496~"`,..
..+r
ORDINANCE NO.
AN ORDINANCE AUTHORIZING THE ISSUANCE OF
INDUSTRIAL DEVELOPMENT REVENUE BONDS UNDER
ACT NO. 9 OF THE FIRST EXTRAORDINARY SESSION OF
THE SIXTY-SECOND GENERAL ASSEMBLY OF THE STATE
OF ARKANSAS , APPROVED JANUARY 21, 1960, AS AMENDED,
FOR THE PURPOSE OF PROVIDING PERMANENT FINANCING
OF THE COST OF SECURING AND DEVELOPING INDUSTRY
(THE PARTICULAR INDUSTRIAL PROJECT IS DESCRIBED IN
THE ORDINANCE); AUTHORIZING THE EXECUTION AND
DELIVERY OF A TRUST INDENTURE SECURING THE BONDS;
AND AUTHORIZING AND PRESCRIBING OTHER MATTERS
PERTAINING TO SAID INDUSTRIAL PROJECT; AND DECLARING
AN EMERGENCY.
WHEREAS the City of West Memphis , Arkansas (called "City") is
authorized by Act No. 9 of the First Extraordinary Session of the Sixty-Second
General Assembly of the State of Arkansas, approved January 21, 1960, as
amended (called "Act No . 9 ") , to acquire lands , construct and equip manufactur-
ing buildings , improvements and facilities and to incur other costs and expenses
and make other expenditures incidental to and for the implementing and accomplish-
ing of the conduct of manufacturing operations; and
WHEREAS the City is authorized by Act No. 9 to issue Industrial
Development Revenue Bonds payable from revenues derived from the industrial
project so acquired and constructed and secured by a lien thereon; and
WHEREAS the necessary arrangements have been made with Flint
Steel Corporation, an Oklahoma corporation (called "Flint") , whereunder the
City will construct an industrial project, which project will consist of lands,
w..
buildings , improvements and facilities to be operated for the production of
pressure tanks for storage of Liquedfied Petroleum Gas and Anhydrous Ammonia,
specialized galvanized steel products and such other products as Flint shall
determine to manufacture or produce, with necessary incidental expenses and
expenditures in connection therewith (called the "Project" or the "Industrial
Project") and to lease the Project to Flint pursuant to the terms of a Lease and
Agreement subsequently identified herein and referred to as the "Lease Agreement";
and
Page 2
WHEREAS permanent financing of the Project costs, necessary costs
and expenditures incidental thereto and to the expeditious commencement of
manufacturing operations, the cost of the issuance of bonds and the amount
necessary to provide for interest on the bonds until Project revenues are available
is being furnished by the issuance of Industrial Development Revenue Bonds by
the City under the provisions of Act No. 9 in the principal amount of not to
exceed Two Million Dollars ($2,000,000), (called "bonds" or "Act No. 9 Bonds");
and
WHEREAS there has been submitted to the electors of the City the
question of issuing the Act No. 9 Bonds at a special election, and at said special
election the electors approved the issuance of the Act No. 9 Bonds; and
WHEREAS the City has made the necessary arrangements for the sale
of the initial series of bonds in the principal amount of $1, 500, 000 (called "Series
A Bonds ") at a price of par and accrued interest plus a premium of $ 65.00 for bonds
bearing interest at the rates of 4 1/4%, 4 1/2% and 5% per annum;
NOW , THEREFORE , BE IT ORDAINED by the City Council of the City
of West Memphis , Arkansas
Section 1. That the sale of the Series A Bonds for the price set forth
above be, and the same is hereby, authorized, approved and confirmed:
Section 2. That there be, and there is hereby, authorized and directed
the following:
(a) The acquisition of the lands described in the Trust
Indenture hereafter authorized; and
(b) The execution of all necessary architectural,
engineering and construction contracts for the
constructing and equipping of the Project, with
executed copies of all such contracts to be filed
in the office of the City Clerk for inspection by
any interested person; and
(c) The performance of all obligations of the City
under the Lease Agreement pertaining to the con-
structing and equipping of the Project and the
performance of all obligations of the City under
said architectural, engineering and construction
contracts referred to in (b) above .
t,
Page 3
Section 3. ~:.at to provide for the authorization of and to secure
Industrial Development R,v,^n~.~~:: ,_,onds of the ~::;t;% t.n~~r 1`:ct ;Vc~, 9 in the total
principal amount of not to exceed Two Million Dollars ($2, 000, 000) to furnish
the permanent financing o~ the ?roject costs, pay tine expenses of issuing the
bonds, pay necessary costs, ex,~enses and fees and making necessary expen-
ditures incidental to the co:at;;~cting, equipping and operation of the Project,
and provide for the interest on t:.e bonds until Project revenues are available,
to provide for the delive,y of Ser.-;.es A Bonds in the principal amount of $1, 500, 000,
and to prescribe the terms and conditions upon which t:1e bonds are to be secured,
executed, authenticated, accepted, held and paid, the Mayor is hereby authorized
and directed to execute a.~d acknowledge a Trust Indenture, and the Clerk is
hereby authorized and direc~ed to execute and acknowledge the Trust Indenture
and to affix the seal of ~~.e Cite thereto and to attest the same, and the Mayor
and Clerk are hereby authorized and directed to cause said Trust Indenture to be
accepted, executed and ~ckr~cwledged by the Trustee, First National Bank of
Memphis, Memphis, 1er...essee, with the Trust Indenture, which constitutes and
is hereby r..ude a part of t~.is Ordinance, to be ir, substantially the following form,
to -wit:
(Advice is hereby given that a copy of the form of Trust
Indenture is on file in the office of the City Clerk, and
reference may be l.ad thereto by any i nterested person.)
TRUS'a' INDENTURE
This INDENTURE executed as of the first day of March, 1966 by and
between the CITY OF WEST MEMPHIS , ARKANSAS , a city of the first class duly
existing under the laws of the State of Arkansas (called "City"), as party of the
first part, and FIRST NATIONAL BANK OF MEMPHIS , an institution organized under
and existing by virtue of the laws of the United States of America, with its princi-
pal. office, domicile and post office address in Memphis, Tennessee (called
"Trustee "), as party of the second part.
WITNESSETH:
WHEREAS the City is authorized by Act No. 9 of the First Extra-
ordinary Session of the Sixty-Second General Assembly of the State of Arkansas,
approved January 21, 1960, as amended (called "Act No. 9"), to acquire lands,
construct and equip manufacturing bu.~ldings, improvements and facilities and to
incur other costs and expenses and make other expenditures incidental to and for
the implementing and accomplishing of the conduct of manufacturing operations; and
WHEREAS the City is authorized by Act No. 9 to issue Industrial
Development Revenue Bonds payable from revenues derived from the industrial pro-
jest so acquired and constructed and secured by a lien thereon; and
WHEREAS the necessary arrangements have been made with Flint
Steel Corporation, an Oklahoma corporation (called "Flint"), to construct an in-
dustrial project, which project will consist of lands, buildings, improvements and
facilities to be operated for the production of pressure tanks for storage of
Liquefied Petroleum Gas and Anhydrous Ammonia, specialized galvanized steel
products and such other products as Flint shall determine to manufacture or produce,
with necessary incidental expenses and expenditures in connection therewith
(called the "Project" or the "Industrial Project") and to lease the Project to Flint
pursuant to the terms of a Lease a.nd Agreement subsequently identified herein
and referred to as the "Lease Agreement"; and
WHEREAS permanent financing of the Project costs, necessary costs
and expenditures incidental thereto and to the expeditious commencement of
manufacturing operations, the cost of the issuance of bonds and the amount neces-
sary to provide for interest on bonds until Project revenues are available is being
furnished by the issuance of Industrial Development Revenue Bonds by the City
under the provisions of Act No. 9 in the principal amount of not to exceed Two
Million Dollars ($2, 000, 000), (called "bonds" or Act No. 9 Bonds"); and
WHEREAS there has been submitted to the electors of the City the
question of issuing the Act No. 9 Bonds at a special election, and at said special
election the electors approved the issuance of the Act No. 9 Bonds; and
41THEREAS the City has made the necessary arrangements for the sale
of the Act No. 9 Bonds at a price of par and accrued interest plus a premium of
$65.00, with the bonds so sold being dated, bearing interest and maturing as here-
after in this Indenture set forth in detail; and
WHEREAS the execution and delivery of this Trust Indenture (some-
times called the "Trust Indenture" or the "Indenture") and the issuance of the
bonds have been in all respects duly and validly authorized by ordinance of the
City Council of the City, adopted and approved on the ______,__ day of March,
1966; and
WHEREAS the bonds, interest coupons to be attached thereto and the
Trustee's Certificate to be endorsed thereon are all to be in substantially the
following form, (with the form to be of Series A but with the form of subsequent
series to be the same with appropriate changes) with necessary and appropriate
variations, omissions and insertions as permitted or required by this Indenture,
to-wit:
(Form of Bond)
UNITED STATES OF AMERICA
STATE OF ARKANSAS
COUNTY fJf CRITTEIYDEIV
CITY OF WEST MEMPHIS
INDUSTRIAL DEVELOPMENT REVENUE BOND, SERIES A
NO.
___.__
KNOW ALL MEN BY THESE PRESENTS
S 5, 000
That the City of West Memphis, Crfttenden County, Arkansas, a
city of the first class under the laws of the State of Arkansas (called "City"), for
value received, promises to pay to bearer, or if this bond be registered to the
registered owner hereof, on March 1, 19 ,the principal sum of
IIVf. THOUSAND DOLLARS
in such coin or currency of the United States of America as at the time of payment
shall be legal tender for the payment of public and private debts , and to pay in like
coin or currency interest on said principal amount from the date hereof until paid
at the rate of per cent { ~j per annum, such
interest to be payable semiannually on March 1 and September 1 of each year,
commencing September 1, 1966, upon presentation and surrender of the annexed
coupons as they severally become due . The principal of this bond and the interest
hereon are payable at the principal office of First National Bank of Memphis ,
Memphis, Tennessee (the "Trustee" and the "Paying Agent").
This Bond, designated "City of West Memphis , Arkansas Industrial
Development Revenue Bond Series A", is one of a series of bonds aggregating One
Million Five Hundred Thousand Dollars ($1, 500, 000), with the bonds of Series A
being part of a total authorized issue of Two Million Dollars ($ 2 , 000 , 000) and with
the ids ~f said #o~al muthorize8 ssue
i ,regardless of series , to rank on a parity
of security and to be herein referred to as the "bonds". The bonds are being
issued for the purpose of financing the cost of lands , a manufacturing building,
improvements and facilities (called the "Project"), paying necessary expenses
of issuing the bonds and providing foz interest until revenues are available for
the principal of and interest on the bonds . The bonds are all issued under and
are alI equally and ratably secured and entitled to the protection given by a
Trust Indenture (herein called "Indenture"), dated as of March 1, 1966, duly
executed acid delivered by the City to the Trustee , which Indenture is recorded
in the office of the Circuit Clerk and Ex Officio Recorder of Crittenden County,
Arkansas, and reference is hereby made to the Indenture and to all Indentures
supplemental thereto for the provisions , among others , with respect to the issuance
of additional series of bonds up to the total authorized principal amount of the bondst.
with respect to the nature and extent of the security, the rights, duties and obli-
gations of the City, the Trustee and the holders and registered owners of the bonds ,
the terms upon which the bonds are issued and secured.
The bonds are issued pursuant to and in full compliance with the
Constitution and laws of the State of Arkansas , particularly Act No. 9 of the First
Extraordinary Session of the Sixty-Second General Assembly of the State of
Arkansas , approved January 21, 19 60 , as amended (called "Act No . 9 ") , and
pursuant to Ordinance No. of the City passed and approved on the
day of , 1966, which ordinance authorizes the execution and
delivery of the Indenture . The bonds are net general obligations of the City, but
are special obligations payable solely from lease rentals and revenues derived
from the Project. In this regard, the Project has been leased to Flint Steel
Corporation, an Oklahoma corporation (called "Flint"), for rentals sufficient to pro-
vide for the payment of the principal of and interest on the bonds as the same be-
come due . Provision has been made for the lease rentals to be paid directly to the
Trustee and deposited in a special account of the City designated "West Memphis ,
Arkansas 1966 Industrial Development Revenue Bond Retirement Fund -Flint Project"
(called "Bond Fund") . The rentals and the revenues derived from the Project have
baen duly pledged by the Indenture to the payment of the principal of and interest o:~r
~M''
the bonds, and the bonds are secured by a lien on and security interest in the
Project. The bonds do not constitute an indebtedness of the City within any
constitutional or statutory limitation .
The holder of this bond shall have no right to enforce the provisions
of the Indenture or to institute action to enforce the covenants therein, or to take
any action with respect to any event of default under the Indenture, or to institute,,
appear in and defend any suit or other proceeding with respect thereto, except as
provided in the Indenture . In certain events , on the conditions , in the manner
and with the effect set forth in the Indenture , the principal of all of the bonds
issued under the Indenture and then outstanding may be declared and may become
due and payable before the stated maturity thereof, together with accrued interest
thereon .
Modifications or alterations of the Indenture , or of any indenture
supplemental thereto, ma;% be made only to the extent and in the circumstances
permitted by the Indenture .
