14366• ORDINANCE NO. 14,366 •
AN ORDINANCE AUTHORIZING THE ISSUANCE OF $2,500,000 1 Q 3
INDUSTRIAL DEVELOPMENT REVENUE BONDS OF THE CITY OF
LITTLE ROCK, ARKANSAS FOR THE PURPOSE OF FINANCING
OF COSTS OF "FACILITIES" WITHIN THE MEANING OF THE
MUNICIPALITIES AND COUNTIES INDUSTRIAL DEVELOPMENT
BOND LAW FOR SALE TO HOOVER UNIVERSAL, INC.;
AUTHORIZING THE ISSUANCE OF ADDITIONAL BONDS;
PROVIDING FOR THE ASSIGNMENT OF AND GRANT OF A
SECURITY INTEREST IN REVENUES FOR THE PAYMENT OF
SAID BONDS; AUTHORIZING THE EXECUTION AND DELIVERY
OF AN INSTALLMENT SALE AGREEMENT PERTAINING TO THE
PROJECT; AUTHORIZING THE EXECUTION AND DELIVERY OF
A TRUST INDENTURE APPROPRIATE FOR THE PROTECTION
AND DISPOSITION OF SUCH REVENUES AND FOR SECURING
FURTHER THE PAYMENT OF SAID BONDS; AUTHORIZING THE
ASSIGNMENT OF THE INSTALLMENT SALE AGREEMENT BY THE
INDENTURE TO PROVIDE FURTHER SECURITY FOR THE
PAYMENT OF SAID BONDS; AND DECLARING AN EMERGENCY.
WHEREAS, the City of Little Rock Arkansas, a city of the first
class organized and existing under the provisions of the laws of the
State of Arkansas, and by virtue of said laws, is authorized and empowered,
among other things, (a) to issue its revenue bonds for the purpose of
financing of costs of acquiring, constructing and installing "Facilities"
as defined in the Act, comprising a metal refining facility and to sell
such facility to Hoover Universal, Inc., (b) to enter into an installment
sale agreement and to accept security interests to evidence and secure such
indebtedness and to provide for revenues, as herein defined, sufficient to
pay the principal of and premium, if any, and interest on such revenue
bonds, (c) to secure such revenue bonds by a trust indenture and by an
assignment of and grant of a security interest in revenues, as provided for
herein, and (b) to enact this Bond Legislation and enter into the Indenture
and the Installment Sale Agreement, all as hereinafter defined, upon the
terms and conditions provided therein;
NOW THEREFORE, BE IT ORDAINED, by the Board of Directors of the
City of Little Rock, Arkansas:
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Section 1. Definitions. In addition to the words and terms
elsewhere defined in this Bond Legislation, in the Indenture or in the
Agreement, the following words and terms as used in this Bond Legislation
and in the Indenture shall have the following meanings unless the context
or use clearly indicates another or different meaning or intent:
"Act" means Act No. 9 of the First Extraordinary Session of the
Sixty- Second General Assembly of the State of Arkansas, approved January
21, 1960 (4513- 1601 -13 -1614 of the Arkansas Statutes), as amended.
"Additional Bonds" means Bonds of the Issuer which may be issued
under Section 8 of this Bond Legislation.
"Agreement" means the Installment Sale Agreement between the
Issuer and the Company, dated as of December 1, 1982, as it may be amended
in accordance with the applicable provisions thereof.
"Authorized Company Representative" means the person at the time
designated pursuant to the Agreement to act on behalf of the Company.
"Bond" or "Bonds" means the Project Bonds and any Additional
Bonds.
"Bond Fund" means the Bond Fund created by Section 7 hereof.
"Bondholder" or "holder" or "holder of Bonds" means the bearer of
a coupon Bond which is not registered as to principal or the principal of
which is registered to bearer, or the person in whose name a registered
Bond is registered, and "holder" when used with reference to a coupon means
the bearer of the coupon.
"Bond Legislation" means (i) when used with reference to the
Project Bonds, this Ordinance; (ii) when used with reference to an issue of
Additional Bonds, this Ordinance to the extent applicable and the
legislation providing for the issuance of such Additional Bonds; and (iii)
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when used with reference to Bonds when Additional Bonds are outstanding,
this Ordinance and the legislation providing for the issuance of Additional
Bonds; all as the same may from time to time be lawfully amended or
supplemented.
"Bond service charges" for any time period means the principal of
and interest, and redemption premium, if any, required to be paid by the
Issuer on the Bonds for such time period.
"Code" means the Internal Revenue Code of 1954, as amended.
"Company" means Hoover Universal, Inc., a corporation for profit
duly organized and validly existing under the laws of the State of Michigan
and qualified to do business in the State of Arkansas, and its lawful
successors and assigns.
"Construction Fund" means the Construction Fund created by
Section 6 hereof.
