ORD NO 23-2018 CITY OF VAN BUREN, ARKANSAS
ORDINANCE NO.a 7, - 2018
AN ORDINANCE AUTHORIZING THE ISSUANCE OF
INDUSTRIAL DEVELOPMENT REVENUE BONDS TO
FINANCE CERTAIN INDUSTRIAL FACILITIES;
AUTHORIZING THE LEASING OF SUCH FACILITIES TO
BEKAERT CORPORATION; AUTHORIZING A TRUST
INDENTURE SECURING THE BONDS; AUTHORIZING
THE SALE OF THE BONDS; AUTHORIZING AND
PRESCRIBING OTHER MATTERS PERTAINING
THERETO; AND DECLARING AN EMERGENCY.
WHEREAS, the City of Van Buren, Arkansas (the "City"), is authorized and empowered
under the provisions of Title 14, Chapter 164, Subchapter 2 of the Arkansas Code of 1987
Annotated(the "Act"), to issue revenue bonds and to expend the proceeds thereof to finance land,
buildings or facilities which can be used in securing or developing industry; and
WHEREAS, the City Council of the City has heretofore adopted Resolution No. 4-4-2018
stating the City's intention to furnish permanent financing of an industrial project located in the
City (the "Project") by the issuance of revenue bonds under the Act on behalf of Bekaert
Corporation, a Delaware corporation (the "Company"); and
WHEREAS, the Project consists of an expansion to the Company's existing industrial
facility located at 1881 Bekaert Drive, Van Buren, Arkansas 72956, together with the acquisition
and installation of various machinery, equipment and other personal property, and paying the
expenses of issuing the Bonds; and
WHEREAS, pursuant to and in accordance with applicable provisions of Arkansas law, a
public hearing was held on the date hereof before the City Council on the question of the issuance
of such revenue bonds under the Act; and
WHEREAS, after due consideration the City has determined to proceed with financing the
Project and to issue and sell its revenue bonds under the provisions of the Act in the aggregate
principal amount of not to exceed $16,000,000 (the "Bonds"), and in connection therewith to enter
into a Trust Indenture (the "Indenture"), between the City and Regions Bank, Little Rock,
Arkansas, as Trustee (the "Trustee"), to secure the Bonds; and
WHEREAS, the Project will be owned by the City and leased to the Company pursuant to
the provisions of a Lease Agreement(the "Lease Agreement")between the City and the Company;
and
WHEREAS,the Company will enter into an Agreement for Payments in Lieu of Taxes(the
"PILOT Agreement") with the City as hereinafter provided; and
WHEREAS,forms of the Indenture,the Lease Agreement,and the PILOT Agreement have
been presented to and are before this meeting;
NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Van
Buren, Arkansas, That:
Section 1. The City Council hereby finds that the accomplishment of the Project, and
the issuance of the Bonds to finance the same, will provide substantial employment and payrolls
and will thereby secure and develop industry within and near the City.
Section 2. The issuance of the Bonds in the aggregate principal amount of
$16,000,000, or such lesser amount as shall be requested by the Company, is hereby authorized.
The Bonds shall be designated "City of Van Buren, Arkansas Taxable Industrial Development
Revenue Bonds(Bekaert Corporation Project), Series 2018." The Bonds shall bear interest at the
rate of 4.25% per annum, payable as set forth in the Indenture, and shall mature in the year 2028,
which terms are recommended by the Company. The Bonds shall be in the forms and
denominations, shall be numbered, shall be dated, and shall be subject to redemption prior to
maturity all upon the terms and conditions recommended by the Company and set forth in the
Indenture.
Section 3. The Bonds shall be sold to the Company or its designee for the purchase
price of 100% of par, which price is recommended by the Company.
Section 4. To prescribe the terms and conditions upon which the Bonds are to be
executed, authenticated, issued, accepted, held and secured, the Mayor and City Clerk are hereby
authorized and directed to execute and acknowledge the Indenture for and on behalf of the City.
The Indenture is hereby approved in substantially the form submitted to this meeting, and the
Mayor is hereby authorized to confer with the Trustee and others in order to complete the Indenture
in substantially the form submitted to this meeting with such changes as shall be approved by him,
his execution to constitute conclusive evidence of such approval.
Section 5. There is hereby authorized the execution and delivery of the Lease
Agreement, and the Mayor and City Clerk are hereby authorized to execute, acknowledge and
deliver the Lease Agreement for and on behalf of the City. The Lease Agreement is hereby
approved in substantially the form submitted to this meeting, and the Mayor is hereby authorized
to confer with the Company and others in order to complete the Lease Agreement in substantially
the form submitted to this meeting with such changes as shall be approved by him, his execution
to constitute conclusive evidence of such approval.
Section 6. There is hereby authorized the execution and delivery of the PILOT
Agreement, and the Mayor is hereby authorized to execute and deliver the PILOT Agreement for
and on behalf of the City. The PILOT Agreement is hereby approved in substantially the form
submitted to this meeting, and the Mayor is hereby authorized to confer with the Company and
others in order to complete the PILOT Agreement in substantially the form submitted to this
meeting with such changes as shall be approved by him, his execution to constitute conclusive
evidence of such approval.
