0271 4111C oers;r-Amc
ORDINANCE NO.02 7/
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 COSTS 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; AUTHORIZING AND
PRESCRIBING OTHER MATTERS PERTAINING TO THE INDUSTRIAL
PROJECT, THE CONSTRUCTING THEREOF AND THE FINANCING
THEREOF; AND DECLARING AN EMERGENCY.
WHEREAS the City of Jacksonville, Arkansas (the "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
( "Act No. 9 "), to make expenditures for the securing and developing of industry;
and
WHEREAS the City is authorized by Act No. 9 to issue Industrial
Development Revenue Bonds payable from revenues derived from the industrial
facilities involved and secured by a lien on and security interest in such
facilities; and
WHEREAS the necessary arrangements have been made with Franklin
Electric Co. , Inc. , an Indiana corporation ( "Franklin "), for the City to acquire
machinery, equipment and facilities (the "Project ") to be used in the operation
of a substantial industrial plant for the manufacturing of electric motors or such
other products as Franklin shall elect to manufacture and to lease the Project
to Franklin pursuant to the terms of a Lease and Agreement subsequently identified
in more detail in the Indenture authorized by this Ordinance and referred to as
the "Lease Agreement "; and
WHEREAS permanent financing of Project costs, necessary costs and
expenditures incidental thereto and the cost of the issuance of bonds is being
furnished by the City issuing Industrial Development Revenue Bonds under the
provisions of Act No. 9 in the principal amount of not to exceed Three Million
Dollars ($3 , 000 , 000) (the "bonds "); and
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WHEREAS there has been submitted to the electors of the City the
question of issuing the bonds at a special election, and at the special election
the electors approved the issuance of the bonds; and
WHEREAS arrangements have been made for the sale of the bonds to
purchasers for a price of par and accrued interest; and
WHEREAS the bonds are dated, bear interest, mature and are subject
to redemption as hereafter in the Indenture set forth in detail;
NOW, THEREFORE, BE IT ORDAINED by the City Council of the City
of Jacksonville, Arkansas:
Section 1. That there be, and there is hereby, authorized and directed
the following:
(a) The sale of $3,000,000 in aggregate principal amount
of bonds; and
(b) The performance of all obligations of the City under
the Lease Agreement pertaining to the accomplishing
of the Project and the execution of all instruments
necessary to carry out, or evidence, the obligations
of the City under the Lease Agreement pertaining to
the accomplishing of the Project.
Section 2. That to provide for the authorization of, and to secure,
Industrial Development Revenue Bonds of the City under Act No. 9 in the total
principal amount of not to exceed $3,000,000, to provide for the immediate
execution and delivery of the bonds, and to prescribe the terms and conditions
upon which the bonds are to be secured, executed, authenticated, accepted
and held, the Mayor is hereby authorized and directed to execute and acknow-
ledge a Trust Indenture, and the City Clerk is hereby authorized and directed
to execute and acknowledge the Trust Indenture and to affix the seal of the
City thereto, and the Mayor and City Clerk are hereby authorized and directed
to cause the Trust Indenture to be accepted, executed and acknowledged by the
Trustee, with the Trust Indenture, which constitutes and is hereby made a part
of this Ordinance, to be in substantially the following form, to wit:
TRUST INDENTURE
between
CITY OF JACKSONVILLE, ARKANSAS
and
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TABLE OF CONTENTS
Page
Parties 1
Recitals 1
-Bond Form 3
Granting Clauses 12
ARTICLE I
DEFINITIONS
Section 101 Definitions 15
Section 102 Use of Words 17
ARTICLE II
THE BONDS
Section 201 Authorized Amount of Bonds 19
Section 202 Details of Bonds; 19
Section 203 Execution of Bonds; Limited Obligation 21
Section 204 Authentication 21
Section 205 Form of Bonds 22
Section 206 Delivery of Bonds 22
Section 207 Indenture Superior to Laborer's, Etc. , Liens 22
Section 208 Mutilated, Destroyed or Lost Coupons or Bonds 22
Section 209 Registration of Principal or Principal and Interest 23
ARTICLE III
REDEMPTION OF BONDS BEFORE MATURITY
Section 301 Redemption of Bonds 26
Section 302 Notice 26
Section 303 Cancellation 26
Section 304 Unpaid Coupons 26
ARTICLE IV
GENERAL COVENANTS
Section 401 Payment of Principal and Interest 27
Section 402 Performance of Covenants 27
Section 403 City Warrants Title; Instruments of Further
Assurance 28
Section 404 Payment of Taxes, Charges, etc. 28
Section 405 Obligation to Maintain and Repair 28
Section 406 Recordation of Trust Indenture and Lease
Agreement 29
Section 407 Books of Record and Account; Inspection 29
Section 408 List of Bondholders 30
Section 409 Lease Agreement Reference; Lien of Trust Indenture
Subordinate to Lease Agreement; Enforcement
Obligations and Rights 30
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Section 410 Covenant not to Sell or Dispose of Interest
in Trust Estate and not to Encumber Except in
Accordance with Lease Agreement and
Trust Indenture 31
Section 411 Obligation to Insure 31
Section 412 Election to Proceed Pursuant to Section 10 of
Internal Revenue Code 31
Section 413 Covenants of City and Trustee Not to Take or
Permit Actions or Conditions That would Cause
Interest to be Subject to Federal Income Taxation 32
ARTICLE V
REVENUES AND FUNDS
Section 501 Creation of Bond Fund 33
Section 502 Payments Into the Bond Fund 33
Section 503 Use of Moneys in Bond Fund 34
Section 504 Custody of Bond Fund and Withdrawals Therefrom
by Trustee 34
Section 505 Non - presentment of Bonds or Coupons 34
Section 506 Fees, Charges and Expenses of Trustee and
Paying Agent 35
Section 507 Moneys to be Held in Trust 35
Section 508 Refund to Lessee of Excess Payments 36
ARTICLE VI
CUSTODY AND APPLICATION
OF PROCEEDS OF BONDS
Section 601 Deposits into the Construction Fund 37
Section 602 Disbursements from Construction Fund 37
Section 603 When All Project Costs are Paid Balance Used for
Purchase of Bonds or Transferred to Bond Fund 37
ARTICLE VII
INVESTMENTS
Section 701 Investment of Moneys in Construction Fund and
Other Funds 38
ARTICLE VIII
POSSESSION, USE AND RELEASE OF
MORTGAGED PROPERTY
Section 801 City's Right to Possess, Use and Enjoy 39
Section 802 Trustee Authorized, Pursuant to Specified Conditions,
in Joining with City to Release Lien in Event of
Partial Condemnation 39
ARTICLE IX
DISCHARGE OF LIEN
Section 901 Discharge of Lien 40
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ARTICLE X
DEFAULT PROVISIONS AND REMEDIES OF
TRUSTEE AND BONDHOLDERS
Section 1001 Events of Default 41
Section 1002 Acceleration 42
Section 1003 Trustee's Right to Enter and Take Possession 42
Section 1004 Other Remedies; Rights and Obligations with
Reference to Remedies 43
Section 100.5 Right of Majority of Bondholders to Take Charge 44
Section 1006 Appointment of Receiver 44
Section 1007 Waiver by City of Benefit of Laws and Rights of
Appraisement and Redemption 44
Section 1008 Application of Available Moneys 45
Section 1009 Remedies Vested in Trustee 47
Section 1010 Rights and Remedies of Bondholders 47
Section 1011 Termination of Proceedings 48
Section 1012 Waivers of Events of Default 48
Section 1013 Notice of Default; Opportunity of Lessee
to Correct 49
Section 1014 Rights and Remedies of Trustee and Bondholders
Subject and Subordinate to Rights of Lessee
Under Lease Agreement 50
Section 1015 Trustee to Give Notice in Event Bonds Become
Subject to Federal Income Taxation 50
ARTICLE XI
THE TRUSTEE
Section 1101 Acceptance of Trusts 51
Section 1102 Fees, Charges and Expenses of Trustee 55
Section 1103 Notice to Bondholders of Default 55
Section 1104 Intervention by Trustee 56
Section 1105 Successor Trustee 56
Section 1106 Resignation by Trustee 56
Section 1107 Removal of Trustee 57
Section 1108 Appointment of Successor Trustee; Temporary
Trustee 57
Section 1109 Successor Trustee to Accept Appointment;
Predecessor and City to Execute Appropriate
Transfer Instruments If Required 57
Section 1110 Right of Trustee to Pay Taxes and Other Charges 58
Section 1111 Trustee Protected in Relying Upon Resolutions, etc. 59
Section 1112 Trustee Which Has Resigned or Been Removed
Ceases to be Paying Agent 59
Section 1113 Paying Agent's Fees and Charges 59
Section 1114 Appointment of Co-Trustee or Separate Trustee 59
ARTICLE XII
SUPPLEMENTAL INDENTURES
Section 1201 Supplemental Indentures Not Requiring Consent
of Bondholders 62
Section 1202 Supplemental Indentures Requiring Consent of
Bondholders 62
Section 1203 Consent of Lessee to Supplemental Indenture 63
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ARTICLE XIII
AMENDMENT OF LEASE AGREEMENT
Section 1301 Amendments to Lease Agreement Not Requiring
Consent of Bondholders 65
Section 1302 Amendments to Lease Agreement Requiring Consent
of Bondholders 65
ARTICLE XIV
MISCELLANEOUS
Section 1401 Consents, etc. of Bondholders 66
Section 1402 Limitation of Rights 67
Section 1403 Severability 67
Section 1404 Notice 67
Section 1405 Arkansas Substantive Law Governs 67
Section 1406 Counterparts 68