"Coupon" or "interest coupon" means any of the coupons issued
hereunder evidencing the installments of interest on the applicable coupon
Bond.
"Coupon Bond registered as to principal" means any coupon Bond at
the time registered as to principal in the name of the Bondholder.
"Determination of Taxability" means (i) a determination by the
Commissioner or a District Director of Internal Revenue, (ii) the issuance
of a published or private ruling of the Internal Revenue Service, technical
advice memorandum issued by the National Office of the Internal Revenue
Service, or (iii) a final decision by any court of competent jurisdiction
in the United States to the effect that the interest payable on the Project
Bonds is wholly includable in the gross income for Federal income tax
purposes of the holders thereof (other than a holder who is a "substantial
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user" of the Project or a "related person" as those terms are used in
Section 103(b)(13) of the Code); provided that if such ruling or technical
advice memorandum shall have been requested by a holder of the Project
Bonds, the Company shall have been afforded an opportunity to participate
in the request for rulings or technical advice, and provided further that
no determination under clauses (i) or (ii) shall be deemed a "Determination
of Taxability" if the Company is contesting the same in good faith until
the earliest of (a) abandonment of such contest by the Company or (b)
receipt of a final order of a court from which no further appeal may be
taken.
"Eligible Investments" means (i) obligations issued or guaranteed
by the United States or by any person controlled or supervised by or acting
as an instrumentality of the United States pursuant to authority granted by
Congress, (ii) obligations issued or guaranteed by any state or political
subdivision thereof rated A or higher by Moody's Investors Service, Inc. or
by Standard 6 Poor's Corporation, both of New York, New York, or their
successors; (iii) commercial or finance paper which is rated either P -1 or
A -1 or an equivalent by Moody's Investors Service, Inc. or Standard &
Poor's Corporation, both of New York, New York, or their successors; (iv)
bankers' acceptances drawn on and accepted by commercial banks; and (v)
certificates of deposit of banks or trust companies, including the Trustee
or any commercial bank affiliated with the Trustee, organized under the
laws of the United States of America or any state thereof, having a
reported capital and surplus of at least $25,000,000 in dollars of the
United States of America; provided that any such investment or deposit is
not prohibited by applicable law.
"Executive" means the Mayor of the Issuer.
"Fiscal Officer" means the Director of Finance and Administration
of the Issuer.
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Indenture means the Trust Indenture between the Issuer and the
Trustee, dated as of December 1, 1982, including this Bond Legislation as
part thereof, as the same may be duly supplemented or amended in accordance
with the provisions thereof.
"Installment Payments" means the amounts required to be paid by
the Company pursuant to the provisions of Section 4.1 of the Agreement.
"Interest Payment Date" means as to the Project Bonds each
June 1 and December 1, commencing June 1, 1983.
"Issuer" means the City of Little Rock, Arkansas, a city of the
first class organized and existing under the laws of the State of Arkansas.
Issuer.
"Legal Officer" means the City Attorney of the Issuer.
"Legislative Authority" means the Board of Directors of the
"Original Purchaser" means, as to the Project Bonds, Morgan
Guaranty Trust Company of New York, New York, New York, and as to
Additional Bonds the person or persons identified as such in the applicable
Bond Legislation providing for the issuance of such Additional Bonds.
"Outstanding Bonds" or "Bonds outstanding" or "outstanding" as
applied to Bonds, means, as of any date, all Bonds which have been
authenticated and delivered by the Trustee under the Indenture except:
(a) Bonds surrendered for and replaced upon exchange or
transfer, or cancelled because of payment or redemption
prior to maturity, at or prior to such date;
(b) Bonds for the payment, redemption or purchase for
cancellation of which sufficient moneys have been
deposited prior to such date with the Trustee
(whether upon or prior to the maturity or redemption
date of any such Bonds), or which are deemed to have
been paid and discharged pursuant to the provisions
of the Indenture; provided that if such Bonds are to
be redeemed prior to the maturity thereof, notice of
such redemption shall have been given or arrangements
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to the reasonable satisfaction of the Trustee shall 10 8
have been made therefor, or waiver of such notice
satisfactory in form to The Trustee shall have been
filed with the Trustee; and
(c) Bonds in lieu of which others have been authenticated
(or payment, when due, of which is made without
replacement) under Section 2.05 of the Indenture.
"Paying Agent" means, as to the Project Bonds, the Trustee
and, as to Additional Bonds, any bank or trust company designated as such
by or pursuant to the applicable Bond Legislation, and their successors
designated pursuant to the Indenture.
"Person" means a natural person, firm, association, corporation
or a public body.
"Project" means (a) the real estate at the time comprising the
"Project Site ", as defined in the Agreement and (b) the real and personal
property at the time comprising the "Project Facilities" as defined in the
Agreement together constituting "Facilities" as defined in the Act.
"Project Bonds" means the industrial development revenue
bonds authorized in Section 3 hereof.