Section 7. The acquisition and construction of the Project, and the issuance and sale of
the Bonds, are exceptional situations in which the City has no responsibility for payment of the
costs and expenses thereof, all of which are payable by the Company, and the Company's
recommendations with respect thereto are acceptable to the City. Therefore, pursuant to
applicable laws of the State of Arkansas, including the Act, competitive bidding is hereby waived.
Section 8. The Mayor and City Clerk, for and on behalf of the City, are hereby
authorized and directed to do any and all things necessary to effect the execution and delivery of
the documents herein authorized and the performance of all obligations of the City thereunder, the
issuance, execution, sale and delivery of the Bonds, and the performance of all acts of whatever
nature necessary to effect and carry out the authority conferred by this Ordinance. The Mayor
and City Clerk are hereby further authorized and directed, for and on behalf of the City, to execute
all papers, documents, certificates and other instruments that may be required for the carrying out
of such authority or to evidence the exercise thereof.
Section 9. The City Clerk is hereby authorized and directed to file in the office of the
City Clerk, as a part of the minutes of the meeting at which this Ordinance is adopted, for
inspection by any interested person copies of the Indenture, the Lease Agreement, and the PILOT
Agreement, and such documents shall be on file for inspection by any interested person.
Section 10. The provisions of this Ordinance are hereby declared to be separable, and if
any section, phrase or provision shall for any reason be declared to be invalid, such declaration
shall not affect the validity of the remainder of the sections, phrases and provisions.
Section 11. All ordinances, resolutions and parts thereof in conflict herewith are hereby
repealed to the extent of such conflict.
Section 12. There is hereby found and declared to be an immediate need for the securing
and developing of industry in order to provide substantial employment and payrolls, thereby
alleviating unemployment and otherwise benefitting the public health, safety and welfare of the
City and the inhabitants thereof, and the issuance of the Bonds authorized hereby and the taking
of the other action authorized hereby are immediately necessary for the accomplishing of these
public benefits and purposes. It is, therefore, declared that an emergency exists and this
Ordinance being necessary for the preservation of the public peace, health and safety shall be in
force and effect immediately upon and after its passage.
PASSED: October 29, 2018.
Robert D. Freeman
Mayor
ATTESTED: APPR 6 ,Aif O F RM:
Ph li Thomas ' Cal •' e A. Se •
City Clerk/Treasurer City Attorney
CERTIFICATE
The undersigned, City Clerk of the City of Van Buren, Arkansas, hereby certifies that the
foregoing pages are a true and perfect copy of Ordinance No.23•a01t, adopted at a regular session
of the City Council of the City of Van Buren, Arkansas, held at the regular meeting place of the
City Council at 5:30 o'clock p.m., on the 29th day of October, 2018, and that the Ordinance is of
record in Ordinance Record Book No. , at page , now in my possession.
GIVEN under my hand and seal on this 3( day of October, 2018.
City Clerk
(SEAL)
•
. 0 sick. 12-3-1°
DRAFT
Friday, Eldredge & Clark
CITY OF VAN BUREN, ARKANSAS
and
BEKAERT CORPORATION
LEASE AGREEMENT
Dated as of November 1, 2018
LEASE AND AGREEMENT
TABLE OF CONTENTS
(This Table of Contents is not a part of the Lease
Agreement and is only for convenience of reference.)
Parties 1
Recitals 1
ARTICLE I
DEFINITIONS
Section 1.1 Definitions 2
Section 1.2 Use of Words and Phrases 6
ARTICLE II
REPRESENTATIONS
Section 2.1 Representations and Warranties of the Issuer 7
Section 2.2 Representations and Warranties of the Company 7
ARTICLE III
THE PROJECT
Section 3.1 Acquisition, Construction and Installation of the Project 9
Section 3.2 Company Required to Pay in Event Construction Fund Insufficient 9
Section 3.3 Revision of Plans and Specifications 9
Section 3.4 Certification of Completion Date 9
Section 3.5 Termination of Construction or Operation 10
ARTICLE IV
ISSUANCE OF THE BONDS
Section 4.1 Issuance of the Bonds 11
Section 4.2 Disposition of Bond Proceeds 11
ARTICLE V
RENTAL PROVISIONS
Section 5.1 Lease of Project 12
Section 5.2 Term 12
Section 5.3 Lease Payments and Payment of Other Amounts Payable 12
Section 5.4 No Defense or Set-Off-- Unconditional Obligation 13
Section 5.5 Quiet Enjoyment 14
ARTICLE VI
SPECIAL COVENANTS AND AGREEMENTS
Section 6.1 Maintenance of Corporate Existence 15
Section 6.2 Release and Indemnification Covenants 15
Section 6.3 Qualification of Company in Arkansas 16
Section 6.4 Permits or Licenses 16
Section 6.5 Access to Plant 16
Section 6.6 Maintenance and Insuring of Project 16
Section 6.7 Recordation and Filing 17
Section 6.8 Hazardous Substances; Compliance with Environmental Laws 17
Section 6.9 Taxes and Other Impositions 18
Section 6.10 Condemnation 19
Section 6.11 Damage or Destruction 19
ARTICLE VII
ASSIGNMENT, LEASING AND SELLING
Section 7.1 Conditions 20
Section 7.2 Instrument Furnished to Trustee 20
Section 7.3 Limitation 20
Section 7.4 Assignment of Issuer's Rights 20
