COOPERATIVE REFINERY ASSOCIATION)
1
BOND PURCHASE
AGREEMENT
$325,000,000
CITY OF MCPHERSON, KANSAS
TAXABLE INDUSTRIAL REVENUE BONDS
SERIES 2006
(NATIONAL COOPERATIVE REFINERY ASSOCIATION)
Dated: December 18, 2006
On the basis of the representations,
and the terms and conditions contained herein, the undersigned,
National Cooperative Refinery Association (the
“Purchaser”), hereby offers to purchase $325,000,000
aggregate principal amount of Taxable Industrial Revenue Bonds,
Series 2006 (National Cooperative Refinery Association) (the
“Bonds”) to be issued by the City of McPherson, Kansas
(the “Issuer”), an incorporated municipality duly
organized and existing as a city of the second class under the
constitution and laws of the State of Kansas, under and pursuant to
Ordinance No. 2891 of the Issuer passed by the governing body
of the Issuer on September 11, 2006 (the
“Ordinance”) and secured under the provisions of a
Trust Indenture dated as of the Issue Date of the Bonds (the
“Indenture”) between the Issuer and Security Bank of
Kansas City, as Trustee (the “Trustee”). The Bonds are
to be issued by the Issuer pursuant to and in accordance with
provisions of Sections 12-1740 et seq. , inclusive, of the
Kansas Statutes Annotated, as amended (collectively the
“Act”), and the constitution of the State of Kansas,
for the purpose of paying the costs to finance modifications and
improvements to the existing crude oil refinery facility to be
leased to the Purchaser.
In connection with the issuance of
the Bonds, the Purchaser and the Issuer propose to enter into a
Lease dated as of the Issue Date of the Bonds (the
“Lease”) with respect to the Leased Property (as
defined below). Pursuant to the Lease, the Issuer will lease the
Leased Property to the Purchaser and the Purchaser shall be
required to pay as Basic Rent thereunder amounts sufficient to pay
the principal of, premium, if any, and interest on the Bonds and
all other Bonds Outstanding under the Indenture.
Section 1. Representations,
Warranties, Covenants and Agreements of the Issuer.
By acceptance and execution hereof
the Issuer hereby represents to, and agrees with, the Purchaser
that:
(a) The Issuer is a municipality
incorporated as a city of the second class of and within the State
of Kansas, duly organized and existing under the constitution and
laws of the State of Kansas. The Issuer is authorized under the
provisions of the constitution and laws of the State of Kansas,
including particularly the Act, to issue, sell and deliver the
Bonds for the purposes specified above, to adopt and perform its
obligations under the Ordinance, to enter into and perform its
obligations under this Bond Purchase Agreement (the
“Agreement”), the Indenture and the Lease and to
pledge, pursuant to and in accordance with provisions of the
Ordinance, the Indenture and certain rentals payable by the
Purchaser to the Issuer pursuant to the provisions of the Lease, to
the payment of the principal of, premium, if any, and interest on
the Bonds in the manner provided therein.
(b) The Issuer has full power
and authority to consummate all transactions contemplated by this
Agreement, the Bonds, the Ordinance, the Indenture and the Lease
(the “Bond Documents”) and any and all other agreements
relating thereto, to which the Issuer is a party.
(c) The Issuer will have duly
authorized prior to the Closing Time (as hereinafter defined) all
necessary action to be taken by it or on its behalf for:
(i) the issuance and delivery of the Bonds upon the terms set
forth in this Bond Purchase Agreement; (ii) the passage,
signature and publication of the Ordinance; (iii) the
execution and delivery by it of the Bond Documents to which it is a
party; (iv) the carrying out, giving effect to and
consummation of the transactions contemplated thereby and by this
Agreement. Copies of this Agreement, the Ordinance, the Indenture
and the Lease, executed by the appropriate officers or officials of
the Issuer, shall be delivered to the Purchaser by the Issuer at
the Closing Time.
(d) There is no action, suit,
proceeding, inquiry or investigation at law or in equity or before
or by any court, public board or body pending or, to the knowledge
of the Issuer, threatened against or affecting it (or, to its
knowledge, any basis therefor) wherein an unfavorable decision,
ruling or finding would adversely affect the transactions
contemplated by this Agreement or would adversely affect the
validity of the Bond Documents or any agreement or instrument to
which the Issuer is a party and which is used or contemplated for
use in the consummation of the transactions contemplated
hereby.
(e) Any certificate signed by
any authorized officer or official of the Issuer and delivered to
the Purchaser in connection with the transactions contemplated by
this Agreement shall be deemed a representation by the Issuer to
the Purchaser as to the statements made therein.
(f) When delivered to and paid
for by the Purchaser in accordance with the provisions of this
Agreement and authenticated in accordance with the provisions of
the Indenture, the Bonds will have been duly authorized, executed,
issued and delivered; the Bonds will constitute valid and binding
limited obligations of the Issuer payable solely and only from the
revenues specified in the Indenture and in conformity with, and
entitled to the benefits and security of, the Indenture and all
action taken by the Issuer in connection therewith shall be in
conformity with the Act.
(g) The execution and delivery
of this Agreement, the Bonds and the other documents to be executed
by the Issuer in compliance with the provisions hereof and thereof
will not conflict with or constitute a breach of or default under
any agreement or other instrument to which the Issuer is a party or
any existing law, administrative regulation, court order or consent
decree to which the Issuer is subject.
(h) The Issuer will cause the
cash proceeds, if any, from the sale of the Bonds to be deposited
as required by the Indenture and used for the purposes set forth in
the Indenture.
(i) No additional or further
approval, consent or authorization of any governmental or public
agency or authority not already obtained by the Issuer is required
in connection with the issuance and sale of the Bonds or entering
into and performing the obligations of the Issuer under this
Agreement, the Bonds or the other documents to be executed by the
Issuer.
Section 2. Representations of
the Purchaser.
The Purchaser makes the following
representations as of the Closing:
(a) The statements and
information relating to the Bonds, the Purchaser, the anticipated
sources and use of funds to be applied in connection with the
issuance of the Bonds, and the Leased Property are true and correct
in all material respects and do not omit any material fact
necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading.
(b) The Purchaser is a duly
formed nonprofit cooperative marketing association existing and in
good standing under the laws of the State of Kansas.
(c) The Purchaser has full power
and authority to enter into, execute and deliver the Lease and this
Agreement, and to perform its obligations thereunder and hereunder,
all of which have been duly authorized by all proper and necessary
corporate actio