"Project Purpose" means the operation of the Project as a metal
refining facility to be used as and for such related or subsequent uses as
are permitted by the Agreement.
"Purchase Price" means as to the Project Bonds, the amount of
$2,500,000. "Purchase Price" means as to any Additional Bonds, the
Purchase Price specified therefor in the applicable Bond Legislation
authorizing such Additional Bonds.
"Registered Bonds" means Bonds registered in the name of the
holder, including coupon Bonds registered as to principal (except to
bearer) and fully registered Bonds; and "fully registered Bonds" means
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Bonds without coupons registered as to both principal and interest. O
"Revenues" means (a) the Installment Payments, (b) subject to the
provisions of Section 3.04 and 8.02 of the Indenture with respect to the
Trustee holding moneys for the benefit of the holders of particular Bonds,
all other moneys received by the Issuer or the Trustee for the account of
the Issuer, in respect of repayment of the Bonds, including moneys in the
Bond Fund, (c) unexpended moneys in the Construction Fund and (d) all
income and profit from the investment of the Installment Payments and such
other moneys.
"State" means the State of Arkansas.
"Trustee" means the trustee under the Indenture, originally
Comerica Bank - Detroit, Detroit, Michigan and any successor Trustee as
determined or designated under or pursuant to the Indenture.
Any reference herein to the Issuer, to the Legislative Authority,
or to any members or officers thereof, shall include those which succeed to
their functions, duties or responsibilities pursuant to or by operation of
law or who are lawfully performing their functions. Any reference to a
section or provision of the Constitution of the State, the Act, or to a
section, provision, title or chapter of the laws of the State shall include
such section or provision or chapter as from time to time amended,
modified, revised, supplemented, or superseded, provided that no such
change in the Constitution or laws shall be deemed applicable by reason of
this provision if such change in any way constitutes an impairment of the
rights or obligations of the Issuer or the Company under this Bond Legisla-
tion, the Agreement or the Indenture, including, without limitation, to
alter the obligation to pay the Bond service charges in the amount and
manner, at the times, and from the sources, provided in the Bond Legislation
and the Indenture, except as otherwise herein permitted.
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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, words importing the
singular number shall include the plural number, and vice versa, and the
terms "hereof ", "hereby ", "hereto ", "hereunder ", and similar terms, mean
this Bond Legislation and the Indenture.
Section 2. Determinations of Legislative Authority. It is
hereby determined that (a) the Project constitutes "Facilities" as defined
in the Act; (b) the utilization of the Project and the issuance of the
Project Bonds to aid in the financing of the Project are in furtherance of
and will accomplish the purposes of the Act, and the sale thereof to the
Company is economically sound and will benefit the people of the Issuer
and of the State by securing and developing industry; and (c) the
acquiring, constructing and installing the Project, including the financing
thereof, will require the issuance, sale and delivery of the Project Bonds
in the principal amount of $2,500,000, and hereafter may require the
Issuer's best efforts to issue, sell and deliver Additional Bonds on a
parity therewith, all of which Bonds shall be equally and ratably payable
and secured as provided herein and in the Indenture.
Section 3. Authorization and Terms of Project Bonds. It is
hereby determined to be necessary to, and the Issuer shall, issue, sell and
deliver, as provided and authorized herein and pursuant to the authority of
the Act, $2,500,000 principal amount of Project Bonds for the purpose of
financing of costs of acquiring, constructing and installing the Project
for the Project Purpose. The Project Bonds shall be designated "Industrial
Development Revenue Bonds (Hoover Universal, Inc. Project) ". The Issuer
may also issue, sell and deliver Additional Bonds on a parity with the
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Project Bonds for the purposes and in the manner provided in Section 8 of
this Bond Legislation.
The Project Bonds shall be initially issued in fully registered
form and shall not be exchangeable for coupon bonds, but may be exchanged
for other fully registered bonds in the manner and on the terms provided in
the Indenture, and shall be numbered as determined by the Fiscal Officer.
Project Bonds in fully registered form shall be in the denomination of
$5,000 and any multiple thereof permitted by the Indenture, and shall be
dated the date of the original delivery thereof to the Original Purchaser.
The Project Bonds shall bear interest from their respective dates
at the rate of nine and three- quarters per centum (9 -3/4 %) per annum,
payable on each Interest Payment Date, and shall mature on December 1,
2007; provided that any overdue payment of principal, premium and, to the
extent permitted by law, interest shall, on demand, bear interest at a rate
equal to 1% in excess of the then applicable interest rate borne by the
Project Bonds.
Upon a Determination of Taxability that interest on the Project
Bonds is wholly includable for federal income tax purposes in the gross
income of a holder thereof (other than because such holder is a "substan-
tial user" of the Project or a "related person ", as those terms are used in
Section 103(b) (13) of the Code), the Project Bonds will not bear interest
during the entire period that interest on the Project Bonds is determined
to be taxable as aforesaid at the rate indicated on the face thereof (the
"Tax- Exempt Rate ") but shall bear interest during such period at the rate
of thirteen and one -half percent (13 -1/2 %) per annum (the "Taxable Rate ").
