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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
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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.
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(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
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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
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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"