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8655 IRB Pepsi ColaRtbl i she! in the � �oW-r�c�l t�, �e.�t-�'vJr_,�r I Z,19�8 ORDINANCE NO. 8655 OF THE CITY OF SALINA, KANSAS TMTIRX Page 1 Recitals-------------------------------------------- 1 Section 1. Authority to Acquire Real Property and to Construct and Purchase Facility ------------ 1 Section 2. Authorization of and Security for the Bonds- 2 Section 3. Description and Details of the Bonds, Designation of Paying Agent ---------------- 2 Section 4. Redemption and Payment of Bonds Prior to Maturity -------------------------------- 3 Section 5. Notice of Redemption ----------------------- 3 Section 6. Method of Execution of Bonds --------------- 4 Section 7. Form of Bond ------------------------------- 4 Section 8. Execution and Delivery of the Bonds, Deposit of Bond Proceeds, Designation of Fiscal Agent-------------------------------------- 10 Section 9. Construction Fund -------------------------- 10 Section 10. Principal and Interest Account ------------- 10 Section 11. Covenant to Redeem Bonds ------------------- 11 Section 12. Investments -------------------------------- 11 Section 13. Particular Covenants of the City ----------- 12 Section 14. Amendments --------------------------------- 15 Section 15. Enforcement -------------------------------- 16 Section 16. Declaration of Maturity of Bonds in the Event of Default --------------------------- 17 Section Section 17. 18. Defeasance --------------------------------- List of Bondholders ------------------------ 17 18 Section 19. Provisions Relating to the Fiscal Agent ---- 18 Section 20. Authorization of Lease --------------------- 20 Section 21. Severability ------------------------------- 20 Section 22. Conveyance of Facility --------------------- 21 Section 23. Effective Date ----------------------------- 21 Exhibit "A" Description of Property 1 ORDINANCE NO. 8655 AN ORDINANCE AUTHORIZING THE CITY OF SALINA, KANSAS, TO ACQUIRE FOR INDUSTRIAL DEVELOPMENT PURPOSES THE REAL PROP- ERTY HEREINAFTER DESCRIBED AND TO CONSTRUCT AND PURCHASE BUILDINGS, IMPROVEMENTS, MACHINERY AND EQUIPMENT TO BE LEASED TO PEPSI COLA BOTTLING COMPANY OF SALINA, INC.; AUTHORIZING AND DIRECTING THE ISSUANCE OF $350,000 PRINCIPAL AMOUNT OF INDUSTRIAL REVENUE BONDS, PEPSI COLA BOTTLING COMPANY OF SALINA, INC. SERIES OF 1978, OF SAID CITY FOR THE PURPOSE OF PROVIDING FUNDS TO PAY THE COST OF ACQUIRING THE REAL PROPERTY HEREINAFTER DESCRIBED AND TO CONSTRUCT AND PURCHASE BUILDINGS, IMPROVEMENTS, MACHINERY AND EQUIPMENT TO BE LEASED TO PEPSI COLA BOTTLING COMPANY OF SALINA, INC.; AND PRESCRIBING THE FORM AND AUTHORIZING THE EXECUTION OF A LEASE BY AND BETWEEN SAID CITY AND SAID COMPANY. WHEREAS, the City of Salina, Kansas, hereinafter sometimes referred to as the "City," desires to promote, stimulate and develop the general economic welfare and prosperity of the City of Salina, Kansas, and its environs and thereby to further promote, stimulate and develop the general economic welfare and prosperity of the State of Kansas; and WHEREAS, pursuant to the provisions of K.S.A. 12-1740 to 12-1749, as amended, said City is authorized to issue industrial revenue bonds of the City, and it is hereby found and determined to be advisable and in the interest and for the welfare of the City and its inhabitants that in- dustrial revenue bonds of the City be authorized and issued, for the purpose of providing funds to pay the cost of ac- quiring real property and to construct and purchase build- ings, improvements, machinery and equipment to be leased to Pepsi Cola Bottling Company of Salina, Inc., an Iowa cor- poration authorized to do business in the State of Kansas, hereinafter sometimes referred to as the "Company"; and WHEREAS, the City will acquire prior to or con- currently with the issuance of the Bonds herein authorized the real property hereinafter described; NOW, THEREFORE, BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF SALINA, KANSAS: Section 1. Authority to Acquire Real Property and to Construct and Purchase Facility. The City of Salina, Kansas, is hereby authorized to acquire the real property described and set forth in Exhibit "A" attached hereto 1 and made a part hereof and to construct and purchase build- ings, improvements, machinery and equipment described in said Exhibit "A" (said real property, buildings, improve- ments, machinery and equipment being sometimes hereinafter described collectively as the "Facility"), in accordance with the provisions of the Lease dated as of September 1, 1978 between said City and said Pepsi Cola Bottling Company of Salina, Inc. (hereinafter sometimes referred to as the "Lease"), said Lease being authorized by the provisions of Section 20 of this Ordinance, all at an amount which will not exceed the cost of $350,000 to said City. Section 2. Authorization of and Security for the Bonds. For the purpose of providing funds to pay the cost of acquiring the real property described in said Ex- hibit "A" and to construct and purchase buildings, improve- ments, machinery and equipment to be leased to Pepsi Cola Bottling Company of Salina, Inc., an Iowa corporation author- ized to do business in the State of Kansas, there shall be issued and hereby are authorized and directed to be issued