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TRUST INDENTURE
THIS INDENTURE, executed as of the first day of September, 1972,
by and between the CITY OF JACKSONVILLE, ARKANSAS, a city of the first
class, duly existing under the laws of the State of Arkansas (the "City "), as
party of the first part, and
an institution organized under and existing by virtue of the laws of the United
States of America, with its principal office, domicile and post office address
in , Arkansas (the "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 ( "Act No. 9 "), to make expenditures for
the securing and developing of industry; and
WHEREAS the City is authorized by Act No. 9 to issue Industrial
Development Revenue Bonds payable from revenues derived from the industrial
facilities involved and secured by a lien on and security interest in such
facilities; and
WHEREAS the necessary arrangements have been made with Franklin
Electric Co., Inc., an Indiana corporation ( "Franklin "), for the City to acquire
machinery, equipment and facilities (the "Project ") to be used in the operation
of a substantial industrial plant for the manufacturing of electric motors or such
other products as Franklin shall elect to manufacture and to lease the Project
to Franklin pursuant to the terms of a Lease and Agreement subsequently identified
herein and referred to as the "Lease Agreement"; and
WHEREAS permanent financing of Project costs, necessary
costs and expenditures incidental thereto and the cost of the issuance of
bonds is being furnished by the City issuing Industrial Development Revenue
Bonds under the provisions of Act No. 9 in the principal amount of not to
exceed Three Million Dollars ($3,000,000) (the "bonds "); and
WHEREAS there has been submitted to the electors of the City
the question of issuing the bonds at a special election, and at the special
election the electors approved the issuance of the bonds; and
WHEREAS the bonds are dated, bear interest, mature and are
subject to redemption as hereinafter in this Indenture set forth in detail; and
WHEREAS the execution and delivery of this Trust Indenture (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 3rd day of August, 1972; 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 necessary and appropriate variations, omissions
and insertions as permitted or required by this Indenture, to -wit:
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(Form of Bond)
UNITED STATES OF AMERICA
STATE OF ARKANSAS -
COUNTY OF PULASKI
CITY OF JACKSONVILLE
% INDUSTRIAL DEVELOPMENT REVENUE BOND - FRANKLIN PROJECT
NO. - $5,000
KNOW ALL MEN BY THESE PRESENTS:
That the City of Jacksonville, Pulaski County, Arkansas, a municipality
under the laws of the State of Arkansas (the "City "), for value received, promises
to pay to bearer, or if this bond be registered to the registered owner hereof, on
November 1, 19
, the principal sum of
FIVE 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 - percent ( %) per annum, such
interest to be payable semiannually on May 1 and November 1 of each year,
commencing May 1, 1973. Payment of principal and interest coupons shall
be made at the principal office of
(the "Trustee" and the "Paying Agent ") . Payment of interest when
registered as to interest shall be by check or draft to the registered owner as
shown on the bond registration books of the City maintained by the Trustee.
This bond, designated "City of Jacksonville, Arkansas Industrial Devel-
opment Revenue Bond - Franklin Project," is one of an issue of bonds aggregating
Three Million Dollars ($3,000,000) (the "bonds "). The bonds are being issued
for the purpose of financing Project costs and paying expenses of issuing the
bonds. The bonds are all issued under and are all equally and ratably secured
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and entitled to the protection given by a Trust Indenture (the "Indenture ") dated
as of September 1, 1972, duly executed and delivered by the City to the Trustee,
which Indenture is recorded in the office of the Circuit Clerk and Ex- Officio
Recorder of Pulaski 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 nature and extent of the security, the rights, duties
and obligations of the City, the Trustee and the holders and registered owners
of the bonds, and 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, 1960, as amended ( "Act No. 9 "), and pur-
'suant to Ordinance No. of, the City, passed and approved on the 3rd day
• of August, 1972, which ordinance authorized the execution and delivery of
the Indenture. The bonds are not general obligations of the City, but are special
obligations payable solely from lease rentals and revenues derived from the
Project. A Lease Agreement has been executed between the City as Lessor
and Franklin Electric Co., Inc., an Indiana corporation ( "Franklin ") , as Lessee,
which provides for basic rent sufficient to pay the principal of and interest on
the bonds as the same become due. Provision has been made in the Lease Agree-
ment for the basic rent to be paid directly to the Trustee and deposited in a
special account of the City designated "Jacksonville, Arkansas 1972 Industrial
Development Revenue Bond Fund - Franklin Project" (the "Bond Fund "). Project
revenues (including particularly rentals under the Lease Agreement) have been
duly pledged by the Indenture to the payment of the principal of and interest on
the bonds, and the bonds are secured by a lien on and security interest in the
Project machinery, equipment and facilities specified in the Indenture. The
bonds do not constitute an indebtedness of the City within the meaning of any
constitutional or statutory limitation.
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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 con-
ditions, in the manner and with the effect set forth in the Indenture, the
principal of all 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, may be made only to the extent and in the circumstances
permitted by the Indenture.
The bonds shall be subject to redemption prior to maturity as follows:
(1) The bonds shall be redeemed from the proceeds of condemnation
of all or substantially all of the Project or from the Lessee exercising an option
to purchase pursuant to the provisions of Section 1902 A of the Lease Agreement,
in whole but not in part, at any time, at a redemption price equal to the principal
amount being redeemed plus accrued interest to the redemption date plus a
premium of 3.25% of the principal amount being redeemed, if redeemed prior
to November 1, 1983, and thereafter at the optional redemption price to be in
effect as of the next succeeding interest payment date set forth in (3) hereof.
(2) The bonds shall be redeemed in whole from the proceeds of the
Lessee purchasing the Project or prepaying rent pursuant to the provisions of
Section 1805 (2) of the Lease Agreement, at any time, at a redemption price
equal to the principal amount of the bonds being redeemed plus accrued interest
to the redemption date and plus a premium of 15% of the principal amount of
bonds outstanding on the date on which interest on the bonds become taxable
by reason of the occurrence of the circumstances set forth in Section 103 (c) (6)
(D) and (E) of the Internal Revenue Code of 1954, as amended.
(3) The bonds may be redeemed on and after November 1, 1982, at the
option of the City, from funds from any other source, in whole or in part, on
any interest payment date, in inverse order of maturity (redemption within a
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maturity to be by lot in such manner as the Trustee shall determine) with there
to be no partial redemption of any bond, at a redemption price equal to the
principal amount of the bonds being redeemed plus accrued interest to the
date of redemption and plus a premium of the principal amount of the bonds
being redeemed as follows:
3.250% if redeemed November 1, 1982 or May 1, 1983, inclusive;
2.925% if redeemed November 1, 1983 or May 1, 1984, inclusive;
2.600% if redeemed November 1, 1984 or May 1, 1985, inclusive;
- 2,275% if redeemed November 1, 1985 or May 1, 1986, inclusive;
1.950% if redeemed November 1, 1986 or May 1, 1987, inclusive;
1,625% if redeemed November 1, 1987 or May 1, 1988, inclusive;
1.300% if redeemed November 1, 1988 or May 1, 1989, inclusive;
.975% if redeemed November 1, 1989 or May 1, 1990, inclusive;
.650% if redeemed November 1, 1990 or May 1, 1991, inclusive;
.325% if redeemed November 1, 1991 or May 1, 1992, inclusive;
No premium if redeemed 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 thirty (30) days before the date of redemption. In addition, notice
of redemption 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 thirty (30) 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 thirty (30) days prior to the date fixed
for redemption shall be sufficient, and published notice of the call for redemp-
tion 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 such call, the bond or bonds so called
will cease to bear interest provided funds for their payment have been deposited
with the Trustee, 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 or as to principal
and interest and may be discharged 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 and as declared in Act No.