Furthermore, the holder of a Project Bond will be entitled to receive, on
demand, the difference between (a) the amount of interest which such holder
would have received as interest at the Taxable Rate during the entire
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period that interesoon the Project Bonds is determ *d to be taxable as 112
aforesaid, and (b) the amount of interest previously paid at the Tax - Exempt
Rate, notwithstanding that the Project Bonds may have been paid in full
prior to such Determination of Taxability.
The Project Bonds are subject to extraordinary mandatory
redemption if at any time on or after the date of delivery of the Project
Bonds and through and including the thirtieth day after the effective date
of the Bond Legislation, a petition for referendum or other legal or
administrative action or proceeding is filed or instituted with respect to
any measure of the Issuer authorizing the issuance of or the payment or
security of the Project Bonds, or the execution and delivery of the
Agreement or the Indenture or the carrying out of the Project Purposes (as
defined in the Agreement). Following the occurrence of any such event, the
Project Bonds shall be redeemed by the Issuer within ninety (90) days after
such petition or action is filed or instituted from the proceeds of the
Company making Installment Payments pursuant to Section 4.1 of the
Agreement at a redemption price equal to 101% of the principal amount of
the Project Bonds then outstanding plus accrued interest to the redemp-
tion date.
The Project Bonds are subject to redemption by and at the option
of the Issuer, at the direction of the Company, prior to stated maturity in
whole on any date, or in part on any Interest Payment Date, on or after
December 1, 1992, at a redemption price equal to 100% of the principal
amount to be redeemed, plus accrued interest to the redemption date.
If less than all of the outstanding Project Bonds are called for
redemption at one time, the selection of portions of fully registered
Project Bonds, to be called shall be made by lot by the Trustee in such
manner as the Trustee may determine.
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Notice of the call for redemption of Project Bonds, identifying �' 13
by designation, letters, numbers, or other distinguishing marks, the
Project Bonds, or portions of fully registered Project Bonds, to be
redeemed, the amount of principal being redeemed, the redemption price to
be paid, the dates fixed for redemption and the place or places where the
amounts due upon such redemption are payable, shall be given by the Trustee
on behalf of the Issuer by at least two publications in a newspaper or
financial journal of national circulation published in the City and State
of New York, the first such publication to be not less than thirty days
prior to the redemption date, and, in the case of the redemption of Project
Bonds at the time in the form of registered Bonds, by mailing a copy of the
redemption notice by first class mail, postage prepaid, at least thirty
days prior to the date fixed for redemption to the registered owner of each
such registered Project Bond to be redeemed at the address shown on the
registration books kept by the Trustee; provided, that failure to give or
receive such notice by mailing, or any defect in such notice, shall not
affect the validity of any proceedings for the redemption of the Project
Bonds. If, because of the temporary or permanent suspension of publication
or national circulation of the appropriate newspaper or financial journal
or for any other reason, it is impossible or impractical to publish such
notice of call for redemption in the manner herein provided, then such
publication in lieu thereof as shall be made with the approval of the
Trustee shall constitute a sufficient publication of notice. In the event
that all of the Project Bonds to be redeemed are at the time in the form of
Registered Bonds, notice of the call for redemption may be given by mailing
a copy of the redemption notice by first class mail, postage prepaid, at
least thirty days prior to the date fixed for redemption to the holder or
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holders thereof at the address shown on the registration books kept by the
Trustee and published notice of the call for redemption need not be given;
provided, that failure to give or receive such notice to any Bondholder by
mailing, or any defect in such notice to any Bondholder, shall not affect
the validity of the proceedings for the redemption of any of the other
Project Bonds.
Bond service charges on the Project Bonds shall be payable in
immediately available funds, without deduction for services of any Paying
Agent, payable as provided in the Indenture.
The Project Bonds shall be executed on behalf of the Issuer by
the Executive and attested by the City Clerk of the Issuer, provided that
one of such signatures may be a facsimile, and shall bear the seal of the
Issuer or a facsimile thereof.
Section 4. Terms of all Bonds. All Bonds shall bear such
designations as may be necessary to distinguish them from Bonds of any
other series. Bond service charges on all bonds shall be payable in lawful
money of the United States of America. All Bonds shall be negotiable
instruments, subject to applicable provisions for transfer and registra-
tion, and shall express on their faces the purpose for which they are
issued and such other statements or legends as may be required by law.
Subject to provisions of the applicable Bond Legislation, Bonds
shall be issued as coupon Bonds registrable as to principal or as fully
registered Bonds, and may be exchanged as between forms, all as provided in
the Indenture.