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
Section 8.1 Events of Default 21
Section 8.2 Force Majeure 21
Section 8.3 Remedies on Default 22
Section 8.4 No Remedy Exclusive 22
Section 8.5 Company to Pay Attorneys' Fees and Expenses 23
Section 8.6 Waiver of Breach 23
ARTICLE IX
REDEMPTION OF BONDS
Section 9.1 Optional Redemption of Bonds 24
Section 9.2 Amounts Payable by Company 24
Section 9.3 Procedure for Exercise of Options 24
ARTICLE X
PURCHASE OF PREMISES
Section 10.1 Purchase of Project 25
Section 10.2 Project to Vest in Company Upon Expiration 25
Section 10.3 Method of Transfer 25
ARTICLE XI
MISCELLANEOUS
Section 11.1 Notices 26
Section 11.2 Severability 26
Section 11.3 Execution of Counterparts 27
Section 11.4 Amounts Remaining in Bond Fund 27
Section 11.5 Amendments, Changes and Modifications 27
Section 11.6 Governing Law 27
Section 11.7 Company Representatives 27
Section 11.8 No Personal Liability 27
Section 11.9 Parties in Interest 27
Signatures and Seals 28
Acknowledgments 29
Exhibit A—Description of Project 31
Exhibit B—Map of Plant Site 32
Exhibit C—Description of Plant Site 33
LEASE AGREEMENT
This LEASE AGREEMENT,dated as of November 1,2018,by and between CITY OF VAN
BUREN, ARKANSAS, a municipality organized and existing under the laws of the State of
Arkansas (the "Issuer"), and BEKAERT CORPORATION, a corporation organized and existing
under and by virtue of the laws of the State of Delaware (the "Company").
WITNESSETH:
WHEREAS,the Issuer is authorized and empowered under the laws of the State of Arkansas,
including particularly Title 14,Chapter 164, Subchapter 2 of the Arkansas Code of 1987 Annotated
(the"Act"),to issue revenue bonds and expend the proceeds thereof to finance the cost of acquiring,
constructing and equipping facilities for securing or developing industry; and
WHEREAS, certain industrial facilities (described in Article I hereof and collectively
referred to herein as the "Project") have been, and are being acquired, constructed and installed by
or on behalf of the Company located within the boundaries of the Issuer; and
WHEREAS,at the request of the Company and in furtherance of the purposes of the Act,the
Issuer proposes to issue its revenue bonds under the Act in the aggregate principal amount of not to
exceed $16,000,000 (identified in Article I hereof and referred to herein as the "Bonds"), for the
purpose of financing the cost of acquiring, constructing and installing the Project, and to lease the
Project to the Company upon the terms and conditions set forth herein; and
WHEREAS,the Company is entering into this Lease Agreement for the purpose of achieving
ad valorem tax savings with respect to the Project, the accomplishment of which the Issuer has
determined will furnish substantial employment and payrolls and will thereby promote the economic
welfare of the inhabitants of the Issuer and adjacent areas in furtherance of the public purpose of the
Act;
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants
herein made, and subject to the conditions herein set forth, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1. Definitions. In addition to the words and terms elsewhere defined in this
Lease Agreement or in the Indenture,the following words and terms as used in this Lease Agreement
shall have the following meanings unless the context or use indicates another or different meaning:
"Act" -- Title 14, Chapter 164, Subchapter 2 of the Arkansas Code of 1987 Annotated, as
enacted and amended from time to time.
"Bonds" -- The City of Van Buren, Arkansas Taxable Industrial Development Revenue
Bonds(Bekaert Corporation Project),Series 2018,in the aggregate principal amount of not to exceed
$16,000,000, issued under and secured by the Indenture.
"Bond Fund" -- The fund by that name created and established in Section 501 of the
Indenture.
"City Clerk" --The person holding the office and performing the duties of City Clerk of the
Issuer.
"Company" —Bekaert Corporation, a corporation organized and existing under the laws of
the State of Delaware, and its permitted successors and assigns hereunder.
"Company Representative" -- The person or persons at the time designated to act on behalf
of the Company as evidenced by a written certificate furnished to the Issuer and the Trustee
containing the specimen signature of such person and signed on behalf of the Company by its
President, any Vice President, or its Treasurer. Such certificate may designate an alternate or
alternates.
"Completion Date"--The date of completion of the acquisition,construction and installation
of the Project,as that date shall be determined by the Company and certified as provided in Section
3.4 hereof.
"Construction Fund" --The fund by that name created and established in Section 501 of the
Indenture.
"Environmental Laws" -- Any federal, state or local law, statute, ordinance or regulation
pertaining to health,industrial hygiene or the environmental conditions on,under or about the Plant,
now or hereafter enacted or interpreted, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), as amended, 42
U.S.C. Sections 9601 et seq.,and the Resource Conservation and Recovery Act of 1976("RCRA"),
42 U.S.C. Section 6901 et seq.
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"Event of Default" -- Any event of default specified in Section 8.1 hereof.
