11370. a
�f
ORDINANCE N0. 11,370
AN ORDINANCE AUTHORIZING THE ISSUANCE OF
INDUSTRIAL DEVELOPMENT REVENUE BONDS UNDER
ACT NO. 9 OF THE FIRST EXTRAORDINARY SESSION
OF THE SIXTY- SECOND GENERAL ASSEMBLY OF
THE STATE OF ARKANSAS, APPROVED JANUARY
219 19609 AS AMENDED, FOR THE PURPOSE OF
PROVIDING THE PERMANENT FINANCING OF THE
COST OF SECURING AND DEVELOPING INDUSTRY
WITHIN THE CITY OF LITTLE ROCK, ARKANSAS
(THE PARTICULAR INDUSTRIAL PROJECT IS DES-
CRIBED IN THE ORDINANCE), AND NECESSARY
COSTS, EXPENSES AND EXPENDITURES INCI-
DENTAL THERETO AND TO THE ISSUANCE OF
THE BONDS; AUTHORIZING THE EXECUTION AND
DELIVERY OF A TRUST INDENTURE SECURING
THE BONDS; AUTHORIZING AND PRESCRIBING
OTHER MATTERS PERTAINING TO SAID INDUSTRIAL
PROJECT AND ITS FINANCING; AND DECLARING
AN EMERGENCY.
WHEREAS arrangements have been made with DowSmith, Inc.,
a Delaware corporation (herein called "DowSmith ").for the location
of a substantial industrial plant within the City of Little Rock,
Arkansas (herein called "City "); and
WHEREAS the location of said industrial plant within the
City will result in increased employment, will result in increased
payrolls, will alleviate unemployment and will result in other
benefits incidental to the operation of a substantial industrial
plant, all of which will be in the best interests of the City and
its citizens and inhabitants; and
WHEREAS the City is authorized by Act No. 9 of the First
Extraordinary Session of the Sixty- Second General Assembly of the
State of Arkansas, approved January 21, 1960, as amended (herein
called "Act No. 9 ") to acquire lands and improvements, to construct
a manufacturing building, improvements and facilities (herein some-
times called the "Project ") and to incur other costs and expenses
� -J3
,....t `.
.
incidental to and for the implementing and accomplishing of the
conduct of manufacturing operations and to lease the Project for
the purpose of securing and developing industry; and
WHEREAS the City is authorized by Act No. 9 to issue In-
dustrial Development Revenue Bonds payable from revenues and lease
rentals derived from, and secured by a mortgage lien on, the Project;
and
WHEREAS the City proposes to finance the project costs,
the payment of necessary expenses and the making of other necessary
expenditures incidental to the Project and the payment of the ex-
penses of issuing bonds (herein sometimes called "project costs ")
by the issuance of Industrial Development Revenue Bonds under Act No.
9 in the principal amount of not to exceed $2,500,000; and
WHEREAS pursuant to its undertaking to furnish the financ-
ing, as aforesaid, the City submitted to its electors the question
of issuing Industrial Development Revenue Bonds under Act No. 9 at
a special election duly called and held on the 26th day of February,
1963, and at said special election the electors of the City approved
the issuance of said bonds; and
WHEREAS concurrently with the delivery of this Trust In-
denture, the City will execute and enter into a Lease and Agreement
with DowSmith (which is herein sometimes called the "Lease Agree-
ment ") by which the City leases to DowSmith the Project; and
WHEREAS all of the capital stock of DowSmith is owned by
The Dow Chemical Company, a Delaware corporation (herein called
"Dow ") and A. 0. Smith Corporation, a New York corporation (herein
called "Smith "), with each owning fifty per cent (507.) of the out-
standing capital stock of DowSmith, and Dow and Smith, concurrently
with the delivery of the Lease Agreement, have executed and delivered
unconditional Guaranty Agreements guaranteeing the payment of the
rentals and the performance of all other covenants and obligations
of DowSmith as Lessee under the Lease Agreement, with the guaranty
of each (Dow and Smith) being limited to fifty per cent (50 %) of the
amounts necessary to insure the prompt performance of the commit-
ments of the Lessee under the Lease and Agreement; and
WHEREAS the City has made the necessary arrangements for
the sale of the bonds to Stephens, Inc. and T. J. Raney 6 Sons,
Little Rock, Arkansas;
NOW, THEREFORE, BE IT ORDAINED by the Board of Directors
of the city:
Sect o 1. That there be, and there is hereby, authorized
and directed the following:
(a) The acquisition of the fee simple title to the lands
embodied in the Project (hereafter described in the Trust Indenture
authorized by this ordinance);
(b) The acceptance of an Assignment from DowSmith of
the Engineering Contract (referred to in the Lease Agreement) with
the benefit of all credits and moneys theretofore accrued to and
paid under said Contract by DowSmith and the assumption by the City
of all obligations of the owner under said Contract accruing there-
after; and
(c) The performance of all obligations of the City set
forth in the Lease Agreement pertaining to the construction of the
Pro j ec t.
*T
Section 2. That to provide for the authorization of and
to secure Industrial Development Revenue Bonds of the City under
Act No. 9 in the aggregate principal amount of $2,500,000, des-
cribed in the form of Trust Indenture hereafter authorized, and to
prescribe the terms and conditions upon which the bonds are to be
secured, executed, authenticated, accepted and held, the Mayor is
hereby authorized and directed to execute and acknowledge a Trust
Indenture, and the Clerk is hereby authorized and directed to
execute the Trust Indenture and to affix the seal of the City there-
to and to attest the same, and the Mayor and Clerk are hereby
authorized and directed to cause said Trust Indenture to be accepted,
executed and acknowledged by the Trustee, Worthen Bank & Trust Com-
pany, Little Rock, Arkansas, with the Trust Indenture, which con-
stitutes and is hereby made a part of this ordinance, to be in sub-
stantially the following form, to -wit:
TRUST INDENTURE
THIS INDENTURE executed as of the first day of May, 1963
by and between the CITY OF LITTLE ROCK, ARKANSAS, a city of the first
class duly existing under the laws of the State of Arkansas (herein
called "City "I as party of the first part, and WORTHEN BANK & TRUST
COMPANY, Little Rock, Arkansas, a banking institution duly organized
and existing under and by virtue of the laws of the State of Arkansas
and having its main office and place of business in the City of
Little Rock, Pulaski County, Arkansas (herein called "Trustee "),
as party of the second part,
W I T N E S S E T H:
WHEREAS arrangements have been made with DowSmith, Inc.,
a Delaware corporation (herein called "DowSmith ") for the location
of a substantial industrial plant within the City; and
WHEREAS the location of said industrial plant within the
City will result in increased employment, will result in increased
payrolls, will alleviate unemployment and will result in other
benefits incidental to the operation of a substantial industrial
plant, all of which will be in the best interests of the City and
its citizens and inhabitants; and
WHEREAS the City is authorized by Act No. 9 of the First
Extraordinary Session of the Sixty - Second General Assembly of the
State of Arkansas, approved January 21, 1960, as amended (herein
called "Act No. 9 ") to acquire lands and improvements, to construct
a manufacturing building, improvements and facilities (herein some-
times called the "Project ") and to incur other costs and expenses
incidental to and for the implementing and accomplishing of the
conduct of manufacturing operations and to lease the Project for
the purpose of securing and developing industry; and
WHEREAS the City is authorized by Act No. 9 to issue In-
dustrial Development Revenue Bonds payable from revenues and lease
rentals derived from, and secured by a mortgage lien on, the Pro-
j ec t; and
WHEREAS the City proposes to finance the project costs,
the payment of necessary expenses and the making of other necessary
expenditures incidental to the Project and the payment of the ex-
penses of issuing bonds (herein sometimes called "project costs ")
by the issuance of Industrial Development Revenue Bonds under Act No.
9 in the principal amount of not to exceed $2,500,000; and
WHEREAS pursuant to its undertaking to furnish the financ-
ing, as aforesaid, the City submitted to its electors the question
of issuing Industrial Development Revenue Bonds under Act No. 9 at
a special election duly called and held on the 26th day of February,
1963, and at said special election the electors of the City approved
the issuance of said bonds; and
WHEREAS concurrently with the delivery of this Trust In-
denture, the City will execute and enter into a Lease and Agreement
with DowSmith (which is herein sometimes called the "Lease Agree-
meet ") by which the City leases to DowSmith the Project; and
WHEREAS all of the capital stock of DowSmith is owned by
The Dow Chemical Company, a Delaware corporation (herein called
"Dow ") and A. 0. Smith Corporation, a New York corporation (herein
called "Smith ") with each owning fifty per cent (50%) of the out-
standing capital stock of DowSmith, and Dow and Smith, concurrently
with the delivery of the Lease Agreement, have executed and delivered
I �
unconditional Guaranty Agreements guaranteeing the payment of the
rentals and the performance of all other covenants and obligations
of DowSmith as Lessee under the Lease Agreement, with the guaranty
of each (Dow and Smith) being limited to fifty per cent (507.) of the
amounts necessary to insure the prompt performance of the corm -it-
ments of Lessee under the Lease Agreement; and
WHEREAS the City has made the necessary arrangements for
the sale of the bonds to Stephens, Inc. and T. J. Raney & Sons,
Little Rock, Arkansas; and
WHEREAS the execution and delivery of this Trust Indenture
(herein sometimes referred to as the "Trust Indenture" or the "In-
denture") and the issuance of the bonds have been in all respects
duly and validly authorized by ordinance of the Board of Directors
of the City, including particularly Ordinance No. passed
and approved on the day of - , 1963; and
WHEREAS the bonds, interest coupons to be attached thereto
and the Trustee's certificate to be endorsed thereon are all to be
in substantially the following form with necessary and appropriate
variations, omissions and insertions as permitted or required by
this Trust Indenture, to -wit:
(Form of Bond)
UNITED STATES OF AMERICA
STATE OF ARKANSAS
COUNTY OF PULASKI
CITY OF LITTLE ROCK
4% INDUSTRIAL DEVELOPMENT REVENUE BOND
No.
KNOW ALL MEN BY THESE PRESENTS;
That the City of Little Pock, Pulaski County, Arkansas, a
city of the first class under the laws of the State of Arkansas
(herein called "City "), for value received, promises to pay to
bearer, or if this bond be registered to the registered owner hereof,
on May 1, 19_, the principal 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, and to pay
in like coin or currency interest on said principal amount from the
date hereof until paid at the rate of four per cent (4%) per annum,
such interest to be payable semiannually on May 1 and November 1 of
each year commencing November 1, 1963 upon presentation and sur-
render of the annexed coupons as they severally become due. The
principal of this bond and the interest hereon are payable at the
office of Worthen Bank & Trust Company, Little Rock, Arkansas (the
"Trustee" and the "Paying Agent ").