a series of Industrial Revenue Bonds, Pepsi Cola Bottling Company of Salina, Inc. Series of 1978, of the City of Salina, Kansas, in the principal amount of $350,000. Said Bonds herein authorized, hereinafter sometimes referred to as the "Bonds," and all interest thereon shall be paid solely from the money and revenue received from the fees charged and rental received for the use of the Facility and not from any other fund or source. The City hereby pledges the Facility and the net earnings therefrom to the payment of the Bonds and the interest thereon. Section 3. Description and Details of the Bonds, Designation of Paying Agent. Said Industrial Revenue Bonds, Pepsi Cola Bottling Company of Salina, Inc. Series of 1978, of the City of Salina, Kansas, shall consist of 70 coupon Bonds, numbered from 1 to 70, inclusive, each of said Bonds being in the denomination of $5,000. All of said Bonds shall be dated September 1, 1978, and said Bonds shall become due serially on September 1, in each year, and shall bear interest from date as follows: 2 Aggregate Principal Maturity Annual Rate Numbers Amount September 1 of Interest 1- 7 $35,000 1979 6.0% 8-14 35,000 1980 6.10 15-21 35,000 1981 6.2% 22-28 35,000 1982 6.3% 29-35 35,000 1983 6.4% 36-42 35,000 1.984 6.5% 43-49 35,000 1985 6.6% 50-56 35,000 1986 6.7% 57-63 35,000 1987 6.8% 64-70 35,000 1988 6.9% Said Bonds shall bear interest from date payable semi-annually on March 1 and September 1 in each year, be- ginning on March 1, 1979 until maturity or called for redemption. Said Bonds and the interest coupons to be attached thereto shall be payable to bearer in lawful money of the United States of America at The First National Bank and Trust Company of Salina, in the City of Salina, Kansas, hereby designated as the City's paying agent for the payment of the principal of and interest on the Bonds and herein sometimes referred to as the "Paying Agent." Section 4. Redemption and Payment of Bonds Prior to Maturity. Said Bonds and each of them shall be subject to redemption and payment at the option of the City, in whole or in part, on March 1, 1979, or on any interest payment date thereafter, at the par value thereof plus accrued interest to the date fixed for redemption and pay- ment, without premium. Bonds to be redeemed and paid pur- suant to this Section shall be redeemed in inverse numerical order. Section 5. Notice of Redemption. Notice of. any redemption provided for by this Ordinance shall be given in the name of the City by the Fiscal Agent by United States certified or registered mail to the Paying Agent herein designated, such notice to be mailed at least 30 days prior to the date fixed for redemption and payment and to specify the numbers of the Bonds to be redeemed and paid. Notice of any such redemption shall also be published once not less than 30 days prior to the date fixed for redemption in the official city paper of the City. Notice of any such re- demption shall also be given by mail in the manner herein- before specified to any bondholder who files his name with 3 1 the Fiscal Agent pursuant to Section 18 of the Ordinance, provided that the failure to give any notice by mail as herein specified shall not affect the validity of any such call for redemption. Interest shall cease on any of said Bonds so called for redemption and payment as of the re- demption date, provided funds are available to pay the same according to their terms. Notice of any redemption as herein provided shall be given upon, but only upon, written instructions from the Company, as long as the Company is not in default in the payment of Basic Rent due under the Lease. Section 6. Method of Execution of Bonds. Said Bonds and each of them shall be executed for and on behalf of the City by the facsimile signature of its Mayor and attested by the facsimile signature of its City Clerk, with the seal of the City affixed. Interest coupons shall be attached to the Bonds representing the interest to mature thereon, and said interest coupons shall bear the facsimile signatures of the Mayor and City Clerk of said City. Said Bonds and each of them shall be registered in the office of the City Clerk, which registration shall be evidenced by a certificate on the reverse side thereof bearing the manual signature of the City Clerk. Section 7. Form of Bond. Each of said Bonds and interest coupons and the certificate attached thereto shall be in substantially the following form: 4 No. UNITED STATES OF AMERICA STATE OF KANSAS COUNTY OF SALINE CITY OF SALINA INDUSTRIAL REVENUE BOND PEPSI COLA BOTTLING COMPANY OF SALINA, INC. SERIES OF 1978 $5,000 KNOW ALL MEN BY THESE PRESENTS: That the City of Salina, in the County of Saline, State of Kansas, for value received, hereby promises to pay, out of the revenues hereinafter specified, to the bearer, the sum of FIVE THOUSAND DOLLARS in lawful money of the United States of America, on the first day of September, 19 and to pay interest thereon from the date hereof at the rate of percent ( o) per annum, payable semiannually on March 1 and September 1 in each year after the date hereof, be- ginning on March 1, 1979, until the said principal sum shall have been paid, upon presentation and surrender of the interest coupons hereto attached, bearing the facsimile