"Excess Bond Fund Moneys" -- As of any payment date under Section 5.3 hereof, moneys
in the Bond Fund on such date in excess of the amount required for payment of the principal of the
Bonds which have matured on a maturity date or on a redemption date prior to such payment date,
and past due interest, in all cases where Bonds have not been presented for payment.
"Hazardous Substances" -- Any one or more of the following substances, materials and
wastes:
(a) Those substances included within the definitions of "hazardous
substances","hazardous materials","toxic substances"or"solid waste"in CERCLA,
RCRA and the Hazardous Materials Transportation Act,49 U.S.C. Sections 1801 et
seq. and in the regulations promulgated pursuant to said laws;
(b) Those substances defined as "hazardous wastes" or "PCB" in the
applicable statutes of the State of Arkansas,as amended from time to time,and in the
regulations promulgated thereunder;
(c) Those substances listed in the United States Department of
Transportation Table (49 CFT 172.101 and amendments thereto) or by the
Environmental Protection Agency(or any successor agency)as hazardous substances
(40 CFR Part 302 and amendments thereto);
(d) Such other substances, materials and wastes which are or become
regulated under applicable local, state or federal law, which are classified as
hazardous, corrosive, ignitable, or toxic under federal, state or local laws or
regulations; and
(e) Any material,waste or substance which is(i)petroleum;(ii)asbestos;
(iii)polychlorinated biphenyls; (iv) designated as a"hazardous substance" pursuant
to Section 311 of the Clean Water Act, 33 U.S.C. Sections 1251 et seq. (33 U.S.C.
1321) or listed pursuant to Section 3078 of the Clean Water Act (33 U.S.C. 1317);
(v) flammable explosives; or(vi) radioactive materials.
"Indenture"--The Trust Indenture dated as of November 1,2018,by and between Issuer and
Trustee, securing the Bonds, and any amendments and supplements thereto.
"Issuer"--City of Van Buren,Arkansas,a political subdivision of the State of Arkansas,and
its successors and assigns.
"Lease Agreement" --This Lease Agreement and any amendments and supplements hereto.
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"Lease Payments" --All amounts required to be paid by the Company to the Issuer(and the
Trustee as the assignee of the Issuer)pursuant to Section 5.3 of this Lease Agreement.
"Mayor" -- The person holding the office and performing the duties of the Mayor of the
Issuer.
"Outstanding" -- When used with reference to the Bonds, as of any particular date, the
aggregate of all Bonds authenticated and delivered under the Indenture, except:
(a) Bonds canceled at or prior to such date or delivered to or acquired by
the Trustee prior to such date for cancellation;
(b) Bonds deemed to be paid in accordance with Article IX of the
Indenture; and
(c) Bonds in lieu of or in exchange or substitution for which other Bonds
shall have been authenticated and delivered pursuant to the Indenture.
"Permitted Encumbrances"--(i)This Lease Agreement and the Indenture;(ii)liens for taxes,
assessments, and other governmental charges not then delinquent or being contested in good faith
and by appropriate proceedings;(iii)any mechanic's,laborer's,materialmen's,worker's,repairmen's,
employee's, supplier's,or vendor's lien(or other like lien)arising in the ordinary course of business
or in connection with the construction of the Project and which are not yet due and payable or which
are being contested in good faith and by appropriate proceedings; (iv) utility, access and other
easements and rights of way, restrictions, reversions and exceptions that will not interfere with or
impair the operations being conducted on the Project or that are granted pursuant to the terms hereof;
(v) such minor defects, irregularities, encumbrances, easements, rights of way, and clouds on title
as normally exist with respect to properties similar in character to the Project and as do not
materially impair the value or utility of the Project; (vi) any leasehold mortgage; and(vii)any other
defect, irregularity, encumbrance, easement, right of way or cloud on title which is waived or
permitted in writing by the Company.
"Plant"--The industrial plant operated by the Company,located at 1881 Bekaert Drive,Van
Buren, Arkansas 72956. For identification purposes only, the Plant site is described in Exhibit C
hereto.
"Project"--The buildings,structures and other improvements,and those items ofmachinery,
equipment and other tangible personal property acquired, constructed and installed, in whole or in
part, with the proceeds of the Bonds (including any changes in, additions to, substitutions for or
deletions of facilities or portions thereof made under Section 3.3 hereof). As presently contemplated
by the existing plans and specifications prepared by or on behalf of the Company, the Project is
generally described in Exhibit A hereto. In no event shall the term "Project" include the land on
which the above-mentioned buildings, structures or other improvements are constructed.
