1861RESOLUTION NO. ~ $6 t
A RESOLUTION TO APPROVE AN ESCROW AGREEMENT AND TO
AUTHORIZE THE MAYOR AND THE CITY CLERK TO EXECUTE A
QUITCLAIM DEED TO FREIGHT TERMINALS, INC., AND FOR
OTHER PURPOSES.
WHEREAS, Arkansas statutes require a written resolution of the City Council
authorizing the Mayor and the City Clerk to execute deeds for the conveyance of real property;
and
WHEREAS, Freight Terminals, Inc., (as successor by merger to Watkins Terminals, Inc.;
hereinafter referred to as the "Company") and the City of West Memphis, Arkansas, (hereinafter
referred to as the "Issuer") and SunTrust Bank (f/k/a SunTrust Bank, Atlanta; hereinafter referred
to as the "Bank") are parties to that certain sale and leaseback, bond financing transaction (the
"Bond") evidenced, among other documents and agreements, by (a) the Trust Indenture dated
June 1, 1997, between the Issuer and the Bank, as trustee; (b) the Bond related thereto issued by
the Issuer and held by the Bank; (c) the Home Office Payment Agreement dated June 1, 1997,
among the Bank, the Issuer and the Company; and (d) the Lease Agreement dated June 1, 1997,
between the Issuer and the Company; and
WHEREAS, the Bond issue in the principal amount of $8,870,000 was approved and
authorized by Ordinance 1765 of the City of West Memphis; and
WHEREAS, the Company has notified the Issuer and the Bank of its intention to make
payment in full of the Bond and all fees and charges of the Trustee as provided in the Lease; and
WHEREAS, the Company, the Issuer and the Bank desire to enter into an Escrow
Agreement providing that First American Title Insurance Company, as Escrow Agent, shall hold
in escrow the documents reasonably necessary to indicate satisfaction and termination of the
Bond and the Lease and to reconvey the Project from the Issuer to the Company pursuant to the
terms of the Escrow Agreement; and
WHEREAS, upon payment in full of the Bond and all fees and charges of the Trustee as
set out in Section 9.4 of the Lease the Issuer is to deliver to the Company title to the Project;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF WEST MEMPHIS, ARKANSAS, THAT:
Section 1. The Escrow Agreement between the Company, the Issuer, and the Bank is
hereby approved and the Mayor is hereby authorized to execute the Escrow Agreement on behalf
of the City of West Memphis, Arkansas, and to take such additional actions as maybe necessary
or required to accomplish the purposes therein set forth;
Section 2. The Quitclaim Deed reconveying the Project from the Issuer to the Company is
hereby approved and the Mayor and City Clerk are hereby authorized to execute the Quitclaim
Deed on behalf of the City of West Memphis and to deliver the Quitclaim Deed to the Escrow
Agent pursuant to the terms .o.~f the Escrow Agreement.
ADOPTED this 3=x day of ~ S~ , 2006.
..' 12.x'-
WILLIAM H. JO ON, MAYOR
ATTEST:
PHILLIP ,CITY CLERK
SPONSORED BY:
DECEIVED
City Clerk's Office
Date/Time ~ ~ ~~
~Y-=~_~ r
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Escrow Agreement") made and entered into this
day of July, 2006, by and among FREIGHT TERMINALS, INC. (as successor by merger to
Watkins Terminals, Inc.; hereinafter referred to as "Borrower"), the CITY OF WEST MEMPHIS,
ARKANSAS (hereinafter referred to as "Issuer"), SUNTRUST BANK f/k/a SunTrust Bank,
Atlanta (the "Bank"), and FIRST AMERICAN TITLE INSURANCE COMPANY (hereinafter
referred to as "Escrow Agent");
WITNESSETH
WHEREAS, Borrower, Issuer and the Bank are parties to that certain sale and leaseback,
bond financing transaction (the "Bond") evidenced, among other documents and agreements, by (a)
the Trust Indenture dated June 1, 1997, between the Issuer and the Bank, as trustee; (b) the Bond
related thereto issued by the Issuer and held by the Bank; (c) the Home Office Payment
Agreement dated June 1, 1997, among the Bank, the Issuer and the Borrower; and (d) the Lease
Agreement dated June 1, 1997, between the Issuer and the Borrower (the "Lease");
WHEREAS, Borrower has notified Issuer and the Bank that Borrower intends to prepay
its obligations in connection with the Bond and to receive by reconveyance from the Issuer all
right, title and interest in the Project (as defined in the Lease);
WHEREAS, Borrower, Issuer and Bank desire to have Escrow Agent hold in escrow the
documents reasonably necessary to indicate satisfaction and termination of the Bond and the Lease
and reconvey the Project from the Issuer to the Borrower pursuant to the terms hereof.
