HomeMy WebLinkAbout7640RDP,,,'_ INCE N
AN ORDINANCE AUT'HC'RIZ11:G T ----E !SST�'.-NCE OF
INDUSiRIL DEVELOPMENT EO DU'NDIERI
ACT NO. 9 OF _-Hl] FIRST F.'K-1
OF THE SE r SECv_4D C � -E R- L i'SSE?LILY OF THIE
STATE OF R��,=:5.`'.S, APr'RO� ? �':Tj 2 , 1960,
AS A %,lE _NT _;P D, FOR T r r P u RPOSE OF PROVIDIT G
P� t=L_' �.= i\lT FINANCING OF THE COSH' O SECURING
L RIS:
AND DEVE L� .. G , r- - - P_ _RT' TC L,
, OPi_�� I��,.�UST'R`," �i":1F-, � T 1.R_
INDLTSTR '_ IS DE CRME__ DN ___E OR ,
AUTHORIZING -+ E`�FCi'TION; A':D 1;ELI",,L: C_ A
TRUST S� CI RING THE SO DS; AU-- ORM vim,
AND PIP_tSCIP.D.'•- G r.
- �M1! it ;-
� !'_L
T -r.-.T T� - - �
INDUSTRI,'a_ -, P O `' C _ . 1' E CO i,:S'= .' i N1(. _ �i �.Z_ 0
AND ;EH: FINANCING THEREOF, ._,`JD A1'J
E MERGE `ICY .
WZliPIAS the Cit;: Cr Ldir Vlii<, 't c. ("ha- Cic )
F ,
aUtl'tOil�: SCI by Ac. ,�C. 9 t:'I the First E� _�� ��..i:�.�_ �= _:'_CIt Cir tIls E
-� �� 1 '- �i +l -G, ti r)i ` ansa ,, �ii�CGed jC' � ��l =f
SECC'':cl `�Cr. ral A mbl y S -
1960 a.. amended, ("Aci 1\110. ), to acquire lands, construct and aqui,
manufacturing buildings, improvemenLE and fac '' ies and to 1I=Cu_ other
costs and expenses air., CtaF:. .pan . we,: to and fo" the
1T71D1F'T _"nt1l an
and
E,rccmplishing of chn CCS _ oct of Ill_ _:ufac,'_'_'ring operations;
Guy is autVvized 10, Act No. 9 t0
De e!Lp:.:e iL lrl7i1:..,�Jr!i..
lndll`'trl-1 FrO; C. so 1Eq''1_..l and constructed and ^Cly`., --Y a lie: 1iiFr;C:
and
of _. I
the
WHEREAS Westport is a subsidiary of Stern-Slegman-Prins Company,
a Missouri corporation ("Stern") and Stern has agreed to unconditionally
guarantee pe rorr 1arc�by I� es.`porL of its obligations under the Lease ti,gree
-
ment
by an instrunnen t identified as the "Stern Guaranty Agreement"; and
_ WHIEREAS permanent financing of the Project costs, necessary
costs and expenditures incidental thereto and to the expeditious commence-
ment , f "salons, tt"1P. cost Q' th0 issuance of bonds and t
meat o_ man.�!«ctt.ring op��:..
_-,s ,,,-onamOUnt necessary t0 rOVlde for 1!a-`_'.i�L C'DOnd3 _���L1Project reVe:1U'_ s are
available is i Bing fuCnished by the issuance of Industrial De,.-eloprnent
Revenues Bonds by the City under the provisions of Act No. 9 in the principal
amount of not to exceed l'i've ITUn '.red Thousand Dollars ($500, 00 0) (the "bonds"
or "Act No. 9Pona- s "
and
WHw AS there has been submitted to the eleciors of the City
the question of issuling the Ac-,: No. 9 Bonds Gt a spocial election, and at said
special election the electors apprOved the issuance of the r',ct 11o. 9 Bonds;
and
WHEREAS the bonds arcs, to be sold and delivered in, series, vnt-'-t
the initial series being in. the pr'nci_ =�l a^=ounL of $J%J, 000, designated
Series A, and ,,hich are Med, bear interest, mc,'ture and ars: sul:jec;: to re-
demption as hereafter in this In! 2=__.1: set foni:__ in detail_;
NOW, THEREFORE, SF TT ORDAINED i3ythe City Council O,
City of Ba '_e_ vilie , ..rka__sas .
SeMic)n I That ti.onn to, a. th r. is hev by, authcrinei arae..
(a) 14e vain of 5375,000 in ug�1�0 16' pArnipol
of 1 t_..-. __ _a.(.
(b) T:
pini_ K 4,.- !Vnj" 11, - c�! i ---
MCA
t1cCA t, Yo Y' _ of till C_ al,!,
(c) The performance of all oMig-tions of the City under, the
Lease Agreement pertaining to the Constructi rig and
equipping of the Project and the performance of all obli-
gations of the City under the arCril_tectural, engiT.eering
and construction contracts referred to in (b) above .
(d) The acceptance and execution and delivery of the Stern
Guaranty Agreement.
Section 2. That to provide for the aut_hiori zati on of and to
secure Industrial Development Revenue B; ---_-:s of the City under Act No. 9
in the total_ principal amount of not to exceed $500,000 , to provide for the
immediate execution and delivery of Series A Bonds in the principal amount
of 375,000 and. to pre scril)` the terms and conditicns upon v hick the bonds
are to be secured, executed., authenticated, accepted and held, the ',Mayor-
is
ayor
is hereby authorized and dtr=ecLed to and ac:nowledge a Truest In-
denture, an:.' the City Clerk is herby authorized and directed to=reCLite
and acknowledge the Trust Indenture and to affi-x the seal or the City there-
to, and the Mayor and City Clerk are hereby authorized and. directed to
cause trie Trust Inderi.ure to be accepted, executed and ackno,,viedged by
the Trustee, witil the Trust Inlenture,co_ ns c and is he ��J Mf F, '-
�u��: �._
a part of this Ordinance, to h e iri subStantiall;T the folk v i I -i gf foul, t0 wit:
15
TRUST INDENTURE
This INDENTURE executed as of the first day of December,
1968, by and between the CITY OF BATESVILLE , 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 FIRST NATIONAL BANK OF KANSAS
CITY, 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 Kansas City, Missouri (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 Ark-
ansas, approved January 21, 1960, as amended ("Act No. 9") , to acquire
lands, construct and equip manufacturing buildings, improvements and
facilities and to incur other costs and expenses and make other expenditures
incidental to and for the implementing and accomplishing of the conduct of
manufacturing operations; and
WHEREAS the City is authorized by Act No. 9 to issue Industrial
Development Revenue Bonds payable from revenues derived from the
Industrial Project so acquired and constructed and secured by a lien thereon;
and
WHEREAS the necessary arrangements have been rnade with
Westport Casuals, Inc. , an Arkansas corporation ("Westport"), for an
industrial project consisting of lands, buildin(ts , improvements, machinery,
equipment d"ttJ f 1C11i lE'S for an it_( u6'_' i.�,] pidtlt ',:_1 ch vld l I e L1 iliz::LI' ) LIl.
manufaci.urinc of such products as✓eSt;C?GT't Sh 11 cleC'l O r1 ,nl f lcLL1I'e
(the "Prosect") , anti to le, -,s- , ,,- "'. itt,-, "� _7 �... t t� ��1.,
on
0
a Lease and Agreement subsequently identified herein and referred to as
the "Lease Agreement"; and
WHEREAS Westport is a subsidiary of Stern-Slegman- Prins Company,
a Missouri corporation ("Stern") and Stern has agreed to unconditionally
guarantee performance by Westport of its obligations under the Lease Agreement
by an instrument identified as the "Stern Guaranty Agreement"; and
WHEREAS permanent financing of the Project costs, necessary
costs and expenditures incidental tlIereto and to the expeditious commence-
ment of manufacturing operations, the cost of the issuance of bonds and the
amount necessary to provide for interest on bonds until Project revenues are
available is being furnished by the issuance of Industrial Development
Revenue Bonds by the City under the provisions of Act No. 9 in the principal
amount of not to exceed Five Hundred Thousand Dollars ($500,000) , the
"bonds" or "Act No. 9 Bonds"); and
WHEREAS there has been submitted to the electors of the City
the question of issuing the Act No. 9 Bonds at a special election, and at
said special election the electors approved the issuance of the Act No. 9
Bonds; and
WHEREAS the bonds are to be sold and delivered in series, with
the initial series being in the principal amount of $375,000, designated
Series A, and which are dated, bear interest, mature and are subject to re-
demption as hereafter 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 issu,�.lncc of the bonds have
been in all respcCts' Ci i1 c1Yld v_?lic!ly a1_]thi riz,c:d by OrCinaI{CC the city
Council of the City, adopted and approved cr> th�. ?5 d-�.� T
��y of i o. ��i-li cr, 19 60
and
CM
M
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 (the form is set
up for Series A and there shall be necessary conforming changes in the case
of subsequent series):
UNITED STATES OF AMERICA
STATE OF ARKANSAS
COUNTY OF INDEPENDENCE
CITY OF BATLSVILLE
6% INDUSTRIAL DEVELOPMENT REVENUE BOND -
WESTPORT PROJECT
SERIES A
No.
KNOW ALL MEN BY THESE PRESENTS:
$5,000
That the City of Batesville, Independence 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 December 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 six per cent (6%) per annum, such
interest to be payable semiannually on June 1 and December 1 of each year,
commencing June 1, 1969, upon presentation and surrender of the annexed
coupons as they severally become due. The principal of this bond and the
interest thereon are payable at the principal office of First National Bank of
Kansas City, Kansas City, Missouri (the "Trustee" and the "Paying Agent"),
or at the option of the holder or registered owner, at the principal office of
First National Bank, Batesville, Arkansas (the "Co -Paying Agent") .
This bond, designated "City of Batesville, Arkansas, Industrial
Development Revenue Bond - Westport Project, Series A" , is one of a series of
bonds aggregating Three Hundred Seventy -Five Thousand Dollars ($375,000).