signatures of the Mayor and City Clerk of said City as said coupons severally become due, both principal of and interest on this Bond being payable at The First National Bank and Trust Company of Salina, in the City of Salina, Kansas (hereinafter sometimes referred to as the "Paying Agent" or the "Fiscal Agent"). THIS BOND is one of an authorized series of Bonds aggregating the principal amount of $350,000 authorized by Ordinance of said City (the "Ordinance") for the purpose of providing funds to pay the cost of acquiring real property and constructing and purchasing buildings, improvements, machinery and equipment (hereinafter sometimes referred to as the "Facility,".said Facility being further identified in the Ordinance) to be leased to Pepsi Cola Bottling Company of Salina, Inc., an Iowa corporation authorized to do busi- ness in the State of Kansas (the "Company"), pursuant to a Lease dated September 1, 1978 (the "Lease"), by and between said City and said Company, by the authority of and in conformity with the provisions, restrictions and limitations of the Con- stitution and statutes of the State of Kansas, including K.S.A. 12-1740 to 12-1749, and all amendments thereof and acts supplemental thereto, and all other provisions of the laws of said State applicable thereto, and this Bond and all interest hereon are to be paid by said City of Salina, Kansas, solely and only from the money and revenue received from the fees charged and rental received for the use of the Facility under said Lease and not from any other fund or source. Pursuant to the provisions of said statute, the governing body of the City has pledged said Facility and the net earnings therefrom to the payment of the series of Bonds of which this Bond is a part and the interest thereon. Reference is hereby made to the Ordinance and to the Lease for a description of the covenants of the City with respect to the payment, collection, segregation and application of the revenues said Facility, the nature and extent of the security for the Bonds, the rights, duties and obligations of the City and the Fiscal Agent with respect thereto, and the rights of the holders of this Bond. Each of the Bonds of the series of which this Bond is one is subject to redemption and payment in whole or in part, on March 1, 1979, or on any interest payment date thereafter, at the par value thereof plus accrued interest to the redemption and payment date., without premium. Bonds to be redeemed pursuant to this paragraph shall be redeemed in inverse numerical order. Notice of the City's intention to redeem and pay said Bonds pursuant to the redemption provision aforesaid, specifying the numbers of the Bonds to be redeemed and paid, shall be given by United States certified or registered mail to the Paying Agent not less than 30 days prior to the date fixed for redemption and payment. AND IT IS HEREBY DECLARED AND CERTIFIED that all acts, conditions and things required to be done and to exist precedent to and in the issuance of this Bond have been properly done and performed and do exist in due and regular form and manner as required by the Constitution and laws of the State of Kansas. IN WITNESS WHEREOF, the City of Salina, Kansas, by its governing body, has caused this Bond to be signed by the facsimile signature of its Mayor and attested by the facsimile 6 signature of its City Clerk, and its corporate seal to be hereto affixed and the interest coupons hereto attached to be signed with the facsimile signatures of said officers, and this Bond to be dated this first day of September, 1978. (facsimile Mayor ATTEST: facsimile) City Clerk 1 1 Coupon No. (FORM OF COUPON) All Coupons for 6 Months due March 1 and September 1 STATE OF KANSAS, COUNTY OF' SALINE, SS: I, the undersigned, City Clerk of the City of Salina, Salina, Kansas, hereby certify that the within Industrial Revenue Bond, Pepsi Cola Bottling Company of Salina, Inc. Series Bonds 1- 7 $150.00 8- 14 152.50 15- 21 155.00 22- 28 157.50 29- 35 160.00 36- 42 162.50 43- 49 165.00 50- 56 167.50 57- 63 170.00 64- 70 172.50 On the First day of (March) (September),) 19 (unless the Bond to which this coupon is ) )---------------------- attached be called for redemption and payment ) City of Salina duly made or provided for) the City of Salina, ) Kansas Kansas, will pay bearer, solely from the money ) Industrial ) Revenue Bond, and revenue received from the fees charged and )Pepsi Cola Bottling rental received for the use of the Facility ) Company of Salina, In, ) Series of 1978 described in the Bond to which this coupon is attached, and not from any other fund or source, ) )---------------------- the amount shown hereon, in lawful money of the ) United States of America, at The First National ) $ Bank and Trust Company of Salina, in the City ) of Salina, Kansas, being interest due on its ) Industrial Revenue Bond, Pepsi Cola Bottling Company of Salina, Inc. Series of 1978, dated ) September 1, 1978, No. (facsimile) ) Mayor ) ATTEST: ) (facsimile) ) City Clerk ) ----------------------------------------------------------------- STATE OF KANSAS, COUNTY OF' SALINE, SS: I, the undersigned, City Clerk of the City of Salina, Salina, Kansas, hereby certify that the within Industrial Revenue Bond, Pepsi Cola Bottling Company of Salina, Inc. Series 1 1 of 1978, of the City of Salina, Kansas, has been duly regis- tered in my office according to law. WITNESS my hand and official seal this day of 1978. 