9, this bond shall be deemed to be a negotiable instrument under the laws of the
State of Arkansas. 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 the bonds do exist, have happened and have been
performed in due time, form and manner as required by law; that the indebted-
ness represented by the bonds, together with all obligations of the City, does
not exceed any constitutional or statutory limitation; and that the above referred
to revenues pledged to the payment of the principal and interest on the bonds, 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 Jacksonville, Arkansas, has caused
this bond to be executed in its name by its Mayor and Clerk, thereunto duly
authorized, with the facsimile signature of the Mayor and the manual signature
of the 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 September, 1972.
CITY OF JACKSONVILLE, ARKANSAS
By (facsimile signature)
Mayor
ATTEST:
City Clerk
(SEAL)
:_.� 7
(Form of Trustee's Certificate)
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This bond is one of the bonds designated in and issue under the
provisions of the within mentioned Indenture.
TRUSTEE
By
(Authorized Signature)
(Form of Coupon)
$ No.
May,
On the first day of November, 19 , the City of Jacksonville,
Arkansas (unless the bond to which this coupon is attached shall have previously
been called for redemption or shall have become payable as provided in the
Indenture referred to in the bond) , will pay, solely from the revenues pledged
in the Indenture, to bearer at the principal office of
upon presentation and surrender hereof, the sum of
DOLLARS
in such coin or currency of the United States of America as at the time of pay-
ment is legal tender for the payment of public and private debts, being six (6)
months' interest then due on its Industrial Development Revenue Bond - Franklin
Project, dated September 1, 1972, and numbered
CITY OF JACKSONVILLE, ARKANSAS
By (facsimile signature)
Mayor
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PROVISIONS FOR REGISTRATION AND RECONVERSION
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 hereof 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 executed by the
registered owner or his attorney or legal representative in such form as shall
be satisfactory to the bond registration, such transfer to be made on such books
and endorsed hereon 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 represent-
ative. Interest accruing on this bond will be paid only on presentation and
surrender of the attached interest coupons as they respectively become due,
and notwithstanding the registration of this bond as to principal, the appurte-
nant interest coupons shall remain payable to bearer and shall continue to be
transferable by delivery; provided, that if upon registration of this bond, or
at any time thereafter while this bond is registered in the name of the owner,
the unmatured coupons attached evidencing interest to be thereafter paid hereon
shall be surrendered to said bond registrar, a statement to that effect will be
endorsed hereon by the bond registrar and thereafter interest evidenced by
such surrendered coupons will be paid by check or draft of the bond registrar
at the times provided herein to the registered owner of this bond by mail to the
address shown on the registration books. This bond when so converted into a
bond registered as to both principal and interest may be reconverted into a
coupon bond at the written request of the registered owner and upon presentation
at the office of said bond registrar. Upon such reconversion the coupons
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representing the interest to become due thereafter to the date of maturity will
again be attached to this bond and a statement will be endorsed hereon by
the bond registrar in the registration blank below whether it is then registered
as to principal or payable to bearer.
• : Manner of : Signature of
Date of Registration : Name of Registered Owner : Registration : Bond Registrar
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; and
WHEREAS all things necessary to make the bonds, when authenticated
by the Trustee and issued as in this Indenture provided, the valid, binding and
legal obligations of the City according to the import thereof, and to constitute
this Indenture a valid lien onihe properties mortgaged and a valid pledge of the
revenues herein made to the payment of the .principal of and interest on the 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;
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, THIS
INDENTURE WITNESSETH:
That the City in consideration of the premises and the acceptance
by the Trustee of the trusts hereby created 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, at
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 all the
covenants expressed or implied herein and in the bonds, subject to the Lease
Agreement, does hereby grant, bargain, sell, convey, mortgage, assign and
pledge unto the Trustee, and unto its successor or successors in trust, and to
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them and their assigns forever, for the securing of the performance of the obli-
gations of the City hereinafter set forth:
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1.
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 and improvements situated in Pulaski County,
Arkansas described in Exhibit A hereto, or elsewhere, including, without
limitation, all replacements and substitutions which become the property of
the City pursuant to the Lease Agreement. All such machinery, equipment and
other personal property shall be identified in a ledger, a copy of which shall
be filed with the Trustee and one copy maintained by Franklin in improve-
ments on the land described in Exhibit A hereto and all such machinery and
equipment and personal property shall be marked with an appropriate` tag or
other device reflecting that it is owned by the City and covered by this Trust
Indenture.
2.
The Lease Agreement and all rights, but not obligations of the City
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.
3.
The Bond Fund and the Construction Fund, and all moneys and
investments therein but subject to the provisions of this Indenture pertaining
thereto, including the making of disbursements therefrom.
4.
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 con -
veyed, mortgaged, pledged, assigned or transferred, as and for additional
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security hereunder, by the City or by any other person, 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 appur-
tenances 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 herein set forth for the
equal and proportionate benefit, security and protection of all holders and
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, however, that if the City, its successors or
assigns, shall well and truly pay, or cause to -be paid, the principal of the bonds
and the interest due thereon, at the times and in the manner provided in the
bonds and the interest coupons appertaining to the bonds, respectively, accord-
ing 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 Trustee 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 Inden-
ture to be kept, performed and observed by it, and shall pay to the Trustee all
sums of money due 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 cease, determine and be void; otherwise, this Indenture
to be and remain in full force and effect.
8
THIS INDENTURE FURTIIER WITNESSETH that, and it Is expressly
declared, all bonds issued and secured hereunder are to be issued, authenti-
cated and delivered and all said revenues 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 does 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:
1
ARTICLE I
DEFINITIONS
•
Section 101. In addition to the words and terms elsewhere defined
in this Indenture, the following words and terms as used in this Indenture
shall have the following meanings:
"Jacksonville, Arkansas 1972 Industrial Development Revenue Bond
Fund - Franklin Project" - 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 Jacksonville, Arkansas Industrial Development
Revenue Bonds - Franklin Project, issued under and secured by the Indenture,
authorized in the total principal amount of $3,000,000.
"City" - The City of Jacksonville, Arkansas, a municipality under
the laws of the State of Arkansas and situated in Pulaski County, Arkansas.
"Indenture" - This Trust Indenture with all indentures supplemental
hereto.
"outstanding hereunder" - "bonds outstanding hereunder" - All bonds
which have been authenticated and delivered under the 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
theretofore deposited with the Trustee (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
•
boon given or satisfactory provision shall have been made therefor; 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 is payable. The Paying
-1r-
1.�
41;
Agent is the Trustee. References to Paying Agent include any alternate paying
agent.
"person" - includes natural persons, firms, associations, corporations
and public bodies.
"Project" - The machinery, equipment and facilities leased to Franklin
and being financed out of the proceeds of the bonds, including the properties in
the trust estate. The Project will be utilized by Franklin for the conduct of its
business including, without limitation, the manufacture of such products as
Franklin shall determine to manufacture.
"trust estate" - "property herein conveyed" - The mortgaged property.
"Trustee" -- The Trustee for the time being, whether original or successor,
- with the original Trustee being
The Trustee is also a Paying Agent.
"mortgaged property" - The properties comprising the Project, being
all of the properties leased to Franklin 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 regis-
tered as to principal or registered as to principal and interest.
"Lessee" or "Franklin" - Franklin Electric Co., Inc., an Indiana
corporation. Franklin is Lessee under the Lease Agreement and references thereto
shall include any assignee pursuant to the provisions of the Lease Agreement.
"Lease Agreement" - The Lease and Agreement dated as of September 1,
1972, wherein the City is Lessor and Franklin is Lessee, recorded in the office
of the Circuit Clerk and Ex- Officio Recorder of Pulaski County, Arkansas, described
in Section 409 hereof and all supplements thereto.
"Authorized Lessee Representative" - The person at the time designated
to act in behalf of the Lessee by written certificate furnished to the Lessor and
• the Trustee containing the specimen signature of such person and signed on
behalf of the Lessee by the president or any vice president of the Lessee. Such
certificate may designate an alternate or alternates.
"Authorized Lessor Representative" - The person at the time designated
to act in behalf of the Lessor by written certificate furnished to the Lessee and
the Trustee containing the specimen signature of such person and signed on
behalf of the Lessor. Such certificate may designate an alternate or alternates.