The Series A Bonds are part of an authorized issue of $500, 000 in principal
amount, to be issued in series, with the bonds of all series to rank on a
parity of security and with the bonds of all series to be collectively re-
ferred to as the "bonds" . The bonds are being issued for the purpose of
financing Project costs, paying necessary expenses of issuing the bonds
VVW
en
and )COVid1I7g for 1; a5t Llntil ''QVC nLiCS are dvall_il_;le f( -C the prl?iClnal Of ana interest
on the bonds. The bonds are all issued under and are all equally and ratably secured
and entitled to the protection given by a Trust Indenture (the "Indenture"), dated as
of December 1, 1968, 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
Independence County, Arkansas, and reference is hereby made to the Indenture and to
all indentures supplemental thereto for the provisions, among others, with respect to
the issuance of additional series of bonds up to the total authorized principal amount
of the bonds , 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 Constitu-
tion 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 Janu-
ary 21, 1960, as amended ("Act No. 9"), and pursuant to Ordinance No. _ of the
City passed and approved on the day of
19 , which ordinance
authorizes 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. The Project consisting of lands, buildings,
improvements, machinery, equipment and facilities for an industrial plant, has been
leased to Westport Casuals, Inc. , an Arkansas corporation ("Westport"), for rentals
sufficient to provide for the payment pf the principal of and interest on the bonds as
the same become due. Payment of the rentals and performance of all other covenants
and obligations of the Lessee (Westport") has been unconditionally guaranteed by
Stern-Slegman-Prins Company, a Missouri corporation, by an instrument designated
"Stern Guaranty Agreement". The Project will be utilized by Westport for the conduct
of its business including, without limitation, the manufacturing of such products as
Westport shall elect to manufacture. Provision 1has been made for the lease rentals to
be paid directly to the Trustee and deposited in a special account of the City
cm
in
designated "Batesville, Arkansas, 1968 Industrial Development Bond Fund -
Westport Project" (the "Bond Fund"). The rentals and the revenues
derived from the Project 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. The bonds do
not constitute an indebtedness of the City within any constitutional or
statutory limitation.
The holder of this bond shall have no right to enforce the pro-
visions of the Indenture or to institute action to enforce the covenants there-
in or to take any action with respect to any event of default under the Inden-
ture, or to institute , appear in and defend any suit or other proceedings with
respect thereto, except as provided in the Indenture. In certain events, on
the conditions, in the manner and with the effect set forth in the Indenture,
the principal of all of the bonds issued under the Indenture and then out-
standing 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 Inden-
ture supplemental thereto, may be made only to the extent and in the circum-
stances permitted by the Indenture .
Prior to December 1, 1978 the Series A Bonds shall be subject
to redeiapt.ion prior to maturity from the proceeds received from condem-
nation of all or any portion of the Project, or proceeds from the Lessee
exercising an option to purchase by virtue of the conti.pgenci.es specified in
Section 1902 A. of the Lease and Agreement, in whole but not in part to t're
extent of proceeds from said sources with there to be no partial redemption
of any borld, in inverse: r.Ur:! ! C i ort 'r at a Of tl'. 1_`1110
being reclecr,-,od plus', accLL.ed l i__'. 'bL t,_% tlle plus u pr-.3--1,r-
of of tho pr111clrii-,_1 aia'.JUnt; ti3Oi 0,- arlfJl of'-, �r
1978 Lie o r'
� r _. _. .. � � li:i! 1 :� S Cl, � i _ , ., S L'._ � . _ _ � r _'. _ 1 � i tc) .1r
from funds from any source , in whole or in part, with ti-iere to be no
1%W • JW
partial redemption of any bond, in inverse numerical ordor on cZny interest
payment date at a price of the principal amount being redeemed plus accrued
interest to the redemption date and plus a premium of 4% of the principal
amount being redeemed.
Notice of the call for redemption shall be published one time
in a newspaper published in the City of Little Rock, Arkansas and having
a general circulation throughout the State of Arkansas, which publication
shall be not less than fifteen (15) days before the date of redemption. In
addition, notice of 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 addres s and placed in the mails not
less than fifteen (15) days prior to the date fixed for redemption. In the event
that all of the bonds are registered as to principal, notice in writing by
registered or certified mail to the owner or owners thereof not less than
fifteen (15) days prior to the date fixed for redemption shall be sufficient,
and published notice of the call for redemption need not be given. Each notice
shall specify the numbers and the maturities of the bonds being called and the
date on which they shall be presented for payment. After the date specified
in such call, the bond or bonds so called will cease to bear interest pro-
vided funds for their payment are on deposit with the Paying Agent at that
time, and except for the purpose of payment, shall no longer be protected
by the Indenture and shall not be deemed to be outstanding under the pro-
visions of the Indenture.
This bond may be registered as to principal alone or as to pTinCi-
pal 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
and set forth in the Tmienturc . Sul 1,,;,c to the provisions for registration
endorsed hereon and contained in the Indenture, nothing contained in. this
En
b0?"1d Or 1n the inc '.ntLl' shall of 1, GCt O1' ir;.111.r f. `i C. it' c;f tris bond.
As declared in Act No. 9 , this bond sh_,1.1 be clec ,,ed to be a negotiable
ins1-rumont Under the laws of the State of Arkansas, and this i_o?-td is issued
with the intent that the la7.7s of the State of Ar-1-ainsas will govern its construction.
IT IS HEREBY CERTIFIED, RECITED AND DECI -,RED that all acts,
conditions and things required to exist, happen and be perfori: ed precedent
to and in the issuance of this bond do exist, have happened and have been
performed in due time, form and manner as required by law; that the indebted-
ness represented by this bond and the issue of which it forms a part, together
with all obligations of the City, does not exceed any constitutional or statu-
tory limitations; and that the above referred to revenues pledged to the pay-
ment of the principal of and interest on this bond and the issue of which it
forms a part, as the same become due and payable, will be sufficient in
amount for that purpose.
This bond shall not be valid or become obligatory for any pur-
pose 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 Batesville, Arkansas has
caused this bond to be executed in its name by its Mayor and Clerk, there-
unto 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 signa-
ture of its Mayor, all as of the first day of December, 1968.
ATTEST:
City Clerk
(SEAL)
CITY OF BATESVILLE, ARKANSAS
By (fa --simile signature)_
Mayor
*410, 100V
(Form of Trustee's Certificate)
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This bond is one of the bonds of the series designated
Series A in and issued under the provisions of the within mentioned
Indenture .
FIRST NATIONAL BANK OF KANSAS CITY,
KANSAS CITY, MISSOURI T R U S T E E
(Authorized Signature)
(Form of Interest Coupon)
$
No.
June
On the first day of December, 19___ , the City of Batesville,
Arkansas (unless the bond to which this coupon is attached shall have
been previously called for redemption or shall have become payable as
provided in the Indenture referred to in said bonds) will pay, solely from
the revenues pledged in said Indenture, to bearer at the principal office
of First National. Bank of Kansas City, Kansas City, Missouri, or at the option
of the bearer at First National Bank, Batesville, Arkansas, upon presentation and
surrender hereof the sum of
DOLLARS
in such coin or currency as at the time of payment is legal tender, for the
payment of debts due the United States of America, being six (6) months'
interest then due on its Industrial Developrrient Revenue Bond -Westport
Project, Series A, dated December 1, 1968, and numbered
CITY OF BATESVILLT , ARKANSAS
By Lfa
c SwCiI'' ;CF11
--- -------Mayor-
CM
PROVISIONS 1 -'OR REG1STR 'i10N AND RFG07' V H61ON
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 proser!tation hereof to the bond registrar, which shall mace mention of such
registration in the registration b!E nk below, and this bond may tizoreafter be trans-
ferred only upon an assignment duly executed by the registered owner or his attor-
ney or legal representative in such form as shall be satisfactory to the bond rogis-
trar, such transfer to be made on such books and endorsed hereon by the bond
registrar. Such transfer may be to bearer, and thereaft r transferability by de-
livery shall be restored, but this bond shall again be subject to successive regis-
trations and transfers as before. The principal of this bored, if registered, unless
registered to bearer, shall be payable only to or upon the order of the registered
owner or his legal representative. Interest accruing on this bond will be paid
only on presentation and sumnder of the attached interest coupons as they re-
specti."vely become due, and notvaithstanding the registration of this bond as to
principal., the appurlena.nt interest coupons shall remain payable to bearer and
shall coniinuo to be transferable by delivery; provided, that if upon registration
of this bond, or at any ti.rito thereafter while this bond is registered in the name
of the Owner, the uni!iatuced coupons attached evidencing interest to be thereafter
paid hereon shall be surrendered to said bond registrar,a state-nent to that effect
Will be endorsed hereon by the bond registrar and ther-caf er interest evidenced by
such surrendered coupons will be paid by check Or draft Of the b0!"!d registrar at
the times provided !erein to the registered o --n ar of this bond by mail to 'the
address shown on the rOgisCration books. This bond when so converted into a
bond regiRcre d as to . aWi joi.nc pal and inwrest may ba recon d into a coul�Or,
bond at the bVriitt=Ii request of the ro ist re oz-,ior and upon pr -,.emotion at the
O"ii,.b O1 Sci1C: bond I-00 i s t -dr. V [iGlCi V!`:� aoL%t%�i� ^?
On
en
i.L 6''. "SL Lo 11�� LLi:L Lo Lii
L,- ached to L11-iis !Donci an`li c_- 5t. �., 11���]'1L .. .l.11 hO �n`i. l:i .L�C� 1.��'i�o?: ', ..inn ,. �._. n.�i c (;�a._
L1c_'ir 'U -1T'
T.�e ilt i `. ij i�"'
_
or he ya')Ie to },)e,3rer.