The bonds shall be redeemable prior to maturity as follows: In the
case of the receipt of proceeds from condemnation of the Project, or proceeds from
the Lessee exercising an option to purchase under the Lease Agreement, the bonds
shall be redeemable on any interest payment date during the period commencing
with the date of the bonds and ending September 1, 197$, inclusive, in whole but
not in part at a price of the principal amount thereof plus accrued interest to the
redemption date and plus a premium of such principal amount of 3% . Other
than from the source described above, the bonds shall be non-redeemable prior
to March 1, 19 79 , but on and after March 1, 19 79 the bonds shall be redeemable
at the option of the City from funds from any source, in whole or in part (without
partial redemption of any bond) in inverse numerical order on any interest
payment date at a price of the principal amount thereof plus accrued interest
to the redemption date and plus a premium of such principal amount as
follows
3% if redeemed March 1, 19 79 or September 1, 19 79
2 1/2% if redeemed March 1, 1980 or September 1, 1980
2% if redeemed Nlarch 1, 1981 or September 1, 1981
1 1/2% if redeemed March 1, 1982 or September 1, 1982
1°,6 if redeemed NIarch 1, 1983 or September 1, 1983
1/2% if redeemed March 1, 1984 or September 1, 1984
No premium thereafter .
Notice of the call for redemption shall be published one time in a
newspaper published in the City of Little Rock, Arkansas and having a general
circulation throughout the State of Arkansas , which publication shall be not less
than fifteen (15) days before the date of redemption. In addition, notice of re-
demption shall be mailed by registered or certified mail to the registered owner
of any bond registered as to principal addressed to such registered owner at his
registered address and placed in the mails not less than fifteen (15) days prior
to the date fixed for redemption. In the event that all of the bonds are registered
as to principal , notice in writing by registered or certified mail to the owner or
owners thereof not less than fifteen (15) days prior to the date fixed for redemption
shall be sufficient, and published notice of the call for redemption need not be
given. Each notice shall specify the numbers and the maturities of the bonds
being called and the date on which they shall be presented for payment. After
the date specified in said call, the bond or bonds so called will cease to bear
interest provided funds for their payment are on deposit with the Paying Agent at
that time, and, except for the purpose of payment, shall no longer be protected
by the Indenture and shall not be deemed to be outstanding under the provisions
of the Indenture .
This bond may be registered as to principal alone and may be dis-
charged from such registration, in the manner, with the effect and subject to the
terms and conditions endorsed hereon and set forth in the Indenture . Subject to the
provisions for registration endorsed hereon and contained in the Indenture ,
nothing contained in this bond or in the Indenture shall affect or impair the
negotiability of this bond. As declared in Act No. 9, this bond shall be deemed
f1r/
to be a negotiable instrument under the Iaws of the State of Arkansas , and this
bond is issued with the intent that the laws of the State of Arkansas will govern
its construction .
IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all acts ,
conditions and things required to exist, happen and be performed precedent to
and in the issuance of this bond do exist, have happened and have been per-
formed in due time, form and manner as required by law; that the indebtedness
represented by this bond and the issue of which it forms a part, together with
all obligations of the City, does not exceed any constitutional or statutory limita-
tion; and that the above referred to revenues pledged to the payment of the
principal of and interest on this bond and the issue of which it forms a part, as
the same become due and payable, will be sufficient in amount for that purpose.
This bond shall not be valid or become obligatory for any purpose
or be entitled to any security or benefit under the Indenture until the Certificate
of Authentication hereon shall have been signed by the Trustee .
IN WITNESS WHEREOF , the City of West Memphis , Arkansas has
caused this bond to be executed in its name by its Mayor and City Clerk, there-
unto duly authorized, with the facsimile ,signature of the iVLayor and the manual
signature of the City Clerk, and its corporate seal to be affixed, and has caused
the interest coupons hereto attached to be executed by the facsimile signature
of its Mayor, all as of the first day of March, 1966.
CITY OF WEST MEMPHIS , ARKANSAS
By (facsimile signature)
(Mayor)
ATTEST:
City Clerk
{SEAL)
(Form of Trustee's Certificate)
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
~..
This bond is one of the bonds designated Series A and issued under
the provisions of the within mentioned Indenture .
FIRST NATIONAL BANK OF MEMPHIS
Memphis , Tennessee
By
(Authorized Signature)
(Form of Interest Coupon)
$ No.
March
On the first day of September, l9 ,the City of West Memphis ,
Arkansas (unless the bond to which this coupon is attached shall have been
previously called for redemption or shall have become payable as provided in
the Indenture referred to in said bonds) will pay, solely from the revenues pledged
in said Indenture, to bearer at the principal office of First National Bank of
Memphis, Memphis, Tennessee, upon presentation and surrender hereof, the
sum of
DOLLARS
in such coin or currency as at the time of payment is legal tender for the payment
of debts due the United States of Arnerica, being six (6) months' interest then due
on its Industrial Development Revenue Bond, Series A, dated March 1, 1966 and
numbered
~rr-
CITY OF WEST MEMPHIS , ARKANSAS
By (facsimile signature)
Mayor
PROVISIONS FOR REGISTRATION AND RECOIJVERSION
v
This bond may be registered as to principal alone on books of the City,
kept by the Trustee under the within mentioned Indenture as bond registrar, upon
presentation riereof to the bond registrar, which shall make mention of such
registration in the registration blank below, and this bond may thereafter be
transferred only upon an assignment duly a~ecuted by the registered owner or
his attorney or legal representative in such form as shall be satisfactory to the
bond registrar, such transfer to be made on such books and endorsed thereon by
the bond registrar. Such transfer may be to bearer, and thereafter transferability
by delivery shall be restored, but this bond shall again be subject to successive
registrations and transfers as before. The principal of this bond, if registered,
unless registered to bearer, shall be payable only to or upon the order of the
registered owner or his legal representative. Notwithstanding the registration
of this bond as to principal, the coupons shall remain payable to barer and shall
continue to be transferable by dei~very. Payment to tha bearer of the coupons
shall fully discharge the City in respect to the interest therein mentioned whether
or not this bond be registered as to principal and whither or not any such coupons
be overdue .
Signature of Bond
Date of Registration Name of Registered Owner Recristrar
and
V'dHEREAS all things necessar<,~ to make the said bonds, when authanticatec:'
by the Trustee and issued as in this Indenture provided, the valid, binding and
`.
ltigal obligations of the City according to the import thereof, and to constitute
this Indenture a valid lien on the properties mortgaged and a valid pledge of the
revenues herein made to the payment of the principal of and interest on said
bonds, have been done and performed, and the creation, execution and delivery
of this Indenture and the creation, execution and issuance of said bonds, subject
to the terms hereof, have in all respects been duly authorized;
NO~~V, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, THIS INDENTURE
ZNITNESSETH:
That the City in considerat:~on of the premises and the acceptance by the
Trustee of the trusts hereby crated and of the purchase and acceptance of the
bonds by the holders and owners thereof, and the sum of One Dollar ($1.00) ,
lawful money of the United States of America, to it duly paid by the Trustee, a~
or before the execution and delivery of these presents, and for other good and
valuable considerations, the receipt of which is hereby acknowledged, and in
order to secure the payment of the principal of and interest on the bonds according
to their tenor and effect and the performance and observance by the City of alI
the covenants expressed or implied herein and in the bonds, does hereby grant,
bargain, sell, convey, mortgag°, assign and pledge unto the Trustee, and unto
its successor or successors in trust, and to them and their assigns forever, for
the securing of the performance of the GY.ligations of the City hereinafter set
forth
~wrr
1.
The following described real estate and premises situated in the County
rr.. of Crittenden, State of Arkansas, with all buildings, additions and improvements
now or hereafter located thereon, together with the tenements , hereditaments ,
appurtenances , rights , privileges , and immunities thereunto belonging or
appertaining, and warrants the title to the same, to-wit:
A lot lying in Section 23, Township 6 North, RC~nge 8 East, South
of the Rock Island Railroad, in Crittenden County Arkansas, and
more particularly dESCribed as follows
Commencing at the intersection of the west line of Section 23,
T-6N, R-8-E, and the center line of Rainer Avenue (County P,oad);
thence North 76 degrees 26 minutes east 711.25 feet along the
center line of Rainer Road, thence South 13 degrees 34 minutes
east 30.0 feet to the point of beginning on the south right of
way line of said Rainer Road, thence north 76 degrees 26 minutes
east 2537.38 feet along the south right of way line of Rainer
Road, thence south 15 degrees 40 minutes west 1100.11 feet,
thence south 76 degrees 26 minutes west 2000.12 feet on a line
parallel to the south right of way line of .Rainer Avenue, thence
north 13 degrees 34 minutes west 960 feet to the point of be-
ginning, containing 50.0 acres , more or less .
2.
All machinery, •equipment and other personal property of every kind and
nature whatever acquired by the City and paid for out of the Construction Fund
and placed on and in the land anal improvements described in " 1" above, or
elsewherQ, including, without limitation, all replacements and substitutions
which become the property of the City pursuant to the provisions of the Lease
Agreement. Included herein is "L~ssor's Niachin::ry and Equipment" as defined
in the Lease Agreement but, as provided in the Lease Agreement, there is not
included any machinery, equipment and personal property ownad by Flint
3.
The Lease Agreement and all rights, but not obligations, of the Gity
thereunder and all revenues and income derived by the City from the mortgaged
property, including, without limitation, all rentals received by the City from the
leasing of the mortgaged property and in particular the rentals and profits received
under and pursuant to the Lease Agreement.
~.
Any and all other property of every kind and nature .from time to time which
was heretofore or hereafter is by delivery or by writing of any kind conveyed,
mortgaged, pledged, assigned or transferred, as acid for additional security
hereunder by the City or by any other parson, firm or corporation, or with the
consent of the City, to the Trustee, which is hereby authorized to receive any
and all such property at any time and at all times and to hold and apply the same
subject to the terms hereof .
TO HAVE AND TO HOLD all the same with all privileges and appurtenances
hereby conveyed and assigned, or agreed or intended so to be, to the Trustee and
its successors in said trusts and to them and their assigns forever;
IN TRUST NEVERTHELESS, upon the terms and trusts herein set forth for
the equal and proportionate banefit, security and protection of all holders and
r~ ~,
owners of the said bonds and interest coupons thereto attached issued under and
secured by this Indenture without privilege, priority or distinction as to lien or
otherwise of any of said bonds or coupons thereto attached over any of the others
of said bonds; provided, ho~Never, that if the City, its successors or assigns,
shall well and truly pay, or cause to b~ paid, the principal of the bonds and the
interest due or to become due thereon, at the times and in the manner provided in
the bands and the interest coupons appertaining to the bonds, respectively,
according to the true intent and meaning thereof, and shall make the payments
into the Bond Fund as required under Article V or shall provide, as permitted
hereby, for the payment thereof by depositing or causing to be deposited with
the Truster the entire amount due or to become due thereon, and shall well and
truly keep, perform and observe all the covenants and conditions pursuant to
the terms of this Indenture to be kept, performed and observed by it, and shall
pay to the Trustee all sums of money dui or to become due to it in accordance
with the terms and provisions hereof, then upon such final payments this
Indenture and the rights hereby granted shall case, determine and be void;
otherwise, this Indenture to be and remain in full force and effect.
THIS INDENTURE FURTHER VJITNESSETH that, and it is expressly declared,
all bonds issued and secured hereunder are to be issued, authenticated and
delivered and all said revenue and income hereby pledged are to be dealt with
and disposed of under, upon and subject to the terms, conditions, stipulations,
covenants, agreements, trusts, uses and purposes as hereinafter expressed, and
the City has agreed and covenanted, and dons hereby agree and covenant, with
the Trustee and with the respective holders and owners, from time to time of the
said bonds or coupons or any part thereof, as follows, that is to say:
'~/
ARTICLE I
DEFINITIONS
Section 101. In addition to the words and terms elsewhere defined in this
Indenture, the following words and ~~~rms as used in this Indenture shall have the
following meanings
""west Memphis , Arkansas 1966 Industrial Development Revenue Bond
Retirement Fund -Flint Project" or "Bond Fund" -The fund of the City created by
Section 501 of the Indenture into which the funds specified in Article V are to be
deposited and out of which disbursements are to be made as expressly authorized
and directed by the Indenture .
"Bonds" -The City of West Memphis, Arkansas Industrial Development
Revenue Bcnds, secured by the Indenture, authorized in the total principal amount
of $2, 000, 000 and being issued in series .
"Series ABonds" -The Series A Bonds initially issued under the pro-
visions of the Indenture, being in tY~e total principal amount of $1, 500, 000 .
"City" -The City of West Memphis, Arkansas, a city of the first class
under the laws of the State of Arkansas and situated in Crittenden County,
Arkansas .
"Indenture" -This Trust Indenture together with all indentures supple-
mental hereto.
"Outstanding hereunder" - "bonds outstanding hereunder" -All bonds
which have been authenticated and delivered under this Indenture except:
(a) Bonds cancelled because of payment or redemption prior to maturity.
(b) Bonds for the payment or redemption of which cash shall have been
heretofore deposited with the Trustee and Paying Agent (whether upon or prior to
the maturity or redemption date of any such bonds) provided that if such bonds are
to be redeemed prior to the maturity thereof, notice of such redemption shall have
been given or provision satisfactory to the Trustee and Paying Agent shall have
been made therefor, or a waiver of s~~.ch notice, satisfactory in form to the Trustee
arld Paying Agent shall have been made therefor, or a waiver of such notice,
satisfactory in form to the Trustee and Paying Agent, shall have been filed with the
Trustee and Paying Agent; and
(c) Bonds in lieu of which others have been authenticated under
Section 208.
"Paying Agent" -The bank or trust company named by the City as the
place at which the principal of and interest on the bonds shall be payable. The
Paying Agent is always the same a:; ~rhe Trustee , and the original Paying Agent and
Trustee is First National Bank cf Memphis, Ivdemphis, Tennessee.
"Person" -Includes natural persons, firms, associations, corpora-
tions and public bodies .
"Project" -The lands, buildings, improvements and facilities em-
bodied in and pertaining to the industrial project leased to Flint and being financed
out of the proceeds of the bonds, including the properties in the trust estate. The
Project will be operated by Flint for the production of pressure tanks for storage of
Liquefied Petroleum Gas and Anhydrous Ammonia, specialized galvanized steel
products and such other products as Flint shall determine to manufacture or produce.