"Industrial Development Revenue Bond Construction Fund - - Franklin -
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" - "Clerk" or "Recorder" - The person holding the office
and performing the duties of the Clerk of the City.
"Revenues" - The income, charges, and moneys realized from the lease,
sale or other disposition of the Project, including all rentals and other sums to
be received under the Lease Agreement. •
"Permitted encumbrances" - (i) This Trust Indenture and the Lease
Agreement, and (ii) such minor defects, irregularities, encumbrances, easements,
rights of way, and clouds on title as normally exist with respect to properties
similar in character to the Project, and as do not materially impair the property
affected thereby for the purpose for which it was acquired or is held by the City.
Section 102. Words of the masculine gender shall be deemed and
construed 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.
r, ry
'emu -.
•
Section 102. Words of the masculine gender shall be deemed and
construed 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.
•
•
•
8
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 Three Million
Dollars ($3,000,000), except with respect to substituted bonds issued under
Section 208.
Section 202. The bonds shall be designated "City of Jacksonville,
Arkansas Industrial Development Revenue Bonds - Franklin Project" (the "bonds "),
and shall be in the principal amount of $3,000,000. The bonds shall be dated
September 1, 1972, and interest thereon shall be payable semiannually on May 1
and November 1 of each year, commencing May 1, 1973. The bonds shall be
numbered consecutively from 1 to 600, inclusive, shall be in the denomination
of $5,000 each, and the principal thereof shall mature, unless sooner redeemed
in the manner set forth in this Indenture, on November 1 in each of the years set
forth in and in the amount set opposite each year in the following schedule,
which schedule also sets forth the bond numbers and the interest rates applicable
to the bonds:
9 8
YEAR BOND NOS.
(Nov.1) (Both Incl.) INTEREST RATE PRINCIPAL AMOUNT
1979 1 - 27 7.25% $135,000
1980 28 - 56 7.00% 145,000
1981 57 - 87 7.00% 155,000
1982 - 88 - 120 7.00% _ 165,000
1983 121 - 155 7.00% 175,000
1984 156 - 192 7.00% 185,000
1985 193 - 232 7.00% 200,000
1986 233 - 275 6.50% 215,000
1987 276 - 321 6.50% 230,000
1988 322 - 370 6.25% 245,000
1989 371 - 422 6.25% 260,000
1990 423 - 478 6.25% 280,000
1991 479 - 537 6.25% 295,000
1992 538 - 600 6.25% 315,000
•
20
•
9
Section 203. The bonds shall be executed on behalf of the City by
the Mayor (by his manual or facsimile signature) and the City Clerk (by his
manual signature) thereof and shall have impressed thereon the seal of the City.
The coupons attached to the bonds shall be executed by the facsimile signature
of the Mayor. The Mayor shall file the certificate required by Act No. 69 of
the Acts of Arkansas of 1959 and otherwise comply with the provisions of said
Act No. 69 of 1959, and his facsimile signature shall have the same force and
effect as if he had personally signed. 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 and the revenues pledged
to 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 purpos' • 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 shall appear on the bonds 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
Certificate of Authentication substantially in the form hereinabove set forth
duly executed by the Trustee shall be entitled to any right or benefit under this
Indenture. No bond and no coupon appertaining to any bond shall be valid and
obligatory for any purpose unless and until such Certificate of Authentication
shall have been duly executed 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 have been executed if signed
by an authorized officer of the Trustee, but it shall not be necessary that the
same officer sign the Certificate 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 be cremated by the Trustee.
Section 205. The bonds issued under this Indenture and the coupons
attached thereto shall he substantially in the form hereinabove set forth with
such appropriate variations, omissions and insertions as 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 bonds and deliver them to the purchaser upon payment of the purchase price
plus accrued interest from the date of the bonds to the date of delivery, and the
Trustee shall be entitled to rely upon any certificate, ordinance or resolution as
to the purchase price and the purchasers.
Section 207. 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 be destroyed or lost, the City shall, if not then prohibited by law, cause to
be executed and the Trustee may authenticate and deliver a new bond of like date,
number, maturity and tenor in exchange and substitution for and upon cancellation
of such mutilated bond and its interest coupons, or in lieu of and in substitution
for such bond and its coupons destroyed or lost, upon the holder's or owner's
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9
paying the reasonable expenses and charges of the City and the Trustee in connection
therewith, 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 bond. In the event any such bonds or coupons shall have matured, instead
of issuing a new bond or coupon, the City may pay the same without the surrender
thereof.
• Section 209. Title to any bond, unless such bond is registered in the
manner herein provided, and to any interest coupon shall pass by delivery in the
same manner as a negotiable instrument payable 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 alone 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 repre-
sentative in such form as shall be satisfactory to the bond registrar, such transfer
to be made on such books and endorsed on the coupon bond by the bond registrar.
Such transfer may be to bearer and thereafter transferability 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
principal shall remain payable to bearer notwithstanding such registration,
provided, that if upon registration of any such bond, or at any time thereafter
while registered in the name of the owner, the unmatured coupons attached
evidencing interest to be thereafter paid thereon shall be surrendered to said
23 h•
bond registrar a statement to the effect will be endorsed thereon and thereafter
interest evidenced by such surrendered coupons will be paid by check or draft by
said bond registrar at the times provided therein to the registered owner by mail
to the address shown on the registration books. Each of the bonds when converted
as aforesaid into a bond registered as to both principal and interest may be
reconverted into a coupon bond at the written request of the registered owner
and upon presentation at the office of said bond registrar. Upon such reconversion
the coupons representing the interest to become due thereafter to the date of
maturity will be attached to the bond and a statement will be endorsed thereon
by said bond registrar in the registration blank on the back of the bond whether
it is then registered as to principal or payable to bearer. No 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 governmental 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 be deemed and regarded as the absolute owner thereof for all
purposes and payment of or on account of the principal of any such bond shall be
made only to or upon the order of the registered owner thereof, or his legal
representative, and neither the City, the Trustee, nor the bond registrar shall
be affected by any notice to the contrary, but such registration may be changed
as herein provided. All such payments shall be valid and effectual to satisfy
and discharge the liability upon such coupon 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 registered 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 owner 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 the Paying Agent shall be
affected by any notice to the contrary.
•
i J
A
ARTICLE III
REDEMPTION OF BONDS BEFORE MATURITY
Section 301. The bonds shall be callable for redemption prior to
maturity in accordance with the provisions pertaining thereto appearing in
the form of bond heretofore set forth in this Indenture.
Section 302. 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 thirty (30) days before the date of redemption. In addition,
notice of redemption shall be mailed by registered or certified mail to the owner
of any bond registered as to principal addressed to such owner at his registered
address and placed in the mails not less than thirty (30) 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 thirty (30) days prior to the date fixed for redemp-
tion shall be sufficient, and published notice of the call for redemption need
not be given. Each notice shall specify the numbers and 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 have been deposited with the Trustee,
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.
Section 303. All bonds which have been redeemed shall be cancelled
by the Trustee together with the unmatured coupons appertaining thereto and shall
be returned to the City.
Section 304. All unpaid coupons which appertain to bonds so called
for redemption and which shall have become payable on or prior to the date of
redemption shall continue to be payable to the bearers severally and respectively
upon the presentation and surrender of such coupons.
26
9
ARTICLE IV
GENERAL COVENANTS
Section 401. The City covenants that it will promptly pay the principal
of, redemption premiums, if any, 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, redemption premiums and 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 indebted-
ness 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 under-
stood that whenever the City makes any covenants involving financial commitments,
including, without limitation, those in the various sections of this Article IV,
it pledges no funds or revenues other than those provided for in the Lease Agreement
and the revenues derived from the avails of the 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 con-
tained in this Indenture, in any and every bond executed, authenticated and
delivered hereunder and in all ordinances pertaining thereto. 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 bonds authorized
hereby and to execute this Indenture and to make the pledge and covenants in
the manner and to the extent herein set forth; that all action on its part for
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4 Is
the issuance of the bonds and the execution and delivery of this Indenture has
been duly and effectively 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, The City covenants that ft lawfully owns and is Mw-
fully possessed of the mortgaged property and that it has good and merchantable
title and estate therein, subject to permitted encumbrances and the rights of
the Inssee under the Lease Agreement, which exceptions will not substantially
interfere with the utilization of the trust estate for the purposes intended, and
that it wan 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 covenants that it will
do, execute, acknowledge and deliver or cause to be done, executed, acknowledged
and delivered, such indenture or indentures supplemental hereto and such further
acts, instruments, and transfers as the Trustee may reasonably require for the
better assuring, transferring, mortgaging, pledging, assigning and confirming
unto the Trustee the trust estate.