Da �e of Recoistr,ati on:
-- -----_17
Unner Of ---. -
_ a t._ of t r
S i r. nature of
; and
•low
`Vti7-1iERE 'S all things necossary to I?:ake ttic said bon -is, ,ikon authenti-
cated by the Trustee and issued as in this Indenture provided, the valid, binding
and legal obligations of the City according to the thereof, and to consti-
tute this Indenture a valid .lien on the properties mortgaged and a valid pledge of
the revenues herein made to the payment of the principal of and interest on said
bonds, have been done and performed, and the creation, execution and delivery
of this Indenture and the creation, execution and issuance of said bonds, sub-
ject to the terms hereof, have in all respects been duly authorized;
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, THIS IN-
DENTURE 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) , law-
ful money of the United States of America, to it duly paid by the Trustee, at or be-
fore 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 se-
cure 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 coven-
ants expressed or implied herein and in the bonds, does hereby grant, bargain,
sell, convey, mortgage, assign and pledge unto the Trustee, and unto its suces-
sor or successors in trust, and to them and their assigns forever, for the securing
of the performance of the obligations of the City hereinafter set forth:
CM
-A**
Ti;e �Loliotving described real estate and premises situated in
Independence County, State of Arka:-sas, with all buildings, additions and
improvements now or hereafter located thereon, togei.her crii.h tl;e tenements,
hoceditai: e_nts , appurtenances, rights, priV i leges , c?i"1c i1:1TilU litl S thereunto
belonging or appertaining, and warrarAs the title to the same, to Wit:
Part of the West Half (W 1/2) of Section 10, Township 13
North, Range 6 Wrest, described thus:
Beginning at a point 1413 feet East and 40 feet South of the
corner between Sections 3, 4, 9 and 10, Township 13 North, Range
6 West, thence West 603 feet; thence South 545 feet; thence
East 603 feet; thence North 545 feet to the point of beginning
and containing 7 1/2 acres, more or less.
cm
2.
r.rrr
All machinery, equipment and other personal property of every
kind and nature whatever acquired by the City and paid for out of the Con-
struction Fund and placed on and in the land and improvements described
in "1" above, or elsewhere, including, without limitation, all replacements
and substitutions which become the property of the City pursuant to the
provisions of the Lease Agreement. All such machinery, equipment and
other personal property shall be identified in a ledger, one copy of which
shall be filed with the Trustee and one copy maintained by Westport on
the mortgaged property. In this regard, all machinery, equipment and other
personal property of whatever nature situated on and in the land and
improvements described in "1" above shall be conclusively deemed to be
owned by the City rather than Westport, unless purchased and placed by
Westport and marked by an appropriate tag or other device as being the property
of Westport. Included herein is"Lessor's Machinery and Equipment" as defined
in the Lease Agreement but, as provided in the Lease Agreement, there is
not included any machinery, equipment and personal property owned by
Westport.
3.
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.
0
The Bond Fund and the Construction Fund, and all moneys and
investments therein but subject to the provisions of this Indenture pertaining
thereto, includ'_ng the Isla}ming of
Thi- Str,rn
0
Any and all other property of every kind c nc_7 n<ltur:"' frons_ 't.illi(' to til -,c,,
which wci h,-rE_'tofore or here afi:C'r 1S oC',,
IWO,
Ic itgged, plCid_-,ed, a`'S1gIi^d Or tr 1.-f erred, gas ani for adc;tit ional Security
'.lereunder, by the City or by ary other person, firm or corporation, or with the
consent Of the City, i:0 tiie Tr.USt( E:, V'111CI7 is hereb}' aut'r,o' iZed_ to r?ceive any
and a]1 such property at any tulle and at all times and to hold and apply the
same subject to the terms hereof.
TO HAVE AND TO TIO all the same with all privileges and
dppurtenances hereby conveyed and asssigned, Or a creed or intended so
to be, to the Trustee and its successors in said trusts and to thele and
their assigns forever;
IN TRUST NEVERTHELESS, upon the terms and trusts herein set forth
I
or 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 oth=-,ise 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, according
to the true intent and meaning thereof, and shall make the payments into the
Bond Fund as required under Article V or shall provide, as permitted hereby,
for the payment thereof by depositing or causing to be deposited with the Trustee
the entire amount due or to become due thereon, and shall well apd truly keep,
perform and observe all the covenants and conditions pursuant to the terms of
this Indenture to be kept, performed and observed by it, and shall pay to the
Trustee all sums of money 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.
THIS INDENTURE FURTHER WITNESSETH that, and it is expressly
In
declared, all bonds issued and secured lhereunder are to be issued, L;tt e ticated
and delivered and all said revenue and income hereby pledged are to be dealt �,vith
and disposed of under, upon and subject to tiie terms, conditions, stipulations,
covenants, agreements, trusts, uses and purposes as here;: -after expressed, and
the City has agreed and covenanted, and does hereby agree and covenant, with
the Tnistee and with the respective holders and owners, from time to tine of the
said bonds or coupons or any part thereof, as follows, that is to say:
E9
ARTICLE I
DEFINITIONS
EM
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:
"Batesville, Arkansas, 1968 Industrial Development Bond Fund -
Westport Project" or "Bond Fund" - The fund of the City created by Section 501
of the Indenture into which the funds specified in Article V are to be deposited
and out of which disbursements are to be made as expressly authorized and
directed by the Indenture.
"Bonds" - The City of Batesville, Arkansas, Industrial Development
Revenue Bonds -Westport Project, secured by the Indenture, authorized in
the total principal amount of $500,000, to be delivered in series from time to
time.
"Series A Bonds" - The initial series of bonds being delivered
hereunder and secured hereby in the principal amount of $375,000.
"City" - The City of Batesville, Arkansas, a municipality under
the laws of the State of Arkansas and situated in Independence County,
Arkansas.
"Indenture" - This Trust Indenture together with all indentures
supplemental hereto.
"Outstanding hereunder" - "bonds outstanding hereunder" - All
bonds which have been authenticated and delivered under the Indenture except:
maturity.
(a) Bonds cancelled because of payment or redemption prior to
(b) Bonds for ti,e pay1:_--n1,- or redo r;tior. of %,. i;ici cash sh 11
have been heretofore deposited vviti-1 the Tr,_lst-e and Paying Agnnt (-vchet'rier
upon or pt!Cr to the Ii!,JcuL'CIy or of —y
that if such bolds are to be redeomed priorto Jrte maturity thereof, notice of suc`i
cm
En
redemption shall have been given or provisions satisfactory to the Trustee
and Paying Agent shall have been made therefor, or a waiver of such notice,
satisfactory in form to the Trustee and Paying Agent shall have been filed
with the Trustee and Paying Agent; and
(c) Bonds in lieu of which others have been authenticated
under Section 208.
"Paying Agent" - The bank or trust company named by the City
as the place at which the principal of and interest on the bonds shall be pay-
able. The Paying Agent is always the same as the Trustee.
"Co -Paying Agent" - First National Bank, Batesville, Arkansas.
"Person" - Includes natural persons, firms, associations, corpora-
tions and public bodies.
"Project" - The lands, buildings, improvements and facilities
embodied in and pertaining to the industrial project leased to Westport and
being financed out of the proceeds of the bonds, including the properties in
the trust estate. The Project will be utilized by Westport for the conduct of its
business iruluding, without limitation, the manufacture of such products as
Westport 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 First National Bank of Kansas City,
Kansas City, Missouri. The Trustee is also the Paying Agent.
"Mortgaged property" - The properties comprising the Project
being all of the properties leased to Westport under the Lease Agreement as
well as all other properties which, under the terms of the Indenture, subse-
quently become subject to the lien of the Indenture, including the properties,
interests and rights covered by tlte Of the
"Holder" or "bondholder" - "o%%-ner of th(e bond-" - The bearer
Of any Doll r1 ,Z"i: _ �:�. .. Ct �iS t0 p li1C1r) C-11_ r;' _ J ! IF G`,'...� , O -any
bond registered as to principal or registered aF, to principal and interest.
cm
.ar
"Westport" - Westport Casuals, Inc. , an Arkansas corporation.
Westport is Lessee under the Lease Agreement.
"Lease Agreement"- The Lease and Agreement wherein the City
is Lessor and Westport is Lessee, recorded in the office of the Circuit Clerk
and Ex Officio Recorder of Independence County, Arkansas.
"Stern" - Stern-Slegman- Prins Company, a Missouri corporation
and Guarantor under the Stern Guaranty Agreement wherein Stern guarantees the
prompt performance of all obligations of its subsidiary (Westport) under the
Lease Agreement.
"Stern Guaranty Agreement" - The Guaranty Agreement described in
Section 409 B of this Indenture and which is the Guaranty Agreement wherein
Stern guarantees the prompt performance of all obligations of its subsidiary
(Westport) under the Lease Agreement. An executed copy of the Stern Guaranty
Agreement is on file in the office of the Trustee.
"Industrial Development Bond Construction Fund- Westport Project"
or "Construction Fund - The fund created by Section 601 into which the
portion of the proceeds of the sale of the bonds specified in Section 601
is to be deposited and out of which disbursements are to be made in the manner
and for the purposes specified in Article VI of the Indenture.
"City Clerk" or "Clerk" or "Town Recorder" or "Recorder" -
The person holding the office and performing the duties of Recorder of 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" small include the plural, as well as the
singular, number.
14W
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 Five Hundred Thousand Dollars ($500,000) , except with respect to substi-
tuted bonds issued under Section 208.
Section 202. A. The initial series shall be designated
"City of Batesville, Arkansas, Industrial Development Revenue Bonds - West-
port Project, Series A" (the "Series A Bonds") and shall be in the principal
amount of $375,000. The Series A Bonds shall be dated December 1, 1968,
and interest thereon shall be payable semiannually on June 1 and December 1
of each year, commencing June 1, 1969, The Series A Bonds shall be numbered
consecutively from one (1) to seventy-five (75) inclusive, shall be in the
denomination of $5,000 each and the principal thereof shall mature, unless
sooner redeemed in the manner in this Indenture set forth, on December 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 rate of the Series A Bonds:
D
0
INTEREST
YEAR BOND NOS. RATE PRINCIPAL AMOUNT
1969
1 -
2
6%
$ 10,000
1970
3 -
4
6%
10,000
1971
5 -
6
6%
10,000
1972
7 -
8
6%
10,000
1973
9 -
11
6%
15,000
1974
12 -
14
6%
15,000
1975
15 -
17
6%
15,000
1976
18 -
20
6%
15,000
1977
21 -
23
6%
15,000
1978
24 -
26
6%
15,000
1979
27 -
30
6%
20,000
1980
31 -
34
6%
20,000
1981
35 -
38
6%
20,000
1982
39 -
42
6%
20,000
1983
43 -
47
6%
25,000
1984
48 -
52
6%
25,000
1985
53 -
57
6%
25,000
1986
58 -
63
6%
30,000
1987
64 -
69
6%
30,000
1988
70 -
75
6%
30,000
,%"+
..r
B. Additicuzal bonds up to the principal amutmt of
$ 125 , 000 may be stlbsequently issued at any tine for the purpose of pay-
ingProject costs, expenses, aj,a elx�penelitu, in connection t!,,orewith and
the operation of the Project, the expenses of issuirg the bonds and the pro-
viding for interest until revenues are available in a sufficient amount therefor.