This bond is one of a series of five hundred forty -four
(544) bonds aggregating Two Million, Five Hundred Thousand Dollars
($2,500,000) known as "City of Little Rock, Arkansas Industrial
Development Revenue Bonds11, dated May 1, 1963, numbered consecutively
from 1 to 544, inclusive, all of like tenor and effect except as to
number, denomination, maturity and right of prior redemption, issued
� I
t �
for the purpose of financing the cost of acquiring lands and con-
structing a manufacturing building, improvements and facilities there-
on (herein called the "Project "), paying necessary expenses and making
expenditures incidental thereto, paying the expenses of issuing the
bonds and providing debt service until revenues are available for
the payment of the principal of and interest on the bonds. The bonds
are all issued under and are all equally and ratably secured and en-
titled to the protection given by a Trust Indenture (herein called
"Indenture "), dated as of May 1, 1963, duly executed and delivered by
the City to Worthen Bank & Trust Company, Little Rock, Arkansas,
Trustee, which Indenture is recorded in the office of the Circuit
Clerk and Ex Officio Recorder of Pulaski County, Arkansas, and
reference is hereby made to the Indenture and to all indentures supple-
mental thereto for the provisions, among others, with respect to the
nature and extent of the security, the rights, duties and obligations
of the City, the Trustee and the holders and registered owners of the
bonds and the terms upon which the bonds are issued and secured.
This bond and the series of which it forms a part are issued
pursuant to and in full compliance with the Constitution and laws of
the State of Arkansas, particularly Act No. 9 of the First Extra-
ordinary Session of the Sixty- Second General Assembly of the State
of Arkansas, approved January 21, 1960, as amended (herein called
"Act No. 9 "), and pursuant to Ordinance No. of the Board of
Directors of the City passed and approved on the day of
, 1963, which ordinance authorizes the execution
and delivery of the Indenture. This bond and the series of which it
forms a part are not general obligations of the City, but are special
obligations payable solely from lease rentals and revenues derived
0
from the Project. In this regard, the Project has been leased to
DowSmith, Inc., a Delaware corporation (with performance of all
covenants and obligations of said Lessee under said Lease Agreement
being unconditionally guaranteed by The Dow Chemical Company, a
Delaware corporation, and A. 0. Smith Corporation, a New York cor-
poration, each of which owns fifty per cent (507.) of the outstanding
capital stock of said Lessee, with the guaranty of each guaranteeing
corporation being limited to fifty per cent (507.) of the amounts
necessary to insure the prompt performance of the commitments of
Lessee under the Lease Agreement, all as set forth in detail in the
Indenture) for rentals sufficient to provide for the payment of the
principal of, interest on and Paying Agent's fees in connection with
the bonds, as the same become due and payable. Said rentals are to
be paid to the Trustee and deposited in a special account of the
City designated "Industrial Development Revenue Bond Fund - DowSmith
Project ". The rentals and revenues derived from the Project have
been duly assigned by the Indenture to the Trustee and have been duly
pledged to the payment of the principal of and interest on the bonds.
Xn addition, the bonds are secured by a mortgage lien on the Project.
"he bonds do not constitute an indebtedness of the City within any
constitutional or statutory limitation.
The holder of this bond shall have no right to enforce the
provisions of the Indenture or to institute action to enforce the
covenants therein, or to take any action with respect to any event
of default under the Indenture, or to institute, appear in and de-
fend any suit or other proceeding with respect thereto, except as
provided in the Indenture. In certain events, on the conditions,
in the manner and with the effect set forth in the Indenture, the
0
principal of all of the bonds issued under the Indenture and then
outstanding may become or may be declared due and payable before
the stated maturity thereof, together with accrued interest thereon.
Modifications or alterations of the Indenture, or of any
indenture supplemental thereto, may be made only to the extent and
in the circumstances permitted by the Indenture.
The bonds shall be noncallable prior to May 1, 1968 except
(1) from proceeds received from condemnation (as set forth in the
Lease Agreement), (2) from the amounts received pursuant to the
exercise by the Lessee under the Lease Agreement of its options to
purchase that may be exercised prior to May 1, 1968 (as set forth in
the Lease Agreement described in the Indenture), and if funds from
said sources are received during said period the bonds shall be
called, in whole or in part, to the extent of the funds so received,
on any interest paying date in inverse numerical order at the prin-
cipal amount of the bonds being called plus accrued interest to the
redemption date and plus a premium of 4% of the principal amount. On
and after May 1, 1968, the bonds shall be callable for payment prior
to maturity from funds from any source (it being mandatory to call
bonds to the extent of funds received from condemnation or from the
exercise by Lessee under the Lease Agreement of any of its options
to purchase), in whole or in part, in inverse numerical order on
any interest paying date at the principal amount of the bonds being
called plus accrued interest to the redemption date and plus a
premium of such principal amount as follows:
4.0% if redeemed May 1, 1968 or November 1, 1968;
3.6% if redeemed May 1, 1969 or November 1, 1969;
3.2% if redeemed May 10 1970 or November 1, 1970;
2.8% if redeemed May 1, 1971 or November 1, 1971;
2.4% if redeemed
2.0% if redeemed
1.6% if redeemed
1.2% if redeemed
.8% if redeemed
.4% if redeemed
and no premium t
May
May
May
May
May
May
E re4
1,
1,
1,
1,
1,
1,
lee
1972 or
1973 or
1974 or
1975 or
1976 or
1977 or
ued Cher,
November
November
November
November
November
November
eafter.
1, 1972;
1, 1973;
1, 1974;
1, 1975;
1, 1976;
1, 1977;
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 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 need not be given. Each notice shall
specify the numbers and the maturities of the bonds being called
and the date on which they shall be presented for payment. After
the date specified in said call, the bond or bonds so called will
cease to bear interest provided funds for their payment are on
deposit with the Paying Agent at that time, and, except for the
purpose of payment, shall no longer be protected by the Indenture
and shall not be deemed to be outstanding under the provisions of
the Indenture.
This bond may be registered as to principal alone and may
be discharged from such registration, in the manner, with the effect
and subject to the terms and conditions endorsed hereon and set
forth in the Indenture. Subject to the provisions for registration
endorsed hereon and contained in the Indenture, nothing contained
in this bond or in the Indenture shall affect or impair the ne-
gotiability of this bond. As declared in Act No. 9, this bond shall
be deemed to be a negotiable instrument under the laws of the State
of Arkansas and this bond is issued with the intent that the laws
of the State of Arkansas will govern its construction.
IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all
acts, conditions and things required to exist, happen and be per-
formed 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 indebtedness represented by this bond and
the series of which it forms a part, together with all obligations
of the City, does not exceed any constitutional or statutory limita-
tion; and that the above referred to revenues pledged to the payment
of the principal of and interest on this bond and the series of which
it forms a part, as the same become due and payable, will be suf-
ficient in amount for that purpose.
This bond shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the In-
denture until the Certificate of Authentication hereon shall have
been signed by the Trustee.
IN WITNESS WHEREOF, the City of Little Rock, Arkansas has
caused this bond to be executed in its name by its Mayor and City
Clerk, thereunto duly authorized, with the facsimile signature of the
Mayor and the manual signature of the City Clerk, and its corporate
seal to be affixed, and has caused the interest coupons hereto
attached to be executed by the facsimile signature of its Mayor,
all as of the first day of May, 1963.
ATTEST:
City Clerk
(SEAL)
CITY OF LITTLE ROCK, ARKANSAS
sy
J
16
(Form of Trustee's Certificate)
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This bond is one of the bonds of the series designated
therein and issued under the provisions of the within mentioned In-
denture,
WORTHEN BANK & TRUST COMPANY
LITTLE ROCK, ARKANSAS
By
Little Rock, Arkansas Authorized Signature
1963
(Fo--m of Interest Coupon)
sTO, $
Y
On the first day of November, 19 , the City of Little
Rock, Arkansas (unless the bond to which this coupon is attached
shall have been previously called for redemption or shall have be-
come payable as provided in the Indenture referred to in said bonds)
will pay, solely from the revenues pledged in said Indenture, to
bearer at Worthen Bank & Trust Company, Little Rock, 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 Development
Revenue Bond, dated May 1, 1963, and numbered
CITY OF LITTLE ROCK, ARKANSAS
By.
Mayor
a-13
PROVISIONS FOR REGISTRATION AND RECONVERSION
This bond may be registered as to principal alone on books
of the City, kept by the Trustee under the within mentioned Indenture,
as bond registrar, upon presentation hereof to the bond registrar,
which shall make mention of such registration in the registration
blank below, and this bond may thereafter be transferred only upon
an assignment duly executed by the registered owner or his attorney
or legal representative in such form as shall be satisfactory to
the bond registrar, such transfer to be mtdde on such books and en-
dorsed thereon by the bond registrar. Such transfer may be to
bearer and thereafter transferability by delivery shall be restored,
but this bond shall again be subject to successive registrations and
transfers as before. The principal of this bond, if registered,
unless registered to bearer, shall be payable only to or upon the
order of the registered owner or his legal representative. Not-
withstanding the registration of this bond as to principal, thy'
coupons shall remain payable to bearer and shall continue to be
transferable by delivery. Payment to the bearer of the coupons
shall fully discharge the City in respect to the interest therein
mentioned whether or not this bond be registered as to principal
and whether or not any such coupons be overdue.
Signature of Bond
Date of Registration Name of Registered Owner Registrar
1
}
and
WHEREAS all things necessary to make the said bonds, when
authenticated by the Trustee and issued as in this Indenture pro-
vided, the valid, binding and legal obligations o4 the City accord-
in; to the import thereof, and to constitute this Indenture a
valid lien on the properties mortgaged and a valid pledge of the
revenues herein made to the rayment of the principal of and in-
terest on said bonds, have been done and performed, and the
creation, execution and delivery of this Indenture and the creation,
execution and issuance of said bonds, subject to the terms hereof,
have in all respects been duly authorized;
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, THIS
INDENTURE WITNESSETH:
That the City in consideration of the premises and the
acceptance by the Trustee of the trusts hereby created and of the
purchase and acceptance of the bonds by the holders and owners
thereof, and of the sum of One Dollar ($1.00), lawful money of the
United States of America, to it duly paid by the Trustee, at or
before the execution and delivery of these presents, and for other
good and valuable considerations, the receipt of which is hereby
acknowledged, and in order to secure the payment of the principal
of and interest on the bonds according to their tenor and effect
and the performance and observance by the City of all the covenants
expressed or implied herein and in the bonds, does hereby grant,
bargain, sell, convey, mortgage, assign and pledge unto Worthen Bank
& Trust Company, Little Rock, Arkansas, Trustee, and unto its suc-
cessor 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:
1.