All Bonds shall be executed in the manner provided in the Bond
Legislation authorizing their issuance or in the manner provided by the
applicable law in effect at the time of their issuance. In case any
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115
officer whose signature or a facsimile of whose signature shall appear on
any Bonds or coupon shall cease to be such officer before the issuance,
authentication or delivery of such Bonds, such signature or such facsimile
shall nevertheless be valid and sufficient for all purposes, the same as if
he had remained in office until that time.
Unless otherwise provided in the Bond Legislation authorizing the
issuance of Additional Bonds, notice of call for redemption of all Bonds
shall be given in the manner provided in Section 3 hereof for the notice of
call for redemption of the Project Bonds. If Bonds or portions of fully
registered Bonds are duly called for redemption and if on such redemption
date moneys for the redemption of all the Bonds to be redeemed, together
with accrued interest to the redemption date, shall be held by the Trustee
or Paying Agent so as to be available therefor, then from and after such
redemption date such Bonds or portions of fully registered Bonds shall
cease to bear interest and any coupon for interest thereon maturing
subsequent to the redemption date shall be void.
As provided herein, the Bonds shall be equally and ratably (i)
payable solely from the Revenues and (ii) secured by a pledge of and lien
on moneys deposited in the Bond Fund and the Construction Fund and an
assignment of and grant of a security interest in other moneys constituting
Revenues and by the Indenture, including the assignment of the Agreement
(save for the Unassigned Issuer's Rights thereunder and defined therein).
Anything in the Bond Legislation, the Bonds or the Indenture to the
contrary notwithstanding, neither the Bonds nor the Indenture shall
constitute an indebtedness of the Issuer or the State, and the Bonds shall
contain on the face thereof a statement to that effect and that such Bonds
are payable solely from the Revenues; provided, that nothing herein shall
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be deemed to prohibit the Issuer, of its own volition, from using to the
extent lawfully authorized to do so any other resources for the fulfillment
of any of the terms, conditions or obligations of the Indenture, the Bond
Legislation or any of the Bonds.
Section 5. Sale of Project Bonds. The Executive and Fiscal
Officer are each hereby authorized and directed to offer for sale the
Project Bonds to the Original Purchaser for purchase by the Original
Purchaser at the Purchase Price and in accordance with the terms and
provisions of this Bond Legislation. The Executive and the Fiscal Officer
further are each hereby authorized and directed to make the necessary
arrangements on behalf of the Issuer with the Original Purchaser to
establish the date, location, procedure and conditions for the delivery of
the Project Bonds to the Original Purchaser. The Executive and Fiscal
Officer further are hereby authorized and directed to take all steps neces-
sary to effect due authentication, delivery and security of the Project
Bonds under the terms of this Bond Legislation and the Indenture and it is
hereby determined that the Purchase Price and the interest rate for the
Project Bonds and the manner of sale, as provided in this Bond Legislation
Agreement, are in the best interests of the Issuer and consistent with all
legal requirements.
Section 6. Allocation of Proceeds of Project Bonds - Construc-
tion Fund. All of the proceeds from the sale of the Project Bonds shall be
deposited in the Construction Fund.
There is hereby created by the Issuer and ordered maintained as a
separate deposit account (except when invested as hereinafter provided) in
the custody of the Trustee a trust fund in the name of the Issuer to be
designated "City of Little Rock - Hoover Universal, Inc. Construction Fund"
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(the "Construction Fund "). Moneys in the Construction Fund may be invested
as provided in Section 10 hereof and shall be disbursed in accordance with
the provisions of the Agreement. The Trustee is authorized and directed to
make any such disbursement from the Construction Fund in accordance with
the provisions of the Agreement.
The moneys to the credit of the Construction Fund shall, pending
disbursement as above set forth, be subject to a lien and charge in favor
of the holders of the Project Bonds.
Section 7. Source of Payment - Bond Fund. As provided in the
Agreement, Installment Payments, sufficient in time and amount to pay the
Bond service charges as they come due, are to be paid by the Company
directly to the Trustee for the account of the Issuer and deposited in the
Bond Fund.
There is hereby created by the Issuer and ordered maintained as a
separate deposit account (except when invested as hereinafter provided) in
the custody of the Trustee, a trust fund to be designated "City of Little
Rock - Hoover Universal, Inc. Revenue Bond Fund" (the "Bond Fund "). The
Bond Fund (and accounts therein provided for in the Indenture or in the
Agreement) and the moneys and investments therein are hereby pledged to and
shall be used solely and exclusively for the payment of Bond service
charges as they fall due at stated maturity or by redemption, all as
provided herein and in the Indenture and the Agreement, provided that no
part thereof (except as may otherwise be provided for herein, in the
Indenture or the Agreement) shall be used to redeem, prior to maturity, any
Bonds.