Such additional bonds shall be issued in series , with the next series to be
designated "Series B" and with each series thereafter to be designated in
alphabetical order. Such additional bonds shall be dated, interest thereon
shall be payable semiannually, may have serial maturities or all may have
the same maturity, may contain provisions for redemption prior to maturity
and may contain such other provisions not inconsistent with the provisions
of this Indenture, all as shall be set forth in the ordinance of the City Coun-
cil authorizing their issuance. Such additional bonds shall be secured by this
indenture and shall rank on a parity of security in all respects with the bonds
of previously issued series. They shall be authorized by ordinance of the
City Council of the City, which shall set forth the details concerning the
bonds, which details shall be embodied in a Supplemental Trust Indenture by
and between the City and the Trustee, and an executed copy of each Supple-
mental Trust Indenture, together with a certified copy of each authorized
ordinance, shall be filed with the Trustee prior to the delivery of any such
additional bonds. In addition there must be filed with the Trustee an executed
copy of a Supplemental Lease Agreement increasing the basic rent in the amount
necessary to provide for the prompt payment of the principal of and interest on
the additional bonds of the particular series then being issued. The execution
and delivery of such Supplemental Lease Agreements are expressly provided for
OW
ith ,.. a KuKaa a _ Affod _ ;y _ ti._ _nwcv, , ni C Y W the
!; _, 1 tnl Trust l !,bmn, an ._'_'Cl ( cpy of un SUPIA 0-01 Jan2a
I =-- At, all as a _ plao id, a a a 1 npi2 of :.,l (_-t., _")
Trustee approving the additional bonds of he 3�r_ 'S Lh,--n to be
issued, the Trustee Shall authe ticdte said di,_w,--il i o. ?� .:f ::�c.)ted
and Oali`,%'ered to it with the sine:! o1 the City PERM aqd dalivenod such
additional bonds as Provided in the SupplemeAtal Trust indenlme.
Section 203. The bonds shall he ex ernitad on Whal.f of tileCity
by the Mayor and City Clerk thereof and small have 1n-_, ,--r/ sJeQ Lh eieon t1le
seal of the City. The coupons a i'ach2d to tl':e bonds shall be G'xocu�d by
the facsimile signature of the '�'Tayor and if the !vlayor shall file the certifi-
cate required by Act No. 69 of the Acts of Arkansas of 1959 and otherwise
comply ,vith the provisions of said Act No. 69 of 1959, then the bonds may
also be executed by the facsimile signature of the l,Jayor, facsimile
signature shall have the same force avid effect as if the �'Tayor had p: rsonally
signed each of said bonds and each of said coupons. The ponds, 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 sl -all be secured
by a lien on and security interest in the Project, which r_-7,7Gn`uCS are hereby
pledged and mortgaged for the equal and ratable payment of the bonds and
shall be used for no other purpose than to pay the principal of and interest on
the bonds, and the Paying Agent's fees, except as may be othervvisc expressly
authorized in this indenture. The bonds and interest thereon shall not con-
stitute , = -ted r C L a ai,y constitutional
sLituLG an indebtedness o1 the City Wlthlrl the meaning Of Ct '
or statutory provision. In case any officer v,,,hose signature or facsimile of
whose signature shall appear on the bonds shall cease to be such officer before
NOW
M3
the delivery of such bonds, such sig::"euro or such facsimile shall neverthe-
less be valid and sufficient for all purposes, the sane as if he had remained
in office until delivery.
Section 204. Only such bonds as shall have endorsed ti,eieon 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 or obligatory for any purpose unless and until such Certificate of
Authentication shall have been duly e:�ecuted 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 Authenti-
cation on all of the bonds issued hereunder. Before authenticating or
delivering any bonds, the Trustee shall detach ar.d 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 be substantially in the form hereinabove set forth with
such appropriate variations, omissions and insertions as are permitted or
required by this Indenture.
Section 206^ Upon the execution and delivery of this Indenture, the
City shall execute and deliver to the Trustee and the Trustee shall authenticate
the Series A Bonds and deliver them to the purchasers upon payment Of the
purchase price plus accrued interest from the date of the bonds to the date of
delivery, and the Trustee shall be entitled to rely upon any certificate, ordi-
nance or resolution as to the purchase price and the purchasers.
M
en
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 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 mat,ired, 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 representative in such form as shall be satisfactory
NOW
en
to V -1e hand registrar, such tra nstar LO oo"] O 1 ''} C:1Oised On
the coupon bond by the bond registrar. Such transfer may bo to bearer and
thereafter trzinsforabi1_ity }» deliV( ry shall 1)e rc_ Stored, subject, 1-owever, to
successive registrations and transfers as before. The principal of any bond
registered as to principal alone, unloss 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 s}gall remain
payable to bearer notwithstanding such registration, provided, that if upon
registration of any such bond, or at any Lune thereafter while registered in the
name of the owner, the u_nmatured coupons attached evidencing interest to be
thereafter paid thereon shall be surrendered to said 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 re-
presenting 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 p-incipal of any such
bond shall be made oi!.ly to or u1pon Lne orCier of the r j'StereQ o'vvner thereof, or
l_is legal representative, and neither the City, the Tru..stee, nor the mond regis-
trar 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 bo id registrar and the Paying
Agent may deem and treat the bearer of any bond which shall riot 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.
Wn
;I ilT LC LE liI
REDE'hiP1' O?`i OF BONDS WFORE MATURITY
vection 301. The Series A Bonds shall be calb-,ble for redemption
prior to maturity in accordance with the provisions purta.ining thereto appearing
in the form of bond heretofore set forth in this in2enture.
Section 302 The bonds of any series issued ung cr ti.e provisions
of Section 202 B may be made subject to redemption, in whole or in part, in
such manner, at such times and at such prices as may be provided in the
ordinance authorizing their issuance.
Section 303. Notice of the call for redemption shall be published
one time in a newspaper published in the City of Little Rock, Arkansas and
having a general circulation throughout the State of Arkansas, which publication
shall be not less than fifteen (15) days before the date of redemption. In
addition, notice of 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
fifteen (15) days prior to the date fixed for redemption, in the event that all of
the bonds are registered as to principal, notice ini writir:g by registered or
certified mail to the owner or owners thereof not less than fifteen (15) days prior
to the date fixed for redemption shall be sufficient, and published notice of the
call for redemption need not be given. Each notice shall speedy 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
are on deposit with the Paying Agent at that time, and, e_,,cept for the purpose
of payment, shall no longer be protected by the Indenture and shall riot be
deemed to be outstanding under the provisions of the Indenture.
I=
Swkoa 304 All WK7 'Ah adi hni P 'cI1 rndw.p"! shall be
mincelled by Lhe Trustee tognther with t"e co-u-p-ans, � La. ining
thereto and shall he cremaKed by the Trustee.
Section 305. All unpaid interest coupons which appertain to bonds
so called for redemption and which shall have I)eco-,,,c payable on or prior to
the date of redemption shall continue to be payable to the hearers severally
and respcctively upon the presentation and surrender of such coupons .
CM
AR`'IC I.F IV
GENER-U COVENANTS
Section 401. The City covenants that it will promptly pay the
principal of and interest on every bond issued under this Indenture at the place,
on the dates and in the manner provided herein and in said bonds, and in the
coupons apper'taird. g thereto according to the true intent and n eaning thereof.
The principal and interest (except interest, if any, paid :From the proceeds from
the sale of the bonds and accrued interest) are payable solely from revenues
derived from the Project, which revenues are hereby specifically pledged to
the payment thereof in the manner and to the extent herein specified, and
nothing in the bonds or coupons or in this Indenture should be considered as
pledging any other funds or assets of the City (except the securing of the
indebtedness evidenced by the bonds and coupons by a lien on and security
interest in the Project) . Anything in this Indenture to the contrary notwith-
standing, it is understood that whenever the City makes any covenants in-
volving financial commitments, including, without limitation, those in the
various sections of Article IV, it pledges no funds or revenues other than
those provided for in the Lease Agreement and the revenues derived from and
the avails of 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 rider the Constitution and laws of the State of
A"
Er!n!
I -kns 7s , A ON IPA 11; j, '! L C I IT irly n PC %7h.'w a t 1 -, ---. ` -,, 0 i , (-D
!no Vzods W[wrined KOVOY nnd tc , =0Y;e, to •Vl�:Cge the
pcopoty NscrOM PH motgaard homin and to jAcdgo tKc r�yanucs in the
mannur md to the Munt Oveln sat fOAK; thaL all', cri j -'s for 'Lila
—sl-,,a.ce of the 1--,c:�d's and d,-:KvGry of O's iYanture has
been duly cd effectively taken; and that the Imo. ds in Lie hanns of the holders
,---Iu owners thefoof ace and MI be valid an,-� of the
City according to the ii-nport thereof.
Section 403. The City covenants that it imfully owns and is
lawfully possessed of the modgaged prcI3,3rty and that it 'n -as rood and nnerclhan-
table Me thereto, subject only to axisting e scments and rights of way which do
not substantially inteifere With tir- e utilisation oif the niontgaged Inoperty for the
Imposes intended, and that it warrants and Mill d2fend said title to Trustee,
M successors and assigns, for the benefit of the holders and of the bonds
against the claims and demands of all pUSOnS whomsoever. 'Eke City covenants
that it ,vill (do, execute, acknomiNge and deliver or c -,-,se to be done, executed,
a c
-novrled(.-.,ed and delivered, such Indenture or Rdentures supplemental hereto
and such further acts, instruments, and transfers as the Trustee Ir,ay reasonably
require for the better assuring, transferring, mortgaging, pledging, assigning
and confinning unto the Trustee all and sfngular the property herein described
and the revenues pledged hereby to the payment of the princi.pal of and interest
on the bonds.
En
Section 404. The C ity cOL'`=_- 1,, s that it ,%,ill I, c !lptly cal',se to be
paid all lawful taxes, charges, assessments, imposts and governmental charges
at any time levied or assessed upon or aga inst the mortgaged property, or any
part thereof, which might impair or prejudice the lien and priority of this Inden-
ture; 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, and, provided, also, that such delay in payment shall not
subject the mortgaged property or any part thereof to forfeiture or sale.