The following described real estate and premises situated
in the County of Pulaski and State of Arkansas, with all buildings,
additions and improvements now or hereafter located thereon, to-
gether with the tenements, hereditaments, appurtenances, rights,
privileges and immunities thereunto belonging or appertaining, and
warrants the title to the same, to -wit:
A tract of land lying in the Southwest Quarter
(SW 1/4) of the Northwest Quarter (NW 1/4),
Section 28 and in the Southeast Quarter (SE 1/4)
of the Northeast Quarter (NE 1/4) and the South-
west Quarter (SW 1/4) of the Northeast Quarter
(NE 1/4), Section 29, Township 1 North, Range 12
West, more particularly described as: Starting
at the Southwest corner of the Southeast Quarter
(SE 1/4) of the Northeast Quarter (NE 1/4), said
Section 29; thence North 00 29' East along the
West line thereof, 580.0 feet to the point of
beginning of the tract of land herein described;
thence continue North 00 29' East along the West
line of said Southeast Quarter (SE 1/4) of the
Northeast Quarter (NE 1/4) and along the East
line of a 30 foot rail right -of -way owned jointly
by the Missouri Pacific Railroad Company and the
Chicago, Rock Island & Pacific Railway Company, a
distance of 400.5 feet to a point; thence North-
westerly along the arc of a 301.5 foot radius
curve to the left and along the East line of said
30 foot rail right -of -way a chord bearings and
distances of North 10 23' West, 36.6 feet; North
140 35' West, 100.0 feet; North 320 48' West,
100.0 feet; North 520 39' West, 100.0 feet; to a
point on the South line of a 45 foot rail right -
of -way under same joint ownership; thence South
890 56' East along the South line of said 45
foot rail right -of -way, a distance of 161.9 feet
to a point on the West line of the Southeast
Quarter (SE 1/4) of the Northeast Quarter (NE 1/4)
of said Section 29; thence South 880 53' East
along the South line of said 45 foot rail right -
of -way a distance of 1,817.6 feet to a point at
which said 45 foot rail right -of -way widens to
70 feet; thence South 10 08' West, 25.0 feet to
a point on the South line of said 70 foot rail
right -of -way; thence South 880 53' East along
the South line of said 70 foot rail right -of -way,
a distance of 317.9 feet to a point on the West
right -of -way line of Interstate Route No. 30;
thence South 240 21' West along said West right -
of -way line, a distance of 832.9 feet to a point;
thence North T 18' West, 476.8 feet to a point;
thence South 0 42' West, 375.0 feet to a point,
on the North right -of -war line of West 65th Street,
said point being North 00 42' East, 80 feet from
the Southeast corner of the Northeast Quarter
(NE 1/4) of said Section 29; thence North 890 18'
West along the North right -of -way line of West
65th Street, a distance of 1,019.9 feet to a
point 300 feet East of the West line of the South-
east Quarter (SE.•1 /4) of the Northeast Quarter
(NE 1/4) of said Section 29; thence North 00 29'
East, 500.0 feet to a point; thence North 890 18'
West, 300.0 feet to the point of beginning, con-
taining 1,921,362 square feet, or 44.108 acres,
more or less. (Subject to the restrictions
set forth in Warranty Deed wherein Industrial
Development Company of Little Rock is Grantor
and DowSmith, Inc. is Grantee, dated February
15, 1963, and appearing of record in the office
of the Circuit Clerk and Ex Officio Recorder
of Pulaski County, Arkansas at Book 824, page
239.)
2.
All revenues and income derived by the City from the mort-
gaged property, including, without limitation, all rentals received
by the City from the leasing of the mortgaged property and in par-
ticular the rentals and profits received under and pursuant to the
Lease Agreement.
3.
The Dow and Smith Guaranty Agreements.
4.
Any and all other property of every kind and nature from
time to time which was heretofore or hereafter is by delivery or by
writing of any kind conveyed, mortgaged, pledged, assigned or trans-
ferred, as and for additional security hereunder by the City or by
any other person, firm or corporation, or with the consent of the
City, to the Trustee, which is hereby authorized to receive any and
all such property at any time and at all times and to hold and apply
the same subject to the terms hereof.
TO HAVE AND TO HOLD all the same with all privileges
and appurtenances hereby conveyed and assigned, or agreed or in-
it-ended so to be, to the Trustee and its successors in said trusts
and to them and their assigns forever;
IN TRUST NEVERTHELESS, upon the terms and trusts herein
set forth for the equal and proportionate benefit, security and
protection of all holders and owners of the said bonds and interest
coupons thereto attached issued under and secured by this Indenture
without privilege, priority or distinction as to lien or otherwise
of any of said bonds or coupons thereto attached over any of the
others of said bonds; provided, however, that if the City, its
successors or assigns, shall well and truly pay, or cause to be paid,
the principal of the bonds and the interest due or to become due
thereon, at the times and in the manner provided in the bonds and
the interest coupons appertaining to the bonds, respectively, ac-
cording to the true intent and meaning thereof, and shall make the
payments into the Bond Fund as required under Article V. or shall
provide, as permitted hereby, for the payment thereof by depositing
or causing to be deposited with the Trustee the entire amount due
or to become due thereon, and shall well and truly keep, perform
and observe all the covenants and conditions pursuant to the terms
of this 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 ex-
pressly declared, all bonds issued and secured hereunder are to be
issued, authenticated and delivered and all said revenue and income
hereby pledged are to be dealt with and disposed of under, upon and
subject to the terms, conditions, stipulations, covenants, agree-
a
meets, trusts, uses and purposes as hereinafter expressed, and the
City has agreed and covenanted and does hereby agree and covenant,
with the Trustee and with the respective holders and owners, from
time to time, of the said bonds or coupons or any part thereof, as
follows, that is to say:
.
ARTICLE I
DEFINITIONS
Section 101. In addition to the words and terms else-
where defined in this Indenture, the following words and terms as
used in this Indenture shall have the following meanings:
"Industrial Development Revenue Bond Retirement Fund -
DowSmith Project" or "Bond Fund" - The fund of the City created by
Section 502 of the Indenture =nto 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 Little Rock, Arkansas Industrial De-
velopment Revenue Bonds dated May 1, 1963 secured by the Indenture.
"Coupon" - The interest coupons attached to the bonds.
"City" - The City of Little Rock, Arkansas, a city of the
first class under the laws of the State of Arkansas and situated
in Pulaski County, Arkansas.
"Indenture" - This Trust Indenture together with all in-
dentures supplemental hereto.
"Outstanding hereunder" - "bonds outstanding hereunder" -
All bonds which have been authenticated and delivered under this
Indenture except:
(a) Bonds cancelled because of payment or redemption
prior to maturity;
(b) Bonds for the payment or redemption of which cash
shall have been heretofore deposited with the Trustee and Paying
Agent (whether upon or prior to the maturity or redemption date of
any of such bonds) provided that if such bonds are to be redeemed
prior to the maturity thereof, notice of such redemption shall have
pco -3/
P-7
s
y
been given or provision 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 payable. The Paying Agent is always the same as the
Trustee and the original Paying Agent and Trustee is Worthen Bank &
Trust Company, Little Rock, Arkansas.
"Person" - Includes natural persons, firms, associations,
corporations and public bodies.
"Project" - The lands, buildings, improvements and facili-
ties embodied in and pertaining to the industrial project leased to
Dowftith and being financed out of the proceeds of the bonds being
issued by the City hereunder. The Project will be operated by Dow -
Smith for the manufacturing of glass reinforced epoxy tubular goods
and dielectric electrical goods and such other items as DowSmith
shall elect to manufacture.
"Trust estate" - "property herein conveyed" - The mort-
gaged property.
"Trustee" - The Trustee for the time being, whether
original or successor, with the original Trustee being Worthen Bank
& Trust Company, Little Rock, Arkansas.
"Mortgaged property" - The properties comprising the Project,
being all of the properties leased to DowSmith under the Lease
Agreement as well as all other properties which, under the terms of
the Indenture, subsequently become subject to the lien of the In-
denture,
"Holder" or "bondholder" - "owner of the bonds" - The
bearer of any bond not registered as to principal and the registered
owner of any bond registered as to principal.
"Dowsmith" - DowSmith, Inc., a Delaware corporation but as
of and after the delivery of this Indenture qualified to do business
in the State of Arkansas, with as of the date of execution and de-
livery hereof The Dow Chemical Company, a Delaware corporation (called
"Dow ") and A. 0. Smith Corporation, a New York corporation (called
"Smith ") each (Dow and Smith) owning fifty per cent (50 %) of the
capital stock of DowSmith. DowSmith is Lessee under the Lease Agree-
ment.
"Lease Agreement" - The Lease and Agreement described in
Section 409A. of this Indenture, but which is the Lease and Agreement
wherein the City is Lessor and DowSmith is Lessee, recorded in the
office of the Circuit Clerk and Ex Officio Recorder of Pulaski County,
Arkansas.
"Dow" - The Dow Chemical Company, a Delaware corporation.
"Smith" - A. 0. Smith Corporation, a New York corporation.
"Dow and Smith Guaranty Agreements" - The Guaranty Agree-
ments described in Section 409B. of this Indenture pursuant to which
Dow and Smith unconditionally guarantee the payment of the rentals
and the performance of all covenants and obligations of the Lessee
under the Lease Agreement (with the guaranty of each of said guarantee-
ing corporations being limited to fifty per cent (50 7.) of the amounts
necessary to insure the prompt performance of the commitments of the
Lessee under the Lease Agreement.
"Industrial Development Bond Construction Fund - DowSmith
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 disburse-
ments are to be made in the manner and for the purposes specified in
Article VI of the Indenture.
"City Clerk" or "Clerk" or "City Recorder" or "Recorder" -
The person Molding the office and performing the duties of City Clerk
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" shall
include the plural, as well as the singular, number.
ARTICLE II
THE BONDS
Section 201. No bonds may be issued under the provisions
of this Indenture except in accordance with this Article, and the
total principal amount of bonds that may be issued is hereby ex-
pressly limited to Two Million, Five Hundred Thousand Dollars
($2,500,000), except with respect to substituted bonds issued under
Section 208.