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"Project Costs" -- All costs and expenses incurred with respect to the development, design,
engineering, acquisition, installation, construction, assembly, inspection, testing, completion and
start-up of the Project, including, without limitation:
(a) obligations of the Issuer or the Company incurred for labor and
materials (including obligations payable to the Company) in connection with the
acquisition, construction or installation of the Project, including reimbursement to
the Company or its affiliates for all advances and payments(including interest)made
prior to or after delivery of the Bonds;
(b) the cost of performance or other bonds and any and all types of
insurance that may be necessary or appropriate to have in effect during the course of
construction of the Project;
(c) all costs of engineering and architectural services,including the costs
of the Issuer or the Company for test borings, surveys, estimates, plans and
specifications and preliminary investigations therefor, and for supervising
construction, as well as for the performance of all other duties required by or
consequent to the proper construction of the Project;
(d) all expenses incurred in connection with the issuance of the Bonds,
including, without limitation, compensation and expenses of the Trustee,
compensation to any financial consultants or underwriters, legal fees and expenses,
costs of printing, and recording and filing fees;
(e) all fees for recording this Lease Agreement and the Indenture or filing
any financing statements;
(f) any sums required to reimburse the Issuer or the Company for
advances (including interest) made by either of them or any of the Company's
affiliates for any of the above items or for any other costs incurred and for work done
by either of them or any of the Company's affiliates which are properly chargeable
to the Project;
(g) all costs which the Issuer or the Company shall be required to pay,
under the terms of any contract or contracts, for the acquisition, construction, or
installation of the Project; and
(h) interest on the Bonds prior to the Completion Date.
"Purchaser"—Bekaert Corporation, a Delaware corporation, and its successors and assigns.
The Purchaser is the original purchaser of the Bonds.
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"Trustee" -- The bank or trust company designated as Trustee in the Indenture, and its
successor or successors as such Trustee under the provisions of the Indenture or by operation of law.
The original Trustee is Regions Bank, Little Rock, Arkansas.
Section 1.2. Use of Words and Phrases. "Herein", "hereby", "hereunder", "hereof',
"hereinabove", "hereinafter",and other equivalent words and phrases refer to this Lease Agreement
and not solely to the particular portion thereof in which any such word is used. The definitions set
forth in Section 1.1 hereof include both singular and plural. Whenever used herein, any pronoun
shall be deemed to include both singular and plural and to cover all genders. The term "including"
shall mean "including without limitation."
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ARTICLE II
REPRESENTATIONS
Section 2.1. Representations and Warranties of the Issuer. The Issuer makes the following
representations and warranties as the basis for the undertakings herein contained:
(a) The Issuer is a municipality duly organized and existing under the laws of the State
of Arkansas.
(b) The Issuer has the power to enter into the transactions contemplated by this Lease
Agreement and to carry out its obligations hereunder. By proper action the Issuer has been duly
authorized to execute and deliver this Lease Agreement.
(c) The Issuer has not and will not except as otherwise required by mandatory provisions
of law, assign its interest in this Lease Agreement other than to secure the Bonds.
(d) The acquisition,construction,and installation of the Project will promote the securing
and developing of industry and will thereby further the public purposes of the Act.
Section 2.2. Representations and Warranties of the Company. The Company makes the
following representations and warranties as the basis for the undertakings herein contained:
(a) The Company is a corporation duly organized under the laws of the State of Delaware
and is in good standing under the laws of such state, is duly authorized to do business in the State
of Arkansas and is in good standing under the laws of such state,has the power under its Certificate
of Incorporation and Bylaws to enter into this Lease Agreement, and has duly authorized the
execution and delivery of this Lease Agreement by proper corporate action.
(b) The Project is of the type authorized and permitted by the Act, and the Company
intends to operate the Project to the expiration or earlier termination of this Lease Agreement for
industrial purposes.
(c) Estimated Project Costs have been determined in accordance with sound engineering
and accounting principles, and the Company estimates that all of the proceeds of the Bonds will be
expended to pay such Project Costs.
(d) Neither the execution and delivery of this Lease Agreement,the consummation of the
transactions contemplated hereby, nor the compliance with the terms and conditions of this Lease
Agreement conflicts with or results in a breach of the terms, conditions or provisions of any
agreement or instrument to which Company is now a party or by which Company is bound, or
constitutes a default under any of the foregoing, or results in the creation or imposition of any lien,
7
charge or encumbrance whatsoever(other than Permitted Encumbrances)upon any of the property
or assets of Company.
(e) All representations and warranties of the Company contained in any certificate
required to be given in connection with the issuance of the Bonds will be true and correct in all
material respects as of the date of such certificate.
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ARTICLE III
THE PROJECT
Section 3.1. Acquisition,Construction and Installation of the Project. The Company shall
cause the Project to be acquired, constructed and installed with all reasonable dispatch in order to
effectuate the purposes of the Act. The Company shall have the sole responsibility under this Lease
Agreement for the acquiring, constructing and installing of the Project and may perform the same
itself or through its agents,and may make or issue such contracts,orders,receipts and instructions,
and in general do or cause to be done all such other things as it may in its sole discretion consider
requisite or advisable for the acquiring, constructing and installing of the Project and for fulfilling
its obligations under this Article III. The Company shall have full authority and the sole right under
this Lease Agreement to supervise and control, directly or indirectly, all aspects of the acquiring,
constructing and installing of the Project. Title to the Project shall be placed in the Issuer.