0 City Clerk Section 8. Execution and Delivery of the Bonds, Deposit of Bond Proceeds, Designation of Fiscal Agent. The Mayor and City Clerk are hereby authorized and directed to prepare and execute, in the manner hereinbefore speci- fied, the Bonds herein authorized, and to deliver said Bonds to the purchasers thereof on payment of the purchase price. The proceeds of said Bonds shall be deposited with The First National Bank and Trust Company of Salina, in the City of Salina, Kansas, hereby designated as the City's Fiscal Agent and herein referred to as the "Fiscal Agent," the rights and duties of said Fiscal Agent being further specified in Section 19 of this Ordinance. Section 9. Construction Fund. There is hereby authorized and ordered to be established in the hands of the Fiscal Agent a separate fund or account designated as "City of Salina, Kansas, Pepsi Cola Bottling Company of Salina, Inc. Construction Fund," hereinafter referred to as the "Construction Fund." The Fiscal Agent shall, first, promptly pay from the proceeds of the sale of said Bonds into the Principal and Interest Account, the amount of any accrued interest and premium, if any, received from such sale. Further, the Fiscal Agent is authorized to pay fiscal and legal fees and other expenses relating to the issuance of said Bonds. The balance of the proceeds of the sale of said Bonds shall be deposited in said Construction Fund. Said Construction Fund shall be used for the purpose of providing funds to pay the construction and acquisition costs of the Facility to be leased to Pepsi Cola Bottling Company of Salina, Inc., as provided in said Lease, and the Fiscal Agent shall make disbursements from said Construction Fund in accordance with this Ordinance and the Lease. Any moneys not required for said purpose shall, when the Facili- ty is complete as provided in the Lease, be deposited by the Fiscal Agent in said Principal and Interest Account. Section 10. Principal and Interest Account. There is hereby authorized and ordered to be established in the hands of the Fiscal Agent an additional separate account to be known as the "City of Salina, Kansas, Principal and Interest Account for Industrial Revenue Bonds, Pepsi Cola Bottling Company of Salina, Inc. Series of 1978, dated September 1, 1978," hereinafter referred to as the "Principal and In- terest Account." The City covenants and agrees that from 10 and after the delivery of any of the Revenue Bonds herein authorized and continuing so long as any of said Bonds shall remain outstanding, said City will maintain said Account with the Fiscal Agent. All payments of Basic Rent and Additional Rent due under said Lease between the City and the Company intended to pay the principal of and interest on the Bonds shall be applied and allocated by the Fiscal Agent to said Principal and Interest Account. All amounts cred- ited to and deposited in said Principal and Interest Account shall be used by the Fiscal Agent and forwarded to the Paying Agent for the sole purpose of paying the principal of and interest on the Revenue Bonds herein authorized as and when the same become due or are called for redemption and payment. Any balance remaining in said Principal and In- terest Account, including interest earned on deposits made into said Account as prepayments of rent due under Article II of said Lease, shall, when said Bonds have been paid, or payment provided for, be paid to Pepsi Cola Bottling Company of Salina, Inc. Section 11. Covenant to Redeem Bonds. When moneys accumulated in said Principal and Interest Account shall aggregate an amount sufficient to pay the principal of all of the Bonds then outstanding, and all interest accrued to date fixed for redemption and payment, and redemption premium, if any, and when said Bonds become subject to redemption, said City shall, upon receipt of instructions from the Company, proceed to give notice of such redemption in the manner herein specified, and said Fiscal Agent shall use such funds for said purpose. Section 12. Investments. Subject to the provisons of paragraph (A) of Section 13 of the Ordinance, moneys in the Construction Fund and the Principal and In- terest Account shall, upon instructions from the Company, be invested by the Fiscal Agent in obligations of the United States Government or any agency or instrumentality thereof, or in Certificates of Deposit or other savings or`time deposits of a state or national bank, including the Fiscal Agent, in such amounts and maturing at such times as shall reasonably provide for monies to be available when required in said Construction Fund and Principal and Interest Ac- count. All income from investment of the Construction Fund 11 and Principal and Interest Account shall accrue to and become a part of and be transferred to the Principal and Interest Account. Section 13. Particular Covenants of the City. So long as any of the principal of and interest on the Bonds herein authorized remain outstanding and unpaid, or until provisions are made for the payment thereof, the City cove- nants with each of the holders and owners of