Section 202. The bonds shall be designated "City of Little
Rock, Arkansas Industrial Development Revenue Bonds ". They shall be
dated May 19 1963 and shall bear interest at the rate of four per
cent (47,) per annum, payable semiannually on May 1 and November 1 of
each year commencing November 1, 1963. The bonds shall be numbered
consecutively from 1 to 544, inclusive, and shall be in the denomina-
tion of $5,000 each except that the following numbered bonds shall
be in the denomination of $1,000 each:
17 - 19
37 -38
75 - 78
98 -x.00
121 -122
144
189 -193
217 -220
245 -248
274 -277
304 -307
335 -339
369
400 -401
433 -435
468 -471
506
542 -544
They shall mature serially, unless sooner redeemed in the manner
herein set forth, annually on May 1 in each of the years set forth
in and in the amount set opposite each year:
D -1!
YEAR
BOND NOS.
AMOUNT
1964
1
- 19
$ 839000
1965
20
- 38
879000
1966
39
- 56
909000
1967
57
- 78
949000
1968
79
-100
980000
1969
101
-122
1029000
1970
123
-144
106,000
1971
145
-166
1109000
1972
167
-193
1159000
1973
194
-220
1199000
1974
221
-248
1249000
1975
249
-277
129,000
1976
278
-307
1340000
1977
308
-339
1400000
1978
340
-369
146,000
1979
370
-401
1529000
1980
402
-435
1589000
1981
436
-471
1643,000
1982
472
-506
171,000
1983
507
-544
178,000
The interest on the bonds shall be evidenced by interest
coupons. The principal of the bonds and the interest thereon shall
be payable at the office of the Trustee and Paying Agent. Payment
shall be in any coin or currency which on the respective dates of pay-
ment of such principal and interest is legal tender for the payment
of debts due the United States of America.
Section 203. The bonds shall be executed on behalf of the
City by the Mayor and City Clerk thereof and shall have impressed
thereon the seal of the City. If the Mayor shall file the certificate
required by Act No. 69 of the Acts of Arkansas of 1959 and otherwise
comply with the provisions of said Act No. 69 of 1959, then the bonds
and the coupons attached to the bonds may be executed by the facsimile,
signature of the Mayor which facsimile signature shall have the same
force and effect as if the Mayor had personally signed each of said
bonds and each of said coupons. The bonds, together with interest
thereon, shall be payable from the "Bond Mind" as hereinafter set
forth, and shall be a valid claim of the holders thereof only against
such fund and the revenues pledged to such fund (but in addition shall
be secured by a mortgage on the Project), which revenues are hereby
pledged and mortgaged for the equal and ratable payment of the bonds
and shall be used for no other purpose than to pay the principal of
and interest on the bonds, and the Paying Agent's fees, except as
may be otherwise expressly authorized in this Indenture. The bonds
and interest thereon shall not constitute an indebtedness of the City
within the meaning of any constitutional or statutory provision. In
case any officer whose signature or facsimile of whose signature shall
appear on the bonds or coupons shall cease to be such officer before
the delivery of such bonds, such signature or such facsimile shall
nevertheless be valid and sufficient for all purposes, the same as
if he had remained in office until delivery.
Section 204. Only such bonds as shall have endorsed thereon
a 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 execut-
ed by the Trustee, and such Certificate of the Trustee upon any such
bond shall be conclusive evidence that such bond has been authenti-
cated 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 and cancel all
matured coupons, if any, appertaining thereto, and such cancelled
coupons shall be cremated by the Trustee.
Section 205. The bonds issued under this Indenture and
the coupons-attached thereto shall 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 In-
denture, the City shall execute and deliver to the Trustee and the
Trustee shall authenticate the bonds and deliver them to the pur-
chasers upon payment of the purchase price plus accrued interest from
the date of the bonds to the date of delivery.
Section 207. This Indenture is given in order to secure
funds to pay for new construction and by reason thereof it is in-
tended 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 be-
come 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 satis-
factory 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.
Section 209. Title to any bond, unless such bond is
registered in the manner hereinafter provided, and to any interest
coupon shall pass by delivery in the same manner as a negotiable in-
strument payable to bearer. The City shall cause books for the
registration and for the transfer of the bonds as provided in this
Indenture to be kept by the Trustee as bond registrar. At the option
of the bearer, any bond may be registered as to principal alone on
such books, upon presentation thereof to the bond registrar, which
shall make notation of such registration thereon. Any bond registered
as to principal may thereafter be transferred only upon an assignment
duly executed by the registered owner or his attorney or legal repre-
sentative in such form as shall be satisfactory to the bond registrar,
such transfer to be made on such books and endorsed on the bond by
the bond registrar. Such transfer may be to bearer and thereafter
transferability by delivery shall be restored, subject, however, to
successive registrations and transfers as before. The principal of
•
any bond registered as to principal alone, unless registered to bear-
er, shall be payable only to or upon the order of the registered
owner or his legal representative, but the coupons appertaining to
any bond registered as to principal shall remain payable to bearer not&
withstanding such registration. No charge shall be made to any bond-
holder for the privilege of registration and transfer hereinabove
granted, but any bondholder requesting any such registration or trans-
fer 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 pay-
meet of or on account of the principal of any such bond shall be made
only to or upon the order of the registered owner thereof, or his
legal representative, and neither the City, the Trustee, nor the bond
registrar shall be affected by any notice to the contrary, but such
registration may be changed as herein provided. All such payments
shall be valid and effectual to satisfy and discharge the liability
upon such bond to the extent of the sun or sums so paid. The City,
the Trustee, the bond registrar and the Paying Agent may deem and
treat the bearer of any bond which shall not at the time be registered
as to principal, and the bearer of any coupon appertaining to any bond,
whether such bond be registered as to principal or not, as the abso-
lute 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.
•1 ' r
ARTICLE III
REDEMPTION OF BONDS BEFORE MATURITY
Section 301. The bonds shall be noncallable prior to May
1,.1968 except (1) from proceeds received from condemnation (as set
forth in the Lease Agreement), (2) from the amounts received pur-
suant to the exercise by the Lessee under the Lease Agreement of its
options to purchase that may be exercised prior to May 1, 1968 (as
set forth in the Lease Agreement described in this Indenture), and
if funds from said sources are received during said period the bonds
shall be called, in whole or in part, to the extent of the funds so
received, on any interest paying date in inverse numerical order at
the principal amount of the bonds being called plus accrued interest
to the redemption date and plus a premium of 4% of the principal
amount. On and after May 1, 1968, the bonds shall be callable for
payment prior to maturity from funds from any source (it being
mandatory to call bonds to the extent of funds received from con-
demnation or from the exercise by Lessee under the Lease Agreement
of any of its options to purchase), in whole or in part, in inverse
numerical order on any interest paying date at the principal amount
of the bonds being called plus accrued interest to the redemption
date and plus a premium of such principal amount as follows:
4.0%
if
redeemed
May
1,
1968
or
November
1,
1968;
3.6%
if
redeemed
May
1,
1969
or
November
1,
1969;
3.2%
if
redeemed
May
1,
1970
or
November
1,
1970;
2.8%
if
redeemed
May
19
1971
or
November
10
1971;
2.4%
if
redeemed
May
19
1972
or
November
19
1972;
2.0%
if
redeemed
May
1,
1973
or
November
1,
1973;
1.6%
if
redeemed
May
1,
1974
or
November
1,
1974;
1.2%
if
redeemed
May
1,
1975
or
November
19
1975;
.8%
if
redeemed
May
1,
1976
or
November
1,
1976;
.4%
if
redeemed
May
ll
1977
or
November
19
1977;
and no premium
if
redeemed
thereafter.
A90 _ '3 /
& -3
1 �
Section 302. Notice of the call for redemption shall be
published one time in a newspaper published in the City of Little
Rock, Arkansas and having a general circulation throughout the State
of Arkansas, which publication shall be not less than fifteen (15)
days before the date of redemption. In addition, notice of redemp-
tion shall be mailed by registered or certified mail to the regis-
tered 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 redemp-
tion. In the event that all of the bonds are registered as to prin-
cipal, notice in writing by registered or certified mail to the
owner or owners thereof not less than fifteen (15) days prior to the
date fixed for redemption shall be sufficient, and published notice
of the call for redemption need not be given. Each notice shall
specify the numbers and the maturities of the bonds being called and
the date on which they shall be presented for payment. After the
date specified in said call, the bond or bonds so called will cease
to bear interest provided funds for their payment are on deposit
with the Paying Agent at that time and, except for the purpose of
payment, shall no longer be protected by the Indenture and shall not
be deemed to be outstanding under the provisions of the Indenture.
It shall not be necessary to give written notice of the redemption
to the holder of any bearer bond.
Section 303. All bonds which have been redeemed shall be
cancelled by the Trustee together with the unmatured coupons apper-
taining thereto and shall not be reissued.
Section 304. All unpaid interest coupons which apper-
tain to bonds so called for redemption and which shall have become
payable on or prior to the date of redemption shall continue to be
payable to the bearers severally and respectively upon the pre-
sentation and surrender of such coupons.
' w
f �
+i
ARTICLE IV
GENERAL COVENANTS
Section 401. The City covenants that it will promptly
pay the principal of and interest on every bond issued under this In-
denture at the place, on the dates and in the manner provided herein
and in said bonds, and in the coupons appertaining thereto according
to the true intent and meaning thereof. The principal and interest
(except interest, if any, paid from the proceeds from the sale of the
bonds and accrued interest) are payable solely from revenues derived
from the Project, which revenues are hereby specifically pledged to
the payment thereof in the manner and to the extent herein specified,
and nothing in the bonds or coupons or in this Indenture should be
considered as pledging any other funds or assets of the City (except
the securing of the indebtedness evidenced by the bonds and coupons
by a mortgage on the Project). Anything in this Indenture to the
contrary notwithstanding, it is understood that whenever the City
makes any covenants involving financial commitments, including, with-
out limitation, those in the various sections of Article IV, it
pledges no funds or revenues other than those provided for in the
Lease Agreement and the revenues derived from and the avails of the
mortgaged property, but nothing herein shall be construed as pro-
hibiting the City from using any other funds and revenues.
Section 402. The Uty covenants that it will faithfully
perform at all times any and all covenants, undertakings, stip-
ulations and provisions contained in this Indenture, in any and every
bond executed, authenticated and delivered hereunder and in all ordi-
nances pertaining thereto. The City covenants that it is duly
0OO - if
authorized under the Constitution and laws of the State of Arkansas,
including particularly and without limitation Act No. 9, to issue
the bonds authorized hereby and to execute this Indenture, to mort-
gage the property described and mortgaged herein and to pledge the
revenues in the manner and to the extent herein set forth; that all
action on its part for the issuance of the bonds and the execution
and delivery of this Indenture has been duly and effectively taken;
and that the bonds in the hands of the holders and owners thereof
are and will be valid and enforceable obligations of the City accord-
ing to the import thereof.