Section 904. 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 trust estate, 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 the validity thereof is being contested in good faith and by appropriate legal
proceedings.
Section 905, The City covenants that it will at all times cause the
mortgaged property to be maintained, preserved and kept in good condition, repair
and working order, and that it will from time to time cause to be made all needed
repairs 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. It is understood that the City has made provisions in the Lease
Agreement for such maintenance, pursuant to the terms of which the Lessee is
obligated to maintain the mortgaged property as set forth in the Lease Agreement,
and so long as the Lease Agreement is in force and effect the City shall be deemed
to be in compliance with its obligations under this Section 405.
Section 406. The City and the Trustee covenant that each of them will
cause this Indenture, the Lease Agreement, and all instruments supplemental
thereto, to be kept, recorded and filed in such manner and in such places (if any)
as may be required by law in order fully to preserve and protect the security of the
bondholders and the - rights of the Trustee hereunder. '
Section 907. The City covenants that so long as any bonds issued
hereunder 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, 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.
When requested by the Trustee, the City agrees to have the said books of record
and account audited by an independent certified public accountant. The audit
report shall contain at least the following information:
(a) All revenues derived from the Project and all expenses
incurred by the City in connection with the Project;
(b) All payments, deposits and credits to any payments,
transfers and withdrawals from the fund created under
the provisions of this Indenture.
(c) The details pertaining to bonds issued, paid, and
redeemed; and
(d) The amounts on hand in each fund showing the respective
amounts to the credit of each fund and any security held
therefor and showing the details of any investments thereof.
29
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
the inspection of such accountants or other agencies as the Trustee may from
ti:rne to time designate. In this regard, so long as the base Agreement is in
force and effect, records furnished by the Lessor and Lessee to, or kept by,
the Trustee in connection with its duties as such shall be deemed to be in
compliance With the City's obligations under this Section 907.
Section 908. 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 inspected 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. Notice or report required
herein to be given to the bondholders on such list shall also be given to the
registered owners of all bonds registered as to principal or as to principal and
interest reflected on the hook maintained by the bond registrar.
Section 909. It is understood and agreed that the Project has been
leased to Arrow under the base Agreement. The Lease Agreement is recorded
in the office of the Circuit Clerk and Ex- Officio Recorder of Pulaski County,
Arkansas, and an executed copy is on file in the office of the Clerk of the City
30
9
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 enforce all covenants and obligations of the Lessee
under the Lease Agreement and agrees that the Trustee, in its own name or in 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 Lease Agreement,
whether or not the Lessor is in default in its covenant to enforce such rights and
obligations.
Section 410. The City covenants that so long as any bonds authorized
by and issued under this Indenture are outstanding, it will not sell or otherwise
dispose of its interest in the mortgaged property, except in accordance with the
provisions of the Lease Agreement, and that it will not encumber the same, or any
part thereof, or its interest therein, or create or permit to be created any charge
or lien on the revenues derived therefrom, except as provided in this Indenture.
Section 411. The City covenants that at all times while any bonds
are outstanding, it will keep or cause to be kept the mortgaged property insured
against the perils and to the extent set forth in the Lease Agreement and that
the Trustee shall be named as a party insured pursuant to a standard mortgagee
clause as its interest may appear. It is understood that the City has made pro-
visions in the Lease Agreement for such insurance, pursuant to the terms of which
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 be deemed to be in compliance with its obligations under this Section 411.
Section 412. The City covenants that it has made all necessary filings
to effect an election with respect to the bonds under Section 103 (c) (6) (D) of
the Internal Revenue Code of 1954, as amended.
air.
•
•
Section 413. The City and the Trustee covenant that neither of them shall
take any action or suffer or permit any action to be taken or condition to exist
which causes or may cause the interest payable on the bonds to be subject to
federal income taxation. Without limiting the generality of the foregoing, the
City and the Trustee covenant that the proceeds of sale of the bonds will not be
used directly or indirectly in such manner as to cause the bonds to be treated as
"arbitrage bonds" within the meaning of Section 103 (d) of the Internal Revenue
Code.
•
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ARTICLE V
REVENUES AND FUNDS
Section 501. There is hereby created and ordered to be established
with the Trustee a trust fund of and in the name of the City to be designated
"Jacksonville, Arkansas 1972 Industrial Development Revenue Bond Fund -
Franklin Project" (herein sometimes referred to as the "Bond Fund ").
Section 502. There shall be deposited into 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 303(a) of the
Lease Agreement; and
(c) All other moneys received by the Trustee under and pursuant
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, in 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
Agreement with the result that the right of possession of the leased premises is
returned to the City, the City will fully cooperate with the Trustee and with the
holders and registered owners of the bonds, to the end of fully protecting the
•
33
rights and security of the holders and registered owners of the bonds, and,
if and when requested by the Trustee, the City shall diligently proceed in
good faith and use its best efforts to secure another tenant for the leased
premises to the end of at all times deriving 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 herein 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 be used solely for the
payment of the principal of (including applicable redemption premium, if any)
and interest on 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 under the Lease Agreement of excess basic rent, if any,
in accordance with the provisions of Section 303 of the Lease Agreement.
Section 504. The Bond Fund shall be in the name of the City, designated
as set forth in Section 501, and the City hereby irrevocably authorizes and
directs the Trustee to withdraw from the Bond Fund sufficient funds to pay the
principal of and interest on the bonds at maturity and redemption or prepayment
prior to maturity and to use said funds for the purpose of paying said principal
and interest in accordance with the provisions hereof pertaining to payment,
which authorization and direction the Trustee hereby accepts.
Section 505. In the event any bonds shall not be presented for payment
when the 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
.11
presented for payment at the due date thereof, if there shall have been deposited
with the Paying Agent for that purpose, or left in trust if previously so deposited,
funds sufficient to pay the principal thereof, together with all interest unpaid and
due thereon, to the date of maturity 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 overdue 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 be, 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 303 (b) of the Lease Agreement, the Lessee agrees to pay as additional
rent the fees, expenses and charges of the Trustee and Paying Agent as authorized
and provided by this Indenture. The Lessee is to make payments on statements
rendered by 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 be expended solely for the purpose for which such payments are-
received, and the Trustee hereby agrees to so establish said accounts and to rnake
payment therefrom for said purposes.
Section 507. All moneys required to be deposited with or paid to the
Trustee under any provision of this Indenture shall be held by the Trustee in trust,
and except for moneys deposited with or paid to the Trustee for the redemption
of bonds, notice of which redemption has been duly given, shall, while held by
the Trustee, constitute part of the trust estate and be subject to the lien hereof.
5
1
Any moneys received by or paid to the Trustee pursuant to any provisions of the
Lease Agreement calling for the Trustee to hold, administer and disburse the same
in accordance with the specific provisions of the Lease Agreement shall be held,
administered and disbursed pursuant to said provisions, and where required by
the provisions of the Lease Agreement the Trustee shall set the same aside in a
separate account. The City agrees that if it shall receive any moneys pursuant to
applicable provisions of the Lease Agreement, 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 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 while any bonds are outstanding, the
City agrees that if it shall receive any moneys derived 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 were then in
force 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 under the Lease
Agreement all excess amounts as specified in the Lease Agreement, whether
such excess amounts be in the Bond Fund or in special accounts.
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ARTICLE VI
•
CUSTODY AND APPLICATION OF PROCEEDS OF BONDS
Section 601. The proceeds of the sale of the bonds shall be deposited
•
in a special account of the City in the Trustee, which account shall be designated
• "Industrial Development Revenue Bond Construction Fund - Franklin Project" (the
"Construction Fund ").
Section 602. Moneys in the Construction Fund shall be expended for
Project costs as set forth in Section 203 of the Lease Agreement. Such expendi-
tures shall be in accordance with and pursuant to requisitions which shall be
signed by one or more duly designated representatives of Franklin (which designa-
tion 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 be made;
(2) The amount of the payment;
(3) That the disbursement is for a proper expense of or pertaining
to the Project; and
(4) The 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
requested by the City or by Franklin. The Trustee shall make payment from the
Construction Fund pursuant to and in accordance with said requisitions.
Section 603. Whenever the City and Franklin jointly notify the Trustee
in writing (which may be by the same writing or in different writings) that any
balance remaining in the Construction Fund will not be needed for completion of
the Project, the remaining balance shall be deposited in the Bond Fund.