said Bonds as follows: (A) The City will use the proceeds of the series of Bonds herein authorized as soon as practi- cable and with all reasonable dispatch for the purpose for which said Bonds are issued as hereinbefore set forth. Said proceeds will not be invested in any securities or obligations except for the temporary period pending such use and said proceeds will not be used directly or indirectly so as to cause all or any part of the Bonds herein authorized to be or become "Arbitrage Bonds" within the meaning of Section 103(c) of the Internal Revenue Code of 1954, as amended. The City further covenants that the proceeds of the series of Bonds herein authorized will not be used to acquire securities or obligations that will produce a yield higher than the yield of the Bonds herein authorized unless a statute, regulation of the Treasury Department of the United States, ruling by the Internal Revenue Service of the United States or a decision by a court of ultimate jurisdiction holds that an acquisition of securities or obligations producing a yield higher than said Bonds will not cause said Bonds to be Arbitrage Bonds as defined in said Subsection (c). (B) The City will comply fully with all the terms, provisions and conditions of the Lease which require performance by, or impose duties on, the City and that it will not permit any default to occur on the part of the City; that it will fully and promptly enforce all of the terms, provisions and conditions of the Lease which require performance by, or impose duties on, the Company and in the event of the occur- rence of a default, as defined in the Lease, will exercise all rights and remedies conferred by the Lease 12 13 for the full and complete protection of the security and rights of the bondholders and, to the extent per- mitted by the Lease, will use its best efforts to procure a new tenant or tenants for the leased property under lease provisions which will provide funds suf- ficient in amount to make the rental payments and other charges which the Company is required to make under the Lease. If the City is unable to procure a new tenant who will enter into such a lease the City may, with the consent of the holders of not less than sixty-six and two-thirds percent (66 2/3%) of the Bonds herein author- ized at the time outstanding, sell the Facility leased at a price not less than the amount of the then out- standing Bonds plus interest then unpaid. (C) The City will enforce collection of the rental payment and other charges in the amounts and at the time set forth in the Lease authorized hereby and will not reduce or cause or permit to be reduced the rental payments and other charges fixed, estab- lished and required by the Lease nor change or alter the time or times when the same are due and payable under the Lease. The City's obligation to pay the expenses of such enforcement shall be limited to funds made available to it for that purpose by the holders of the Bonds or other interested parties. (D) Until payment of all the Bonds and interest thereon has been duly made or provided for, the City will not consent to any change, amendment, modification or termination of said Lease, except as provided therein, which will in any manner affect adversely the rights, remedies or interest of the bond- holder, nor will it consent to any merger, consoli- dation, dissolution or liquidation by the Company, except to the extent provided in the Lease. (E) Any purchase price of the lease property, any proceeds of condemnation awards or in- surance proceeds, any of which are received by the City pursuant to the termination of the Lease, or any other funds intended for the purpose of paying the Bonds will be used solely and exclusively to pay the Bonds herein authorized and the interest thereon according to their 13 terms or to redeem and pay any of the Bonds then out- standing and unpaid then subject to redemption and payment. Upon receipt of any such funds, and as soon as the Bonds are subject to redemption and payment, the City shall proceed promptly to call the Bonds for redemption and payment according to their terms and shall give notice, or cause notice to be given thereof, as provided for by the terms of this Ordinance. Such funds shall be deposited with the Fiscal Agent, and the same shall be used solely for the payment of the Bonds herein authorized, accrued interest thereon, any premi- um provided for by this Ordinance and the charges of the Paying Agent and the Fiscal Agent for paying the same. (F) The City will not issue any other obligations payable from payments by the Company, pursuant to the Lease, nor voluntarily create or cause to be created any debt, lien, pledge, assignment, encumbrance, or any other charge on said payments or on the property subject to said Lease nor will it, unless required by law or by the terms of said Lease, sell or otherwise dispose of the Facility or any part thereof; provided, however, that said City may issue from time to time additional industrial revenue bonds for the purpose of completing the construction or acquistion thereof on the land herein referred to, provided the following terms and conditions are met: (i) The City shall have entered into a lease or agreement with the Company with rentals or payments at