Section 405. The City covenants that it will at all times cause the
mortgaged property to be maintained, preserved and kept in good condition, re-
pair and working order, and that it will from time to tine 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 pro-
perty shall be fully maintained. It is understood that the City has made provi-
sions in the Lease Agreement for such maintenance, pursuant to the terns 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 covenants that it will cause this Indenture,
and all Indentures supplemental thereto, to be kept recorded and filed in such
manner and in such places as may be required by law in order to fully preserve
and protect the security of the holders and owners of the bonds and the rights
of the Trustee hereunder.
Section 407. The City covenants that so long as any bonds 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
CM
EM
Vvhich full, true and correct entries will !De made Of „il deall_,c"rS Or tranSaCtlOnS
of and in relation to the Project and the revenues derived from the Project. `;tirhen
requested by the Trustee, the City agrees to have ti7e said books of record and
account audited by an independent Certified Public Accountant. Tile 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 withdra%vals from the funds 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.
The City further covenants that all books and documents relating
to the Project and the revenues derived from the Project shall at all tunes be open
to the inspection of such accountants or other agencies as the Trustee may from
time to time designate. In this regard, so long as the Lease Agreement is in force
and effect, 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 407.
Section 408. To the extent that such information shall be made
known to the City under the terms of this Section, it will keep on file at the
office of the Trustee a list of names and addresses of the last known holders of
all bonds payable to bearer and believed to be held by each of such last
known. holders. Any bondholder may request that his name and address be
placed on said list by filing a written request with the City or with the Trustee,
`r✓ 141W
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 estab-
lished 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.
Section 409. A. It is understood and agreed that the Project has
been leased to Westport under a Lease and Agreement wherein the City is
Lessor and Westport is Lessee (the "Lease Agreement") . The Lease Agreement
is recorded in the office of the Circuit Clerk and Ex Officio Recorder of
Independence County, Arkansas, and an executed copy is on file in the
office of the Clerk of the City and in the office of the Trustee. Reference
is hereby made to the Lease Agreement for a detailed statement of the terms
and conditions thereof and for a statement of the rights and obligations of
the parties thereunder. The lien of this Indenture is subject and subordi-
nate 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 .
M
EJ
B. Stern-Slegman-Prins Co.lpany has unconditionally guaranteed the
prompt performance of the rental and all other obligations of the Lessee under the
Lease Agreement and the Stern Guaranty Agreement is pledged and assigned
to the Trustee as security for the payment of the principal of and interest on
the bonds. All references herein to pledging the revenues derived from the
Project or the revenues derived from the mortgaged property shall include all
payments under the Stern Guaranty Agreement. Furthermore, the City agrees,
upon the request of the Trustee, to enforce all covenants and obligations of
the guarantor under the Stern Guaranty 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 obligations of the guarantor under the Stern Guaranty Agreement,
whether or not the City is in default in its covenant to enforce said obligations.
Reference is hereby made to the provisions of the Stern Guaranty Agreement for
a detailed statement of the terms thereof, including beneficiaries thereunder.
O
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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 or lien on 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 e)_tent 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 under-
stood that the City has made provisions 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.
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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
"Batesville, Arkansas, 1968 Industrial Development Bond Fund - Westport
Project" (herein sometimes referred to as the "Bond Fund") .
Section 502. There shall be deposited into the Bond Fund out
of the total sale proceeds the amount specified in Section 601 (a) hereof.
In addition, there shall be deposited in the Bond Fund as and when received:
(a) The amount remaining in the Construction Fund
(hereafter created) after all costs and expenses
of and in connection with the Project have been
paid;
(b) All basic rent payments specified in Section 203
of the Lease Agreement; and
(c) All other moneys received by the Trustee under
and 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 Agree-
ment) 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 proC.ucing underta}King, an., that should tCi c be a default
under the Lease A -co-cmert with t1he result that the rigl.t of possession of t_h
leased premises is returned to the City, tilc City ;"'ill fully coopora.to with
In
the Trustee and \vltn t!he holders c,? Ci I' '71St r \v S Cif tl ' ;�U1: to the
end of fully protecting the rights and security of the molders and registered
owners of the bonds, and, if and when requested by the Trustee, the City
shall diligently proceed in good faitih and use its best efforts to secure
another tenant for the leased preiihises 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 constmed 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, interest on and Paying Agent's fees in
connection with 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 rents, if any, in accordance with the provisions of Section 203 of the
Lease Agreement.
Section 504. The Bond Fund shall be in the name of the City,
designated as set forth in Section 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, which authorization and
d irection 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
Nall !.,.,c Japon L&I With thon
Loge�_Ile! `Vitn all i.A.,! M U-.,_-,a.d r- ;=e thereon, to he wire Lurity
thereof, of to Lhe date Med for ri C _ ApOon `l - 'of, or to nor s'.'ch coupon,
as the case may he, Mr tile Unnsfit of the i:oi ,_._ "i _['COI or- _ "r of such
coupon, all lisb!Q o1 the City to t; -C_' .;ober he Cool 1 o: pay%1 lent of the
principal iiefeof an 1nLr:rest Lhereon, or tide hold Cr of scald Gve'rdue coupon
10r the payment t.](_.cO1, as the case 1.iay be, shall ;case, QeLerinlne
and be completely discharged, and thereupon It shall be the duty of the laying
Agent to hold such fund or funds, %Without 1jc1bil]ty for lnt-_'r-mast thereon, for
the benefit of the holder of such boad, or the holder of such coupon, as the
case may be, who shall thereafter be restricted t= _clus''vely to such fund or
funds, for any claim of whatevor Ware on his part under this inrC enture or on,
or with respect to, said bond or coupon.
Section 506. It is understood and agreed that pursua;-it to the pro-
visions of Section 203 (b) of the Lease A( regiment, the Lessce aCtroes to pay
as additional rent the fees, expenses and charges of the 'frustce as authorized
and provided by this Indenture. The Lessee is to ir_ake payments on statements
rendered by the Trustee. All such additional rent payments under the Lease
Agresment 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 tl,e puruose
for which such payments are received, and the Trustee hereby agrees to so
establish said accounts and to make payment therefrom for said purposes.
Section 507. All moneys required to be deposited with or paid
to the Trustee under any provision of this indenture shall be held by the
'%rr
.rV`
For Oe 1(� �ll;�i�_loll (� _�L�r��_1S, C.l._ O Uf .,.,_Ch LiDn , S �n Oly given,
.il, A__[ie '"dby
- s .. ._,_ Pall K "0 WPM PVM snd be
subicct to the lam, OWN. MY me y.. f ceivod by or paid to Lne Tiustee
pursuant t i -
O any Provision Of the 1 _ Se - n
g:n_... _.!t :O11i"_g for the 'i '-tis tee t0
Bold, adminis= ,�_. _Iisbu_se the s ..',�., n _co ,,.'iih i _' - ��(� ri
_. c pro-
visions O1f the Lc.,se �q-,e c_t shall ,e he_d, ...(_,_..ana disbursed
pursuant to said provisions, and whare rnquo_'d by t[? nrOi'�.SiC.'�S of the
Ti'aSe Agip ^1TdeIit t:1e 1il_1.S%(fie shall s0t the ti;ii'.ie in d ,.c(-.oUnt.
The City agrees that if it shall receive any n „`y ` pursuant to applicable
provisions of the !,ease � 7 orient, it xviij rOt' ,;,.''it,i 11,,,on rC- - ipt therc?Of
Pay the same over to the Trustee to be hold, ad Vi;_tcrEd and disbursed by
the Trustee in accord= ice ,v:ith tiie provisions of the Lease A-,>eine_itpursuant
to ';which the City Inay Have received the sarne. FUrtionnore, if for any reason
i
the T ec.se Agreement ceases to he in force and eFIc-ct ;while ,-� iiy bo,,ds are
outstanding, the City agrees that if it shall receive any nyDncys derived from
the ?_ of gaged property, it T,�,Till forth with upon rc_ceipt ti;crec` pay the same over
to the Trustee to be hold, administer:d and dishursed' by the Trustee in
accordance- with provisions of the Lease Agrennent that would be applicable
if the Lease Agreement were then in force and effoct, and -;I 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 notn:.ithstanding, the
Trustee is aothori%ed and directed to Mfund to the Lessee of the Lease Agree-
ment all excess amounts as specified in the Lase Agreement, ,vhother such
excess amounts be in the Rond Fund or in special accounts.
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ARTICLE VI
CUSTODY AND APPLICATION OF' PROCEEDS OF BONDS
Section 601. Accrued interest and the proceeds of the sale
of each series of bonds (the "total sale proceeds") shall be disbursed and
handled as follows:
(a) The Trustee shall take out of the total sale proceeds the
amount necessary to pay interest,if any, becoming due and payable onthe
bonds during the construction period as shall be specified in a letter of
instructions signed by the Mayor of the City and delivered to the Trustee
at the time, it being understood that the Trustee need look no furtherthan
said letter of instructions and may rely thereon and shall be protected by
acting in accordance therewith, and shall deposit said amount into the
Bond Fund; and
(b) The balance of the total sale proceeds shall be deposited
in a special account of the City in the Trustee, which account shall be
designated "Industrial Development Bond Construction Fund = Westport Pro-
ject" (the "Construction Fund") .
Section 602. Moneys in the Construction Fund shall be ex-
pended for Project costs and costs and expenses incidental thereto and to
the issuance of the bonds, under and pursuant to applicable provisions of
the Lease Agreement . Such expenditures shall be in accordance with and
pursuant to requisitions which shall be signed by one or more duly designate(!
representatives of Westport (whish designation shall be in writing and filed with
the Trustee) and one or more duly designated representative of the City
(which desicinaLion shall be in and filed `,vith tho TIUst�J). E,cl,
requisition shall specify:
(1) The name of the person, firm or corporation to whcr_i
payment is to be
(2) The amount of the payment;
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(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 disburse-
ments from the Construction Fund and shall file an accounting of dis-
busements if and when requested by the City or by Westport. The Trustee
shall make payment from the Construction Fund pursuant to and in accordance
with said requisitions.
Section 603. Whenever the City and Westport 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 Trustee shall transfer the
balance remaining in the Construction Fund to the Bond Fund.
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ARTICLE VII
INVESTMENTS
Section 701. (a) Moneys held for the credit of the Construction
Fund shall, upon and in accordance with the direction by the duly designated
representative of Westport, be invested and reinvested by the Trustee in
direct obligations of, or obligations the principal of and interest on which
are guaranteed by, the United States of America, Bank Certificates of
Deposit, or other lawful investments 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 specified by the duly authorized representa-
tive of Westport.