Section 3.2. Company Required to Pay in Event Proceeds of Bonds Insufficient. In the
event the proceeds of the issuance and sale of the Bonds available for payment of Project Costs
should not be sufficient to pay the Project Costs in full,the Company agrees to complete the Project
and to pay that portion of the Project Costs in excess of the moneys available therefor from the
proceeds of the Bonds. The Issuer does not make any warranty,either expressed or implied,that the
proceeds of the issuance and sale of the Bonds available for payment of Project Costs will be
sufficient to pay all of the Project Costs. The Company agrees that if after exhaustion of Bond
proceeds the Company should pay any portion of the Project Costs pursuant to the provisions of this
Section, the Company shall not be entitled to reimbursement therefor from the Issuer or from the
Trustee or from the holders of any of the Bonds,nor shall the Company be entitled to any diminution
of the amounts payable under Section 5.3 hereof.
Section 3.3. Revision of Scope, Plans and Specifications. The Company may revise the
scope, plans and specifications for the Project at any time and from time to time in any respect,
including, without limitation, any changes therein, additions thereto, substitutions therefor and
deletions therefrom; provided, however, that no such revision shall materially impair the effective
use of the Project contemplated by this Lease Agreement or shall render inaccurate any of the
representations contained in Section 2.2 hereof.
Section 3.4. Certification of Completion Date. Promptly after the Completion Date, the
Company shall submit to the Issuer and the Trustee a certificate, executed by a Company
Representative,which shall specify the Completion Date and shall state that acquisition,construction
and installation of the Project have been completed and the Project Costs have been paid or set aside
for payment,except for any Project Costs which have been incurred but are not then due and payable,
or the liability for the payment of which is being contested or disputed by the Company.
Notwithstanding the foregoing, such certificate may state that it is given without prejudice to any
rights against third parties which exist at the date thereof or which may subsequently come into
being.
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Section 3.5. Termination of Construction or Operation. Anything in this Lease Agreement
to the contrary notwithstanding, the Company shall have the right at any time to terminate the
acquisition, construction, installation or operation of the Project or change the scope of the Project
or any part thereof, if the Company shall have determined that the continued acquisition,
construction and installation or operation of the Project is impracticable, uneconomical or
undesirable for any reason. Promptly after such termination,the Company shall submit to the Issuer
and the Trustee a certificate, executed by a Company Representative, which shall state that the
Project Costs,to the extent of the acquisition,construction,installation and operation of the Project
as of the date of such termination, have been paid, except for any Project Costs which have been
incurred but are not then due and payable,or the liability for the payment of which is being contested
or disputed by the Company. Notwithstanding the foregoing, such certificate may state that it is
given without prejudice to any rights against third parties which exist at the date thereof or which
may subsequently come into being. After such termination, title to the Project shall promptly, and
in no event later than ten(10)days following such termination,be transferred to the Company in the
same manner as provided in Section 10.3 hereof.
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ARTICLE IV
ISSUANCE OF THE BONDS
Section 4.1. Issuance of the Bonds. The Issuer shall issue the Bonds under and in
accordance with the Indenture. The Company hereby approves the issuance of the Bonds and all
terms and conditions thereof.
Section 4.2. Disposition of Bond Proceeds. The proceeds from the issuance and sale of
the Bonds shall be disbursed to the Company from time to time for payment of Project Costs or
reimbursement of Project Costs paid or to be paid by the Company or its affiliates incidental to the
acquisition, construction and installation of the Project, in accordance with and pursuant to
requisitions as provided in Section 602 of the Indenture.
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ARTICLE V
RENTAL PROVISIONS
Section 5.1. Lease of Project. The Issuer hereby demises and leases to the Company,
subject to Permitted Encumbrances, and the Company hereby leases from the Issuer, subject to
Permitted Encumbrances, for and during the term of this Lease Agreement, the following (the
"Project"):
(a) Improvements Only: The buildings, structures and other
improvements now or at any time hereafter erected and installed on
the land described in Exhibit C attached hereto; and
(b) Personal Property: All machinery, equipment and other tangible
personal property acquired by or on behalf of the Issuer and paid for,
in whole or in part, with the proceeds of the Bonds and placed in the
Plant or elsewhere,including,without limitation,all replacements and
substitutions which become the property of the Issuer pursuant to the
provisions of this Lease Agreement. All such machinery,equipment
and other tangible personal property shall be identified in a ledger
which shall be maintained by the Company in the Plant; provided,
however, the failure to so identify such property in such ledger shall
not prevent any item of machinery, equipment or other tangible
personal property from becoming part of the Project and leased under
this Lease Agreement if, pursuant to the provisions hereof, it should
be part thereof.
TO HAVE AND TO HOLD the Project unto the Company for the term of this Lease
Agreement as hereafter set forth.
Section 5.2. Term. The term of this Lease Agreement shall commence on November 1,
2018,and shall continue until November 1,2028,and as long thereafter as any of the Bonds remain
outstanding under the Indenture, unless sooner terminated or extended as provided herein.