least sufficient to pay the prin- cipal of and interest on said additional bonds as the same become due. (ii) The Company is not in default in the payment of rent due under the Lease. (iii) The issuance of said additional bonds shall not affect the exemption from Federal income taxation of the interest on the Bonds herein authorized. In the event of the issuance of any such addi- tional bonds the City may pledge the Facility and the net earnings therefrom to the payment of such addi- tional bonds and the interest thereon, provided the 14 City also pledges the additional construction, fixtures and equipment and the net earnings therefrom, con- structed or purchased out of the proceeds of such additional bonds, to the payment of the Bonds herein authorized and the interest thereon. (G) The City will cause the Company to keep constantly insured all buildings and improvements from time to time constituting a part of the property and premises leased to the Company in the manner pro- vided for by the Lease herein authorized. The City's share of the proceeds of any such insurance policies shall be payable to and deposited with the Fiscal Agent as Insurance Trustee. Any of the proceeds of such policies shall be used and applied in the manner set forth in said Lease. (H) The City will cause the Fiscal Agent to maintain adequate records and accounts re- lating to the Facility, separate and apart from all other records of accounts of the City or the Fiscal Agent, and such records and accounts shall be main- tained in accordance with generally accepted principles of accounting and shall include complete details of all financial transactions related to the Bonds authorized herein and the leased facilities. Such records and accounts shall be specifically designed and maintained to show whether or not the provisions of this Ordinance and the Lease referred to herein are being complied with. Such books and records shall be available for inspection by the agents of the Company or any of the holders of the Bonds authorized herein during the regular business hours of the City or the Fiscal Agent. Section 14. Amendments. The provisions of the Bonds authorized by this Ordinance and the provisions of this Ordinance may be modified or amended at any time by the City with the written consent of the holders of not less than sixty-six and two-thirds percent (66 2/3%) in aggregate principal amount of the Bonds herein authorized at the time outstanding, provided that no such modification or amendment shall permit or be construed as permitting: (a) the modi- fication of any duties or responsibilities of the Fiscal Agent unless it consents thereto, (b) the extension of the maturity of the principal of any of the Bonds issued here- under, or the extension of the maturity of the interest on any Bonds issued hereunder, (c) a reduction in the principal amount of any Bonds or the rate of interest thereon, or (d) a reduction in the aggregate principal amount of Bonds, the consent of the holder of which is required for any such amendment or modification. Any provision of the Bonds or of this Ordinance may, however, be modified or amended in any respect with the written consent of the holders of all of the Bonds then outstanding. Amendments to this Ordinance which correct omissions or ambiguities or which add to the security of the bondholders may be made by the City when agreed to by the Company. Every amendment or modification of a provision of the Bonds or of this Ordinance to which the written consent of the bondholders is given as above provided shall be expressed in an ordinance of the City amending or supplementing the provisions of this Ordinance and shall be deemed to be a part of this Ordinance. It shall not be necessary to note on any of the outstanding Bonds any reference to such amendment or modification, if any. Upon payment of the reasonable cost of preparing the same, a certified copy of every such amendatory or supple- mental ordinance, if any, and a certified copy of this Ordinance will be sent by the City Clerk to any such bond- holder or prospective bondholder requesting the same. The Lease herein authorized may be amended by the City and the Company as provided therein, except as to rent or certain other matters which may be made only with the consent of a specified percentage of the holders of the then outstanding Bonds. Section 15. Enforcement. The provisions of this Ordinance shall constitue a contract between the City and the holders of the Bonds herein authorized, and the holder of any one or more of said Bonds may sue to recover interest or principal which has not been paid according to the terms of said Bond. The holders of twenty-five percent (250) of the principal amount of Bonds then outstanding may sue in any action, in mandamus, injunction or other pro- ceedings, either at law or in equity, to enforce or compel performance of all duties and obligations required by this Ordinance to be done or performed by said City or by said Company. Nothing contained in this Ordinance shall, how- ever, be construed to impose on said City any duty or obli- gation to levy any taxes either to meet any obligation 16 contained herein or to pay the principal of or interest on the Bonds of the City herein authorized. Section 