Section 403. The City covenants that it lawfully owns
and is lawfully possessed of the lands descirbed and mortgaged
herein and that it has good and indefeasible title and estate there-
in in fee simple subject only to existing easements and rights of
way which do not substantially interfere with the utilization of
the mortgaged property for the purposes intended, and that it
warrants and will defend said title to the Trustee, its successors
and assigns, for the benefit of the holders and owners of the bonds
against the claims and demands of all persons whomsoever. The
City covenants that it will do, execute, acknowledge and deliver
or cause to be done, executed, acknowledged and delivered, such
Indenture or Indentures supplemental hereto and such further acts,
instruments, and transfers as the Trustee may reasonably require
for the better assuring, transferring, mortgaging, pledging,
assigning and confirming unto the Trustee all and singular the
property herein described and the revenues pledged hereby to the
payment of the principal of and interest on the bonds.
Section 404. The
C ity
covenants
that it will
promptly
cause to be paid all lawful
taxes,
charges,
assessments,
imposts
-.
and governmental charges at any time levied or assessed upon or
against the mortgaged property, or any part thereof, which might
Impair or prejudice the lien and priority of this Indenture;
provided, however, that nothing contained in this section shall
require the City to cause to be paid any such taxes, assessments,
Imposts or charges so long as the validity thereof is being con-
tested 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 to be maintained, preserved and kept the mortgaged property
in good condition, repair and working order, and that it will from
time to time cause to be made all needed repairs, replacements, addi-
tions, betterments and improvements so that the operation and busi-
ness pertaining to the mortgaged property shall at all times be con-
ducted properly and so that the mortgaged property shall be fully
maintained.
Section 406. The City covenants that it will cause this
Indenture, and all indentures supplemental thereto, to be kept re-
corded and filed in such manner and in such places as may be re-
quired 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 which full, true and correct entries will
be made of all dealings or transactions of and in relation to the
•
Project and the revenues derived from the Project. When requested
by the Trustee, the City agrees to have the said books of record and
account audited by an independent Certified Public Accountant. The
audit report shall contain at least the following information:
(a) All revenues derived from the Project and
all expenses incurred by the City in connection
with the Project;
(b) All payments, deposits, and credits to any
payment, transfers and withdrawals from the
funds created under the provisions of this
Indenture;
(c) The details pertaining to bonds issued, paid,
and redeemed; and
(d) 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 re-
lating to the Project and the revenues derived from the Project
shall at all times be open to the inspection of such accountants or
other agencies as the Trustee may from time to time designate. In
this regard, so long as the Lease Agreement is in force and effect,
the records kept by the Trustee and Paying Agent in connection with
its duties as such shall be deemed full compliance by the City with
its obligations under this Section 407.
Section 408. To the extent that such information shall
be made known to the City under the terms of this Section, it will
keep on file at the office of the Trustee a list of names and ad-
dresses of the last known holders of all bonds payable to bearer and
believed to be held by each of such last known holders. Any bond-
holder may request that his name and address be placed on said list
by filing a written request with the City or with the Trustee, which
request shall include a statement of the principal amount of bonds
I
0 • 1
held by such holder and the numbers of such bonds. Neither the City
nor the Trustee shall be under any responsibility with regard to the
accuracy of said list. At reasonable times and under reasonable
regulations established by the Trustee, said list may be inspected
and copied by holders and /or owners (or a designated representative
tereof) 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 DowSmith under a Lease and Agreement
wherein the City is Lessor and DowSmith is Lessee (called the "Lease
Agreement "). The Lease Agreement is recorded in the office of the
Circuit Clerk and Ex Officio Recorder of Pulaski County, Arkansas,
and an executed copy is on file in the office of the City Clerk of
the City and in the office of the Trustee. Reference is hereby made
to the Lease Agreement for a detailed statement of the terms and con-
ditions thereof and for a statement of the rights and obligations of
the parties thereunder. The lien of this Indenture is subject and
subordinate to the Lease Agreement. The City agrees, upon the re-
guest 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 obli-
gations.
B. Dow and Smith have executed and delivered unconditional
Guaranty Agreements guaranteeing the prompt performance of all cove-
rants and obligations of DowSmith, Lessee under the Lease Agreement
(called the "Dow and Smith Guaranty Agreements ") and copies of the
Dow and Smith Guaranty Agreements are on file in the office of the
City Clerk and in the office of the Trustee. Reference is hereby
made to the Dow and Smith Guaranty #greements for a statement of the
terms and conditions thereof and of the covenants and obligations of
Dow and Smith thereunder. The City agrees, upon the request of the
Trustee, to enforce all covenants and obligations of Dow and Smith
under the Dow and Smith Guaranty Agreements 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 City and all
obligations of Dow and Smith under and pursuant to the Dow and Smith
Guaranty Agreements whether or not-the City is in default in its
covenant to enforce such rights and obligations.
Section 410. The City covenants that so long as any bonds
authorised 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 mort-
gaged property insured against the perils and to the extent set forth
in the Lease Agreement and that the Trustee shall be named as a
party insured pursuant to a standard mortgagee clause as its interest
may appear. It is understood that the City has made provision 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.
0
ARTICLE V
REVENUES AND FUNDS
Section 501. The bonds herein authorized are not general
obligations of the City but are special obligations payable solely
from revenues and income derived from the mortgaged property and
the bonds are secured by a mortgage on the mortgaged property.
Section 502. There is hereby creatted and ordered to
be established with the Trustee a trust fund of and in the name
of the City to be designated "Industrial Development Revenue Bond
Retirement Fund - DowSmith Project" (herein sometimes referred to
as the "Bond Fund ").
Section 503. There shall be deposited into the Bond
Fund all accrued interest received at the time of the delivery of
the bonds and such additional amount from the proceeds of the sale
of the bonds as shall be necessary, together with the accrued in-
terest, to cover debt service requirements on the bonds until
rental payments under and pursuant to the provisions of the Lease
Agreement will be received in sufficient amounts for that purpose.
In addition, there shall be deposited into the Bond Fund as and
when received:
(a) The amount remaining in the Construction
Fund (hereafter created) after all costs and
expenses of and in connection with the Project
have been paid;
(b) All basic rent payments specified in Sec-
tion 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
Ocr �
4 I
16
the bonds secured by this Indenture are outstanding, it will at all
times deposit, or cause to be deposited, in the Bond Fund sufficient
moneys from revenues and income derived from the Project (whether
or not under and pursuant to the Lease Agreement) to promptly meet
and pay the principal of and interest on the bonds as the same be-
come due and payable, and to this end the City covenants and agrees
that, so long as any bonds secured by this Indenture are outstanding,
it will cause the Project to be continuously and efficiently operated
as a revenue and income producing undertaking, and that should there
be a default under the Lease Agreement with the result that the right
of possession of the leased premises is returned to the City, the
City will fully cooperate with the Trustee and with the holders and
registered owners of the bonds, to the end of fully protecting the
rights and security of the holders and registered owners of the bonds,
and, if and when requested by the Trustee, the City shall diligently
proceed in good faith and use its best efforts to secure another
tenant for the leased premises to the end of at all times deriving
aifficient 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 princi-
pal of and interest on the bonds and discharging other obligations
of the City under this Trust Indenture, but nothing herein shall be
construed as prohibiting the City from doing so.
Section 504. 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
i
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 pro-
visions of Section 203 of the Lease Agreement.
Section 505. The Bond Fund shall be in the name of the
City, designated as set forth in Section 502, and the City hereby
irrevocably authorizes and directs the Trustee and Paying Agent to
withdraw from the Bond Fund sufficient funds to meet the principal
of and interest on the bonds as the same become due and payable,
and to use said funds for the purpose of paying said principal and
interest, which authorization and direction the Trustee hereby
accepts.
Section 506. In the event any bonds shall not be pre-
sented for payment when the principal thereof becomes due, either
at maturity or otherwise, or at the date fixed for redemption there-
of, or in the event any coupon shall not be presented for payment
at the due date thereof, if there shall have been deposited with
the Paying Agent for the purpose, or left in trust if previously
so deposited, funds sufficient to pay the principal thereof to-
gether with all interest unpaid and due thereon, to the date of
maturity thereof, or to the date fixed for redemption thereof, or
to pay such coupon, as the case may be, for the benefit of the
holder thereof or the holder of such coupon, all liability of the
City to the holder thereof for the payment of the principal there-
of and interest thereon, or to the holder of said overdue coupon
for the payment thereof, as the case may be, shall forthwith cease,
determine and be completely discharged, and thereupon it shall be
the duty of the Paying Agent to hold such fund or funds, without
.
liability for interest thereon, for the benefit of the holder of
such bond, or the holder of such coupon, as the case may be, who
shall thereafter be restricted exclusively to such fund or funds,
for any claim of whatever nature on his part under this Indenture
or on, or with respect to, said bond or coupon.
Section 507. It is understood and agreed that pursuant
to the provisions of Section 203(b) of the Lease Agreement, the
Lessee agrees to pay as additional rent the fees and expenses of the
Paying Agent for the bonds and charges and expenses payable to the
Trustee as authorized and provided by this Indenture. Said Lessee
is to make payments on statements rendered by the Paying Agent and
the Lessee. All such additional rent payments under the Lease Agree-
ment which are received by the Trustee shall not be paid into the
Bond Fund, but shall be set up in separate accounts appropriately
designated to identify the particular account and shall be expended
solely for the purpose for which such payments are received, and the
Trustee and Paying Agent hereby agrees to so establish said accounts
and to make payment therefrom for said purposes.
Section 508. All moneys required to be deposited with or
paid to the Trustee and Paying Agent under any provision of this
Indenture shall be held by the Trustee and Paying Agent in trust, and
except for moneys deposited with or paid to the Trustee and Paying
Agent for the redemption of bonds, notice of which redemption has
been duly given, shall, while held by the Trustee and Paying Agent,
constitute part of the trust estate and be subject to the lien hereof.