•
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ARTICLE VII
rNVLSTML,NTS
Section 701. (a) Moneys held for the credit of the Construction Fund
shall, upon direction by the duly designated representative of Franklin, be in-
vested and reinvested by the Trustee in (1) direct obligations of, or obligations
the principal of and interest on which are guaranteed by, the United States,
•
(ii) certificates of deposit of banks or trust companies, including the Trustee,
organized under the laws of the United States or any State thereof, 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 representative of Franklin which statement
must be on file with the Trustee prior to any investment. •
(b) Moneys held for the credit of the Bond Fund or any other fund
or account shall to the extent practicable he invested and reinvested in direct
obligations of, or obligations the principal of and interest on which are
guaranteed by, the United States, which will mature, or which will 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 representative of Franklin.
(c) Obligations so purchased as an investment of moneys in any such
fund or account shall be deemed at all times a part of such fund. Any profit
realized from such investments shall be cred to the fun and a ny loss sh all
be charged to the fund.
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ARTICLE VIII
POSSESSION, USE AND RELEASE OI'
MORTGAGED PROPERTY
.Section 801. 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 appurtenances.
Section 802. Provided no event of default and no event which with the
giving of notice or passage of time, or both, would constitute an event of default
exists, and "building service equipment" and any of "Lessor's machinery and
equipment ", as those items are defined in the Lease Agreement, may be removed,
sold, replaced or otherwise disposed of as provided in the Lease Agreement, and,
without limitation, particularly in Article XXTTTthereof, and the Trustee shall, and
is hereby authorized to, upon a showing to the Trustee of compliance with the
said applicable provisions of the Lease Agreement pertaining to such removal,
sale, replacement or disposition, take the necessary steps to release the said
properties from the lien of this Indenture. The proceeds of any such removal,
sale or other disposition shall be handled by the Trustee in accordance with the
provisions of the Lease Agreement, including, without limitation, the provisions
Y
of Article XXITlthereof. Any equipment, machinery, fixtures and personal property
obtained in exchange or in lieu of any property sold, removed or disposed of
under this Section 802 shall automatically become and be subject to the lien
of this Indenture as if specifically mortgaged hereby. The City will, however,
upon written request by the Trustee, convey the same to the Trustee by an indenture
supplemental hereto in form and substance satisfactory to the Trustee or other
appropriate instrument as requested by the Trustee, and cause the same to be
recorded and filed in such manner as the Trustea requests, t6 secure and continue
the lien of this Indenture thereon.
•
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_- L
. ARTICLE IX
DISCIIARGE 01' LIEN
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 become due
thereon at the times and in the manner stipulated therein, and if the City shall
keep, perform and observe all and singular the covenants and promises in the
bonds and in this Indenture expressed as to be kept, performed and observed
' by it on its part, then these presents and the estate and rights hereby granted
shall cease, determine and be void, and thereupon the Trustee shall cancel and
discharge the lien of this Indenture, and execute 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 estate hereby conveyed, and assign and deliver to the
City any property at the time subject to the lien of this Indenture which may then
be in its possession, except cash held by it for the payment 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 (whether upon or prior to the maturity or •
the redemption date of such bonds) shall be deemed to be paid within the mean-
ing of this Section; provided, however,.that if such bonds are to be redeemed
prior to the maturity thereof, notice of such redemption shall have been duly
given.
•
The City may at any time 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 manner whatsoever, and such bonds and coupons, upon such surrender and
Cancellation, shall be deemed to be paid and retired. • • •
•
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ARTICLE X
DEFAULT PROVISIONS AND REMEDIES
OF TRUSTEE AND BONDHOLDERS
Section 1001. If any of the following events occur, subject to the
provisions of Section 1013 hereof, it is hereby defined as and declared to be
and to constitute an "event 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 ten (10) 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 con-
tinuance thereof for a period of thirty (30) days;
(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 and such default shall continue for ten (10) days;
(d) Default in the performance or observance of any other of the cov-
enants, agreements or conditions on the part of the City in this Indenture, or
in the bonds contained, and the continuance thereof for a period of thirty (30)
days after written notice to the City by the Trustee or by the holders of not less
than ten per cent (10 %) in aggregate principal amount of bonds outstanding
hereunder.
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
contained in this Indenture, or in the bonds outstanding hereunder, exclusive
of any period of grace required to constitute a default an "event of default" as
hereinabove provided.
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•
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Section ]002. Upon the occurrence of an event of default, the
Trustee may, and upon the written request of the holders of twenty -five
percent (25 %) in aggregate principal amount of bonds outstanding hereunder,
shall, by notice in writing delivered to the City, declare the principal of all
bonds hereby secured then outstanding and the interest accrued thereon
immediately due and payable and such principal and interest shall thereupon
become and be immediately due and payable.
Section 1003. Upon the occurrence of an event of default, the City,
upon demand of the Trustee, shall forthwith surrender to it the actual
possession of, and it shall be lawful for the Trustee, by such officer 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, operate and manage the same, and from time to time to make all
needful repairs and improvements as by the Trustee shall be deemed wise;
and the Trustee, with or without such permission, may collect, receive and
sequester the tolls, rents, revenues, issues, earnings, income, products
and profits therefrom and out of the same and any moneys received from any
receiver 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 Trustee, its agents and
counsel, and any charges of the Trustee hereunder and any taxes and assess-
ments and other charges prior to the lien of this Indenture which the Trustee
may deem it wise to pay, and all expenses of such repairs and improvements,
• and apply the remainder of the moneys so received by the Trustee in accord-
ance with the provisions of Section 1008 hereof. Whenever 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 entry,
�s�
however, to exist upon any subsequent event of default. While in possession
of such property the Trustee shall render annually to the holders and registered
owners of the bonds, at their addresses as set forth in the list required by
Section 408 hereof and on the bond registration book maintained by the Trustee,
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, includ-
ing, 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 holders of twenty -five percent (25 %) in aggregate
principal amount of bonds outstanding hereunder and shall have been indem-
nified as provided in Section 1101 hereof, the Trustee shall be obligated to
exercise such one or more of the rights and powers conferred upon it by this
Section and by Section 1003 as the Trustee, being 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 exclusive of any other
remedy, but each and every such remedy shall be cumulative and shall be in
addition to any other remedy given hereunder or now or hereafter existing at -
Mw or in equity or by statute._
No delay or omission to exercise any right or power accruing upon
any default or event of default shall impair any such right or power or shall
. be construed to be a waiver of any such default or event 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.
R, v
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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 sub -
sequent default or event of default or shall impair any rights or remedies
consequent thereon.
Section 1005. Anything in this Indenture to the contrary notwith-
standing, 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 in writing executed and delivered to the Trustee, to direct the
method and place of conducting all proceedings to be taken in connection
with the oint enforncemf h or, pmet of ent a re e or terms any and other conditi pro ceeding of this hereunderIndentu e
; provided or for
the
that s direction shall not be otherwise than in accordance with the pro-
visions 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 be 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 pro-
ceedings with such powers as the court making such appointment shall confer.
Section 1007. In case of an event of default on its part, as afore-
said, to the extent that such rights may then lawfully be waived, neither the
City nor anyone claiming through it or under it shall or will set up, claim
or seek to take advantage of any appraisement, 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
44
`P4�1wn9•Y....
•
do so, the benefit of all such laws and all right of appraisemcnt and
redemption to which it may be entitled under the laws of the State of Arkansas.
Section 1008. 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 shall be applied:
First: To the payment to the persons entitled thereto of all install-
ments 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
discrimination 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 which moneys are held pursuant to
the provisions of this Indenture), in the order of their due dates, with interest
on such bonds from the respective dates upon which they become due, 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 Article V of this Indenture.
(b) If the principal of all the bonds shall have become due 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,
•
45
without preference or priority of principal over interest or of interest over
principal, 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 discrimination or privilege.
(c) If the principal of all the 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 later become due or be declared due and payable, the moneys shall be
applied in accordance with the provisions of paragraph (a) of this Section.
Whenever moneys are to be applied by the Trustee pursuant to the
provisions of this Section, such moneys shall be applied by it at such times,
and from time to time, as it shall determine, 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. Whenever the
Trustee shall apply such funds, it shall fix the date (which shall be an
interest payment date unless it shall deem another date more suitable) upon
which 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 unmatured coupons, if any, appertaining to
• such bond shall be presented to the Trustee for appropriate endorsement or
for cancellation if fully paid.