(b) Moneys held for the credit of any other fund shall to the
extent practicable be invested and reinvested in direct obligations of, or
obligations the principal of and interest on which are guaranteed by, the
United States of America, Bank Certificates of Deposit, or other lawful
investments having maturity dates or 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 pur-
suant to instructions from a duly designated representative of Westport.
(c) Obligations so purchased as an investment of moneys in
any such fund shall be deemed at all times a part of such fund, and the
interest accruing thereon and any profit realized from such investment
shall be credited to such fiind, and any loss resulting from such investments
shall be charged to such fund.
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ARTICLE VIII
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PCSSESSICN, USE AND RELEASE CF
iCRTGAGED PRCPERTY
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. The Trustee shall be authorized, when requested by
the City, to join with the City in taking the necessary steps, or, if required,
to execute an appropriate release of the lien of this Indenture, (a) to grant
sewer, utility, road and street easements over, along, across and under the
mortgaged property, provided that the location of any such easements and the
nature thereof shall not interfere with the present or logical future use of the
mortgaged property by any Lessee of the City, or (b) on a partial condemnation
(or threat of condemnation) of the Project covered by Section 1401B of the Lease
Agreement, and in the case of either (a) or (b) above, the Trustee shall be
entitled to rely upon and act in accordance with a certificate of a duly qualified
engineer, who may be an engineer employed by the Lessee of the Tease Agree-
ment, and the prior written approval of the Lessee of the Lease Agreement shall
be obtained in each instance.
Section 803. It is hereby recognized by the City and the Trustee
that the Lessee under the Lease Agreement, to the extent provided in Article
XXIII, has reserved the right therein to obtain the release from the lien of
this Indenture of certain of the mortgaged lands for use in any expansion program
of the said Lessee. Upon a sufficient showing to the Trustee that the terms,
provisions and conditions of the Lease Agreement pertaining to such release
have been met and satisfied, the Trustee shall, and is hereby authorized and
4W .,rr
Clic Cted to, tame t!C [?E CC:;f: 3ry steps to frAoise said !'Md:_ bcim(j utilized In
any such expansion proyram from the lien of this Indenture. Furthenmore, it
is recognized that the City may issue bonds (in addition to the bonds secured
by this Indenture) to finance the cost of any such expansion program, and
nothing in this Indenture shall be construed as prohibiting the City from
issuing bonds for such purpose, from entering into a separate lease agreement
with the Lessee under the Lease Agreement, or entering into a supplemental
lease agreement with the Lessee under the Lease Agreement, or the Lessee's
authorized successors and assigns, from pledging the rentals derived from
any such separate lease agreement or any such supplemental lease solely to
the payment of the bonds then being issued, from placing a first lien by
mortgage on and pledging all revenues derived from any lands and improvements
covered by said separate lease agreement or said supplemental lease agreement,
and on any facilities, equipment and other properties purchased, constructed,
or otherwise acquired out of the proceeds of the bonds then being issued, even
though some of said property may be located on lands and improvements constitu-
ting part of the mortgaged property under this Trust Indenture and even though
some of said property may have been released from the lien of this Trust Indenture
pursuant to the provisions of this Article. Also, without releasing the lien of
this Indent lre, the City may place a lien upon any portion of the mortgaged
property under this Trust Indenture as security for the bonds then being issued,
or make a pledge of any of the revenues pledged under this Trust Indenture in
favor of the bonds then being issued, so long as any such lien on the mortgaged
property covered by this Trust Indenture and any such pledge is subordinate to
the lien and pledge of this Trust Indenture to and in favor of the bonds secured
hereby.
0
In
-
Section t'.On g 0.1 , 1 rOi ac'd 10 r' Je11t O cluf u.lt. and no Lvon'�1 r.ich With the
giving of notice or passage of time, or both, ,,.,cijld constitute :.3ri event of default
exists, any "building sere,-ce equipment" and any of "Lessor's rnac;hinery and equip -
Mont" , as those terms are defined. in the Lease Agreerlent, May ;tee removed, sold,
replaced or otherwise disposed of as provided in the Lease Agreement and, without
limitation, particularly in Article XXIV thereof, and the Trustee shall, and is hereby
authorized to, upon a showing to the Trustee of compliance with the said appli-
cable provisions of the Lease Agreement pertaining to such removal, sale, replace-
ment 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 disposi-
tion shall be handled by the Trustee in accordance with the provisions of the
Lease Agreement, including, without limitation, the provisions of Article XXIV
thereof. Any equipment, machinery, fixtures ap.d Personal property- obtained in
exchange or in lieu of any property sold, removed or disposed of under this Section
804 shall automatically become and be subject to the lien of this Indenture as if
specifically mortgaged hereby. The City will, however,upon written request by
the Trustee, convey the sante 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 Trustee requests, to secure and continue the lien of this Indenture
thereon.
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ARTICLE IX
DISCHARGE OF LIEN
EM
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 tinges 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 or 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 s tisfy the lien hereof, and
reconvey 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 meaning 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 a^quired
in any inanner whatsoever, and such bonds and coupons, upon such surrender
and cancellation, shall be deemed to be paid and retired.
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AZTICLE X
DEFAULT PROVISIONS AND REMFDIES
---01' TRUSTEE AND BONDI-IOLDERS
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
continuance thereof for a period of thirty (3 0) 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;
(d) Default in the performance or observance of any other of the
covenants, agreements or conditions on its part in this Indenture, or in the
bonds contained, and the continuance thereof for a period of sixty (60) days
after written notice to the City by the Trustee or by the holders of not less
thanten 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.
In
Section 1002. Upon the occur c,ce of an event of default, the 'trustee
may, and upon the �Ivritten request of the holders of twenty-five per cent (25%)
in aggregate principal amount of bonds outstanding hereunder, small, by notice
in writing delivered to the City, declare t'_ e principal of all bonds hereby secured
then outstanding and the interest accrued thereon ir_mediately due aril 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 assessments 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 accordance 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, however, to exist upon any subsequent event
of default.
In
EM
While in possession of such property the Trustee shall render annually
to the bondholders, at their addresses as set forth in the list required by
Section 408 hereof, a summarized statement of income and expenditures in
connection therewith.
Section 1004. Upon the occurrence of an event of default, the Trustee
may, as an alternative, proceed either after entry or without entry, to pursue
any available remedy by suit at law or equity to enforce the payment of the
principal of and interest on the bonds then outstanding hereunder, including,
without limitation, foreclosure and mandamus.
If an event of default shall have occurred, and if it shall have been
requested so to do by the holders of twenty-five per cent (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
lav 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 acauies-
cence therein; and every such right and power may be exercised from time to
time and as often as may be deemed expedient.
No waiver of any default or event of default hereunder, whether by the
Trustee or by the bondholders, shall extend to or shall affect any subsequent
M
default or event of default or shall impair any rights or remedies consequent
thereon.
Section 1005. Anything in this Indenture to the contrary notwithstand-
ing 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 enforcement of the
terms and conditions of this Indenture, or for the appointment of a receiver or any
other proceeding hereunder; provided that such direction shall not be otherwise
than in accordance with the provisions of law and of this Trust Indenture.
Section 1006. Upon the occurrence of an event of default, and upon the
filing of a suit or other commencement of judicial proceedings to enforce the
rights of the Trustee and of the bondholders under this Indenture, the Trustee
shall 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 proceedings with
such powers as the court making such appointment shall confer.
Section 1007. In case of an event of default on its part, as aforesaid,
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 %-,7ho may claim through or under it,
hereby waives, to the extent that it lawfully may do so, the benefit of all such
laws and all right of appraisement and redemption to which it may be entitled
under the laws of the State of Ar',ansas ,
Section 1008. Available raoneys shall be applied by the Trustee as
follows:
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(a) Unless Cite principal of all LIDO ,'0116- 511:;1.1 ',i:ive , come or shall
have been declare<a due and payable, all such moneys shall be applied:
First: To the puym( nt to the :,ersons entiilc:d 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 _o 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 entit.lc:d 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,
r
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, with-
out preference or priority of principal over interest or of interest over principal,
o1 of any ;nstallment of z.yterest o ter any other �n
r r stal_lment of interest, or of
any bond over any other bond, ratably, according to the amounts due respec-
tively for principal and interest, to the persons entitled thereto without
discrimination or privilege.
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(c) If the principal of all the bonds shall have been declared due
and payable, and if such declaration shall thereafter- have een rescinded
and annulled under the provisions of this Article then, subject to the pro-
visions 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.
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 pro-
duction 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,
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without the necessity of joining as plaintiffs or defendants any folders of the
bonds hereby secured, and any recovery of judgment shall be for ti -.e equal
benefit of the holders of the outstanding bonds and coupons.
Section 1010. No holder of any bond or coupons shall have any right
to institute any suit, action or proceeding in equity or at law for the enforce-
ment of this Indenture or for the execution of any trust hereof or for the appoint-
ment 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 beome an event of default and the holders of twenty-
five per cent (25%) in aggregate principal amount of bonds outstanding hereunder
shall have made written request to the Trustee and shall have offered it reason-
able opportunity either to proceed to exercise the powers hereinbefore granted
or to institute such action, suit or proceeding in its own name, nor unless also
they have offered to the Trustee indemnity as provided in Section 1101 nor unless
the Trustee shall thereafter fail or refuse to exercise the powers hereinbefore
granted, or to institute such action, suit or proceeding in its own name; and
such notification, request and offer of indemnity are hereby declared in every
such case at the option of the Trustee to be conditions precedent to the execution
of the powers and trusts of this Indenture, and to any action or cause of action
for the enforcement of this Indenture or for the appointment of a receiver or
for any other remedy hereunder; it being understood and intended that no one
or more holders of the bonds or coupons shall have any right in any manner
whatsoever to affect, disturb or prejudice the 'Lien of this Indenture by his or
their action or to enforce any right hereunder except in the manner herein pro-
vided, and that all proceedings at law or in equity shall be instituted, had
and maintained in tine manner herein provided and for the equal benefit of the
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holders of all bonds outstanding hereunder. Nothing in this Indenture contained
shall, however, affect or impair the right of any bondholder to enforce the pay-
ment of the principal of and interest on any bond at aid alter 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 and
rights hereunder with respect to the property herein conveyed, and all rights,
remedies and powers of the Trustee shall continue as if no such proceedings had
been taken.