"Trust estate" - "property herein conveyed" -The mortgaged propertg~
"Trustee" -The Trustee for the time being, whether original or
successor, with the original Trustee being First National Bank of Memphis,
Memphis, Tennessee.
"Mortgaged property" -The properties comprising the Project, being
all of the properties leased to Flint under the Lease Agreement as well as all other
properties which, under the terms of the Indenture, subsequently become subject
to the lien of the Indenture, including the properties, interests and rights covered
by the granting clauses of the Indenture .
"Holder" or "bondholder" - "owner of the bonds" -The bearer of any
bond not registered as to principal and the registered owner of any bond registered
as to principal.
"Flint" -Flint Steel Corporation, an Oklahoma corporation. Flint
is Lessee under the Lease Agreement.
"Lease Agreement" - Tre Lease and Agreement described in Section 409 of
this Indenture, but which is the Lease and Agreement wherein the City is Lessor
! and Flint is Lessee, recorded in the office of the Circuit Clerk and Ex Officio
Recorder of Crittenden County, Arkansas .
"Industrial Development Bond Construction Fund -Flint Project" or
"Construction Fund" -The fund created by Section 601 into which the portion of
the proceeds of the sale of the bonds specified in Section 601 is to be deposited
and out of which disbursements are to be made in the manner and for the purposes
specified in Article VI of the Indenture .
"City Clerk" or "Clerk" or "City Recorder" or "Recorder" -The person
holding the office and performing the duties of City Clerk of the City.
Section 102. tiVords of the masculine gender shall be deemed and con-
strued to include correlative words of the feminine and neuter genders. Unless
~""" the context shall otherwise indicate, the words "bond" , "coupon" , "owner" ,
"holder" , and "person" shall include the plural, as well as the singular, number.
~/
ARTICLE II
THE BONDS
Section 201. No bonds may be issued under the provisions of this
Indenture except in accordance with this Article, and the total principal amount
of bonds that may be issued is hereby expressly limited to Two Million Dollars
($2,000,000), except with respect to substituted bonds issued under Section 208.
Section 202. A. The initial series of bonds under this Indenture
shall be in the total principal amount of One Million Five Hundred Thousand
Dollars ($1,500,000), designated "City of West Memphis, Arkansas Industrial
Development Revenue Bonds , Series A" . The Series A Bonds shall be dated
March 1, 1966, and interest thereon shall be payable semiannually on March 1
and September 1 of each year commencing September 1, 1966. The Series A Bonds
shall be coupon bonds payable to bearer, but subject to registration as to princi-
pal only, in substantially the form heretofore in this Indenture set forth, and
shall be in the denomination of $5,000 each. The Series A Bonds shall be
numbered consecutively from one (1) to three hundred (300) , inclusive . The
Series A Bonds shall bear interest at the rate of 4-1/4°~, 4-1/2~ and 596 per
annum, and the principal thereof shall mature, unless sooner redeemed in the
manner in this Indenture set forth, annually on March 1 in each of the years
set forth in and in the amount set opposite each year in the following schedule;
"~/
`,,err'
YEAR BOND NOS . INTEREST RATE AMOUNT
1967 1 - 9 4 1/296 $ 45, 000
1968 _ 10 - 19 50,000
1969 20 - 29 596 50, 000
1970 30 - 40 55,000
~..~ 1971 41 - 51 55, 000
1972 52 - 63 60,000
1973 64 - 75 60,000
1974 76 - 88 65,000
1975 89 - 101 65,000
1976 102 - 115 70 000
1977 116 - 130 4 1/4% 75,000
1978 131 - 146 80,000
1979 147 - 162 80 000
1980 163 - 179 4 1/29'0 85, 000
1981 180 - 197 90,000
1982 198 - 216 95,000
1983 217 - 236 100,000
1984 237 - 257 105, 000
1985 258 - 278 105,000
1986 279 - 300 110, 000
~rr•
B . Additional bonds up to *he maximum principal amount of $500, 000
may be subsequently issued at any time for the purpose of paying project costs,
expenses and expenditures in connection therewith and the operation of the
Project, the expenses of issuing the bonds and the providing for interest until
revenues are available in a sufficient amount therefor. Such additional bonds
shall be issued in series, with the next series to be designated "Series B" and
with each series thereafter to be designated in alphabetical order. Such additional
bonds shall be dated, interest thereon shall be payable semiannually, may have
serial maturities or all may have the same maturity, may contain provisions for
redemption prior to maturity and may captain such other provisions not inconsistent
with the provisions of this Indenture, all as shall be set forth in the ordinance of
the City Council authorizing their Issuance. Such additional bonds shall be secur-
ed by this Indenture and shall rank on a parity of security in all respects with the
bonds of previously issued series . They shall be authorized by ordinance of the
City Council of the City, which shall set forth the details concerning the bonds,
which details shall be embodied in a Supplemental Trust Indenture by and between
the City and the Trustee, and an executed copy of each Supplemental Trust
Indenture, together with a certified copy of each authorizing ordinance, shall
be filed with the Trustee prior to the delivery of any such additional bonds . In
addition, there must be filed with the Trustee an executed copy of a Supplemental
Lease Agreement increasing the basic rent in the amount necessary to provide for
the prompt payment of the principal of and interest on the additional bonds of the
particular series then being issued. The execution and delivery of such Supple-
mental Lease Agreements are expressly provided for in Section 203 of the Lease
Agreement. When there shall have been filed with the Trustee a certified copy of
the ordinance, an executed copy of the Supplemental Trust Indenture, an executed
copy of the Supplemental Lease Agreement, all as aforesaid, and an opinion of
counsel satisfactory to the Trustee approving the additional bonds of the series
~. then proposed to be issued, the Trustee shall authenticate said additional bonds
when executed and delivered to it with the seal of the City affixed and deliver
such additional bonds as provided in the Supplemental Trust Indenture.
Section 203. The bonds shall be executed on behalf of the City by the
Mayor and City Clerk thereof and shall have impressed thereon the seal of the
City. If the Mayor shall file the certificate required by Act No. 69 of the Acts
of Arkansas of 1959 and other wise comply with the provisions of said Act No. 69
of 1959, then the bonds and the coupons attached to the bonds may be executed
by the facsimile signature of the Mayor, which facsimile signature shall have
the same force and effect as if the Mayor had personally signed each of said
bonds and each of said coupons. The bonds, together with interest thereon,
shall be payable from the "Bond Fund" as hereinafter set forth, and shall be a
valid claim of the holders thereof only against such fund (but in addition shall
be secured by a lien on and security interest in the Project), which revenues are
hereby pledged and mortgaged for the equal and ratable payment of the bonds and
shall be used for no other purpose than to pay the principal of and interest on the
bonds, and the Paying Agent's fees, except as may be otherwise expressly
authorized in this Indenture . The bonds and interest thereon shall not constitute
an indebtedness of the City within the meaning of any constitutional or statutory
provision. In case any officer whose signature or facsimile of whose signature
E
shall appear on the bonds or coupons shall cease to be such officer before the
delivery of such bonds, such signature or such facsimile shall nevertheless be
valid and sufficient for all purposes, the same as if he had remained in office
until delivery.
Section 204. Only such bonds as shall have endorsed thereon a Certifi-
sate of Authentication substantially in the form hereinabove set forth duly executed by
the Trustee shall b~ entitled to any right or benefit under this Indenture. No bond
and no coupon appertaining to any bond shall be valid or obligatory for any purpas,
unless and until such Certificate of Authentication shall have been duly axecutvd
by the Trustee, and such Certificate of the Trustee upon any such bond shall be
conclusive evidence that such bond has been authenticated and delivered under
this Indenture. The Trustee's Certificate of Authentication on any bond shall be
deemed to hays been executed if signed by an authorized o~ficer of the Trustee,
but it shall not be necessary that the same officer sign the C~artificate of
Authentication on all of the bonds issued hereunder. Before authenticating or
delivering any bonds, the Trustee shall detach and cancel all matured coupons,
if any, appertaining thereto, and such cancelled coupons shall b? cremated by
the Trustee .
Section 205. The bonds issued under this Indenture and the coupons
attached thereto shall be substantially in the form hereinabove set forth with
such appropriate variations, omissions and insertions as are permitted or required
by this Indenture .
Section 206. Upon the execution and delivery of this Indenture, the City
shall execute and deliver to the Trustee and the Trustee shall authenticate the
Series A Bonds and deliver them to the purchasers upon payment of the purchase
price plus accrued interest from the date of the bonds to the date of delivery.
Section 707. This Indenture is given in order to secure funds to pay for
new construction, and by reason thereof it is intended that this Indenture shall
be superior to any laborers', mechanics` or materialmen's liens which may be
placed upon the Project.
Section 208. In case any bond issued hereunder shall become mutilated
or b~ cl;;stroyed or lost, the City shall, if not then prohibited by lave, cause to be
executed and the Trustee may authenticate and deliver a new bond of like data,
number, maturity and tenor in exchange and substitution for and upon cancella,~i ~r
a . .,
of such mutilated bond and its interest coupons, or in Lieu of and in substitution
for such bond and its coupons destroyed or last, upon the holder's or owner's
paying the reasonable expenses and charges of the City and the Trustee in con-
nection therwith, and, in case of a bond destroyed or lost, his filing with the
Trustee evidence satisfactory to it that such bond and coupons were destroyed
or lost, and of his ownership thereof, and furnishing the City and Trustee with
indemnity satisfactory to them. The Trustee is hereby authorized to authenticate
any such new bonds .
Section 209. Title to any bond, unless such bond is registered in th:,
manner hereinafter provided, and to any interest coupon shall pass by delivery
in the same manner as a negotiable instrument payabls to bearer. The City shall
cause books for the registration and for the transfer of the bonds as provided in
this Indenture to be kept by the Trustee as bond registrar. At the option of the
bearer, any bond may be registered as to principal along on such books, upon
presentation thereof to the bond registrar, which shall make notation of such
registration thereon. Any bond registered as to principal may thereafter be
transferred only upon an assignment duly executed by the registered owner or
his attorney or legal representative in such form as shall be satisfactory to the
bond registrar, such transfer to be made on surh books and endorsed on the bond
by the bond registrar. Such transfer may be to bearer and thereafter transferabil-
ity by delivery shall be restored, subject, however, to successive registrations
and transfers as before . The principal of any bond registered as to principal
alone, unless registered to bearer, shall be payable only to or upon the order
of the registered owner or his legal representative, but the coupons appertaining
to any bond registered as to princi.p41 shall remain payable to bearer notwith-
standing such registration . l~fo charge shall be made to any bondholder for the
privilege of registration and transfer hereinabove granted, but any bondholder
requesting any such registration or transfer shall pay any tax or other govern-
mental charge required to be paid with respect thereto . As to any bond
registered as to principal, the person in whose name the same shall be registered
shall 'ae deemed and regarded as the absolute owner thereof for all purposes, and
E
payment of or on account of the principal of any such bond shall bs mado only to
or upon the order of the registered owner thereof, or his legal representative, anu
neither the City, the Trustee, nol the bond registrar shall be affected by any
notice to the contrary, but such registration may be cr~anc;~d as herein provided.
All such payments shall be valid and effectual to satisfy and discharge the
liability upon such bond to the extent of the sum or sums so paid . The City,
the Trustee, the bond registrar and the Paying Agent may deem and treat the
bearer of any bond which shall not at the time be register:~d as to principal,
and the bearer of any coupon appertaining to any bond, whether such bond be
registered as to principal or not, as the absolute own~ar of such bond or coupon,
as the case may be, whether such bond or coupon shall be overdue or not, for
the purpose of receiving payment thereof and for all other purposes whatsoever,
and neither the City, the Trustee, the bond registrar nor th:~ Paying Agent shall
be affected by any notice to the contrary.
ARTICLE III
REDEMPTION OF BONDS BEFORE MAT RITY
Seetion 301. The Series A Bonds shall be callable for redemption prior to
maturity in accordance with the provisions pertaining thereto appearing in the bond
form heretofore set forth in the recitals of this Indenture.
Section 302. The bonds in any series issued under the provisions of
Section 202 B of this Indenture may be made subject to redemption in whole or in
part, in such manner, at such times, at such prices, and at such places, as may
be provided in the ordinance authorizing their delivery .
Section 303. Notice of the call for redemption shall be published one time
in a newspaper published in the City of Little Rock, Arkansas and having a general
circulation throughout the State of Arkansas, which publication shall be not less
than fifteen (15) days before the date of redemption. In addition, notice of redemp-
tion shall be mailed by registered or certified mail to the registered owner of any
bond registered as to principal addressed to such registered owner at his register-
ed address and placed in the mails not less than fifteen (15) days prior to the
date fixed for redemption. In the evant that all of the bonds are registered as to
principal, notice in writing by registered or certified mail to the owner or owners
thereof not less than fifteen (15) days prior to the date fixed for redemption shall
be sufficient, and published notice of the call for redemption need not be given.
Each notice shall specify the numbsrs and the maturities of the bonds being called
and the date on which they shall be presented for payment. After the date
specified in said call, the bond or bonds so called will cease to bear interest
provided funds for their payment are on deposit with the Paying Agent at that
time, and, except for the purpose of payment, shall no longer be protected by
the Indenture and shall not be deemed to be outstanding under the provisions of
tha Indenture. It shall not be necessary to give written notice of the redemption
to the holder of any bearer bond .
v,~/
Section 304, All bonds which have bsen redeemed shall be cancelled by
the Trustee together with the unmatured coupons appertaining thereto and shall
not be reissued.
Section 305. All unpaid interest coupons which appertain to bonds so
called for redemption and which shall have become payable on or Arior to the
date of redemption shall continue to be payable to the b~ar~rs severally and
respectively upon the presentation and surrender of such coupons.