NOW, THEREFORE, in consideration of the premises and of good and valuable
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consideration, the receipt and sufficiency whereof are hereby acknowledged, the parties hereto
hereby covenant and agree as follows:
1. Borrower, Issuer and Bank hereby appoint First American Title Insurance Company as
escrow agent hereunder.
2. Issuer and Bank have executed and delivered to Escrow Agent all documents reasonably
necessary to indicate satisfaction and termination of the Bond and the lease and reconvey all right,
title and interest in the Project to the Borrower (collectively, the "Reconveyance Documents"). The
Borrower shall deliver to the Escrow Agent, according to the wiring instructions of the Escrow
Agent set forth in Exhibit "A" attached hereto, an amount equal to all of the obligations of the
Borrower outstanding under the Bond, including, but not limited to, any and all prepayment
penalties and other amounts due in connection with the Bond as a result of the prepayment
(collectively, the "Prepayment Amount") on or before days from the date hereof (the
"Termination Date").
3. Upon the receipt by the Escrow Agent of the Prepayment Amount and notice from the
Bank confirming that the Prepayment Amount received by the Escrow Agent is the correct amount,
the Escrow Agent shall promptly release and deliver the Reconveyance Documents pursuant to the
instructions of the Borrower and shall pay over to the Bank the full Prepayment Amount in
accordance with the Bank's wiring instructions set forth on Exhibit "A" attached hereto. If the full
and correct Prepayment Amount is not received on or before the Termination Date (including any
extension thereof mutually agreed to in writing by the parties hereto), the Reconveyance
Documents shall be returned by the Escrow Agent to the Issuer and the Bank.
4. The parties hereto covenant and agree that in performing any of its duties under this
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Agreement, Escrow Agent shall not be liable for any loss, costs or damage which it may incur as a
result of serving as Escrow Agent hereunder, except for any loss, costs or damage arising out of its
willful misconduct or gross negligence.
Accordingly, Escrow Agent shall not incur any liability with respect to (i) any action taken
or omitted to be taken in good faith upon advice of its counsel given with respect to any questions
relating to its duties and responsibilities, or (ii) any action taken or omitted to be taken in reliance
upon any document, including any written notice of instruction provided for in this Escrow
Agreement, not only as to its due execution and the validity and effectiveness of its provisions, but
also as to the truth and accuracy of any information contained therein, which Escrow Agent shall in
good faith believe to be genuine, to be signed or presented by a proper person or persons and to
conform with the provisions of this Escrow Agreement.
The parties hereto hereby agree to indemnify and hold harmless Escrow Agent against any
and all losses, claims, damages, liabilities and expenses, including without limitation, reasonable
costs of investigation and attorneys fees and disbursements which maybe imposed upon or incurred
by Escrow Agent in connection with its serving as Escrow Agent hereunder, absent its gross
negligence or willful misconduct.
In the event of a dispute between any of the parties hereto sufficient in the sole discretion of
Escrow Agent to justify its doing so, Escrow Agent shall be entitled to tender unto the registry or
custody of any court of competent jurisdiction all money or property in its hands held under the
terms of this Escrow Agreement, together with such legal pleading as it deems appropriate, and
thereupon be discharged.
This Escrow Agreement may be executed by one or more of the parties hereto on any
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number of separate counterparts (including by telecopy), and all of said counterparts taken together
shall be deemed to constitute one and the same instrument.
IN WITNESS WHEREOF the undersigned have caused this instrument to be duly
executed as of the day and year first above written.
FREIGHT TERMINALS, INC.