No later than one business day prior to a date when Bond service
charges are due and payable, the Trustee shall transmit from moneys in the
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Bond Fund applicable thereto to any other Paying Agent, as appropriate,
amounts sufficient to meet payments to be made by them of Bond service
charges to be due and payable; provided that to the extent that the amount
needed by any other Paying Agent is not sufficiently predictable, the
Trustee may make such credit arrangements with such Paying Agent as to
permit meeting such payments.
There shall be deposited into the Bond Fund (and credited, if
required by the Indenture or Agreement, to appropriate accounts therein),
as and when received, (a) all Installment Payments and (b) all other
Revenues except for the amounts required by the Bond Legislation, the
Indenture or the Agreement to be deposited into the Construction Fund or
any separate insurance or condemnation proceeds account.
The Issuer hereby covenants and agrees that so long as any of the
Bonds are outstanding it will deposit, or cause to be deposited, in the
Bond Fund, Revenues sufficient in time and amount to pay the Bond service
charges as the same become due and payable, and to this end the Issuer
covenants and agrees that, so long as any Bonds are outstanding, it will
diligently and promptly proceed in good faith and use its best efforts to
enforce the Agreement, and that, should there be an event of default under
the Agreement, the Issuer shall fully cooperate with the Trustee and with
the Bondholders to fully protect the rights and security of the Bondholders
hereunder. Nothing herein shall be construed as requiring the Issuer to
use or apply to the payment of Bond service charges any funds or revenues
from any source other than Revenues.
The Issuer covenants and agrees, whenever the moneys and
investments in the Bond Fund (or otherwise held by the Trustee for such
purpose) are sufficient in amount to redeem all of the Bonds then
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outstanding and to pay interest to accrue thereon to the date or dates of
such redemption, to take and cause to be taken the necessary steps to
redeem all of said Bonds on the next succeeding redemption date or dates
for which the required notice of call for redemption may be given.
Nothing in this Bond Legislation is intended to prevent the
Company from delivering moneys to the Trustee pursuant to Section 4.5 of
the Agreement to be used to purchase or redeem Bonds in accordance with
that Section and the Trustee shall promptly apply such moneys to the
purchase or redemption of Bonds in accordance with the Company's
instructions.
Section 8. Additional Bonds. At the request of the Company if
the Company is not then in default under the Agreement, the Issuer to the
extent permitted by law (including the Act) then in effect and for purposes
consistent with the Act shall use its best efforts to issue Additional
Bonds from time to time to provide for: (i) completion of the Project,
(ii) the acquisition for the Project of additional real estate or interests
therein within the boundaries of the Issuer, (iii) repairs to or modifica-
tion of the Project, or (iv) refunding, in advance or otherwise, the
Project Bonds or any one or more series of Additional Bonds, or (v) any
combination of the foregoing; provided, that the proceeds of any Additional
Bonds shall, except to the extent issued for the purpose described in
clause (iv), be used solely to pay permissible costs under the Act. Such
Additional Bonds shall be on a parity with all outstanding Bonds and any
Additional Bonds theretofore or thereafter issued. Before any Additional
Bonds are authenticated there shall be delivered to the Trustee the items
required by Section 2.08 of the Indenture and any necessary amendment of
the Agreement to provide for increased Installment Payments so that the
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' aggregate of the Installment Payments thereafter payable under the
Agreement shall be sufficient in amount to make all required payments into
the Bond Fund in order to pay when due Bond service charges on all Bonds
then outstanding, and for all Additional Payments (as defined in the
Agreement) by the Company under the provisions of the Agreement and the
Bond Legislation.
Section 9. Covenants of Issuer. In addition to other covenants
of the Issuer in this Bond Legislation and the Indenture contained, the
Issuer further covenants and agrees as follows:
(a) Payment of Bond Service Charges. The Issuer will, solely
r �
from the sources herein provided, pay or cause to be paid the Bond service
charges on each and all Bonds on the dates, at the places and in the manner
provided herein, in the applicable Bond Legislation and in the Bonds and
coupons.
(b) Performance of Covenants, Authority and Actions. The Issuer
will at all times faithfully observe and perform all agreements, covenants,
undertakings, stipulations and provisions contained in the Agreement, the
Bond Legislation, the Indenture and in any and every Bond executed,
authenticated and delivered under the Indenture, and in all proceedings of
its Legislative Authority pertaining thereto, on its part to be performed
or observed. The Issuer covenants that it is, and upon delivery of the
Project Bonds will be, duly authorized by the Constitution and laws of the
State, including particularly and without limitation the Act, to issue the
Project Bonds, to execute the Indenture and the Agreement, to provide the
security for payment of the Bond service charges in the manner and to the
extent herein and in the Indenture set forth; that all actions on its part
for the issuance of the Project Bonds and execution and delivery of the
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Indenture and the Agreement have been or will be duly and effectively
taken; and that the Project Bonds and any coupons appertaining thereto in
the hands of the holders thereof will be valid and enforceable special
obligations of the Issuer according to the terms thereof. Each obligation
of the Issuer required to be undertaken pursuant to the Bond Legislation,
the Indenture, the Agreement, and the Bonds is binding upon the Issuer, and
such officer or employee thereof as may from time to time have the
authority under law to take such actions as may be necessary to perform all
or any part of such obligation, as a duty of the Issuer and of each such
officer and employee resulting from an office, trust or station within the
meaning of applicable law providing for enforcement by writ of mandamus.