Section 1012. The Trustee may in its discretion waive any event of de-
fault hereunder and its consequences and rescind any declaration of maturityof
principal and shall do so upon the written request of the holders of fifty per cent
(50%) in principal amount of all bonds outstanding hereunder, provided, however,
that there shall not be waived (a) any event of default in the payment of the
principal of any bonds issued hereunder and outstanding hereunder at the date
of maturity specified therein or (b) any default in the payment of the interest
unless prior to such waiver or rescission all arrears of principal (due otherwise
than by declaration) and interest and all expenses of the Trustee and Paying Agent,
shall have been paid or provided for, and in case of any such waiver or rescis-
sion the City, Trustee and the bondholders shall be restored to their former
positions and rights hereunder respectively; but no such waiver or rescission
shall extend to any subsequent or other default, or impair any right consequent
thereon.
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Section 101_3. Anything herein to the co=ary not,%7itt�st_aigcling, no
default (other than a default under Section 1001 (a), N) a._d (c) !,ercof to ,v�_ic�I this
Section 1013 shall not be applicable) shall constitute an event of default until
actual notice of such default by registered or certified mail (,,,jith 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) days period; provided, how-
ever, 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) days period and diligently pursued until the default is corrected.
With regard to any alleged default concerning which notice is given to the Les-
see 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
the City could do and perform any such things and acts and with power of substi-
tution. In this regard, it is agreed that the parties hereto have familiarized them-
selves 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.
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1�RTICLE 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 supple-
mental indentures or instrument of further assurance, or for the sufficiency of
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the security for the bonds issued hereunder or litei-.c'. d tO be SeC l.red by, Or
for the value or the title of the property herein conveyed or other -wise 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 asceri:ain 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 'Lhe Trustee may require of
the City full information and advice as to the performance of the covenants, con-
ditions 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 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 n\/iayor 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 notified as provided
in sub -section (g) of this Section 1101, or of which by said sub -section it is
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deemed to lave notice, and shall also be at liberty to accept a similar certifi-
cate to the effect that any particular dealing, transaction or action is necessary
or expedient, but may at its discretion at the reasonable expense of tiie 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 Recorder 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 failure by the City to make or
cause to be made any of the payments to the Trustee required to be made by
Article V (with the time limitation noted in sub -section (b) of Section 1001)
unless the Trustee shall be specifically notified in writing of such default by
the City or by the holders of at least ten per cent (10%) in aggregate principal
amount of bonds outstanding hereunder and all notices or other instruments
required by this Indenture to be delivered to the Trustee must, in order to be
effective, be delivered to the office of the Trustee, and in the absence of such
notice so delivered., the Trustee may conclusively assume there is no default
except as aforesaid.
(h) The Trustee shall not be personally liable for any debts contracted
or for damages to persons or to personal property injured or damaged, or for
salaries or non -fulfillment of contracts during any period in which it may be
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in the possession of or managing the real and tangible personal property as
in this Indenture provided.
(i) At any and all reasonable times the Trustee, and its duly authorized
agents, attorneys, experts, engineers, accountants and representatives, shall
have the right fully to inspect any and all of the property herein conveyed,
including all books, papers and records of the City pertaining to the Project
and the bonds, and to take such memoranda from and in regard 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.
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Section 1102. 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 payment
of any obligation of the City set forth in this Indenture, including the obliga-
tions set forth in this Section 1102, but nothing herein shall be construed as
prohibiting the City from using any other funds and revenues for the payment
of any of its obligations 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 payment prior to pay-
ment on account of principal or interest of any bond issued hereunder upon the
mortgaged property for said reasonable and necessary advances, fees, costs
and expenses incurred by the Trustee.
Section 1103. If a default occurs of which the Trustee is by sub-
section (g) of Section 1101 hereof required to take notice or if notice of default
be given it as in said sub -section (g) provided, then the Trustee shall give
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written notice thereof by mail to the last kno,:,:n owners of all bonds outstand-
ing hereunder shown by the list of hor_idhoiders required by the terms of Section
408 hereof to be kept at the office of the Trustee.
ection 1104. In any judicial proceeding to which the City is a
party and which in the opinion of the Trustee and its counsel has a substantial
bearing on the interests of owners of bonds issued hereunder, the Trustee may
intervene on behalf of bondholders and shall do so if requested in writing by
the owners of at least ten per cent (10%) of the aggregate principal amount of
bonds outstanding hereunder. The rights and obligations of the Trustee under
this Section 1104 are subject to the approval of the court having jurisdiction
in the premises.
Section 1105. Any corporation or association into which the Trustee
may be converted or merged, or with which it may be consolidated, or to which
it may sell or transfer its trust business and assets as a whole or substantially
as a whole, or any corporation or association resulting from any such con-
version, 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 pred-
ecessor, without the execution or filing of any instrument or any further act,
deed or conveyance on the part of any of the parties hereto, anything herein
to the contrary notwithstanding.
Section 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 the
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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
instrument or concurrent instruments in writing delivered to the Trustee
and to the City, and signed by the owners of a majority in aggregate
principal arrount of bonds outstanding hereunder.
Section 1108. In case the Trustee hereunder shall resign
or be removed, or be dissolved, or shall be in course of dissolution or
liquidation, or otherwise become incapable of acting hereunder, or in
case it shall be taken under the control of any public officer or officers,
or of a receiver appointed by a court, a successor may be appointed by
the owners of a majority in aggregate principal amount of bonds outstanding,
by an instrument or concurrent instruments in writing signed by such owners,
or by their attorneys in fact, duly authorized; provided , nevertheless , that
in case of such vacancy the City by an instrument executed and signed by
its Mayor and attested by its City Clerk under its seal, may appoint a tem-
porary trustee to fill such vacancy until a successor trustee shall be appointed
by the bondholders in the manner above provided; and any such temporary trus-
tee so appointed by the City shall immediately and without further act be
superseded by the trustee so appointed by such bondholders. Every such
temporary trustee so appointed by the City shall be a trust company or bank in
good standing, having capital and surplus of not less than Three Million
Dollars ($3,000,000), if there be such an institution willing, qualified and
able to acceptthe trust upon reasonable or customary terms.
Section 1109. Every successor trustee appointed hereunder shall
execute, acknowledge, and deliver to its predecessor and also to the City an
instrument in writing accepting such appointment hereunder, and thereupon
VW VAO*
such successor, without any further act, deed or conveyance, shall become
fully vested with all the estates, properties, rights, powers, trusts, duties
and obligations of its predecessor; but such predecessor shall, nevertheless,
on the written request of the City or of its successor trustee, execute and
deliver an instrument transferring to such successor all the estates, properties,
rights, powers and trusts of such predecessor hereunder; and every predecessor
trustee shall deliver all securities and moneys held by it as trustee hereunder
to its successor. Should any insuument 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 resigna-
tion 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 upon
any part of the property herein conveyed, to the e1'tent, if any, that the City
may be liable for same, the Trustee may pay such tax, assessment or
governmental charge, without prejudice, however, to any rights of the Trustee
or the 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
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be paid out of the proceeds of revenues collected from the imortgaged property
if not paid by the City; but the Trustee small be under no obligation to make
any such payment unless it shall have been requested to do so by the holders
of at least ton per cent (10%) 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,
and the successor Trustee shall become the Paying Agent.
Section 1113. There shall be paid the standard and customary Paying
Agent's fees and charges of the Paying Agent for handling the payment of the
principal of and interest on the 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,
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or to act as separate trusr:ce or trustees of all or any such property, with
such powers as may be. provided in the instrument of appointment, and to
vest in such corporation or person or persons as such separate trustee or
co -trustee any property, title, right or Power deemed necessary or desirable.
In the event that the City shall not have joined in such appointment within
fifteen days after the receipt by it of a request so to do, the Trustee alone
shall have power to make such appointment. Should any deed, conveyance
or instrument in writing from the City be required by the separate trustee or
co -trustee so appointed for more fully and certainly vesting in and confirming
to him or it such properties, rights, powers, trusts, duties and obligations,
any and all such deeds, conveyances and instruments in writing shall, on
request, be executed, acknowledged and delivered by the City. Every such
co -trustee and separate trustee shall, to the extent permitted by law, be
appointed subject to the following provisions and conditions, namely:
(1) The bonds shall be authenticated and delivered, and
all powers, duties, obligations and rights conferred
upon the Trustee in respect of the custody 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 Indertu.re, 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 lave ;Hakes 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 instrument in writing, constitute
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the Trustee as his, their or its agent or attorney-in-fact with full power and
authority, to the extent authorized.. by lave, to do all acts and things and
exercise all discretion authorized or permitted 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, become incapable of acting,
resign or be removed, all the estates, properties, rights, powers, trusts,
duties and obligations of said separate trustee or co -trustee, so far as
permitted by law, shall vest in and be exercised by the Trustee until the
appointment of a new trustee or a successor to such separate trustee or
co -trustee.
Section 1115. Any bank or trust company with or into which the
Co -Paying Agent may be merged or consolidated, or to which the assets and business
of such Co -Paying Agent may be sold, shall be deemed the successor of such
Co -Paying Agent for the purposes of this Indenture. If the position of Co -Paying
Agent shall become vacant for any reason, the City may, within thirty (30)
days thereafter appoint a bank or trust company as Co -Paying "Igent to fill such
vacancy; provided, however, that if the City shall fail to appoint such Co -Paying
Agent within said period, the Trustee may make such appointment. It shall not
be mandatory that any vacancy in the position of Co -Paying Agent be filled.
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ARTICLE XII
SUPPLEMENTAL INDENTURES
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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 terms and provisions hereof (which supplemental
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 notwith-
standing, 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 parlticular, 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, except this sub -section
(c) shall not be construed as prohibiting the creation of a lien upon the mortgaged
property and a pledge of said revenues in connection with bonds of the City to
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finance an expansion refer -ed to in Section 803 of this Indenture, it being
understood, as therein provided, that any such lien and pledge shall be sub-
ordinate to the lien and pledge created by this Indenture, or (d) a privilege or
priority of any bond or bonds over 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, however, shall be con-
strued 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
supplemental indenture for any of the purposes of this Section, the Trustee
shall, at the expense of the City, cause notice of the proposed execution of
such supplemental indenture to be published one time in a daily newspaper of
general circulation published in the City of lM.emphis, Tennessee. 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
bonds outstanding at the time of the execution of any such supplemental
indenture shall have consented to and approved the execution thereof as herein
provided, no holder of any bond shall have any right to object to any of the terms
and provisions contained therein, or the operation thereof, or in any man ger to
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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 at least fifteen
(15) days prior to the proposed date of execution and delivery of any such supple-
mental 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 of the Lease
Agreement expressing said consent within fifteen (15) days after the mailing of
notice and a copy of the proposed supplemental 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 fifteen th day after the mailing
of said notice, the Lessee under the Lease Agreement shall be deemed to have con-
sented to the execution and delivery of such supplemental indenture.