•
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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 proceeding relating
thereto and any such suit or proceeding instituted by the Trustee shall be
brought in its 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 10] No holder of any bond or coupons shall have any right
to institute any suit, action or proceedings in equity or at law for the enforce-
ment 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 deemed to have
notice, nor unless such default shall have become an event of default and
the holders of twenty -five pecent (25 %) in aggregate principal amount of bonds
outstanding hereunder shall have made written request to the Trustee and shall
have offered it reasonable opportunity either.to proceed to exercise the powers
hereinbefore granted or to institute such action, suit or proceedings 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 proceedings 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 precedent to the execution of the powers and
trusts of this Indenture, and to any action or cause of action for the enforce-
ment of this Indenture or for the appointment of a receiver or for any other
0
•
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 except in the manner herein provided, - and that
all proceedings at law 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 bondholders to enforce the payment
of the principal of and interest on any bond at and after the maturity thereof,
or the obligation 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 every such case the City and the Trustee shall be restored to their
former positions as rights hereunder with respect to the property herein
conveyed, and all rights, remedies and powers of the Trustee shall continue
as if no such proceedings had been taken, except to the extent the Trustee
is legally bound by such adverse determination.
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 written request of the holders
of fifty percent (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
iii? 9
payment of the interest unless prior to such waiver or rescission all an
of principal (due otherwise than by declaration) and interest and all expenses
of the 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 he restored to their former positions and rights hereunder respectively;
but no such waiver or rescission shall extent to any subsequent or other
default, or impair any right consequent thereon.
Section 1013. Anything herein to the contrary notwithstanding, no
default (other than a default under Section 1001 (a), (b) and (c) hereof to
which this Section 1013 shall not be applicable) shall constitute an event
of default until actual notice of such default by registered or certified mail
(with or without return receipt requested) shall be given to the Lessee under
the Lease Agreement, and the Lessee under the Lease Agreement shall have
had sixty (60) days after receipt of such notice to correct said default or
cause said default to be corrected, and the - Lessee under the Lease Agreement
shall not have corrected said default or caused said default to be corrected
within said sixty (60) day period; provided, however, if said default be
such that it cannot be corrected within sixty (60) days, it shall not constitute
an event of default if corrective action is instituted within said sixty (60)
day period and diligently pursued until the default is corrected. With regard
to any alleged default concerning which notice is given to the Lessee under
the Lease Agreement under the provisions of this Section 1013, the City names
and appoints the Lessee under the Lease Agreement as its attorney -in -fact and
agent with full authority 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 such things and acts to the same extent that
0
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 themselves with the terms and provisions of the Lease Agreement.
Section 1014. 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 be and may be exercised only subject and subordinate to the rights of
said Lessee under the Lease Agreement.
Section 1015. If the Trustee receives notice, pursuant to the pro -
visions of Section 1805 of the Lease Agreement or otherwise, that interest on
the bonds has become taxable, it shall give notice of such fact by mail to the
bondholders reflected on the list maintained pursuant to the provisions of
Section 408 of this Trust Indenture and to the registered owners of all bonds
registered as to principal or as to principal and interest on the book main-
tained by it as bond registrar. In that event, the Trustee may, and, if so
requested in writing by the holders of at least ten percent (10 %) of the aggre-
gate principal amount of bonds outstanding hereunder, shall demand that the
Lessee within thirty (30) days thereafter either purchase the leased premises
or prepay rent in accordance with the provisions of Section 1805(2) of the
Lease Agreement.
•
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ARTICLE XI
THE TRUSTEE
Section 1101. 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 execute 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 all cases pay
reasonable compensation to all such attorneys, agents, receivers and
employees as may reasonably be employed in connection 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 exercise 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 1101, or of which by said sub - section the Trustee is deemed
to have notice, approved by the Trustee in the exercise of such care. The
Trustee shall not be responsible for any loss or damage resulting 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 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
J in.
1111111111111111111.1.11111111111111r a
ar.
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assurance, or for the sufficiency of the security for the bonds issued here-
under or intended to be secured by, or for the value of the title of the
property herein conveyed or otherwise as to the maintenance of the security
hereof; except that in the event the Trustee enters into possession of a part
or all of the property herein conveyed pursuant to any provision of this
Indenture, 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 hereinafter 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 which 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 believed by it, in the exercise of reasonable care, 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 person who at the time of making such request
or giving such authority or consent is the owner of any bond secured hereby, --
shall be conclusive and binding upon all future owners of the same bond and
upon bonds issued in exchange therefor or in place thereof.
(e) As to the existence or non - existence 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 sufficient evidence of the facts therein
contained and prior to the occurrence of a default of which it has been
•
J
notified as provided in sub section (g) of this Section 1101, or of which
by said sub - section it is deemed to have notice, and shall also be at liberty
to accept a similar certificate to the effect that any particular dealing,
transaction or action is necessary or expedient, but may at its discretion,
at the reasonable expense of the City, in every case secure such further
evidence as it may think necessary or advisable but shall in no case be
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 the form therein set forth has been adopted by the City as conclusive
evidence that such resolution or ordinance has been duly adopted, and is in
full 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 a default under Section 1001(a)
or (c) or fai by the Cfty to make or caus t o be made an of the payment
to the Trustee required to be made by Article V unless the Trustee shall be
specifically notified in writing of such default by the City or by the holders
of at least ten percent (10 %) in aggregate principal amount of bonds outstand-
ing hereunder and all notices or other instruments required by this Indenture
to 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 defu:ult except
• as aforesaid.
(h) The Trustee shall not be personally liable for any debts con-
tracted or for damages to persons or to personal property injured or damaged,
or for salaries or non - fulfillment of contracts during any period in which it
53
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 autho-
rized agents, attorneys, experts, engineers, accountants and representa-
tives, 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
•
thereto as may be desired.
(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 anything 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 purview 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 of 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.
54
Section 1 The Trustee shall be entitled to payment and /or
reimbursement 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 whatsoever (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 pay-
ment of said reasonable and necessary advances, fees, costs and expenses
and reference is hereby made to said Lease 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 Lease Agreement and the
revenues derived from and the avails of the mortgaged property to the pay-
ment 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 con-
strued as prohibiting the City from using any other funds and revenues for the
payment of any of its obligations under this Indenture. Upon default by the
City, but only upon default, pursuant to the provisions of this Indenture
pertaining to default, the Trustee shall have a first lien with right of pay-
ment 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
•
J0
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 owners of all
bends 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 sub-
stantial 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 percent (10 %) of the aggregate prin-
cipal amount of bonds outstanding hereunder. The rights and obligations of
the Trustee under this Section 1104 are subject to the approval of the court
having jurisdiction in the premises.
Section 1105. Any bank or trust company into which the Trustee
may be 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 bank or trust company resulting from any such 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, powers, discretions,
immunities, privileges, and all other matters as was its predecessor, with-
out 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; provided, however, that such successor trustee shall
have capital and surplus of at least $3,000,000.
Section 1106. 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
56
the bondholders 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 instru-
ment 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 the court, a successor may be appointed by the owners of a
majority in aggregate principal 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, shall appoint a tempo-
rary 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 and every s_uch successor trustee shall be a trust company
or bank in good standing, having capital and surplus of not less than $3,000,000.
Section 1109. Every successor or temporary trustee appointed here-
under shall execute, acknowledge and deliver to its predecessor and also
to the City an instrument in writing accepting such appointment hereunder,
and thereupon such successor or temporary trustee, without any further act
•
0.
i i)
or conveyance, shall become fully vested with all the estates, properties,
rights, powers, trusts, duties and obligations of its predecessor; but such pre-
decessor 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 securi-
ties, moneys and any other property 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
shall, on request, be executed, acknowledged and delivered by the City.
The resignation of any trustee and the instrument or instruments removing
any trustee and appointing a successor hereunder, together with all other
instruments provided for in this Article shall, at the expense of the City, be
forthwith filed and /or recorded 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, with-
out prejudice, however, to any rights of the Trustee or the bondholders
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 become 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
55
1
such payment unless it shall have been requested to do so by the holders
of at least ten percent (l0 %) of the aggregate principal amount of bonds out -
standing'hereunder and shall have been provided with adequate funds for the
•
purpose of such payment.
Section 1111.. The resolutions, opinions, certificates and other
instruments provided for in this Indenture may be accepted and relied upon
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 property and with the withdrawal of cash hereunder.