ARTICLE IV
GENERAL COVENANTS
~ Section 401. The City covenants that it will promptly pay the principal
of and interest on every bond issued under this Indenture at the place, on the
dates and in the manner provided herein and in said bonds, and in the coupons
appertaining thereto according to the true intent and meaning thereof . The
principal and interest (except interest, if any, paid from the proceeds from the
sale of the bonds and accrued interest) are payable solely from revenues derived
from the Project, which revenues are hereby specifically pledged to the payment
thereof in the manner and to the extent herein specified, and nothing in the bonds
or coupons or in this Indenture should be considered as pledging any other funds
or assets of the City (except the securing of the indebtedness evidenced by the
bonds and coupons by a lien on and security interest in the Project) . Anything
in this Indenture to the contrary notwithstanding, it is understood that whenever
the City makes any covenants involving financial commitments, including, with-
out limitation, those in the various sections of Article IV, it pledges no funds
or revenues other than those provided for in the Lease Agreement and the revenues
derived from and the avails of th~a mortgaged property, but nothing herein shall
be construed as prohibiting the City from using any other funds and revenues.
Section 402. The City covenants that it will faithfully perform at all
times any and all covenants, undertakings, stipulations and provisions contained
in this Indenture, in any and every bond executed, authenticated and delivered
hereunder and in all ordinances pertaining ther~:to. The City covenants that it
is duly authorized under the Constitution and laws of the State of Arkansas,
including particularly and without limitation Act No. 9, to issue the bonds
authorized hereby and to execute this Indenture to mortgage the property
aescribad and mortgaged herein and to pledge the revenues in the manner and
to the extent herein set forth; that all action on its part for the issuance of the
bonds and the execution and delivery of this Indenture has been duly and effective-
ly taken; and that the bonds in the hands of the holders and owners thereof are
and will be valid and enforceable obligations of the City according to the import
thereof .
Section 403. Thy City covenants that it lawfully owns and is lawfully
possessed of the lands described and mortgaged herein and that it has good and
indefeasible title and estate therein in fey simple, subject only to e:cisting
easements and rights of way which do not substantially interfere with the utiliza-
tion of the mortgaged property for the purposes intended, and that it warrants and
will defend said title to the Trustee, its successors and assigns, for the benefit
of the holders and owners of the bonds against the claims and demands of all
persons whomsoever. The City cov=snants that it will do, execute, acknowledge
and deliver or cause to be done, ;.executed, acknowledged and delivered, such
w Indenture or Indentures supplemental hereto and such further acts, instruments,
and transfers as the Trustee may reasonably require for the batter assuring, trans-
ferring, mortgaging, pledging, assigning and confirming unto the Trustee all and
singular the r~roperty herein described and the revenues pledged hereby to the
payment of the principal of and interest on the bonds.
Section 404. The City covenants that it will promptly cause to be paid
all lawful taxes, charges, assessments, imposts and governmental charges at
any time levied or assessed upon or against the mortgaged property, or any part
thereof, which might impair or prejudice the lien and priority of this Indenture;
provided, however, that nothing contained in this section shall require the City
to cause to be paid any such taxes, assessments, imposts or charges so long as
f
'~"" the validity thereof is being contested in good faith and by appropriate legal
proceedings, and, provided, also, that such delay in payment shall not subject
the mortgaged property or any part thereof to forfeiture or sale.
Section 405. Thy City covenants that it will at all times cause to be
maintained, preserved and kept the mortgaged property in good condition, repair
«nd working order, and that it will from tima to time cause to be mada all needed
repairs, r~placsmants, additions, betterments and improvements so that the
operation and business pertaining to the mortgaged property shall at all times be
conducted properly and so that the mortgaged property shall be fully maintained.
Section 406. The City covenants that it will cause this Indenture, and
all indentures supplemental thereto, to be kept recorded and filed in such manner
and in such places as may be required by law in order to fully preserve and
protect the security of the holders and owners of the bonds and the rights of the
Trustee hereunder.
Section 407. The City covenants that so long as any bonds issuQd here-
under and secured by this Indenture shall be outstanding and unpaid, the City
will keep or cause to be kept, proper books of record and account, in which full,
E true and correct entries will be made of all dealings or transactions of and in
relation to the Project and the revenues derived from the Project. V'~hen requ`stad
by the Trustee, the City agrees to have the said books of record and account
audited by an independent C~rtiffed Public Accountant. The audit report shall
contain at least the following information:
(a} All revenues derived from the Project and all expanses incurred
by the City in connection with the Project;
(b) All payments, deposits, and credits to any payment, transfers
and withdrawals from the funds created under the provisions of
this Indenture;
(c) The details pertaining to bonds issued, paid, and redeemed;
and
(d) Tha amounts on hand in each fund showing the respective amounts
to the credit of each fund and any security bald therefor and showing
th ~ details of any investments thereof .
~" The City further covenants that all books and documents relating to the
Project and the revenues derived from the Project shall at all times be open to
th~a inspection of such accountants or other agencies as the Trustee may from
time to time designate. In this regard, so long as the Lease Agreement is in
force and effect, the records kept by the Trustee and Paying Agent in connection
with its duties as such shall be de~,med full compliance by the City with its
obligations under this Section 407.
~""" Section 408. To the extent that such information shall be made known
to the City under the terms of this Section, it will keep on file at the office of
the Trustee 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 Trustee, which request shall
include a statement of the principal amount of bonds held by such holder and the
numbers of such bonds . Neither the City nor the Trustee shall be under any
responsibility with regard to the accuracy of said list. At reasonable times and
under reasonable regulations established by the Trustee, said list may be inspect-
ed and copied by holders and/or owners (or a designated representative thereof)
of ten per cent (10%) or more in principal amount of bonds outstanding hereunder,
such ownership and the authority of any such designated representative to be
evidenced to the satisfaction of the Trustee.
Section 409. It is understood and agreed that the Project has been
leased to Flint under a Lease and Agreement wherein the City is Lessor and
Flint is Lessee (called the "Lease Agreement") . The Lease Agreement is recorded
in the office of the Circuit Clerk and Ex Officio Recorder of Crittenden County,
Arkansas, and an executed copy is on file in the office of the City Clerk of the
City and in the office of the Trustee. Reference is hereby made to the Lease
Agreement for a detailed statement of the terms and conditions thereof and for a
statement of the rights and obligations of the parties thereunder. The lien of this
Indenture is subject and subordinate to the Lease Agreement. The City agrees,
upon the request of the Trustee, to Qnforce all covenants and obligations of the
Lessee under the Lease Agreement and agrees that the Trustee, in its own name orii~
the name of the City, may and is hereby granted the right to enforce all rights of
the Lessor and all obligations of the Lessee under and pursuant to the Leas
Agreement, whether or not the Lessor is in dsfault in its covenant to enforce
such rights and obligations .
Section ~r 10. The City covenants that so long as any bonds authorized w~
and issued und<:r this Indenture are outstanding, it will not sell or otherwise
dispose of its interest in or lisp an the mortgaged nronerty, except in accordance
with the provisions of the Lease Agreement, and that it ~n~ill not encumber the same,
or any part thereof, or its interest therein, or create or permit to b~ created any
c~harga or lien on the revenues derived therefrom, axcent as provid•~cl in this
Indenture .
Section 411. The City covenants that at all times ~~Jhile any bonds era
outstanding, it will keep or Gauss to be kept the mortgaged property insured
against the perils and to the ~xt::.~nt sit fcrth in the L~asa Agream~nt and that
the Trustee shall be named as a Harty insured pursuant to a standard mortgagee
clause as its interest may appear. It is understood that the City has made pro-
vision in the Lease Agreement for such insurance, pursuant to th~~ terms of v~.~hich
the Lessee is obligated to keep the property insured as set forth in the Lease
Agreement, and so long as the Lease Agreement is in force and effect, the City
shall ba deemed to ba in acompliance with its obligations under this Section 411.
'fir/
ARTICLE V
REVEl~TUES AND FUNDS
Section 501. There is hereby created and ordered to be established witl-i
the Trustee a trust fund of and in the name of the City to be designated "West
Memphis,Arkansas 1966 Industrial Development Revenue Bond Retirement Fund -
Flint Project" (herein sometimes referred to as the "Bond Fund").
Section 502. There shall be deposited into the Bond Fund out of the total
sale proceeds the amount specified in Section 601 (a) hereof. In addition, there
shall be deposited in the Bond Fund as and when received;
(a) The amount remaining in the Construction Fund (hereafter
created) after all costs and expenses of and in connection
with the Project have been paid;
(b) All basic rent payments specified in Section 203 of the
Lease Agreement; and
(c) All other moneys received by the Trustee under and pur-
suant to any of the provisions of the Lease Agreement
directing such moneys to be paid into the Bond Fund.
Furthermore, the City covenants and agrees that so long as any of the bonds
secured by this Indenture are outstanding, it will at all times deposit, or cause
to be deposited, fn the Bond Fund sufficient moneys from revenues and income
derived from the Project (whether or not under and pursuant to the Lease Agreement)
to promptly meet and pay the principal of and interest on the bonds as the same
become due and payable, and to this end the City covenants and agrees that, so
long as any bonds secured by this Indenture are outstanding, it will cause the
Project to be continuously and efficiently operated as a revenue and income
producing undertaking, and that should there be a default under the Lease Agree-
went with the result that the right of possession of the leased premises is
returned to the City, the City will ful'y cooperate with the Trustee and with the
holders and registered owners of the bonds , to the end of fully protecting the
fir'
rights and security of the holders and registered owners of the bonds, and, if
and wh~n requested by the Trustee, the City shall diligently proceed in good
faith and use its bast efforts to secure another tenant for the leased premises
to the end of at all times driving sufficient revenues and income from the Project
to promptly meet and pay the principal of and interest on the bonds as the same
become due and payable. Nothing I-xerein shall be construed as requiring the City
to use any funds or revenues from any source other than funds and revenues
derived from the Project for the payment of the principal of and interest on the
bonds and discharging other obligations of the City under this Trust Indenture,
but nothing herein shall be construed as prohibiting the City from doing so.
Section 503. Moneys in the Bond Fund shall b~ used solely for the pay-
ment of the principal of, interest on and Paying Agent's fees in connection v~~ith
the bonds either at maturity or at redemption prior to maturity; provided, however,
that such provision shall not be construed as prohibiting a refund to the Lessee
undsr the Lease Agreement of excess basic rents, if any, in accordance with the
provisions of Section 203 of the Lease Agreement.
Section 504. The Bond Fund shall be in the name of the City, designated
as set forth in Section SU ~., and the City hereby irrevocably authorizes and directs
the Trustee and Paying Agent to ~n~ithdraw from the Bond Fund sufficient funds to
meet the principal of and interest on the bonds as the same become due and pay-
able, and to use said funds for the purpose of paying said principal and interest,
a
which authorization and direction the Trustee hereby accepts.
Section 505. In the event any bonds shall not ba presented for payment
when fihe principal thereof becomes due, either at maturity or otherwise, or at
the date fixed for redemption thereof, or in the event any coupon shall not be
presented for payment at the due date thereof, if there shall have been deposited
~ th the Paying Agent for the purpose, or left in trust if previously so deposited,
f~xnds sufficient to pay the principal thereof together with all interest unpaid and
due thereon, to the date of maturity thereof, or to the date fixed for redemption
thereof, or to pay such coupon, as the case may be, for the benefit of the holder
thereof or the holder of such coupon, all liability of the City to the holder thereof
for the payment of the principal thereof and interest thereon, or the holder of said
+r..
overduA coupon for the payment thereof, as the case may be, shall forthwith
cease, determine and be completely discharged, and thereupon it shall be the
duty of the Paying Agent to hold such fund or funds, without liability for interest
thereon, for the benefit of the holder of such bond, or the holder of such coupon,
as the case may ba, who shall thereafter be restricted exclusively to such fund
or funds, for any claim of whatever nature on his part under this Indenture or on,
or with respect to, said bond or coupon .
Section 506. It is understood and agreed that pursuant to the provisions
of Section 203 (b) of the Lease Agreement, the Lessee agrees to pay as additional
rent the fees and expenses of the Paying Agent for the bonds and charges and
expenses payable to the Trustee as authorized and provided by this indenture.
Said Lessee is to make payments on statements rendered by the Paying Agent and
the Trustee . All such additional rent payments under the Lease Agreement which
are received by the Trustee shall not be paid into the Bond Fund, but shall be
set up in separate accounts appropriately designated to identify the particular
account and shall bs expended solely for the purpose for which such payments
are received, and the Trustee and Paying Agent hereby agrees to so establish
said accounts and to make payment therefrom for said purposes .
Section 507. All moneys required to be deposited with or paid to the
Trustee and Paying Agent under any provision of this Indenture shall be held by
L
the Trustee and Paying Agent in trust, and except for moneys deposited with or
~..
paid to the Trustee and Paying Agent for the redemption of bonds, notice of which
rad~mption has been duly given, shall, while held by th~~ Trustee and Paying
Agent, constitute part of the trust estate and be subject to the lien hereof.
Any moneys received by or paid to the Trustee pursuant to any provision of the
Lease Agreement calling for th~~ Trustee to hold, administer and disburse the
`fir/
same in accordance with the specific provisions of the Lease Agreement shall be
held, administered and disbursed pursuant to said provision, and where required
by the provisions of the Lease Agreement the Trustee shall sat the same aside in
a separate account. The City agrees that if it shall receive any moneys pursuar_~~
to applicable provisions of the Lease Agreement, it will forthv~~ith upon receipt
thereof pay the same over to the Trustee to be held, administered and disbursed
by the Trustee in accordance with the provisions of the Lease Agreement pursuant
to which the City may have received the same. Furthermore, if for any reason
the Lease Agreement ceases to be in force and effect v~~hile any bonds are out-
standing, the City agrees that if it shall receive any moneys d:~rived from the
mortgaged property, it will forthwith upon receipt thereof pay the same over to
the Trustee to be held, administered and disbursed by the Trustee in accordance
with provisions of the Lease Agreement that would be applicable if the Lease
Agreement wsre then in fores and effect, and if there be no such provisions which
would be so applicable, then the Trustee shall hold, administer and disburse
such moneys solely for the discharge of the City's obligations under this
Indenture .