Any moneys received by or paid to the Trustee pursuant to any pro-
vision of the Lease Agreement calling for the Trustee to hold, ad-
minister and disburse the same in accordance with the specific pro-
z
visions of the Lease Agreement shall be held, administered and dis-
bursed pursuant to said provision, and where required by the pro-
visions of the Lease Agreement the Trustee shall set the same aside
in a separate account. The City agrees that if it shall receive any
moneys pursuant to applicable provisions of the Lease Agreement, it
will forthwith upon receipt thereof pay the same over to the Trustee
to be held, administered and disbursed by the Trustee in accordance
with the provisions of the Lease Agreement pursuant to which the
City may have received the same. Furthermore, if for any reason the
Lease Agreement ceases to be in force and effect while any bonds are
outstanding, the City agrees that if it shall receive any moneys de-
rived from the mortgaged property, it will forthwith upon receipt
thereof pay the same over to the Trustee to be held, administered and
disbursed by the Trustee in accordance with provisions of the Lease
Agreement which would be applicable to such moneys if the Lease
Agreement were then in force and effect, and if there be no such pro-
visions 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 509. Anything herein to the contrary notwithstand-
ing, the Trustee is authorized and directed to refund to the Lessee
of the Lease Agreement all excess amounts as specified in the Lease
Agreement, whether such excess amounts be in the Bond Fund or in
special accounts.
ARTICLE VI
CUSTODY AND APPLICATION OF PROCEEDS OF BONDS
Section 601. Accrued interest and the proceeds of the sale
of the bonds (herein called the 11total sale proceeds ") shall be dis-
bursed and handled as follows:
(a) The Trustee shall take out of the total sale proceeds
and pay to the Lessee the amount required to be paid to the Lessee
under the Lease Agreement pursuant to the provisions of Section 101(c)
of the Lease Agreement;
(b) The Trustee shall next take out of the total sale
proceeds the amounts necessary to cover expenses incurred in connec-
tion with the issuance of the bonds if so directed by the Letter of
Instructions delivered to the Trustee on the date of closing, and if
there is such a direction the amounts and the persons to whom pay-
ment is made shall be specified in the Letter of Instructions; and
(c) The balance of the total sale proceeds shall be de-
posited in a special account of the City in the Trustee which
account shall be designated "Industrial Development Bond Construction
Fund - DowSmith Project" (which will be herein called "Construction
Fund "). The amount on deposit in the Construction Fund in excess of
the amount insured by the Federal Deposit Insurance Corporation must
be continuously secured by bonds or other direct or fully guaranteed
obligations of the United States of America; provided, however, that
any moneys in the Construction Fund invested in accordance with the
F - `f
provisions of Article VII hereof need not be secured.
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 (which are not paid pursuant to the
provisions of Section 601(c) hereof), under and pursuant to appli-
cable 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 designated representatives of Dowsmith
(which designation shall be in writing and filed with the Trustee)
and one or more duly designated representatives of the City (which
designation shall be in writing and filed with the Trustee). Each
requisition shall specify:
(1) The name of the person, firm or corporation
to whom payment is to be made;
(2) The amount of the payment;
(3) That the disbursement is for a proper expense
of or pertaining to the Project; and
(4) The general classification of the expenditure.
The Trustee shall keep records concerning and reflecting all dis-
bursements from the Construction Fund and shall file an accounting
of disbursements if and when requested by the City or by DowSmith.
The Trustee shall make payment from the Construction Fund pursuant
to and in accordance with said requisitions.
Section 603. Whenever the City and DowSmith shall 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 Fond to the
Bond Fund.
ARTICLE VII
INVESTMENTS
Section 701. (a) Moneys held for the credit of the Con-
struction Fund shall, upon direction by the duly designated repre-
sentative of DowSmith, be invested and reinvested by the Trustee in
direct obligations of the United States of America 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 reflect-
ed by a statement of the duly authorized representative of DowSmith,
which statement must be on file with the Trustee prior to any invest-
ment,
(b) Moneys held for the credit of any other fund shall to
the extent practicable be invested and reinvested in direct obliga-
tions of, or obligations the principal of and interest on which are
guaranteed by, the United States Government which shall mature, or
which shall be subject to redemption by the holder thereof, at the
option of the holder, not later than the date or dates on which the
money held for the credit of the particular fund shall be required for
the purposes intended. The Trustee shall so invest and reinvest
pursuant to instructions from a duly designated representative of
DowSmith.
(c) Obligations so purchased as an investment of moneys
in any such fund shall be deemed at all times a part of such fund,
and the interest accruing thereon and any profit realized from such
investment shall be credited to such fund and any loss resulting from
such investment shall be charged to such fund.
F- �
ARTICLE VIII
POSSESSION, USE AND RELEASE OF
MORTGAGED PROPERTY
Section 801. So long as not otherwise provided in this
Trust Indenture, the City and any Lessee of the City shall be suffered
and permitted to possess, use and enjoy the mortgaged property and
appurtenances.
Section 802. The Trustee shall be authorised, when re-
quested by the City and the Lessee, to join with the City in taking
the necessary steps, or, if required, to execute an appropriate re-
lease of the lien of this Indenture, to grant sewer and utility
easements over, along, across and under the mortgaged property.
Section 803. It is hereby recognized by the City and
the Trustee that the Lessee under the Lease Agreement in Article
XXIII thereof 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. Upon a sufficient showing to the
Trustee that the terms, provisions and conditions of the Lease Agree-
went pertaining to such release have been met and satisfied, the
Trustee shall, and is hereby authorized and directed to, take the
necessary steps to release said lands being utilized in any such
expansion program from the lien of this Indenture. Furthermore, it
is recognized that the City may issue bonds 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 pur-
pose, 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
- f
I
Lessee's authorized successors and assigns, from pledging the
rentals derived from any such separate lease agreement or any
such supplemental lease agreement to the payment of the bonds then
being issued with a pledge thereon prior to any pledge in favor
of the bonds now being issued, from placing a first lien by mort-
gage on and pledging all revenues derived from any lands and im-
provements covered by said separate lease agreement or said supple-
mental 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 constituting 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, or from
placing a lien upon any portion of the mortgaged property under this
Trust Indenture as security for the bonds then being issued, or
making a pledge of any of the revenues pledged under this Trust In-
denture 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 on the revenues pledged to the bonds secured by this
Trust Indenture are subordinate to the lien and pledge of this Trust
Indenture to and in favor of the bonds secured hereby.
ARTICLE IX
DISCHARGE OF LIEN
Section 901. If the City shall pay or cause to be paid
to the holders and owners of the bonds and coupons the principal and
interest to become due thereon at the times and in the manner stipu-
lated 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 satisfy the lien hereof, and re- convey to the City
the estate hereby conveyed, and assign and deliver to the City any
property at the time subject to the lien of this Indenture which may
then be in its possession, except cash held by it for the payment of
the principal of and interest on the bonds.
Bonds and coupons for the payment or redemption of which
moneys shall have been deposited with the Trustee (whether upon or
prior to the maturity or the redemption date of such bonds) shall be
deemed to be paid within the meaning of this Section; provided, how-
ever, that if such bonds are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been duly given.
The City may at any time surrender to the Trustee for
cancellation by it any bonds previously authenticated and delivered
hereunder, together with any unpaid coupons thereto belonging, which
the City may have acquired in any manner whatsoever, and such bonds
and coupons, upon such surrender and cancellation, shall be deemed to
be paid and retired.
C'.�: e. .` iI
F -1
I
ARTICLE X
DEFAULT PROVISIONS AND REMEDIES OF
TRUSTEE AND BONDHOLDERS
Section 1001. If any of the following events occur, sub -
ject 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 inter-
est on any bond hereby secured and outstanding and the continuance
thereof for a period of thirty (30) days;
(b) Default in the due and punctual payment of any
moneys required to be paid to the Trustee under the provisions of
Article V hereof and the continuance thereof for a period of
thirty (30) days;
(c) Default in the due and punctual payment of the prin-
cipal 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 (00) days after written notice to the City
by the Trustee or by the holders of not less than ten per cent
(10 %) in aggregate principal amount of bonds outstanding hereunder.
The term "default" shall mean default by the City in
the performance or observance of any of the covenants, agreements or
conditions on its part contained in this Indenture, or in the bonds
outstanding hereunder, exclusive of any period of grace required to
constitute a default an "event of default"' as hereinabove provided.
Section 1002. Upon the occurrence of an event of default,
the Trustee may, and upon the written request of the holders of
twenty -five per cent (25 %) in aggregate principal amount of bonds
outstanding hereunder, shall, bj notice in writing delivered to the
City, declare the principal of all bonds hereby secured then out-
standing and the interest accrued thereon immediately due and payable,
and such principal and interest shall thereupon become and be
immediately due and payable.
Section 1003. Upon the occurrence of an event of default,
the City, upon demand of the Trustee, shall forthwith surrender to it
the actual possession of, and it shall be lawful for the Trustee,
by such officer or agent as it may appoint, to take possession of,
all or any part of the mortgaged property with the books, papers and
accounts of the City pertaining thereto and to hold, operate and
manage the same, and from time to time to make all needful repairs
and improvements as by the Trustee shall be deemed wise; and the Trus-
tee, with or without such permission, may collect, receive and seques-
ter 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 Trus-
tee, 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 ex-
penses of such repairs and improvements, and apply the remainder of
the moneys so received by the Trustee in accordance with the provi-
sions 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
d
entry, however, to exist upon any subsequent event of default.
While in possession of such property the Trustee shall
render annually to the bondholders, at their addresses as set forth
in the list required by Section 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 indemnified as provided in Section 1101 hereof,
the Trustee shall be obliged 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 ex-
pedient 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 ex-
clusive of any other remedy, but each and every such remedy shall be
cumulative and shall be in addition to any other remedy given hereun-
der or now or hereafter existing at law or in equity or by statute.
No delay or omission to exercise any right or power accruing
upon any default or event of default shall impair any such right or
power or shall be construed to be a waiver of any such default or event
of default or acquiescence therein; and every such right and power may
be exercised from time to time and as often as may be deemed expedient.
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 default or event of default or shall impair any
rights or remedies consequent thereon.
Section 1005. Anything in this Indenture to the contrary
notwithstanding, 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 de-
livered to the Trustee, to direct the method and place of conducting
all proceedings to be taken in connection with the enforcement of
the terms and conditions of this Indenture, or for the appointment
of a receiver or any other proceedings hereunder; provided that such
direction shall not be otherwise than in accordance with the pro-
visions of law and of this Trust Indenture.
Section 1006. Upon the occurrence of an event of default,
and upon the filing of a suit or other commencement of judicial pro-
ceedings 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 appraise -
meat, valuation, stay, extension or redemption laws now or hereafter
in force, in order to prevent or hinder the enforcement of this Inden-
ture, but the City, for itself and all who may claim through or under
i
it, hereby waives, to the extent that it lawfully may do so, the bene-
fit of all such laws and all right of appraisement and redemption to
which it may be entitled under the laws of the State of Arkansas.