(c) Revenues. Except as otherwise provided in the Bond
Legislation, the Indenture and the Agreement, the Issuer will not assign or
grant a security interest in the Revenues or create or suffer to be created
any debt, lien or charge thereon other than the assignment and grant
thereof under this Bond Legislation and the Indenture.
(d) Recordings and Filings. The Issuer will, at the expense of
the Company, cause the Agreement and the Indenture and any amendments or
supplements to any, and all necessary financing statements, amendments
thereto, continuation statements and instruments of similar character
relating to the assignment and grants made by it to secure the Bonds, to be
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 of
the Bonds and the rights of the Trustee under the Agreement and the
Indenture. Prior to the end of the month succeeding each anniversary of
the Indenture, the Issuer, at the request of the Trustee, or the Trustee
will, at the expense of the Company, deliver, or cause the Company to
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deliver to the Trustee, an opinion of counsel, who may be counsel for the
Issuer or for the Company, addressed to the Trustee specifying any filing,
registration or recording and re- filing, re- registration or re-recording,
of any such instrument since the date of the Indenture or the date of the
most recent opinion of counsel pursuant to this Section 9(d), or stating
that no such filing, registration, recording, re- filing, re- registration or
re- recording is necessary, or if necessary, setting forth the requirements
in respect thereto. Promptly after any filing, recording, re-filing or
re- recording of any financing statement or amendment thereto or
continuation statement or instrument of similar character relating to any
of the pledges made in the Bond Legislation or the Indenture, or any
filing, registration, recording, re- filing, re- registration or re- recording
of the Agreement or the Indenture, or any amendment or supplement thereto,
the Company will deliver, or cause to be delivered, to the Trustee an
opinion of counsel, who may be counsel for the Issuer or for the Company,
to the effect that such filing, registration, recording, re- filing,
re- registration or re- recording has been duly accomplished and setting
forth the particulars thereof.
(e) Inspection of Project Books. All books and documents in the
Issuer's possession relating to the Project and the Revenues shall at all
times be open to inspection by such accountants or other agents of the
Trustee as the Trustee may from time to time designate.
(f) List of Bondholders. To the extent that such information
shall be made known to the Issuer under the terms of this subsection, the
Issuer will keep or arrange to have kept on file at the corporate trust
office of the Trustee a list of names and addresses of the last known
holders of Bonds payable to bearer. Any Bondholder may in writing
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123
addressed to the Issuer or Trustee request that his name and address be
placed on said list, which request shall include a statement of the
principal amount of Bonds held by such holder and identifying, by number
and series designation, such Bonds. Neither the Issuer nor the Trustee
shall be under any responsibility with regard to the accuracy of said list.
At reasonable times and under reasonable regulations established by the
Trustee, said list may be inspected and copied by the Company, or by
holders (or a designated representative thereof) of twenty-five percent or
more in principal amount of Bonds then outstanding, such holding and the
authority of any such designated representative to be evidenced to the
satisfaction of the Trustee.
(g) Rights under Agreement. The Trustee, in its name or in the
name of the Issuer, may, for and on behalf of the Bondholders, enforce all
rights of the Issuer, except for Unassigned Issuer's Rights as defined in
the Agreement, and all obligations of the Company under and pursuant to the
Agreement, whether or not the Issuer is in default of the pursuit or
enforcement of such rights and obligations.
(h) Enforcement of Agreement. The Issuer shall do all things
and take all actions on its part necessary to comply with obligations,
duties and responsibilities on its part under the Agreement, and will take
all actions within its authority to keep the Agreement in effect in
accordance with the terms thereof and to enforce and protect the rights of
the Issuer thereunder, including actions at law and in equity, as may be
appropriate.