Section 508. Anything herein to the contrary notwithstanding, the Trustee
is authorized and directed to refund to the Lessee of the Lease Agreement all
excess amounts as specified in the Lease Agreement, whither such excess
amounts be in the Bond Fund or fn special accounts .
ARTICLE VI
CUSTODY AND APPLICATIOrr OF PROCEEDS OF FONDS
Section 601. Accrued interest and the proceeds of the sale of each series
of bonds (herein called "total sale proceeds") shall b~ disbursed and handled as
follows
(a) The Trustee shall take out of the total sale proceeds the amount
necessary to pay interest, if any, becoming du~~ and payable on the bonds during
the construction period, as shall b~ specified in a letter of instructions signed
by the Mayor of the City and delivered to the Trustee at the time, it being under-
stood that the Trustee need look no further than said letter of instructions and
may rely thereon and shall b~ protected by acting in accordance therewith, and
shall deposit said amount into the Bond Fund; and
(b) The balance of the total sale proceeds shall be deposited in a special
account of the City in the Trustee, which account shall be designated "Industrial
Development Bond Construction Fund - Flint Project" (herein called
"Construction Fund") .
Section 602. Moneys in the Construction Fund shall be e,~psndad for
Project costs and costs and e}.penses incidental thersto and to the issuance of
the bonds, under and pursuant to applicable provisions of the Lease Agreement.
Such expenditures shall ba in accordance with and pursuant to requisitions which
shall be signed by one or more duly designated representatives of rlirn~ (~•~hic,h
designation shall be in writing and filed with the Trustee) and one or more duly
designated representatives of the City (which designation shall be in writing and
filed with the Trustee) . Each requisition shall specify:
(1) The name of the person, firm or corporation
to whom payment is to b~ made;
(2) The amount of the payment;
(3) That the disbursement is for a proper expanse of or
pertaining to the Project; and
(«) Thy general classification of the expenditure.
The Trustee shall keep records concerning and reflecting all disbursements from
the Construction Fund and shall file an accounting of disbursements if and when
rectuested by the City or by Flint. The Trustee shall make payment from the
Construction Fund pursuant to and in accordance with said requisitions.
Section 603. Whenever the City and Flint jointly notify the Trustee
in writing (which may be by the same ~Nriting or in diif~rer~t writings) that any
balance remaining in the Construction Fund will rot be needed for completion of
the Project, the Trustee shall transfer the balance remaining in the Construction
Fund to th ~ Bond Fund .
ARTICLE VII
INVESTMENTS
~'
Section 701. (a) Moneys held for the credit of the Construction Fund
shall, upon direction by the duly designated representative of Flint, be invested
and reinvested by the Trustee in direct obligations of the United States of America
or Certificates of Deposit of the Trustee having maturity dates, or subject to
redemption by the holder at the option of the holder, on or prior to the dates the
funds will be needed as reflected by a statement of the duly authorized representa-
tive of Flint, which statement must be on file with the Trustee prior to any
investment .
(b) Moneys held for the credit of any other fund shall to the extent
practicable be invested and reinvested in direct obligations of, or obligations
the principal of and interest on which are guaranteed by, the United States of
America or Certificates of Deposit of the Trustee which shall mature, or which
shall be subject to redemption by the holder thereof at the option of the holder,
not later than the date or dates on which the money held for credit of the
particular fund shall be required for the purposes intended. The Trustee shall
so invest and reinvest pursuant to instructions from a duly designated representa-
tive of Flint .
(c) Obligations so purchased as an investment of moneys in any such
fund shall be deemed at all times a part of such fund, and the interest accruing
thereon and any profit realized from such investment shall be credited to such
fund, and any loss resulting from such investment shall be charged to such fund.
iwrr'
ARTICLE VIII
?OSSESSION, USE AND RELEASE OF
MORTGAGED PROPERTY
Section 301. So long as not otherwise provided in this Trust Indenture,
the City and any Lessee of the City shall be suffered and permitted to possess,
use and enjoy the mortgaged property and apnurtenanc~~s.
Section 802. The Trustee shall be authorized, when requested by the
City, to join with the City in taking the necessary steps, or, if required, to
execute an appropriate release of the lien of this Indenture, (a) to grant saw~r,
utility,. roa~l anal street -easements over, along, across and under the mortgaged
property, provided that the location of any such easements and the nature thereof
shall not interfere with the reasonable use of the mortgaged property for manu-
facturing and related purposes and will not interfere with the present or logical
future use of the mortgaged property by any Lessee of the City, or (b) on a partial
condemnation (or threat of condemnation) of the Project covered by Section 1401 B
of the Lease Agreement, and in the case of either (a) or (b) above, the Trustee
shall be entitled to rely upon and act in accordance with a certificate of a duly
qualified enginsar, who may b~ an engineer employed by the Lessee of the Luse
Agreement, and the prior written approval of the Lessee of the L~sase Agreement
shall be obtained in each instance .
Section 803. It is hereby recognized by the City and the Trustee fihat the
Lessee under the Lease Agreement, to the extent provided in Article XXIII, has
reserved the right therein to obtain the release from the lien of this Indenture of
certain of the mortgaged lands for use in any expansion program of the said
Lessee. Upon a sufficient showing to the Trustee that the terms, provisions
and conditions of the Lease Agreement pertaining to such release hays been met
and satisfied, the Trustee shall, and is hereby authorized and directed to, take
the necessary steps to release said lands being utilized in any such expansion
program from the lien of this Indenture . Furthermore, it is recognized that the
City may issue bonds (in addition to the bonds secured by this Indenture) to
financ° the cost of any such expansion program, and nothing in this :indenture
shall b:~ construed as prohibiting the City from issuing bonds for such purpose,
from entering into a separate lease agreement with the Lessee under the Lease
Agreement, or entering into a supplemental leas:: agreement cviih the Lessee under
the Lease Agreement, or the Lessee's authorized successors and assigns, from
pledging the rentals derived from any such separate lease agreement or any such
supplemental lease solely to th•a payment of the bonds then being issued, from
placing a first lien by mortgage on and pledging all revenues derived from any
lands and improvements covered by said separate lease agreement or said
supplemental lease agreement, and an any facilities, equipment and other
properties purchased, constructed, or other<Nisz acquired out of the proceeds of
the bonds then being issued, even though some of said property may be located
on lands and improvements constituting part of the mortgaged property under this
Trust Indenture and given though some of said property may have been released
from the lien of this Trust Indenture pursuant to the provisions of this Article.
Also, ~~~i~hout releasing the lien of this Indenture, the City may place a lien upon
any portion of the mortgaged property under this Trust Indenture as security for
the bonds then being issued, or ma;:~ a pledge of any of the revenues pledged
under this Trust Indenture in favor of the bonds then being issued, so long as
any such lien on the mortgaged property covered by this Trust Indenture and any
such pledge is subordinate to the lien and pledge of this Trust Indenture to and
in favor of the bonds secured hereby.
Section age. Provided no event of default and no event which with the
giving of notice ar passage of time, or both, would constitute an event of default
exists, any "Building Service Equipment" , as that term is der'ined in the Lease
~.greement and any of "Lessor's Machinery and Equipment" , as that term is
defined in the Lease Agreement, may be removed, sold, replaced or otherw-ise
disposed of as provided in the Lease Agreement and, without limitation,
particularly in Article XXIV thereof, and the Trustee shall, and is herby authoriz-
ed to, upon a showing to the Trustee of compliance with the said applicable
provisions of the L~as~ Agreement pertaining to such removal, sale, replacement
or disposition, take the necessary steps to release the said properties from th=~
lien of this Indenture. The proceeds of any such removal, sale or other disposi-
tion shall be handled by the Trustee in accordance with the provisions of the,
Laas~ Agreement, including, without limitation, the provisions of Article XXI~V
thereof. Any equipm~nt, machinery, fixtures and personal property obtained in
exchange or in lieu of any property sold, removed or disposed of under this
Section 804 shall automatically become and be subject to the lien of this Indan-
ture as if specifically mortgaged hereby. The City will, hot~~ever, upon written
request by the Trustee, convey t!1~ same to the Trusta~ by an Indenture supple-
` mental hereto in form and substance satisfactory to the Trustee or other appro-
jam, priate instrument as requested by the Trustee, and cause the same to ba recorded
and filed in such manner as the Trustee requests, to secure and continue the lien
of this Indenture thereon.
rwr
ARTICLE IX
~~. IS CHARGE OP LIE N
Section 901. If the City shall pay or cause to be paid to the holders and
owners of the bonds and coupons the principal and interest to bscomc dui therLon
at the times and in the manner stipulated therein, and ii the City shall keep,
perform and observe all and singular the covenants and promises in the bonds
and in this Indenture e:~prassed as to be kept, performed and observed by it or
on its part, then these presents and the estate and rights hereby grantzd shall
cease, determine and. be void, and thereupon the Trustee shall cancel and dis-
charge the lien of this Indenture, and e~cecut~a and deliver to the City such
instruments in writing as shall be requisite to satisfy the lien hereof, and re-
convey to the City the estata herby conveyed, and assign and deliver to the
City any property at the time subject to the lisp of this Indenture which may
err.
then be in its possession, except cash held by it for the oaymant of the principal
of and interest on the bonds .
Bonds and coupons for the payment or redemption of which moneys shall
have been deposited with the Trustee (whither upon or prior to the maturity or
the redemption date of such bonds) shall be deemed to be paid within the meaning
of this Section; provided, however, that if such bonds are to be redeemed prior
to the maturity thereof, notico of such redemption shall have been duly given.
The City may at any tams surrender to the Trustee for cancellation by it
any bonds previously authenticated and delivered hereunder, together with any
unpaid coupons thereto belonging, which the City may have acquired in any
i
manner whatsoever, and such bonds and coupons, upon such surrender and
cancellation, shall be deemed to be paid and retired.
ARTICLE ?i
DEFAULT PROVISIONS AND REMEDIES OF
TRUSTEE A1VD BONDHOLDERS
~.
Section 1001. If any of the following events occur, subject to the pro-
visions of Section 1013 hereof, it is hereby defined as and declared to b~ and to
constitute an ".want of default";
(a) Default in the due and punctual payment of any interest on any bond
hereby secured and outstanding and the continuance thereof for a period of
thirty (30) days;
(b) Default in the due and punctual payment of any moneys required to
be paid to the Trustee under the provisions of Article V hereof and the continuance
thereof for a period of thirty (30) days;
a
(c) Default in the due and punctual payment of the principal of any bond
~' hereby secured and outstanding, whether at the stated maturity thereof, or upon
proceedings for redemption thereof, or upon the maturity thereof by declaration;
(d) Default in the performances or observance of any other of the covenants,
agreements or conditions on its part in this Indenture, or in the bonds contained,
and the continuance thereof for a aeriod of sixty (60) days after written notice to
the City by the Trustee or by the holders of not less than ten per cant (10°/a) in
aggregate principal amount of bon~.s outstanding heraund~r.
The term "default" shall mean default by the City in the performance or
observance of any of the covenants, agreements or conditions on its part con-
tained in this Indenture, or in the bonds outstanding hereunder, exclusive of
any period of grace required to constitute a default an "event of dafault" as
~~;
hereinabove provided .
Section 1002. Upon the occurrence of an event of default, the Trustee
may, and upon the written request of the holders of twenty-live per cent (25~)
to aggregate principal amount of bonds outstanding hereunder, shall, by notice
in writing delivered to the City, declare the principal of all bonds her~ry
secured then outstanding and the interest accrued thereon immediately due and
payabie and such principal and interest shall thereupon bccom~ and b~ i~n-
mediataly dui and payabla .
Section 1003. Upon the occurrence of an ev;;nt of default, the City, upon
demand of the Trustee, shall forthwith surrender to it the actual possession of,
and it shall b•~ lawful for the Trustee, by such officar or agent as it may appoint,
to take possession of, all or any part of the mortgaged property with the books,
papers and accounts of the City pertaining thereto and to hold, operat•~ and
manage the same, and from time to time to make all needful repairs and improve-
ments as by the Trustee shall b~ deemed wise; and the Trustee, with or without
such permission, may collect, receive and sequester the tolls, rants, revenues,
issues, earnings, income, products and profits therefrom and out of the same
and any moneys received from any rsceiver of any part thereof pay, and/or set
up proper reserves for the payment of, all proper costs and expenses of so taking,
holding and managing the same, including reasonable compensation to the Truster,
its agants and counsel, and any charges of the Trustee hareundar and any tars,
and assessments and other charges prior to the lien of this Indenture v~rhich the
Trustee may deem it wise to pay, and all expenses of such repairs and improve-
ments, and apply the remainder of the moneys so received by the Trustee in
accordance with the provisions of Section 1008 har~of. ~~~.rhenever all that is
due upon such bonds and installments of interest under the terms of this Indenture
shall have been paid and all defaults made good, the Trustee shall surrender
possession to the City, its successors or assigns; the same right of ::ntry,
however, to exist upon any subsequent event of default.
While in possession of such property the Trustee shall render annually
to the bondholders, at their addresses as set forth in the list required by Section
08 hereof, a summarized statement of income and expenditures in connection
therewith .
Section 1004. Upon the occurrence of an event of default, the Trustee
may, as an alternative, proceed either after entry or without entry, to pursue
any available remedy by suit at law or equity to enforce the payment of the
principal of and interest on the bonds then outstanding hereunder, including,
without limitation, foreclosure and mandamus .