Section 1008. Available moneys shall be applied by the
Trustee as follows:
(a) Unless the principal of all the bonds shall have
become or shall have been declared due and payable, all such moneys
shall be applied:
First: to the payment to the persons entitled thereto of
all installments of interest then due, in the order of the maturity
of the installments of such interest, and, if the amount available
shall not be sufficient to pay in full any particular installment,
then to the payment ratably, according to the amounts due on such
installment, to the persons entitled thereto, without any discrimina-
tion or privilege;
Second: to the payment to the persons entitled thereto of
the unpaid principal of any of the bonds which shall have become due
(other than bonds called for redemption for the payment of 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 re-
spective dates upon which they become due, and, if the amount avail-
able shall not be sufficient to pay in full bonds due on any particu-
lar date, together with such interest, then to the payment ratably,
according to the amount of principal due on such date, to the persons
entitled thereto without any discrimination or privilege; and
Third: to the payment of the interest on and the principal
of the bonds, and to the redemption of bonds, all in accordance with
the provisions of Article V of this Indenture.
(b) If the principal of all the bonds shall have become
due or shall have been declared due and payable, all such moneys
shall be applied to the payment of the principal and interest then
due and unpaid upon the bonds, without preference or priority of
principal over interest or of interest over principal, or of any
installment of interest over any other installment of interest, or
of any bond over any other bond, ratably, according to the amounts
due respectively for principal and interest, to the persons entitled
thereto without any discrimination or privilege.
(c) If the principal of all the bonds shall have been
declared due and payable, and if such declaration shall thereafter
have been rescinded and annulled under the provisions of this Article,
they, subj ect to the provisions of paragraph (b) of this Section in
the eGent that the principal of all the bonds shall later become due
or be declared due and payable, the moneys shall be applied in accord-
ance 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 appli-
cation 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 re-
quired 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 appro-
priate endorsement or for cancellation if fully paid.
t
L
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 prodtction thereof in any trial
or other proceeding relating thereto and any such suit or proceeding
instituted by the Trustee shall be brought in its name as Trustee,
without the necessity of ,joining as plaintiffs or defendants any hol-
ders of the bonds hereby secured, and any recovery of judgment shall
be for the equal benefit of the holders of the outstanding bonds and
coupons.
Section 1010. No holder of any bond or coupons shall have
any right to institute any suit, action or proceeding in equity or
at law for the enforcement of this Indenture or for the execution of
any trust hereof or for the appointment of a receiver or any other
remedy hereunder, unless a default has occurred of which the Trustee
has been notified as provided in sub - section (g) of Section 1101, or
of which by said sub - section it is deemed to have notice, nor unless
such default shall have become an event of default and the holders of
twenty -five per cent (257.) in aggregate principal amount of bonds
outstanding hereunder shall have made written request to the Trustee
and shall have offered it reasonable opportunity either to proceed to
exercise the powers hereinbefore granted or to institute such action,
suit or 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 herein -
before 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 en-
s '
forcemeat 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 provided, and that all proceed-
ings at law or in equity shall be instituted, had and maintained in
the manner herein provided and for the equal benefit of the holders
of all bonds outstanding hereunder. Nothing in this Indenture con-
tained shall, however, affect or impair the right of any bondholder
to enforce the payment of the principal of and interest on any bond
at and after the maturity thereof, or the 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 re-
ceiver, by entry or otherwise, and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been deter-
dined 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 default hereunder and its consequences and rescind
any declaration of maturity of principal and shall do so upon the
written request of the holders of fifty per cent (50 %) in principal
amount of all bonds outstanding hereunder, provided, however, that
� L �
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 or of bond fund moneys unless prior to such
waiver or rescission all arrears of interest, with interest at the
rate borne by the bonds in respect of which such default shall have
occurred on overdue installments of interest or all arrears of bond
fund payments, as the case may be, and all expenses of the Trustee
and Paying Agent, shall have been paid or provided for, and in case of
any such waiver or rescission or in case any proceeding taken by the
Trustee on account of any such default shall have been discontinued or
abandoned or determined adversely, then and in every such case 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.
Section 1013. Anything herein to the contrary notwith-
standing, no default shall constitute an event of default until
actual notice of such default by registered or certified mail (with
or without return receipt requested) shall be given to the Lessee of
the Lease Agreement, to Dow and to Smith, and the Lessee of the Lease
Agreement, and Dow and Smith 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 of the Lease Agreement or Dow or
Smith shall not have corrected said default or caused said default to
be corrected within said sixty (60) days period; provided, however,
if said default be such that it cannot be corrected within sixty (60)
days, it shall not constitute an event of default if corrective action
is instituted within said sixty (60) day period and diligently pur-
sued until the default is corrected. With regard to any alleged de-
fault concerning which notice is given to the Lessee of the Lease
Agreement and to Dow and to Smith under the provisions of this Sec-
tion 1013, the City names and appoints the Lessee of the Lease Agree-
ment and Dow and Smith as its attorneys in fact and agents 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 and all things and acts to the same
extent that the City could do and perform any such things and acts
and with power of substitution. In this regard, it is agreed that
the parties hereto have familiarized themselves with the terms and
provisions of the Lease Agreement and the Dow and Smith Guaranty
Agreement.
Section 1014. The rights and remedies provided in favor
of the Trustee and the holders of the bonds by the provisions of
Sections 1003 to 1007, inclusive, hereof are in each case subject to
the proviso that, so long as there be no default by the Lessee under
the Lease Agreement, each and every such right and remedy shall be
and may be exercised only subject and subordinate to the rights of
said Lessee.
ARTICLE XI
THE TRUSTEE
Section 1101. The Trustee hereby accepts the trusts im-
posed 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 here-
under, 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, 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 any action or non - action in accordance with
any such opinion or advice.
(b) The Trustee shall not be responsible for any recital
herein, or in said bonds (except in respect to the certificate of
the Trustee endorsed on such bonds), or for the recording or re-
recording, filing or re- filing of this Indenture, or for insuring
the property herein conveyed or collecting any insurance moneys, or
for the validity.of the execution by the City of this Indenture or
of any supplemental indentures or instrument of further assurance,
(�
-4/
c `7
or for the sufficiency of the security for the bonds issued hereunder
or intended to be secured by, or for the value or title of the
property herein conveyed or otherwise as to the maintenance of the
security hereof; except that in the event the Trustee enters into
possession of a part or all of the property herein conveyed pursuant
to any provision of this Indenture, it shall use due diligence in
preserving such property; and the Trustee shall not be bound to as-
certain or inquire as to the performance or observance of any cove-
nants, conditions or agreements on the part of the City, except as
hereinafter set forth; but the Trustee may require of the City full
information and advice as to the performance of the covenants, con-
ditions and agreements aforesaid as to the condition of the property
herein conveyed.
(c) The Trustee may become the owner of bonds and cou-
pons 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 con-
sent 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 pr 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 pro-
ceeding, the Trustee shall be entitled to rely upon a certificate
of the City signed by its Mayor and attested by the Recorder as
sufficient evidence of the facts therein coatained and prior to the
occurrence of a default of which it has been notified as provided in
sub - section (g) of this Section, or of which by said sub - section it
is deemed to have notice, and shall also be at liberty to accept a
similar certificate to the effect that any particular dealing, trans-
action or action is necessary or expedient, gut may at its discretion
at the reasonable expense of the City, in every case secure such
further evidence as it may think necessary og 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 (b) of Section 1001) unless the Trustee shall be speci-
fically 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 at the office of the Trustee,
41
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 in the possession of or managing
the real and tangible personal property as in this Indenture provided.
(i) At any and all reasonable tunes 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 re-
quired, 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, cer-
tificates, 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 desir-
able 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 ad-
judicated to have resulted from the negligence or willful default of
the Trustee, by reason of any action so taken by the Trustee.
Section 1102. The Trustee shall be entitled to payment
and /or reimbursement for its reasonable fees for services rendered
hereunder and all advances, counsel fees and other expenses reason-
ably 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 payment of said reasonable and necessary advances,
.fees, costs and expenses and reference is hereby made to said Lease
Agreement, including particularly Section 203(b) thereof, 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 obligations set forth in this
Section 1102, but nothing herein shall be construed as prohibiting
the City from using any other funds and revenues for the payment of
any of its obligations under this Indenture. Upon default by the
(:ity, but only upon default, pursuant to the provisions of this In-
denture pertaining to default, the Trustee shall have a first lien
G.
with right of payment prior to payment on account of principal or
interest of any bond issued hereunder upon the mortgaged property
for said reasonable and necessary advances, fees, costs and expenses
incurred by the Trustee.
Section 1103. If a default occurs of which the Trustee
is by sub - section (g) of Section 1101 hereof required to take
notice or if notice of default be given it as in said sub - section
(g) provided, then the Trustee shall give written notice thereof
by mail to the last known owners of all bonds outstanding hereunder
shown by the list of bondholders required by the terms of Section
408 hereof to be kept at the office of the Trustee.
Section 1104. In any judicial proceeding to which the
City is a party and which in the opinion of the Trustee and its
counsel has a substantial bearing on the interests of owners of
bonds issued hereunder, the Trustee may intervene on behalf of bond-
holders and shall do so if requested in writing by the owners of at
least ten per cent (10 %) of the aggregate principal amount of bonds
outstanding hereunder. The rights and obligations of the Trustee
under this Section are subject to the approval of the court having
Jurisdiction in the premises.
Section 1105. Any corporation or association into which
the Trustee may be converted or merged, or with which it may be con-
solidated, or to which it may sell or transfer its trust business and
assets as a whole or substantially as a whole, or any corporation or
association resulting from any such conversion, sale, merger, con-
solidation 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, provileges, and all other matters
h6
as was its predecessor, without the execution or filing of any in-
strument or any further act, deed or conveyance on the part of any
of the parties hereto, anything herein to the contrary notwith-
standing.
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 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 amount of bonds outstanding hereunder.
Section 1103. 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 hereunder, by an instrument or con-
current 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 Recorder under its seal, may
appoint a temporary trustee to fill such vacancy until a successor
trustee shall be appointed by the bondholders in the manner above
provided; and any such temporary trustee so appointed by the City
shall immediately and without further act be superseded by the
;� -13
41
trustee so appointed by such bondholders.
trustee so appointed by the City shall be
good standing, having capital and surplus
Million Dollars ($3,000,000), if there be
qualified and able to accept the trust ups
terms.