Im
ARTICLE XIII
AMENDMENT OF LEASE AGREEMENT
Section 1301. The Trustee may from time to time, and at any time, but
not prior to thirty (30) days after publication of the , otice provided for in Section
1302 hereof, consent to any amer_dment, change or modification of the Lease
Agreement for the purpose of curing any ambiguity or formal defect or omission
or making any other cha ,ge therein_, 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 mouification 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 outstanding, evidenced in the manner provided in Section 1401 hereof.
Section 1302. If at any time the City or Lessee under the Lease Agree -
meat shall request the Trustee's consent to a proposed amendment, change or
modification requiring bondholder approval under Section 1301, the Trustee
shall, at the expense of the requesting party, cause notice of such proposed
amendment, charge or modification to be published one time in a newspaper
of ger_eral circulation published in the City of Little Rock, Arkansas. Such
notice shall briefly set forth the nature of such proposed amendment, change
or modification and shall state that copies of the instrument embodying the
same are on file in the principal office of the Trustee for inspection by any
interested bondholder. 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 amendment, change or
modification ,, hen co serted to by the Trustee in the manner hereinabove
provided.
M
ARTICLE XIV
MISCELLANEOUS
Section 1401. Any request, direction, objection or other instrument required by
this Indenture to be signed and executed by the bondholders may be in any number of
concurrent writings of similar tenor and may be signed or executed by such bondholders
in person or by agent appointed in writing. Proof of the 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
acknowledgments within such jurisdiction that the person signing such writing acknow-
ledged 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 bark 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.
EM
�l'CtIOn 1i02 v1�lt i Lh.i? c^_:C pti0i! i r: S hC'Clil ._._r i' +sSly COn-
r Il d, r�it!In1;C e:,5,d C. 1;1Ci�L]C: nd 1n CI to :il
nture or
tE:'S On7CiS issued h��rC'Un�t'r, iS i17�_.-Ii;lCd 01_ S(;all !�-e tC = ive to any
son Or, t!]?n the pard S hereto, and t''-e^t I A l f
_ _ _. � o_ i„e Loads
and cou;-,ons secured by this� L_dent e i
ur ny c al or equita�-�e r_cht, remedy or
Clain:R under or in respect to this inc:enture or any coV'et ants, ccndltlCnS and
prGviS:,Ons herein contained; this Indenture and all of the CGVenaIltS, conditions
and provisions hereof helllgded to be and being for the E010- eXcl, sive bene-
fit Gf the parties hereto and the holders of the bonds and coupons hereby secured
as herein provided.
Section 14.03. If any provision of this Indenture shall be held or
deemed to he 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 circun stancLs shall not
Have the effect of rendering the provision in question inoperative or u :enforccable
in any other case or circumstance, or of rendering any other provision or provi-
sions herein contained invalid, inoperative or unenforceable to any extent vVIhatever.
The invalidity of any one or more phrases, Szontences, 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 sely-ice of any notice, request,
complaint, demand or other paper on the City if the same shall be duly mailed to
the City by registered or certified mail addressed to the ''✓_ayor of the City, or to
such address as the City may from t'ie to time file %vith the Tnnstee.
cP_CIL 'CI: 405 Tl i.5 I d`nt rC S}T be S
several counterparts, each of which shall be an original and all of %- hich shall
constitute but cne and the same instrument.
M
IN WITNESS WHEREOF, the City of Batesville, 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. First National
Bank of Kansas City, Kansas City, Missouri, has caused these presents to
be signed in its name and behalf by its and its
corporate seal to be hereunto affixed and attested by its
all as of the day and year first above written.
ATTEST:
City Clerk
(SEAL)
ATTEST:
(SEAL)
CITY OF BATESVILLE , ARKANSAS
LIM
Mayor
FIRST NATIONAL, BANK OF KANSAS CITY,
KANSAS CITY, MISSOURI
91
Title
M
STATE OF ARKANSAS )
COUNTY OF INDEPENDENCE )
On this day of
ACKNOWLEDGMENT
1968, 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 Batesville, Arkansas, a
municipality of the State of Arkansas, to me personally known, who
stated that they were duly authorized in their respective capacities to
execute the foregoing instrument for and in the name of said municipality
and further stated and acknowledged that they had signed, executed and
delivered said foregoing instrument for the consideration, uses and pur-
poses therein mentioned and set forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
official seal this day of , 1968.
Notary Public
My commission expires:
(SEAL)
cm
STATE OF, MISSOURI
COUNTY OF
On this day of
15
ACKNOWLEDGMENT
1968, 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 First National Bank of Kansas City, Kansas City, Missouri,
to me personally well known, who stated that they were duly authorized
in their respective capacities to execute the foregoing instrument for and
in the name and behalf of said Bank, and further stated and acknowledged
that they had so signed, executed and delivered said foregoing instru-
ment 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
Notary Public
My commission expires:
(SEAL)
t s
Viol
SE Ct1o:n 3 That tlii i'F?yor c.jid Cit�r l !Crr, _OI' anc, on br�iidli
of the City h�e' an",
r,- — cEI r:2[C '�y , cU�:lorl eta ?nd C1 c'(;'do any
.e �i t0 and
all t1 —1 S .. 3SSary C of n t tr1 ' ,...eCLitio- ar!d accC 2 nce GI t :- Trus+
i!cleliture b y the 7cus .e'^, t`le pE iCi^ildriC^ Ofi d�� OJJ1ii ;tions OT the City
Under and pLirsuant to the Tr'.,,St indanturt�, t r E:: c tion and cle ivery of
the Gi1�1S, aI d the pt riCrr anC OT �� +C nc i1 -+.
�..__1 ot__ er iYCw _ -",i_ a�e`i C'r nuDare neCeS-
nary to eifect and carry out %!:e au,, i,ority C _ rCCC Jy tris CCC;ina Nay
ncaria
the Trust Indenture, That 4'-e Mayor and City Cleric be, and. they are hereby,
Llli__er au I, oci ze G n dire Cted, fOr a: u On be OI L'1e v _y LC e_{e cute
all papers, docu-,-n�n+`_S, cect,.f'C: =e'S rin Orh _ i_r1S rU-mon. S dict ldy LO i2
quires for the Carrying o1_it O , I e alit .Ority Con erred -v tris Ordir, � �
Ce ar_d
the Trust in .pure, or to evic=:.CC t : tau `_:Grity u._ci its
--ECtiOI"1 That sirce. L:`1C illy is ivo'v-d -vill, l,: the con-
strucilnC and equippir;g of a C `". 1' :_ i _�iU�ti ial uroj^C'-, requiring higMy
Specialized %'nor- anC: Special --zed -yj_�S of cC!i) tC,ry and cquipent, it has
been and is here:_,y deter --i- ne." by t'lE= City , , i] i ,t o -m ,; '+i e b1C Gln
CG _ t! Ca i L �,' y'
is not fE r Sit 1F Or _'c C_1.L .I., TI .ft rr:, a=iy✓ I".' _r ' Y' r �S nC' r Ordi 11:!ces
GI tnp City Cr l i.r r� 'L--- : 1,_ .. C? t:! C --Lt O. is _:mac= S i,�r C'vi'
be, and she Sd ,,e are r�icl y, L'ia�Jed ac t0 t il.S C`ii i_tGU tr: l ,'_O)ect
Tp1S aCllion iS tater! C+i' _::C Clt COLnC11 P1 7 rSi =:t t a�''rliCa i-� lc 'tis 01 `"ie
J LdtP of _ _,-1 cl z aS , inC.� UCh_ r `z1 iCU iC, I S' Cti On 5 O I�Ct iV C:. 2 0 Ci ti12 . Cts
Of ArKansSc s Of 1959 SL_.aLs . (196 Ctc.`_allI�,L'_
Section. 19-4425).
...
CL1'.ia J. ti.a� :, "�✓1�t:�i:j C '!'S
r
de. -3 ._t''`- to i1 ti �r+. r, �. - •.r 1 ` _ i
_.iCt i,',...L. j, ci' i_.:.. Ci t { rui_'_iIICt.
a
�_GtGn %_ That there is he:F'by fJUI!Cl anCi Ci:'Glarc::.. to be an
inumeMate need for the seciring and developing Of Ui;SL :it_a1 indust a
rl. 1
Operations in order to provide additi^,. al emp o.vni.-�iit alleviatet
men: and otherwise benefit the public health, safety and ,.eLare of the
City and the inhabitants thereof, and the issuance :ce Or the bonds s wed
- , ai.�t-ZOil��
hereby and. the taking of the other action au`hGriZ?u heroin a,-^ in<r_ e i:tely
necessary in connection with the securing __-d developing of substantial
industrial operations and deriving the public benefits referred to above.
It is, therefore, declared that an emergency esii sts and this Ordinance
ra___n
ance
eing necessary for the immediate p
_'S2rVatij rOf the UUJJIiC >>"a1ti1,
safety and V:li re shall h C in force and take affect
lmrieC'iato_y L1G0'and
after its passage.
PHS S E D : _ 20 -- -- ----- — 1968.
APPROVED:
ATTEST:
J
---
City C1err--�
(SEAT )
Wor
OF
CE RTIFT CAT
The un`,�rsiglieci, Cit, Clef- of P_j�-F -,,T411C
5 , neceuY
,he �C)re�� I
ce "0 -Ig P -C -C�
L E:' fe a Lcu, cJi--Pared copy of or-di-
narice No -�d ata City Council
pa s S (I L
session of
Of Batesville, Arlkansa s tlie re'Tljl�r meet-ing p C) City
Council at "-'O'ClOck and that
S, 4 C _1
a , I__- -'Ce f rc Ord i
I r I —_ iS 0 -c -n
Ordinance Rocorci, Book
pale
in MY 1),C)sscssion.
GIVEN- under and sea,-', this_.cay o -L
1968.
City Clerk
(SEAL)