If an event of default shall have occurred, and if it shall have been
requested so to do by the halders of twenty-five per c~nt (25%) in aggregate
principal amount of bonds outstanding hereunder and shall have been indemnified
as provided in Section 1101 hereof, the Trustas shall be obliged to e~cercise such
one or more of the rights and powers conferred upon it by this Section and by
Section 1003 as the Trustee, b::irig advised by counsel, shall deem most
expedient in the interests of the bondholders .
No remedy by the terms of this Indenture conferred upon or reserved to
the Trustee (or to the bondholders) is intended to be ~::clusiv~ of any other
remedy, but each and every such remedy shall be cumulative and shall be fn
addition to any other remedy given hereunder or now or hereafter existing at law
or in equity or by statute .
No delay or omission to ex-.rcise any right or power accruing upon any
default or event of default shall impair any such right or po~n~er or shall be
construed to be a waiver of any such default or want of default or acquiescence
therein; and every such right and power may be exercised from time to time and
as often as may be deemed expedient.
No waiver of any default or event of default hereunder, whether by the
Trustee or by the bondholders, shall extend to or shall affect any subsequent
d,:fault or event of default or shall impair any rights or remedies consequent
thereon.
Section 1005. Anything in this Indenture to the contrary not<Nithstanding,
the holders of a majority in aggregate principal amount of bonds outstanding
hereunder shall have the right, at any time, by an instrument or instruments
,.n writing executed and delivered to the Trustee, to direct the method and place
of conducting all proceedings to be taken in connection with the enforcement of
the terms and conditions of this Indenture, or for the appointment of a receiver
or any other proceedings hereunder; provided that such direction shall not be
other<n-iss than in accordance with th~~ provisions of law and of this Trust
Indenture .
Section 1006. Upon the occurrence of an event of default, and upon the
filing of a suit or other commencement of judicial proceedings to enforce the
rights of the Trustee and of the bondholders under this Indenture, the Trustee
shall ba entitled, as a matter of right, to the appointment of a receiver or
receivers of the mortgaged property and of the tolls, rents, revenues, issues,
earnings, income, products and profits thereof, pending such proceedings with
such powers as the court making such appointment shall confer.
Section 1007. In case of a.n event of default on its Hart, as aforesaid,
to the extent that such rights may then la~.~vfully be waived, neither the City nor
anyone claiming through it or under it shall or ~n~ill set up, claim, or sack to
take advantage of any appraisemant, valuation, stay, extension or redemption
laws now or hereafter in force, in order to prevent or hinder the enforcement of
this Indenture, but the City, for itself and all who may claim through or under
it, hereby waives, to the extent that it lawfully may do so, the benefit of all
such laws and all right of appraisement and redemption to which it may be
entitled under the la~n~s of the State of Arkansas .
Section 100$. Available moneys shall be applied by the Trustee as
follows:
(a) Unless the principal of all the bonds shall have become or shall
have been declared due and payable, all such moneys shalt be applied:
First: To the payment to the persons entitled thereto of all installments
of interest then due, in the order of the maturity of the installments of such
interest, and, if the amount available shall not be sufficient to pay in full any
particular installment, then to the payment ratably, according to the amounts
due on such installment, to the persons entitled thereto, without any discrimin4-
tion or privilege;
Second: To the payment to the persons entitled thereto of the unpaid
principal of any of the bonds which shall have become due (other than bonds
called for redemption for the payment of vahich moneys are held pursuant to the
pro~~isions of this Indenture) , in the order of their due dates, with interest on
such bonds from the respective dates upon which they become duL, and, if the
amount available shall not be sufficient to pay in full bonds due on any particular
date, together with such interest, then to the payment ratably, according to the
amount of principal due on such date, to the persons entitled thereto without any
discrimination or privilege; and
Third: To the payment of the interest on and the principal of the bonds,
and to the redemption of bonds, all in accordance with the provisions of tirticlz
V of this Indenture .
(b) If the principal of all the bonds shall have become dui or shall have
been declared due and payable, all such moneys shall be applied to the payment
of the principal and interest then due and unpaid upon the bonds, without
preference or priority of principal over interest or of interest over principal, or
of any installment of interest over any other installment of interest, or of any
bond over any other bond, ratably, according to the amounts due respectively
for principal and interest, to the persons entitled thereto without any discrimina-
tion or privilege.
(c) If the principal of all tl-:~ bonds shall have been declared due and
payable, and if such declaration shall thereafter have been rescinded and annulled
under the provisions of this ?article then, subject to the provisions of paragraph
(b) of this Section in the event that the principal of all the bonds shall Inter
b.:??come due or be declared due and payable, the moneys shall be applied in
accordance with the provisions of paragraph (a) of this Section.
rrr+'
V~Ihenever moneys are to be applied by the Trustee pursuant to the pro-
visions of this Section, such moneys shall be applied by it at such times, and
from time to time, as it shall detern~:ine, having due regard to the amount of such
~" moneys available for application and the likelihood of additional moneys becoming
available for such application in the future . j.Nhenever the Trustee shall apply
such funds, it shall fix the data (which shall be an interest payment date unless
it shall deem another date more suitable) upon vvhich such application is to be
made and upon such date interest on the amounts of principal to be paid on such
dates shall cease to accrue. The Trustee shall give such notice as it may deem
appropriate of the deposit with it of any such moneys and of the fixing of any
such date and shall not be required to make payment to the holder of any unpaid
coupon or any bond until such coupon or such bond and all unmaturad coupons,
if any, appertaining to such bond shall be presented to the Trustee for appropriate
endorsement or for cancellation if fully paid .
Section 1009. All rights of action (including the right to file proof of
claim) under this Indenture or under any of the bonds or coupons may be enforced
by the Trustee without the possession of any of the bonds or coupons or the
production thereof in any trial or other proc~~ding relating thereto and any such
suit or proceeding instituted by the Trustee shall b~ brought in ins name as
Trustee, without the necessity of joining as plaintiffs or defendants any holders
of the bonds hereby secured, and any recovery of judgment shall be for the equal
benefit of the holders of the outstanding bonds and coupons .
Section 1010. No holder of any bond or coupons shall have any right to
t
" institute any suit, action or proceeding in equity or at law for the enforcement of
~"" this Indenture or for the execution of any trust hereof or for the appointment of a
receiver or any other remedy hereunder, unless a default has occurred of which
the Trustee has been notified as provided in sub-section (g) of Section 1101, or
of which by said sub-section it is d:.~em~ad to have notice, nor unless such
default shall have become an event of defauli and th~a holders of twenty-five
per cent (25%) in aggregate principal amount of bonds outstanding hereunder
shall have made written request to the Trustee and shall have offered it rAason~.~I_
opportunity either to proceed to exercises the powers hereinbefore granted or to
institute such action, suit or proceeding in its own name, nor unless also they
have offered to the Trustee indemnity as provided in Section 1101 nor unless the
Trustee shall thereafter fail or refuse to exercise the powers hereinbefore granted,
or to institute such action, suit or proceeding in its own name; and such
notification, request and offer of indemnity are hereby declared in every such
case at the option of the Trustee to be conditions nrec~dent to the execution of
the powers and trusts of this Indenture, and to any action or cause of action for
the enforcement of this Indenture or for the appointment of a receiver or for any
other remedy hereunder; it being understood and intended that no one or more
holders of the bonds or coupons shall have any right in any manner whatsoever
to affect, disturb or prejudice the lien of this Indenture by his or their action or
to enforce any right hereunder sxcept in the manner herein provided, and that
all proceedings at lav,.~ or in equity shall be instituted, had and maintained in
the manner herein provided and for the equal benefit of the holders of all bonds
outstanding hereunder. Nothing in this Indenture contained shall, however,
affect or impair the right of any bondholder to enforce the payment of the principal
of and interest on any bond at and after the maturity thereof, or the o;~ligation of
the City to pay the principal of and interest on each of the bonds issued hereunder
to the respective holders thereof at the time and place in said bonds and the
appurtenant coupons expressed.
Section 1011. In case the Trustee shall have proceeded to enforce any
right under this Indenture by the appointment of a receiver, by entry or otherwise,
and such proceedings shall have been discontinued or abandoned for any reason,
or• shall have been determined adversely to the Trustee , then and in very suer
case the City and the Trustee shall be restored to their former positions and
rights hereunder with respect to the property herein conveyed, and all rights,
remedies and powers of the Trustee shall continue as if no such procQedings had
been taken .
Section 1012. The Trustee may in its discretion waive any event of default
hereunder and its consequences and rescind any declaration of maturity of
principal and shall do so upon the writtsn request of the holders of fifty per cent
(50%) in principal amount of all bonds outstanding hereunder, provided, however,
that there shall not be waived (a) any event of default in the payment of the
principal of any bonds issued hereunder and outstanding hereunder at the date of
maturity specified therein or (b) any default in the payment of the interest unless
prior to such waiver or rescission all arrears of principal (due otherwise than by
declaration) and interest and all expenses of thn Trustee and Paying Agent, shall
have been paid or provided for, and in case of any such waiver or rescission the
City, Trustee and the bondholders shall ba restored to their former positions and
rights hereunder respectively; but no such waiver or rescission shall extend to
any subsequent or other default, or impair any right consequent thereon.
Section 1013. Anything herein to the contrary notwithstanding, no default
shall constitute an event of default until actual notice of such default by registered
or certified mail (with or without return rec°ipt requested) shall be given to the
Lessee of the Lease Agreement, and the Lessee of the Lease Agreement shall have
had sixty (60) days after receipt of ~uch notice to correct said default or cause
said default to be corrected, and the Lessee of the Luse Agreement shall not
have corrected said default or caused said default to be corrected within said
sixty (60) days period; provided, however, ii said default be such that it cannot
b~ corrected within sixty (60) days, it shall not constitute an event of default if
corrective action is instituted within said sixty (60) days period and diligently
pursued until the default is corrected. V'Tith regard to any alleged default con-
;. rning which notice is given to the Lessee of the Lease Agreement under the
x .~~visions of this Section 1013, the City names and appoints the Lessee of the
'Lease Agreement as its attorney in fact and agent with full authos~ity to perform
any covenant or obligation of the City alleged in said notice to constitute a
default in the name and stead of the City with full power to do any and all things
and acts to the same extent that the City could do and perform any such things
and acts and with power of substitution. In this regard, it is agreed that the
parties hereto have familiarized th :rnselves with the terms and provisions of the
Lease Agreement.
Section 101 The rights and remedies provided in favor of the Trustee
and the holders of the bonds by the provisions of this Indenture are in each case
subject to the proviso that each and every such right and remedy shall b ~ and
may be exercised only subject and subordinate to the rights of said Lessee under
the Lease Agreement.
ARTICLE XI
THE TRUSTEE
Section 11Q1. The Trustee hereby accepts the trusts imposed upon it by
this Indenture, and agrees to perform said trusts as an ordinarily prudent trustee
under a corporate mortgage, but only upon and subject to the following expressed
terms and conditions:
(a) The Trustee may e;;ecute any of the trusts or powers hereof and perform
any duties required of it by or through attorneys, agents, receivers or employees,
and shall be entitled to advice of counsel concerning all matters of trusts hereof
and its duties hereunder, and may in alI cases pay reasonable compensation to all
such attorneys, agents, receivers and employees as may reasonably be employed
in connsction with the trusts hereof. The Trustee may act upon the opinion or
advice of any attorney, surveyor, engineer or accountant selected by it in the
e;~~rcise of reasonable care, or, if selected or retained by the City prior to the
occurrence of a default of which the Trustee has been notified as provided in sub-
section (g) of this Section, or of which by said sub-section the Trustee is deemed
to have notice, approved by the Trustee in the a<;ercise of such care . The Trustee
shall not be responsible for any loss or damage resuiting from an action or non-
action in accordance with any such opinion or advice .
(b) The Trustee shall not be responsible for any recital herein, or in said
bonds (except in respect to the certificate of the Trustee endorsed on such bonds) ,
or for the recording or re-recording, filing or re-filing of this Indenture, or for
i insuring the property herein conveyed or collecting any insurance moneys, or for
the validity of the execution by the City of this Indenture or of any supplemental
indentures or instrument of further assurance, or for the sufficiency of the security
for the bonds issued hereunder or intended to be secured by, or for the value or
t' of the property herein conveyed or otherwise as to the maintenance of the
security hereof; except that in the event the Trustee er-ters into possession of a
dart or all of the property herein conveyed pursuant to any provision of this
'~+
Ir~danture, it shall use due diligence in preserving such property; and the Trustee
shall not be bound to ascertain or inquire as to the performance or observance of
any covenants, conditions or agreements on the part of the City, except as here-
inafter set forth; but the Trustee may require of the City full information and
advice as to the performance of the covenants, conditions and agreements
aforesaid as to the condition of the property herein conveyed.
(c) The Trustee may become; the owner of bonds and coupons secured
hereby with the same rights whic;i it would have if not Trustee .
(d) The Trustee shall be protected in acting upon any notice, request,
consent, certificate, order, affidavit, letter, telegram, or other paper or
document b~liev~d by it to be genuine and correct and to have been signed or
sent by the proper person or persons . Any action taken by the Trustee pursuant
to this Indenture upon the request or authority or consent of any parson who at
the time of making such request or giving such authority or consent is the owner
of any bond secured herzby, shall be conclusive and binding upon all future
owners of the same bond and upon bonds issued in ~xchange therefor or in
placs thereof .
(~) As to the existence or nan-e~cistence of any fact or as to the
sufficiency or validity of any instrument, paper or proceeding, the Trustee
shall be entitled to rely upon a certificate of the City signed by its Mayor
and attested by the City Clerk as suf%icient evidence of the facts therein con-
tained and prior to the occurrence of a default of which it has been notified
as provided in sub-section (g) of this Section, or of which by said sub-section
it is deemed to have notice, and shall also be at liberty to accept a similar
cQrtificate to the effect that any particular dealing, transaction or action is
r.scessary or expedient, but may at its discretion at the reasonable expense of
t'ne City, in every case secure such further evidence as it may think necessary
~r advisable but shall in no case ba bound to secure the same. The Trustee
may accept a certificate of the City Clerk of the City under its seal to the
effect that a resolution or ordinance in t'_ne corm therein set forth has been
adopted by the City as conclusive evidence that such resolution or ordinance
r,., has been duly adopted, and is in lull Force and effect.