16. Declaration of Maturity of Bonds in the Event of Default. In the event the principal of or interest on the Bonds herein authorized is not paid accord- ing to the terms thereof either on maturity or upon call for redemption, then the holders of twenty-five percent (25%) of the principal amount of Bonds then outstanding may, by written notice given to the Mayor or City Clerk, declare the principal of all the Bonds herein authorized then outstand- ing to be due and payable immediately, and upon such decla- ration given as aforesaid, all of said Bonds shall be immediately due and payable, anything in said Bonds or in the Ordinance contained to the contrary notwithstanding. This provision, however, is subject to the condition that if at any time thereafter, all arrears of interest, except interest accrued but not yet due, and all arrears of prin- cipal shall have been paid in full, then in every such case, the holders of a majority in principal amount of the Bonds then outstanding, by written notice to the Mayor or City Clerk, may rescind and annul such declaration and its con- sequences, but no such rescission or annulment shall extend to or affect any subsequent default or impair any rights consequent thereon. Section 17. Defeasance. When all of the Bonds of the City herein authorized and all coupons repre- senting interest thereon shall have been paid and discharged, then the requirements contained herein and the pledge of revenues made hereunder and all other rights granted hereby, shall cease and determine. Bonds and coupons shall be deemed to have been paid and discharged within the meaning of this Ordinance when there shall have been deposited with the Fiscal Agent at or prior to the maturity or redemption date of said Bonds and coupons, in trust for and irrevocably appropriated thereto, sufficient moneys for the payment of the principal thereof and interest accrued to the date of maturity or redemption, as the case may be, or if default in such payment shall have occurred on such date, then to the date of the tender of such payments; provided, always, that if any such Bonds shall be redeemed prior to the maturity thereof, the City shall have elected to redeem such Bonds 17 and notice of such redemption shall have been given. Any moneys which at any time shall be deposited with the said Fiscal Agent by or on behalf of the City, for the purpose of paying and discharging any of the Bonds or coupons, shall be, and are hereby, assigned, transferred and set over to such Fiscal Agent in trust for the respective holders of the Bonds and coupons, and such moneys shall be and are hereby irrevocably appropriated to the payment and discharge there- of. If, through lapse of time or otherwise, the holders of said Bonds or coupons shall no longer be entitled to enforce payment of their obligations, then, in such event, it shall be the duty of said bank forthwith to return said funds to the City. All moneys deposited with such Fiscal Agent shall be deemed to be deposited in accordance with and subject to all of the provisions contained in this Ordinance. Section 18. List of Bondholders. To the extent that such information shall be made known to the City under the terms of this Section 18, it will keep on file at the principal office of the Fiscal Agent a list of names and addresses of the last known holders of all Bonds payable to bearer and believed to be held by each of such last known holders. Any bondholder may request that his name and address be placed on said list by filing a written request with the City or with the Fiscal Agent, which request shall include a statement of the principal amount of Bonds held by such holder and the numbers of such Bonds. The Fiscal Agent shall be under no responsibility with regard to the accuracy of said list. At reasonable times and under reasonable regulations, established by the Fiscal Agent, said list may be inspected and copied by the Company or by the holders and owners (or a designated representative thereof) of twenty- five percent (25%) or more in principal amount of Bonds then outstanding, such ownership and the authority of any such designated representative to be evidenced to the satis- faction of the Fiscal Agent. Section 19. Provisions Relatinq to the Fiscal Agent. (A) Prior to the receipt of the Bond proceeds pursuant to the provisions of Section 8 hereof, the Fiscal Agent shall file with the City Clerk its written acceptance of the duties specified in this Ordinance and in the Lease and its agreement to act in 18 said capacity. 