Every such temporary
a trust company or bank in
of not less than Three
such an institution willing,
)n reasonable or customary
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 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 instru-
ment in writing from the City be required by any successor trustee
for more fully and certainly vesting in such successor the estates,
rights,powers and duties hereby vested or intended to be vested
in the predecessor trustee, any and all such instruments in writing
shall, on request, be executed, acknowledged and delivered by the
City. The resignation of any trustee and the instrument or in-
struments 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 re-
corded by the successor trustee in each recording office where the
Indenture shall have been filed and /or recorded.
cC'G - 3 .:t
i
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
extent, if any, that the City may be liable for same, the Trustee
may pay such tax, assessment or governmental charge, without pre-
judice, 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 In-
denture, and the same shall be given a preference in payment over any
of said bonds, and shall be paid out of the proceeds of revenues
collected from the mortgaged property if not paid by the City; but
the Trustee shall be under no obligation to make any such payment
unless it shall have been requested to do so by the holders of at
least ten per cent (10 %) of the aggregate principal amount of bonds
outstanding 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
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 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.
y
a
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.
G
t �
ARTICLE XII
SUPPLEMENTAL INDENTURES
Section 1201. The City and the Trustee may, from time to
time and at any time, 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 In-
denture 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.
At least thirty (30) days prior to the execution of any
supplemental indenture for any of the purposes of this Section, the
Trustee shall cause a notice of the proposed execution of such
supplemental indenture to be mailed, postage prepaid, to all
registered owners and other bondholders whose names and addresses
have been filed with the Trustee. 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. A failure on the
part of the Trustee to mail the notice required by this Section
shall not affect the validity of such supplemental indenture.
Section 1202. Subject to the terms and provisions con-
tained in this Section, and not otherwise, the holders of not less
than two- thirds (2/3) in aggregate principal amount of the bonds
then outstanding shall have the right, from time to time, anything
contained in this Indenture to the contrary notwithstanding, to con-
a
sent to and approve the execution by the City and the Trustee of such
indenture or indentures supplemental hereto as shall be deemed
necessary and desirable by the City for the purpose of modifying,
altering, amending, adding to or rescinding, in any particular, any
of the terms or provisions contained in this Indenture or in any
supplemental indenture; provided, however, that nothing herein con-
tained shall permit, or be cons trued 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 finance an
expansion referred to in Section 803 of this Indenture, it being
understood, as therein provided, that any such lien and pledge shall
be subordinate 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 construed as making
necessary the approval of bondholders of the execution of any
supplemental indenture as provided in Section 1201 of this Article.
If at any time the City shall request the Trustee to enter
into any supplemental indenture for any of the purposes of this Sec-
tion, the Trustee shall, at the expense of the City, cause notice
of the proposed execution of such supplemental indenture to be pub-
lished one time in a daily newspaper of general circulation pub-
lished in the City of Little Rock, Arkansas. Such notice shall
briefly set forth the nature of the proposed supplemental indenture
and shall state that copies thereof are on file at the principal
office of the Trustee for inspection by all bondholders. The
Trustee shall not, however, be subject to any liability to any bond-
holder 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 manner to question
the propriety of the execution thereof, or to enjoin or restrain
the Trustee or the City from executing the same or from taking any
action pursuant to the provisions thereof. Upon the execution of
any such supplemental indenture, this Indenture shall be and be
deemed to be modified and amended in accordance therewith.
Section 1203. Anything herein to the contrary notwith-
standing, a supplemental indenture under this Article XII shall not
become effective unless and until the Lessee under the Lease Agree-
ment 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 supple-
mental 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
i
i
proposed date of execution and delivery of any such supplemental
indenture. The Lessee under the Lease Agreement shall be deemed to
have consented to the execution and delivery of any such supple-
mental 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 fifteenth day after the amiling of said notice, the Lessee under
the Lease Agreement shall be deemed to have consented to the execu-
tion and delivery of such supplemental indenture.
•
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
notice provided for in Section 1302 hereof, consent to any amendment,
change or modification of the .Lease Agreement for the purpose of
curing any ambiguity or formal defect or omission or making any
other change therein, which in the reasonable judgment of the
Trustee is not to tte prejudice of the Trustee or the holders of
the bonds. The Trustee shall not consent to any other amendment,
change or modification of the Lease Agreement without the prior
approval or consent of the holders of not less than 66 2/3% in aggre-
gate principal amount of the bonds at the time outstanding, evi-
denced in the manner provided in Section 1401 hereof.
Section 1302. If at any time the City or Lessee of the
Lease Agreement shall request the Trustee's consent to a proposed
amendment, change or modification requiring bondholder approval under
Section 1301, the Trustee shall, at the expense of the requesting
party, cause notice of such proposed amendment, change or modifica-
tion to be published one time in a newspaper of general circulation
published in the City of Little Rock, Arkansas. Such notice shall
briefly set forth the nature of such proposed amendment, change or
modification and shall state that copies of the instrument embody-
ing 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 when
consented to by the Trustee in the manner hereinabove provided.
fCe-3}
it - IF
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 simi-
lar 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, directions, 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 instru-
ment, 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 with-
in 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 the holding by any person of bonds and /or
coupons transferable by delivery and the amounts and numbers of such
bonds, and the date of the holding of the same, may be proved by a
certificate executed by any trust company, bank or bankers, wherever
situated, stating that at the date thereof the party named therein
did exhibit to an officer of such trust company or bank or to such
banker, as the property of such party, the bonds and /or coupons
therein mentioned if such certificate shall be deemed by the Trustee
to be satisfactory. The Trustee may, in its discretion, require
s
{
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.
Section 1402. With the exception of rights herein ex-
pressly conferred, nothing expressed or mentioned in or to be implied
from this Indenture, or the bonds issued hereunder, is intended or
shall be construed to give to any person or company other than the
parties hereto, and the holders of the bonds and coupons secured by
this Indenture, any legal or equitable right, remedy or claim under
or in respect to this Indenture or any covenants, conditions and pro-
visions herein contained; this Indenture and all of the covenants,
conditions and provisions hereof being intended to be and being for
the sole and exclusive benefit of the parties hereto and the holders
of the bonds and coupons hereby secured as herein provided.
Section 1403. If any. provision of this Indenture shall be
held or deemed to be or shall, in fact, be inoperative or unenforce-
able as applied in any particular case in any jurisdiction or juris-
dictions or in all jurisdictions or in all cases because it conflicts
with any provisions or any constitution or statute or rule of public
policy, or for any other reason, such circumstances shall not have
the effect of rendering the provision in question inoperative or un-
enforceable in any other case or circumstance, or of rendering any
other provision or provisions herein contained invalid, inoperative
or unenforceable to any extent whatever.
The invalidity of any one or more phrases, sentences,
clauses or paragraphs in this Indenture contained shall not affect
r
the remaining portions of this Indenture or any part thereof.
Section 1404. It shall be sufficient service of any
notice, request, complaint, demand or other paper on the City if the
same shall be duly mailed to the City by registered or certified mail
addressed to the Mayor of the City, or to such address as the City
may from time to time file with the Trustee.
Section 1405. This Indenture may be simultaneously
executed in several counterparts, each of which shall be an original
and all of which shall constitute but one and the same instrument.
1 r �
• �
IN WITNESS WHEREOF, the City of Little Rock, 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 City Clerk, and, to evidence its acceptance of the trust hereby
created, Worthen Bank & Trust Company, Little Rock, Arkansas, 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:
(SEAL)
ATTEST:
(SEAL)
City Clerk
CITY OF LITTLE ROCK, ARKANSAS
By ,
Mayor
WORTHEN BANK & TRUST COMPANY
LITTLE ROCK, ARKANSAS
By
e
a
ACKNOWLEDGMENT
STATE OF ARKANSAS )
COUNTY OF PULASKI )
On this day of , 1963, before
me, a Notary Public duly commissioned, qualified and acting, within
and for the State and County aforesaid, appeared in person the
within named Byron R. Morse and Pauline G. Beeson, Mayor and City
Clerk, respectively, of the City of Little Rock, Arkansas, a munici-
pality 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 munici-
pality, and further stated and acknowledged that they had signed,
executed and delivered said foregoing instrument for the considera-
tion, uses and purposes therein mentioned and set forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
official seal this day of , 1963.
Notary Public
My commission expires:
t
ACKNOWLEDGMENT
STATE OF ARKANSAS )
COUNTY OF PULASKI )
On this day of , 1963, 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 Worthen
Bank & Trust Company, Little Rock, Arkansas, 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 instrument
for the consideration, uses and purposes therein mentioned and set
forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
official seal this day of , 1963.
Notary Public
My commission expires:
ACKNOWLEDGMENT
STATE OF ARKANSAS )
COUNTY OF PULASKI )
On this day of , 1963, 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 Worthen
Bank & Trust Company, Little Rock, Arkansas, 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 instrument
for the consideration, uses and purposes therein mentioned and set
forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
official seal this day of , 1963.
Notary Public
My commission expires:
T
0 b J
Al
Section 3. That the Mayor and City Clerk, for and on
behalf of the City, be, and they are hereby, authorized and directed
to do any and all things necessary to effect the execution of the
Trust Indenture, its execution and acceptance by the Trustee, the
performance of all obligations of the City under and pursuant to the
Trust Indenture, the execution and delivery of the bonds and the
performance of all other acts of whatever nature necessary to effect
and carry out the authority conferred by this ordinance and by the
Trust Indenture. That the Mayor and City Clerk be, and they are
I
hereby, further authorized and directed, for and on behalf of the
City, to execute all papers, documents, certificates and other in-
struments that may be required for the carrying out of the authority
conferred by this ordinance and the Trust Indenture, or to evidence
said authority and its exercise.
Section 4. That the provisions of this ordinance are
hereby declared to be separable and if any section, phrase or pro-
vision shall, for any reason, be declared to be invalid, such
declaration shall not affect the validity of the remainder of the
sections, phrases or provisions.
Section 5. That all ordinances and parts thereof in con-
flict herewith are hereby repealed to the extent of such conflict.
Section 6. That there is hereby found and declared to be
an immediate need for the securing and developing of industry within
the City in order to provide additional employment and increased
payrolls, alleviate unemployment and provide other benefits inci-
dental to the operation of a substantial industry, and the execution
and delivery of the Trust Indenture authorized by this ordinance
are necessary for the accomplishment of these public benefits and
s
r'
AIL
y
purposes. It is, therefore, declared that an emergency exists and
this ordinance, being necessary for the immediate preservation of
the public health, safety and welfare, shall be in force and take
effect fiam and after its passage.
PASSED: April 1 , 1963.
ATTEST:
`%a,L" �(-.'.—a e-e.2.&�
City _.
...,.,..
y
APPROVED:
Mayer
Pcp -33.
4--n-