By:
Michael L Watkins, President
CITY OF WEST MEMPHIS
By:
Name:
Title:
SUNTRUST BANK
By:
Name:
Title:
FIRST AMERICAN TITLE COMPANY
By:
Name:
Title:
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EXHIBIT "A"
Wiring Instructions of Escrow Agent and Bank
[to be provided by Escrow Agent and Bank]
QUITCLAIM DEED
KNOW ALL MEN BY THESE PRESENTS:
That the City of West Memphis, Arkansas, a municipal corporation organized under and by
virtue of the laws of the State of Arkansas, (hereinafter referred to as "Grantor") by its Mayor and
City Clerk, duly authorized by Ordinance No. 1765 and Resolution No. of the West Memphis
City Council and in accordance with the Lease Agreement dated June 1, 1997, between the City of
West Memphis, Arkansas and Freight Terminals, Inc., a Georgia corporation (as successor by
merger to Watkins Terminals, Inc., hereinafter referred to as "Grantee"), and in consideration of the
termination of the Lease Term of such Lease Agreement, the full payment of all Bonds described
and referred to in the Lease Agreement and in the Trust Indenture dated June 1, 1997, between the
City of West Memphis, Arkansas, as Issuer, and SunTrust Bank (f/k/a SunTrust Bank, Atlanta), as
Trustee, compliance by the Grantee with all terms and conditions of the Lease Agreement, the
agreement between the Grantor and the Grantee that the said Lease Agreement is hereby terminated
and other good and valuable consideration the receipt and sufficiency of which are hereby
acknowledged, does hereby grant, convey and quitclaim unto the Grantee, its successors and assigns
forever, all of its right, title, interest, equity and estate in and to the following described lands
situated in the County of Crittenden, State of Arkansas:
A 71.38 acre tract of land lying in the West half of Section 35, T-7-N, R-8-E, and
being a fractional part of Lot 2, Mid-America Center to the City of West Memphis,
as shown by plat recorded in Plat Book 4, Page 57, in the Office of the Circuit Court
Clerk & Ex-Officio Recorder of Crittenden County, Arkansas and being more
particularly described as follows:
Commencing at the Northwest corner of said Section 35, thence SO° 16'37"W along
the West line of said Section 35 and the centerline ofMid-America Boulevard a
This instrument prepared by David C. Peeples, West Memphis City Attorney
P. O. Box 1728, West Memphis, AR, 72303
distance of 284.14 feet to the point-of-beginning, thence S65 °06'41 "E a distance of
1188.00 feet to a point, thence S24°53'19"W a distance of 400.00 feet to a point,
thence S65°06'41 "E a distance of 554.35 feet to a point, thence SO° 16'37"W a
distance of 1574.41 feet to its intersection with the North right-of--way line of Family
Dollar Parkway, thence N89°37'48"W along said right-of--way line a distance of
1417.48 feet to its intersection with the West line of said Section 35 and the
centerline of Mid-America Boulevard, thence NO° 16'37"E along the West line of
said Section 35 and the centerline of Mid-America Boulevard a distance of 2661.40
feet to the point of beginning, containing 71.83 acres more or less.
TO HAVE AND TO HOLD the same unto the Grantee and unto its successors and assigns
forever, with all tenements, appurtenances and hereditaments thereunto belonging.
IN WITNESS WHEREOF, the name of the Grantor is hereunto affixed by its Mayor and
its seal affixed by its City Clerk this day of , 2006.
By:
ATTEST:
PHILLIP PARA, CITY CLERK
CITY OF WEST MEMPHIS, ARKANSAS, Grantor
WILLIAM H. JOHNSON, MAYOR
TITLE NOT EXAMINED AND NO OPINION
GIVEN AS TO STATUS OF SAME.
This instrument prepared by David C. Peeples, West Memphis City Attorney
P. O. Box 1728, West Memphis, AR, 72303
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ACKNOWLEDGMENT
STATE OF ARKANSAS
COUNTY OF CRITTENDEN
On this day of , 2006, before me, the undersigned Notary Public,
personally appeared William H. Johnson, Mayor, and Phillip Para, City Clerk, of the City of West
Memphis, Arkansas, a municipal corporation, known to me or satisfactorily proven to be the
persons described in the foregoing instrument, and acknowledged that they executed the same in the
capacity therein stated and for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
NOTARY PUBLIC
MY COMMISSION EXPIRES:
Amount of Tax: $ EXEMPT (A.C.A. 26-60-102(1))
I certify under penalty of false swearing that at least the legally convect amount of
documentary stamps have been placed on this instrument.
GRANTEE OR AGENT
This instrument prepared by David C. Peeples, West Memphis City Attorney
P. O. Box 1728, West Memphis, AR, 72303
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