Section 5.3. Lease Payments and Payment of Other Amounts Payable. (a) On or before
any date that principal of or interest on the Bonds is due as set forth in the Indenture and the date of
final payment of the principal of and interest on the Bonds or any date fixed for the redemption of
any or all of the Bonds pursuant to the Indenture, the Company covenants and agrees to pay or to
cause to be paid in lawful money of the United States of America to the Trustee,as Lease Payments,
a sum equal to the amount payable on such payment date as principal (whether at maturity, upon
redemption or otherwise)of and interest on the Bonds as provided in the Indenture. Except as may
be otherwise provided in any home office payment agreement entered into pursuant to the provisions
of Section 214 of the Indenture, each payment made pursuant to this Section shall be made in
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immediately available funds at the principal corporate trust office of the Trustee during normal
banking hours.
In the event that the payment of the principal of and accrued interest on the Bonds is
accelerated under Section 1002 of the Indenture,the Company covenants and agrees to pay,or cause
to be paid, to the Trustee as provided above a sum equal to all the principal of and interest on the
Bonds then outstanding.
Each payment pursuant to this Section shall at all times be sufficient to pay the amount of
principal(whether at maturity,upon redemption or otherwise)of and interest payable on the Bonds
on the date that such payment is due; provided that Excess Bond Fund Moneys held by the Trustee
in the Bond Fund on such date shall be credited against the payment due on such date. Subject to
the provisions of the next succeeding sentence,if at any time the amount held by Trustee in the Bond
Fund should be sufficient (and remain sufficient) to pay at the times required the principal of and
interest on the Bonds then remaining unpaid,the Company shall not be obligated to make any further
payments under the provisions of this Section. Notwithstanding the provisions of the preceding
sentence,if on any date Excess Bond Fund Moneys held by Trustee in the Bond Fund are insufficient
to make the then required payments of principal(whether at maturity,upon redemption or otherwise)
of and interest on the Bonds on such date, the Company shall forthwith pay such deficiency as a
payment hereunder.
(b) The Company agrees to pay the fees,charges and reasonable and necessary expenses,
including reasonable attorneys' fees, of the Trustee and any paying agent.
(c) The Company agrees to pay or cause to be paid,promptly upon receipt of an invoice
therefor (with reasonable supporting documentation) from the Issuer, as additional rent, the
reasonable and necessary expenses incurred by the Issuer with respect to this Lease Agreement,the
Indenture, and any transaction or event contemplated by this Lease Agreement or the Indenture,
which are not otherwise required to be paid by the Company under the terms of this Lease
Agreement.
(d) In the event the Company should fail to make, or cause to be made, any of the
payments required in this Section,the item or installment so in default shall continue as an obligation
of the Company until the amount in default shall have been fully paid.
Section 5.4. No Defense or Set-off-- Unconditional Obligation. The obligations of the
Company to make the payments required in Section 5.3 hereof and to perform and observe the other
agreements on its part contained herein shall be absolute and unconditional, irrespective of any
defense or any right of set-off,recoupment or counterclaim it might otherwise have against the Issuer
or the Trustee, and the Company shall pay absolutely net during the term of this Lease Agreement
the payments to be made as prescribed in Section 5.3 and all other payments required hereunder free
of any deductions and without abatement,diminution or set-off; and until such time as the principal
of and interest on the Bonds shall have been fully paid, or provision for the payment thereof shall
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have been made in accordance with the Indenture,the Company: (i)will not suspend or discontinue
any payments provided for in Section 5.3 hereof; (ii) will perform and observe all of its other
agreements contained in this Lease Agreement; and (iii) except as provided in Article VIII hereof
or Section 3.5 hereof, will not terminate this Lease Agreement for any cause, including, without
limiting the generality of the foregoing, failure to complete the Project,the occurrence of any act or
circumstances that may constitute failure of consideration, destruction of or damage to the Project,
commercial frustration of purpose,any change in the tax laws of the United States of America or the
State of Arkansas or any political subdivision of such state,or any failure of the Issuer or the Trustee
to perform or observe any agreement,whether express or implied,or any duty,liability or obligation
arising out of or connected with this Lease Agreement or the Indenture. Notwithstanding anything
herein to the contrary, any home office payment agreement entered into pursuant to the provisions
of Section 214 of the Indenture may provide for set-off any obligation of the Company to the owner
of any Bond who is a party to such agreement against the obligations of the Company to make the
payments required in Section 5.3 hereof with respect to such Bond.
Section 5.5. Quiet Enjoyment. The Issuer covenants that the Company,upon paying the
rentals and performing all covenants, obligations and agreements on the part of Company to be
performed under this Lease Agreement, shall and may peaceably and quietly have, hold and enjoy
the Project for the term of this Lease Agreement and shall be entitled to all revenues generated
therefrom subject to all of the provisions of this Lease Agreement pertaining thereto.