Section 1112. In the event of a change in the office of Trustee, the
old Trustee which has resigned or been removed shall cease to be 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, premium (if any) and interest on the bonds, 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
•
09
• •
property, with such powers as may be provided in the instrument of appoint-
ment 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 appoint-
ment within fifteen days after the receipt by it of a request so to do, the
Trustee alone shall have the 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 confirming to him or to such properties, rights, powers, trusts,
duties and obligations, any and all such deeds, conveyances and instru-
ments 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 of all
money and securities 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
of this Article XI expressed, and upon the acceptance in writing by such
separate trustee or co- trustee, he, they or it shall be vested with the
estates or property specified in such instrument, jointly with the Trustee
(except insofar as local law 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
GO
instrument in writing, constitute the Trustee as 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 discretion authorized or per-
mitted by him, them or it, for and on behalf of him, them or it and in his,
their or its name. In case any separate trustee or co- trustee shall die, be-
come incapable of acting, resign or be removed, all the estates, properties,
rights, powers, trusts, duties and obligations of said separate trustee or
co- trustee shall vest in and be exercised by the Trustee until the appoint-
ment 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, without
the approval of any bondholder, enter into such indentures supplemental hereto
as shall not be inconsistent with the terns and provisions hereof (which 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 notwithstanding,
to consent to and approve the execution by the City and the Trustee of such
indenture or indentures supplemental hereto as shall be deemed necessary and
desirable by the City for the purpose of modifying, altering, amending, adding
to or rescinding, in any particular, any of the terms or provisions contained in
this Indenture or in any supplemental indenture; provided, however, that nothing_
herein contained shall permit, or be construed as permitting (a) an extension of
the 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 the mortgaged property or a pledge of
the revenues pledged to the bonds other than the lien and pledge created by this
Indenture, or (d) a privilege or priority of any bond or bonds over any other bond
or bonds, or (e) a reduction in the aggregate principal amount of the bonds
required for consent to such supplemental indenture. Nothing herein contained,
•
'3
•
however, shall be construed as making necessary the approval 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 supple-
mental 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 of its failure to publish such notice,
and any such failure shall not 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 (2/3) in aggregate principal amount of the bond outstand-
ing 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 taking any action pursuant to the provisions thereof.
Upon the execution of any such supplemental indenture, this Indenture shall be
and be deemed to be modified and amended in accordance therewith.
Section 1203. Anything herein to the contrary notwithstanding, a supple-
mental 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 of 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
63
at least fifteen (15) days prior to the proposed date of execution and delivery
of any such supplemental indenture. The Lessee under the Lease Agreement
shall be deemed to have consented to the execution and delivery of any such
supplemental indenture if the Trustee receives a letter signed by an authorized
officer of the Lessee under the Lease Agreement expressing said consent within
thirty (30) days after the mailing of notice and a copy of the proposed supple-
mental indenture to the Lessee under the Lease Agreement or if the Trustee does
not receive a letter signed by an authorized officer on or before 4 :00 o'clock
p.m., C.S.T., of the thirtieth day after 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.
•
1 •
•
•
6 %1
•
ARTICLE XIII
AMENDMENT OF IEASE AGREEMENT
Section 1301 The Trustee may from time to time, and at any time,
consent to any amendment, change or modification of the Lease Agreement
for the purpose of curing any ambiguity or formal defect or omission or making
any other change herein, which in the reasonable. judgment of the Trustee is
not to the prejudice of the Trustee or the holders of the 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 less than
two- thirds (2/3) in aggregate principal amount of the bonds at the time out-
.
standing, evidenced in the manner provided in Section 1401 hereof.
Section 1302. If at any time the City or Lessee under the Lease Agreement
shall request the Trustee's consent to a proposed amendment, change or modifica-
tion requiring bondholder approval under Section 1301, the Trustee shall, at
the expense 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. Also, a copy of the
notice should be mailed by first class mail to each registered owner at his
address on the bond registration book maintained by the Trustee. Such notice
shall briefly set forth the nature of such proposed amendment, change or modifi-
cation and shall state that copies of the instrument embodying the same are on
file in the principal office of the Trustee for inspection by any interested bond- .
holder. The Trustee shall not, however, be subject to any liability to any bond-
holder by reason of Its failure to publish or mail such notice, and any such
failure shall not affect the validity of such amendment, change or modification
when consented to by the Trustee in the manner herelnabove provided.
65
ARTICLE XIV
MISCELLANEOUS
•
. Section 1.401. 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 execution 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 acknowledgements 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
transferable 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, wherever 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 certificate 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
enforcement 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.
66 •
Section 1402, With the exception of rights ]herein expressly 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 rights, remedy or
claim under or in respect to this Indenture or any covenants, conditions
and provisions 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 provisions 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 circumstance, or of rendering any other
provision or provisions herein contained invalid, inoperative or unenforceable
to any extent whatever.
• The invalidity of any one or more phrases, sentences, clauses or
paragraphs 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 ff 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 with the Trustee.
Section 1405. This Indenture shall be considered to have been
executed in the Sate of' Arkansas and it is the intention of the parties that
the substantive law of the State of Arkansas govern as to all questions of
interpretation, validity and effect. •
67 •
•
Section 1406. This Indenture may be simultaneously executed in
several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
IN WITNESS WHEREOF, the City of Jacksonville, Arkansas, has caused
these presents to be signed in its name and behalf by its Mayor and its corporate
seal to be hereunto affixed and attested by its Clerk, and, to evidence its
acceptance of the trust hereby created,
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
CITY OP JACKSONVILLE, ARKANSAS
By
Mayor
ATTEST:
City Clerk .
(SEAL)
TRUSTEE
By
(title)
ATTEST:
(title)
(SEAL)
ACKNOWLEDGMENT
STATE OF ARKANSAS )
COUNTY OF PULASKI )
On this day of , 1972, 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 Clerk, respectively, of the City of Jacksonville, 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 the municipality, and further
stated and acknowledged that they had signed, executed and delivered the
foregoing instrument for the consideration, uses and purposes therein
mentioned and set forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official
seal this day of , 1972.
Notary Public
My commission expires:
(SEAL)
69
t
•
ACKNOWLEDGI\MENT
STATE OF
COUNTY OP
On this day of , 1972, 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
and , respectively, of
, 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 and behalf of the Bank, and further stated and acknowledged that they had
so signed, executed and delivered the foregoing instrument for the consideration,
uses and purposes therein mentioned and set forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official
seal this day of 1972.
Notary Public
My commission expires:
(SEAL)
•
70
EXHIBIT A
•
TO TRUST INDENTURE BY AND BETWEEN THE CITY OF JACKSONVILLE, ARKANSAS
AND , TRUSTEE
The following described real estate situated in Pulaski County, Arkansas,
to wit:
•
•
• •
Section 3. That the Mayor and City 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 and acceptance of the Trust Indenture by the
Trustee, the performance of all obligations of the City under and pursuant to the
Trust Indenture, the execution and delivery of the 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 City 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 that authority
and its exercise.
Section 4. 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 5. That all ordinances, resolutions and parts thereof in conflict
herewith are hereby repealed to the extent of such conflict.
Section 6. That the Mayor and City Clerk for and on behalf of the City,
be and they are hereby authorized and directed to take all action, and execute
and file all documents, necessary.to perfect an election to proceed under Section
103 (c) (6) (D) of the Internal Revenue Code of 1959, as amended, to the end of
insuring that interest on the bonds is exempt from federal income taxes.
Section 7. That there is hereby found and declared to be an immediate
need for the securing and developing of substantial industrial operations in order
to provide additional employment, alleviate unemployment and otherwise benefit
the public health, safety and welfare of the City and the inhabitants thereof,
and the issuance of the bonds authorized hereby and the taking of the other
action authorized herein are immediately necessary in connection with the
,. -
0 0
securing and developing of substantial industrial operations and deriving the
public benefits referred to above. It is, therefore, declared that an emergency
exists and this Ordinance being necessary for the immediate preservation of
the public health, safety and welfare shall be in force and take effect immediately
upon and after its passage.
PASSED: e , , 3 , 1972.
APPROVED:
j
d ' aI • Ant
:y kr
ATTEST:
7Z- (
--,--,:„ eLe--
l ty Clerk
(SEAL)
APPROVED AS TO FORM;
a
`-' -.- ',Y G ,r , w ' + 1
, fi r%
La_`- tE'3 G Gyy Lutorney
rw
CERTIFICATE
The undersigned, City Clerk of the City of Jacksonville, Arkansas,
hereby certifies that the foregoing pages are a true and compared copy of an
Ordinance passed at a ae. tY session of the City County of
Jacksonville, Arkansas, held at the regular meeting place of thee2ouncil of
/
said City at ' go o'clock Cf' .m. on the ,ind day of /7W s15/
I
1972, and that said Ordinance is of record in Ordinance Record Book ,
page 4/ , now in my possession.
GIVEN under my hand and seal this 5 l� day of a:
1972.
Clerk
(SEAL) (/
APPROVED AS TO FORM;
1 Ben E. Rice, City Attorney.
9