(i) Arbitrage Provisions. The Issuer will restrict the use of
the proceeds of the Project Bonds in such manner and to such extent, if
any, as may be necessary, after taking into account reasonable expects-
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124
tions at the time of the delivery of and payment for such Project Bonds, so
that the Project Bonds will not constitute arbitrage bonds under Section
103(c) of the Code. The Fiscal Officer or any other officer having
responsibility for issuing the Project Bonds is authorized and directed,
alone or in conjunction with any of the foregoing or with any other
officer, employee, consultant or agent of the Issuer, or with the Company
or any employee, consultant or agent of the Company, to give an appropriate
certificate of the Issuer, for inclusion in the transcript of proceedings
for the Project Bonds, setting forth the reasonable expectations of the
Issuer regarding the amount and use of the proceeds of the Project Bonds
and the facts, estimates and circumstances on which they are based, such
certificate to be premised on the reasonable expectations and the facts,
estimates and circumstances on which they are based as provided by the
Company, all as of the date of delivery of and payment for such Project
Bonds. The Fiscal Officer, or other appropriate officer of the Issuer,
shall furnish to the Original Purchaser a true transcript of proceedings,
certified by said Fiscal Officer, of all proceedings had with reference to
the issuance of the Project Bonds along with such information from the
records as is necessary to determine the regularity and validity of the
issuance of the Project Bonds.
Section 10. Investment of Bond Fund and Construction Fund.
Moneys in the Bond Fund and the Construction Fund shall be invested and
reinvested by the Trustee in any Eligible Investments at the oral or
written request of the Authorized Company Representative, provided that
investments of moneys in the Bond Fund shall mature or be redeemable at the
option of the holder at the times and in the amounts necessary to provide
moneys applicable hereunder thereto to pay Bond service charges as they
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fall due at stated maturity or by redemption or pursuant to any mandatory
sinking fund requirements, and that each investment of moneys in the
Construction Fund shall in any event mature or be redeemable at the option
of the holder as such time may be necessary to make payments from said
Fund. Subject to any such orders with respect thereto, the Trustee may
from time to time sell such investments and reinvest the proceeds therefrom
in Eligible Investments maturing or redeemable as aforesaid. Any such
investments may be purchased from the Trustee. The Trustee snail seii or
redeem investments standing to the credit of the Bond Fund to produce
sufficient moneys applicable hereunder to and at the times required for the
purposes of paying Bond service charges when due as aforesaid, and shall do
so without necessity for any order on behalf of the Issuer and without
restriction by reason of any such order. An investment made from moneys
credited to the Bond Fund or the Construction Fund shall constitute part of
that respective Fund and such respective Fund shall be credited with all
proceeds of sale and income from such investment. For purposes of this
Indenture and the Bond Legislation, such investments shall be valued at
face amount or market value, whichever is less.
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Section 11. Indenture and Agreement. In order to secure the
payment of the Bond service charges as the same shall become due and
payable, the Executive and the Fiscal Officer and each of them as
appropriate are hereby authorized and directed to execute, acknowledge and
deliver, in the name and on behalf of the Issuer, the Indenture and the
Agreement in substantially the forms submitted to this Legislative
Authority, which instruments are hereby approved, with such changes therein
not inconsistent with this Bond Legislation and not substantially adverse
to the Issuer as may be permitted by the Act and approved by the officers
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executing the same on behalf of the Issuer. The approval of such changes
by said officers, and that such are not substantially adverse to the
Issuer, shall be conclusively evidenced by the execution of such
instruments.
This Bond Legislation shall constitute a part of the Indenture as
therein provided and for all purposes of said Indenture, including, without
limitation thereto, application to this Bond Legislation of the provisions
in the Indenture relating to amendment, modification and supplementation,
and provisions for severability.
Section 12. Other Documents. The Executive and the Fiscal
Officer, and each of them as appropriate, are hereby further authorized and
directed to execute such certifications, financing statements, assignments
and instruments as are in the opinion of the Legal Officer or Bond Counsel
necessary or appropriate to perfect the pledges set forth in the Indenture
and to consummate the transactions provided for in the Indenture and the
Agreement.
Section 13. Compliance with Open Meeting Law. It is hereby
found and determined that all formal actions of this Legislative Authority
concerning and relating to the adoption of this Bond Legislation were
adopted in a public meeting of this Legislative Authority, in compliance
with all legal requirements of the State, including the "Freedom of
Information Act ", Act No. 13 of the Acts of Arkansas of 1967, as amended.
Section 14. Declaring an Emergency. There is hereby found and
declared to be an immediate need for the securing and developing of
industry in order to provide employment and payrolls, alleviate unemploy-
ment and otherwise benefit the public health, safety and welfare of the
Issuer and the inhabitants thereof, and the issuance of the Project Bonds
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9
authorized hereby and the taking of the other action authorized hereby are 1 2 7
immediately necessary for the accomplishment of these public benefits and
purposes. It is, therefore, declared that an emergency exists and this
Ordinance being necessary for the immediate preservation of the public
peace, health and safety shall be in force and effect immediately upon and
after its passage.
PASSED AND ADOPTED this 21st Day of December, 1982.
Approved
�
Mayor
Attest:
ty Clerk
(SEAL)
The undersigned, City Clerk of the City of Little Rock, Arkansas
does hereby certify that the foregoing ordinance is a true and correct copy
of the original ordinance passed by the Board of Directors.
Cit Clerk of tWb City of
Little Rock, Arkansas
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