(f) The permissive right of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty of the Trustee, and the Trustee
shall be answerable only for its own negligence or willful default .
(g) The Trustee shall not be required to take notice or be deemed to
have notice of any default hereunder except failure by the City to make or
cause to be made any of the payments to the Trustee required to be made by
Article V (with the time limitation noted in (b) of Section 1001) unless the
Trustee shall be specifically notified in writing o~~ such default by the City
or by the holders of at least ten per cent (10%) in aggregate principal amount
of bonds outstanding hereunder and all notices or other instruments required
by this Indenture to be delivered to the Trustee must, in order to be effective,
be delivered to the office of the Trustee, and in the absence of such notice so
delivered, the Trustee may conclusively assume there is no default except as
aforesaid.
(h) The Trustee shall not be personally liable for any debts contracted
or for damages to persons or to personal property injured or damaged, or for
salaries or non-fulfillment o" contracts during any period in which it may be
in the possession of or managing the real and tangible personal property as in
this Indenture provided .
(i) At any and all reasonable times the Trustee, and its duly authorized
1~. agents , attorneys , experts , engineers , accountants and representatives , shall
have the right fully to inspect any and all of the property herein conveyed,
including all books, papers and records of the City pertaining to the Project
and the bonds, and to take such memoranda from and in regard tizereto as may
be desired.
'rwl~
(j) The Trustee shall not be required to give any bond or surety in
respect of the execution of the said trusts and powers or otherwise in respect
of the premises .
(k) Notwithstanding anytrting elsewhere in this Indenture contained,
the Trustee shall have the right, but shall not be required, to demand, in
respect of the authentication of any bonds , the withdrawal of any cash, the
release of any property, or any action whatsoever within the purvie~~ of this
Indenture, any showings, certificate, opinions, appraisals, or other information,
or corporate action or evidence thereof, in addition to that by the terms hereof
required as a condition of such action by the Trustee deemed desirable for the
purpose of establishing the right or the City to the authentication of any bonds,
the withdrawal of any cash, the release of any property, or the taking of any
other action by the Trustee .
(1) Before taking such action hereunder, the Trustee may require that
it be furnished an indemnity bond satisfactory to it for the reimbursement to
it of all expenses to which it may be put and to protect it against all liability,
except liability which is adjudicated to have resulted from the negligence or
willful default of the Trustee, by reason of any action so taken by the Trustee.
Section 1102 > The Trustee shall be entitled to payment and/or reimburse-
ment for its reasonable fees for services rendered hereunder and all advances ,
counsel fees and other expenses reasonably and necessarily made or incurred
by the Trustee in and about the execution of the trusts created by this Indenture
and in and about the exercise and performance by the Trustee of the powers and
duties of the Trustee hereunder, and for all reasonable and necessary costs and
expenses incurred in defending any liability in the premises of any character
v~~hatsoever (unless such liability is adjudicated to have resulted from the
negligence or willful default of the Trustee) . The City has made provision
in the Lease Agreement for the payment of said reasonable and necessary
advances, lees, costs and expenses and reference is hereby made to said
Lase Agreement for the provisions so made. In this regard, it is understood
that the City pledges no funds or revenues other than those provided for in said
Lase Agreement and the revenues derived from and the avails of the mortgaged
property to the payment of any obligation of the City set forth in this Indenture ,
including the obligations set forth in this Section 1102, but nothing herein shall
be construed as prohibiting the City from using any other funds and revenues for
the payment of any of its obligations und::r this Indenture . Upon default by the
City, but only upon default, pursuant to the provisions of this Indenture pertain-
ing to default, the Trustee shall have a first lien with right of payment prior to
payment on account of principal or interest of any bond issued hereunder upon
the mortgaged property for said reasonable and necessary advances, fees, costs
and expenses incurred by the Trustee.
Section 1103. If a default occurs of which the Trustee is by sub-section
(g) of Section 1101 hereof required to take notice or if notice of default be given
it as in said sub-section (g) provided, then the Trustee shall give written notice
thereof by mail to the last known o~+vners of all bonds outstanding hereunder shown
by the list of bondholders required by the terms of Section 408 hereof to be kept
at the office of the Trustee.
Section 1104. In any judicial proceeding to which the City is a party and
which in the opinion of the Trustee and its counsel has a substantial bearing on
the interests of owners of bonds issued hereunder, the Trustee may intervene on
behalf of bondholders and shall do so if requested in writing by the owners of at
least ten per cent (10%) of the aggregate principal amount of bonds outstanding
hereunder. The rights and obligations of the Trustee under this Section are subject
to the approval of the court having jurisdiction in the premises .
Section 1105. Any corporation or association into which the Trustee
may be converted or merged, or with which it may be consolidated, or to which
it may sell or transfer its trust business and assets as a whole or substantially
as a whole, or any corporation or association resulting from any such conversion,
sale, merger, consolidation or transfer to which it is a party, ipso facto,
shall be and become successor trustee hereunder and vested with all. of the
title to the whole property or trust estate and all the trusts, pov<~ers, dis-
cretions, immunities, privileges, and all other matters as vvas its prede-
cessor, without the execution or filing of any instrument or any further act,
deed or conveyance on the part of any of the parties hereto, anything herein
to the contrary notwithstanding. '
Section l I06 . The Trustee and any successor trustee may at any time
resign from the trusts hereby creatEd by giving thirty (30) days' written notice
to the City, and such resignation shall take effect at the end of such thirty
(30) days, or upon the earlier appointment of a successor trustee by the bond-
holders or by the City. Such notice may be served personally or sent by
registered mail.
Section 1107. The Trustee may be removed at any time by an instrument
or concurrent instruments in writing delivered to the Trustee and to the City,
and signed by the owners of a majority in aggregate principal amount of bonds
outstanding hereunder.
Section 1108. In case the Trustee hereunder shall resign or be removed,
or be dissolved, or shall be in course of dissolution or liquidation, or otherwise
become incapable of acting hereunder, or in case it shall be taken under the
control of any public officer or officers, or of a receiver appointed by a court,
a successor may be appointed by the owners of a majority in aggregate princi-
pal amount of bonds outstanding hereunder, by an instrument or concurrent
instruments in writing signed by such owners, or by their attorneys in fact,
duly authorized ;provided, nevertheless, that in case of such vacancy the
City by an instrument executed and signed by its Mayor and attested by its
City Clerk under its seal, may appoint a temporary trustee to fill such vacancy
until a successor trustee shall be appointed by the bondholders in the manner
above provided; and any such temporary trustee so appointed by the City shall
immediately and without further act be superseded by the trustee so appointed
by such bondholders . Every such temporary trustee so appointed by the City
shall be a trust company or bank in good standing, having capital and surplus
of not less than Three Nlillion Dollars ($3 , 000, 000) , if there be such an insti-
tution willing, qualified and able to accept the trust upon reasonable or customary
terms .
Section 1109. Every successor trustee appointed hereunder shall exe-
cute, acknowledge and deliver to its predecessor and also to the City an
instrument in writing accepting such appointment hereunder, and thereupon
such successor, without any further act, deed or conveyance, shall become
fully vested with all the estates, properties, rights, powers, trusts, duties and
obligations of its predecessor; but such predecessor shall, nevertheless, on the
written request of the City or of its successor trustee, execute and deliver an
instrument transferring to such successor all the estates, properties, rights,
powers and trusts of such predecessor hereunder; and every predecessor trustee
shall deliver all securities and moneys held by it as trustee hereunder to its
successor. Should any instrument in writing from the City be required by any
successor trustee for more fully and certainly vesting in such successor the
estates, rights, powers and duties hereby vested or intended to be vested in
the predecessor trustee, any and all such instruments in writing small, on re-
quest, be executed, acknowledged and delivered by the City. The resignation
of any trustee and the instrument o:- instruments removing any trustee and ap-
pointing asuccessor hereunder, together with all other instruments provided for
in this Article shall, at the expense of the City, be forthwith filed and/or re-
corded by the successor trustee in each recording office where the Indenture
shall have been filed and/or recorded.
Section 1110. In case the City shall fail seasonably to pay or to cause
to be paid any tax, assessment or governmental or other charge upon any par`c
~f the property herein conveyed, to the extent, if any, that the City may be
~'
liable for same, the Trustee may pay such tax, assessment or governmental
charge, without prejudice, however, to any rights of the Trustee or the bond-
holders hereunder arising in consequence of such failure; and any amount at
any time so paid under this Section shall be repaid by the City from the
revenues derived from the mortgaged property upon demand, and shall beccme
so much additional indebtedness secured by this Indenture, and the same shall
be given a preference in payment over any of said bonds, and shall be paid out
of the proceeds of revenues collected from the mortgaged property if not paid
by the City; but the Trustee shall be under no obligation to make any such
payment unless it shall have been requested to do so by the holders of at
least ten per cent (10%) of the ag!~-:egate principal amount of bonds outstand-
ing hereunder and shall have been provided with adequate ~:unds for the purpose
of such payment .
Section 1111. The resolutions, opinions, certificates and other
instruments provided for in this Indenture may be accepted by the Trustee
as conclusive evidence of the facts and conclusions stated therein and shall
be full warrant, protection and authority to the Trustee for the release of pro-
perty and the withdrawal oi: cash hereunder.
Section 1112. In the event of a change in the office or trustee, the old
trustee which has resigned or been removed shall cease to be Paying Agent,
and the successor Trustee shall become the Paying Agent .
Section 1113. There shall be paid the standard and customary Paying
Agent's fees and charges of the Paying Agent for handling the payment of the
principal of and interest on the bolds and funds sufficient to pay the same
shall be deposited with the Paying Agent prior to the dates on which payments
are required to be made on principal and interest .
Section 1114. The City and the Trustee shall have power to appoint,
and upon the request of the Trustee the City shall for such purpose join with
the Trustee in the execution of all instruments necessary or proper to appoint
another corporation or one or more persons approved by the Trustee and
satisfactory to the Lessee under the Lease Agreement, so long as there is no
termination of the interest of the Lessee under the Lease Agreement by virtue
of an event of default or otherwise, either to act as co-trustee or co-trustees
jointly with the Trustee of all or any of the property subject to the lien hereof,
or to act as separate trustee or trustees of all or any such property, with such
powers as may be provided in the instrument of appointment, and to vest in
such corporation or person or persons as such separate trustee or co-trustee
any property, title, right or power deemed necessary or desirable. In the
event that the City shall not have joined in such appointment within fifteen
days after the receipt by it of a request so to do, the Trustee alone shall have
power to make such appointment. Should any deed, conveyance or instrument
in writing from the City be required by the separate trustee or co-trustee so
appointed for more fully and certainly vesting in and conirrning to him or it
such properties, rights, powers, trusts, duties and obligations, any and all
such deeds, conveyances and instruments in writing shall, on request, be
executed , acknowledged and delivered by the City . Every such co-trustee and
separate trustee shall, to the extent permitted by law, be appointed subject to
the following provisions and conditions, namely:
(1) The bonds shall be authenticated and delivered, and
all powers, duties, obligations and rights conferred upon
the Trustee in respect of the custody o~ all money and se-
curities pledged or deposited hereunder, shall be exercised
solely by the Trustee; and
(2) The Trustee, at any time by an instrument in writing,
may remove any such separate trustee or co-trustee .
Every instrument, other than this Indenture, appointing any such
co-trustee or separate trustee, shall .refer to this Indenture and the conditions
o% this Article XI expressed, and upon the acceptance in writing by such
separate trustee or co-trustee, h; , they or it shall be vested with the estates
or property specified in such instrument, jointly with the Trustee {except
inso~ar as local la~•~~ makes it necessary for any separate trustee to act alone) ,
subject to all the trusts, conditions and provisions of this Indenture. Any
such separate trustee or co-trustee may at any time, by an instnzment in
writing, constitute the Trustee, his, their or its agent or attorney-in-fact
with full power and authority, to the extent authorized by law, to do all acts
and things and exercise all discre~ion authorized or permit}ed by him, them or
it, for and in behalf of him, them or it and his, their or its name. In case any
separate trustee or co-trustee shall die, become incapable of acting, resign
or be removed, all the estates, properties, rights, powers, trusts, duties
and obligations of said separate trustee or co-trustee, so far as permitted by
law, shall vest in and be exercised by the Trustee until the appointment of a
new trustee or a successor to such separate trustee or co-trustee.
ARTICLE XII
SUPPLEMENTAL INDENTURES
Section 1201. The City and the Trustee may, from time to time, wittYoux
the approval of any bondholder, enter into such indentures supplemental hereto
as shall not be inconsistent with the terms and provisions hereof (~~hich supple-
mental indentures shall thereafter form a part hereof) , (a) to cure any= ambiguity
or formal defect or omission in this Indenture or in any supplemental indenture,
or (b) to grant to or confer upon the Trustee for the benefit of the bondholders
any additional rights, remedies, powers, authority or security that may lawfully
be granted to or conferred upon the bondholders or the Trustee, or (c) to subject
to the lien and pledge of this Indenture additional revenues , properties or
collateral .