19 (B) The Fiscal Agent's duties and responsibilities shall be limited to those expressly set forth in this Ordinance and under the Lease. (C) All resolutions, opinions, cer- tificates and other instruments referred to or provided for herein or in the Lease may be accepted by the Fiscal Agent as conclusive evidence of the facts, opinions and conclusions stated therein and shall be full warrant, protection and authority to the Fiscal Agent for any action reasonably taken pursuant thereto. The Fiscal Agent shall be under a duty to examine any such resolutions, opinions, certificates and other instruments to determine whether or not they conform to the requirements of this Ordinance and the Lease. (D) The Fiscal Agent shall not be liable with respect to any action taken or omitted to be taken by it in good faith and, if appropriate, upon advice of counsel who may be counsel for the Fiscal Agent or the City or the Company. (E) No provision contained in this Section shall be construed to relieve the Fiscal Agent from liability for its own negligent action, its own negligent failure to act, or its own willful miscon- duct, except that this subsection shall not be con- strued to limit the effect of subsections (B), (C) and (D) of this Section and the Fiscal Agent shall not be liable for any error of judgment made in good faith unless it shall be proved that the Fiscal Agent was negligent in ascertaining the pertinent facts. (F) The Fiscal Agent shall have the right to buy, sell, own, deal or trade in the Bonds or the coupons relating thereto without giving notice thereof to the City or the Company or any bondholder and without incurring any liability whatsoever with respect thereto. (G) The Fiscal Agent may resign by an instrument in writing delivered to the City and the Company to take effect not sooner than 90 days after its delivery, whereupon the City, with the consent of the Company, shall immediately, in writing, designate a successor fiscal agent. Such successor fiscal agent 19 shall be a bank, trust company or national banking association which is a member of the Federal Reserve System and has a capital stock and surplus aggregating at least that of the Fiscal Agent at the time of its designation hereunder. Such successor fiscal agent shall be subject to the same duties and obligations and shall have the same rights, privileges and immunities specified in this Ordinance and in the Lease for the Fiscal Agent. Any such successor fiscal agent shall file an acceptance in the form referred to in sub- paragraph (A) hereof with the City Clerk within 10 days of its appointment. (H) The Fiscal Agent shall be entitled to payment or reimbursement for reasonable fees for its ordinary services and all advances, counsel fees and other ordinary expenses reasonably and necessarily made or incurred by it in connection with its ordinary services, all such fees and expenses to be paid by the Company as Additional Rent as specified in Article II of the Lease. Section 20. Authorization of Lease. The tract of land herein referred to and the buildings and im- provements to be acquired and constructed thereon pursuant to this Ordinance shall be leased to Pepsi Cola Bottling Company of Salina, Inc., an Iowa corporation authorized to do business in the State of Kansas, under and pursuant to a Lease dated as of September 1, 1978, substantially in the form attached to this Ordinance and incorporated herein by reference, which Lease the Mayor and City Clerk are hereby authorized and directed to execute for and on behalf of and as the act and deed of the City. Section 21. Severability. If any one or more of the covenants, agreements or provisions of this Ordinance, or of the Lease, should be held contrary to any express provision of law or contrary to the policy of ex- press law, though not expressly prohibited, or against public policy, or should for any reason whatsoever be held invalid, then such covenants, agreements or provisions shall be null and void and shall be deemed,separate from the remaining covenants, agreements or provisions, and shall in no way affect the validity of the other provisions of this 20 L 1 1 Ordinance or of the Bonds issued hereunder, or of the Lease. Section 22. Conveyance of Facility. Upon receipt by the City of the purchase price of the -property subject to said Lease, title to said property shall be transferred and conveyed to the Company as provided in the Lease and the Mayor and other appropriate officers of said City are hereby authorized and directed to execute such deeds, bills of sale and other instruments as may be neces- sary to effect such conveyance and transfer. Section 23. Effective Date. This Ordinance shall take effect and be in force from and after its passage and publication in the official City paper. PASSED AND APPROVED by the governing body of the City of Salina, Kansas, this 1976. ATTEST: 1 ` City Clerk 21 A i 1 EXHIBIT "A" TO LEASE DATED SEPTEMBER 1, 1978, BETWEEN THE CITY OF SALINA, KANSAS, AND PEPSI COLA BOTTLING COMPANY OF SALINA, INC. AND TO ORDINANCE NO. 8655 OF SAID CITY RELATING THERETO (a) All of Block Five (5) in Calkins Addition to the City of Salina, Saline County, Kansas, plus the ac- cretions of vacated Eighth Street from Lincoln Avenue to Decatur Avenue, the south 10 feet of Decatur Avenue from vacated Eighth Street to Seventh Street, and the vacated alley from Lincoln Avenue to Decatur Avenue, less Lots 11 and 12 and the east one-half of the vacated alley adjacent to Lots 11 and 12; together with the use of the wall im- mediately adjacent to the west side of said real estate as a party wall. Subject to: (i) easements, restrictions and reservations now of record, (ii) the rights of the public in and to any part of the premises lying or being in public roads, alleys or highways, and (iii) taxes and assessments, general and special, not now due or payable; and (b) All buildings and improvements and machinery and equipment constructed or located thereon pursuant to Article IV of said Lease. EXHIBIT "A"