Section 1202. Subject to the terms and provisions contained in this
Section, and not otherwise, the holders of not less than two-thirds (2/3) in
aggregate principal amount of the bonds then outstanding shall have the right,
from time to time, anything contained in this Indenture to the contrary not-
withstanding, to consent to and approve the execution by the City and the
Trustee of such indenture or indentures supplemental hereto as shah. be deemed
necessary and desirable by the City for the purpose of modifying, altering,
amending, adding to or rescinding, in any particular, any or the terms or
provisions contained in this Indenture or in any supplemental indenture;
provided ,however, that nothing h•r: ein contained shall permit, or be construed
as permitting (a) an extension of tine maturity of the principal of or the interest
on any bond issued hereunder, or (b) a reduction in the principal amount of any
bond or the rate of interest thereon, or (c) the creation of a lien upon fihe
mortgaged property or a pledge o~ the revenues pledged to the bonds other than
tYie lien and pledge created by this Indenture, except this subsection (c) shah.
not be construed as prohibiting the creation of a lien upon the mortgaged ?~ro~-
perty and a pledge of said revenues in connection with bonds of the City to
`finance an expansion referred to in Section 803 of this Indenture, it being
understood, as therein provided, that any such lien and pledge shall be sub-
ordinate to the lien and pledge created by this Indenture, or (d) a privilege or
priority of any bond or bonds over arty other bond or bonds , or (e) a reduction
in the aggregate principal amount of the bonds required for consent to such
supplemental indenture. TJothing herein contained, however, shall be con-
strued as making necessary the appro~ral of bondholders of the execution of
any supplemental indenture as provided in Section 1201 of this Article.
If at any time the City shall request the Trustee to enter into any
supplemental indenture for any of the purposes of this Section, the Trustee
shall, at the expense of the City, cause-notice of the proposed execution of
such supplemental indenture to be published one time in a daily newspaper of
general circulation published in the City of Little Rock, Arkansas . Such notice
shall briefly set forth the nature of the proposed supplemental indenture and
shall state that copies thereof are on file at the principal office of the Trustee
for inspection by all bondholders. The Trustee shall not, however, be subject
to any liability to any bondholder by reason or its failure to publish such
notice, and any such failure shall nat affect the validity of such supplemental
indenture when consented to and approved as provided in this Section. If the
holders of not less than two-thirds (Z/3) in ac~~;~regate principal amount of the
bonds outstanding at the time of the execution of any such supplemental
indenture shall have consented to and approved the execution thereof as
herein provided, no holder of any bond shall have any right to object to any
of the terms and provisions contained therein, or the operation thereof, or in
any manner to question the propriety of the execution thereof, or to enjoin or
restrain the Trustee or the City from executing the same or from tak:ing any
action pursuant to the provisions thereof . Upon the execution of any such
supplemental indenture, this Inde:~~ure shall be and be deemed to be modified
and amended in accordance therev~ai+:h.
Section ].203. Anything herein to the contrary notwithstanding, a
supplemental indenture under this Article XII shall not become effective unless
and until the Lessee under the Lease Agreement shall have consented to the
execution and delivery of such supplemental indenture. In this regard, the
Trustee shall cause notice of the proposed execution and delivery o:~ any such
supplemental indenture together with a copy of the proposed supplemental
indenture to be mailed by certified or registered mail to the Lessee under the
Lease Agreement at least fifteen !1 S) days prior to the proposed date of exe-
cution and delivery of any such su~:alemental indenture. The Lessee under the
Lease Agreement shall be deemed to have consented to the execution and de-
livery of any such supplemental indenture if the Trustee receives a letter
signed by an authorized o.ficer of the Lessee of ttie Lease Agreement expressing
said consent within fifteen (15) days after the mailing of notice and a copy of
the proposed supplemental indenture to the f,essee under the Lease Agreement
or if the Trustee does not receive a letter signed by an authorized officer on or
before 4:00 0' clock p . m . , C . S . T . , of the fifteenth day alter the mailing of
said notice, the Lessee under the Lease Agreement shall be deemed to have
consented to the execution and delivery of such supplemental indenture .
ARTICLE ?VIII
AMENDMENT OF LEASE AGREENlENT
err
Section 1301. The Trustee may from time to time, and at any time, but
not prior to thirty (30) days after publication of the notice provided for in Section
1302 hereof, consent to any amendment, changs or modification of the Lease
Agreement for the purpose of curing any ambiguity or formal defect or omission
or making any other change therein, which in the reasonable judgment of the
Trustse is not to the prejudicz of the Trustee or the holders of thL bonds . The
Trustee shall not consent to any other amendment, change or modification of the
Lease Agreement without the prior approval or consent of the holders of not lass
than 66-2/3% in aggregate principal amount of the bonds at the time outstanding,
evidenced in the manner provided in Section 1401 hereof.
Section 1302. If at any time the City or Lessee of the Lease Agreement
shall request the Trustee's consent to a proposed amendment, change or modifica-
tion requiring bondholder approval under Section 1301, the firustee shall, at the
e;;pense of the requesting party, cause notice of such proposed amendment,
change or modification to be published one time in a newspaper of general
circulation published in the City of Little Rock, Arkansas . Such notice shall
briefly set forth the nature of such proposed amendment, change or modification
and shall state that copies of the instrument e.nbodying the same are on file in
the principal office of the Trustee for inspection by any interested bondholder.
Thy Trustee shall not however, be subject to any liability to any bondholder by
reason of its failure to publish such notice, and any such failure shall not affect
the validity of such amendment, change or modification when consented to by the
'i'rustse in the manner hereinabove provided.
ARTICLE XIV
MISCELLANEOUS
Section 1401. Any request, direction, objection or other instrument
required by this Indenture to be signed and executed by the bondholders may be
in any number of concurrent writings of similar tenor and may be signed or
executed by such bondholders in person or by agent appointed in writing . Proof
of the e~cecution of any such request, direction, objection or other instrument
or of the writing appointing any such agent and of the ownership of bonds, if
made in the following manner, shall be sufficient for any of the purposes of this
Indenture, and shall be conclusive in favor of the Trustee with regard to any
action taken by it under such request or other instrument, namely:
(a) The fact and date of the execution by any person of any such writing
may be proved by the certificate of any officer in any jurisdiction who by law
has power to take acknowledgments within such jurisdiction that the person
signing such writing acknowledged before him the execution thereof, or by an
affidavit of any witness to such execution.
(b) The fact of holding by any person of bonds and/or coupons trans-
ferable by delivery and the amounts and numbers of such bonds, and the date of
the holding of the same, may be proved by a certificate executed by any trust
company, bank or bankers, wher~ev4r situated, stating that at the date thereof
the party named therein did exhibit to an officer of such trust company or bank
or to such banker, as the property of such party, the bonds and/or coupons
therein mentioned if such certificatee shall be deemed by the Trustee to be
satisfactory. The Trustee may, in its discretion, require evidence that such
bonds have been deposited with a bank, bankers or trust company, before taking
any action based on such ownership .
For all purposes of the Indenture and of the proceedings for the enforc~-
ment thereof, such person shall be deemed to continue to be the holder of such
bond until the Trustee shall have received notice in writing to the contrary.
Section 1402. With the exception of rights herein e:zpressly conferred,
nothing expressed or mentioned in or to be implied from this Indenture, or the
bonds issued hereunder, is intended or shall be construed to give to any person
or company other than the parties hereto, and the holders of the bonds and
coupons secured by this Indenture, any legal or equitable right, remedy or claim
under or in respect to this Indenture or any covenants, conditions and provisions
herein contained; this Ind~anture and all of the covenants, conditions and pro-
visions hereof being intended to be and being for the sole exclusive benefit of
the parties hereto and the holders of the bonds and coupons hereby secured as
herein provided.
Section 1403. If any provision of this Indenture shall be held or deemed
to be or shall, in fact, be inoperative or unenforceable as applied in any
particular case in any jurisdiction or jurisdictions or in all jurisdictions or in
all cases because it conflicts with any provisions or any constitution or statute
or rule of public policy, or for any other reason, such circumstances shall not
have the effect of rendering the provision in question inoperative or unenforceable
in any other case or circumstanc°, or of rendering any other provision or pro-
visions herein contained invalid, inoperative or unanforctiable to any extent
whatever .
The invalidity of any one or more phrases, sentences, clauses or para-
graphs in this Indenture contained shall not affect the remaining portions of
this Indenture or any part thereof .
Section 1404. It shall be sufficient service of any notice, request,
complaint, demand or other paper on the City if the same shall be duly mailed
to the City by registered or certified mail addressed to the Mayor of the City,
or to such address as the City may from time to time file vvith the Trustee.
Section 1405. This Indentz~re may be simultaneously executed in several
counterparts, each of which sh~311 be an original and all of which shall constitute
but one and the same instrument .
'`
vr~~
IN WITNESS WHEREOF, the City of VlT~st Memphis, Arkansas has caused
these presents to be signed in its name and behalf by its Mayor and its corpora~e
seal to be hereunto affixed and attested by its City Clerk, and, to evidence its
acceptance of the trust hereby created, First National Bank of Memphis, Memphis,
Tennessee, has caused these presents to be signed in its name and behalf by its
and its corporate seal to be hereunto
affixed and attested by its _ ,all as of the day
and year first above written.
`" ATTEST:
~'
City Clerk
SEAL)
ATTEST:
(SEAL)
CITY OF vJEST NTEMPHIS, ARKANSAS
By
Mayor
FIRST NATIONAL BANK OF MEMPHIS
MEMPHIS, TENNESSEE
By
ACKNOWLEDGMENT
STATE OF ARKANSAS }
ti }
~;
y,~ COUNTY OF CRITTENDEN)
On this day of 1966, before me,
a Notary Public duly commissioned, qualified and acting, within and for the State
and County aforesaid, appeared in person the within named
and ,Mayor and City Clerk, respectively, of the
City of Vilest Memphis, Arkansas, a municipality of the State of Arkansas, to me
personally known, who stated that they were duly authorized in their respective
capacities to execute the foregoing instrument for and in the name of said muniri-
pality, and further stated and acknowledged that they had signed, executed and
delivered said foregoing instrument for the consideration, uses and purposes
therein mentioned and set forth .
TN TESTIMONY WHEREOF, I have hereunto set my hand and official
seal this day of 1966.
Notary Public
My commission expires
0
r
1~r.
ACKNOWLEDGMENT
STATE OP )
COUNTY OF )
On this day of 1966, b~for~ me, a Notary Public
duly commissioned, qualified and acting, vaithin and nor the State and County
aforesaid, appear in person the within named
and
and
respectively of First National Bank of Memphis, Memphis, Tennessee, to rne;
personally well known, who stated that they were duly authorized in their
respective capacities to execute the foregoing instrument for and in the name
and behalf of said Bank, and further stated and acknowledged that they had so
signed, executed and delivered said foregoing instrument for the consideration,
uses and purposes therein mentioned and sat forth.
IN TESTIMONY V~IHEREOF, I have hereunto set my hand and official seal
this day of 1966.
Notary Public
NIy commission expires:
„ ~.
Page 4
Section 4. That the Mayor and Clerk, for and on behalf of the City,
be, and they are hereby, authorized and directed to 'do any and all things
necessary to effect the execution of the Trust Indenture, its execution and
acceptance by the Trustee , the performance of all obligations of the City under
and pursuant to the Trust Indenture , the execution and delivery of the Series
A Bonds , and the performance of all other acts of whatever nature necessary
to effect and carry out the authority conferred by this ordinance and by the
Trust Indenture. That the Mayor and Clerk be, and they are hereby, further
authorized and directed , for and on behalf of the City, to execute all papers ,
documents , certificates and other instruments that may be required for the
carrying out of the authority conferred by this ordinance and the Trust Indenture ,
or to evidence said authority and its exercise .
Section 5. That since the City is here involved with the constructing
and equipping of a complex industrial project, requiring highly specialized work
and specialized types of machinery and equipment, it has been and is hereby
determined by the City Council that competitive bidding is not .feasible or
practical . Therefore , any requirements under ordinances of the City or under
the laws of the State of Arkansas for competitive bidding be, and the same are
hereby, waived as to this particular industrial project . This action is taken by
• ` the City Council pursuant to applicable laws of the State of Arkansas , including
particularly Section 5 of Act No. 28 of the Acts of Arkansas of 1959 (Ark. Stats.
(1963 Cumulative Pocket Supplement) Section 19-4425) .
Section 6. That the provisions of this Ordinance are hereby declared
to be separable, and if any section, phrase, or provision shall for any reason
be declared to be invalid, such declaration shall not affect the validity of the
remainder of the sections , phrases and provisions .
Section 7 . That all ordinances , resolutions and parts thereof in
conflict herewith are hereby repealed to the extent of such conflict .
Page S
Section 8. That t'r~e;e is hereby found and declared to be an immediate
need for the securing and ciCVec,~i ng of ~uhstantiai inciustiai operations in order
to provide additional employ~.~e:.~, alleviate unemployment and otherwise benefit
the public health , safety and we~fare of the City and the inhabitants thereof , and
tr,e issuance of the bonds authorized hereby and ti:e taking of the other action
authorized herein are im ;:ediate~y necessary in connection with the securing
and developing of substantial i.~dustrial operations and deriving the public benefits
referred to above . It is , the: efore, declared that an emergency exists and this
Ordinance being necessary for t~:e immediate preservation of the public health,
safety and welfare shall be in fo: ce and take effect immediately upon and after
its passage.
PASSED: M~~~ t ~ , I9 66 .
APPROVED:
ATTEST:
_. ~
V City Clerk
Mayor
(SEAL)
f
CERTIFICATE
The undersi~-r:~a, Ci;:y Clerk of t,"lest Nie~,.phis, Arkansas, hereby
certifies that the foregoi:~g pages are a true and perfect copy of Ordinance No.
~~' passed at a regular ,i,.: ~.~e City Council of West
Memphis, Arkansas, heh at t.:e regular meeting place of the Council at
3:00 o'clock P_. ,:,. , o:< the 17th day of ~~'~ ,
1966, and that the Ordinance is of record in Ordinance Record Book 7 ,
page 25 ,now i. my possession.
GIVEN under my hand and seal this 30th day of ~~ ,
1966.
~ - ~
~..__
City Clerk
(SEAL)