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ARTICLE VI
SPECIAL COVENANTS AND AGREEMENTS
Section 6.1. Maintenance of Corporate Existence. The Company agrees that it will do all
things necessary to preserve and keep in full force and effect and in good standing its existence,
material rights and material franchises under the laws of the state of its organization and will not
dissolve or otherwise dispose of all or substantially all of its assets and will not consolidate with or
merge into any other entity or permit one or more other entities to consolidate with or merge into it,
except the Company may, without violating the foregoing, consolidate with or merge into another
entity or permit one or more other entities to consolidate with or merge into it,or transfer(other than
by way of an assignment as security for obligations of the Company) all or substantially all of its
assets to another entity (thereafter dissolving or not dissolving as it may elect), if either (a) such
consolidation,merger,or transfer is approved in writing by the Purchaser(so long as the Purchaser
is owner of not less than 100% in aggregate principal amount of the Bonds), or (b) the entity
surviving such merger or resulting from such consolidation,or the entity to which all or substantially
all of the assets of the Company are transferred, as the case may be: (i) shall qualify to do business
in the State of Arkansas under the laws thereof,and(ii)shall assume in writing all of the obligations
of the Company hereunder. Upon and after such consolidation, merger or transfer meeting the
foregoing conditions, the Company shall be relieved from liability for its obligations hereunder.
Section 6.2. Release and Indemnification Covenants. (a) The Company shall and hereby
agrees to indemnify and save the Issuer and the Trustee harmless against and from all claims by or
on behalf of any person, firm, corporation or other legal entity arising from the conduct or
management of, or from any work or thing done on, the Project or the Plant during the term of this
Lease Agreement from(i)any condition of the Project or the Plant, (ii) any breach or default on the
part of the Company in the performance of any of its obligations under this Lease Agreement, (iii)
any act or negligence of the Company or any of its agents, contractors, servants, employees or
licensees or(iv)any act or negligence of any assignee or sublessee of the Company,or of any agents,
contractors, servants, employees or licensees of any assignee or sublessee of the Company. The
Company shall indemnify and save the Issuer and the Trustee harmless from any such claim arising
as aforesaid from(i), (ii), (iii)or(iv)above,or in connection with any action or proceeding brought
thereon, and upon notice from the Issuer or the Trustee, the Company shall defend them or any of
them in any such action or proceeding. Notwithstanding the foregoing, neither the Issuer nor the
Trustee shall be entitled to indemnification for any claim arising out of its own gross negligence or
willful misconduct.
(b) Notwithstanding the fact that it is the intention of the parties that the Issuer shall not
incur pecuniary liability by reason of the terms of this Lease Agreement,or the undertakings required
of the Issuer hereunder by reason of the issuance of the Bonds, the execution of the Indenture, the
performance of any act required of the Issuer by this Lease Agreement, or the performance of any
act requested of the Issuer by the Company, including all claims, liabilities or losses arising in
connection with the violation of any statutes or regulations pertaining to the foregoing;nevertheless,
15
if the Issuer should incur any such pecuniary liability, then in such event the Company shall
indemnify and hold the Issuer harmless against all claims by or on behalf of any person, firm or
corporation or other legal entity arising out of the same, and all reasonable costs and expenses
incurred in connection with any such claim or in connection with any action or proceeding brought
thereon, and upon written notice from the Issuer, the Company shall defend the Issuer in any such
action or proceeding, except to the extent such claim, cost or expense arises from the gross
negligence or willful misconduct of the Issuer.
Section 6.3. Qualification of Company in Arkansas. The Company agrees that throughout
the term of this Lease Agreement it will be qualified to do business in the State of Arkansas.
Section 6.4. Permits or Licenses. In the event that it may be necessary for the proper
performance of this Lease Agreement on the part of the Company or the Issuer that any application
or applications for any permit or license to do or to perform certain things be made to any
governmental or other agency by the Company or the Issuer,the Company and the Issuer each shall,
upon the request of either, execute such application or applications.
Section 6.5. Access to Plant. The Issuer shall have the right, upon reasonable advance
notice to the Company, to have reasonable access to the Plant and the books and records of the
Company with respect to the Project during normal business hours for the purpose of ascertaining
the Company's compliance with the terms and conditions hereof. In making such inspections, the
Issuer will observe the Company's prevailing security and safety arrangements. Nothing contained
in this Section 6.5 or in any other provision of this Lease Agreement shall be construed to entitle the
Issuer to any information or inspection involving the confidential know-how or other proprietary
information of the Company, and prior to any such inspection the Company may require the Issuer
to enter into a confidentiality agreement in form and substance satisfactory to the Company and as
permitted by the Arkansas Freedom of Information Act with respect to any information involving
the confidential know-how or other proprietary information of the Company.
Section 6.6. Maintenance and Insuring of Project. (a) The Company shall at all times
maintain,preserve and keep the Project,and every material element and unit thereof,in good repair,
working order and condition(subject to scheduled and unscheduled outages),and from time to time
make all necessary repairs and renewals thereto,all as the Company,in its sole discretion,may deem
to be desirable for its uses and purposes. The Company may discontinue the operation of the Project,
or any element or unit thereof, if, in the sole discretion of the Company, it is no longer advisable to
operate the same, or if the Company intends to sell and dispose of the same. After the Completion
Date, the Company may at its own expense remodel the Project or make such substitutions,
modifications and improvements to the Project from time to time as it, in its sole discretion, may
deem to be desirable for its uses and purposes,which remodeling, substitutions, modifications and
improvements shall be included under the terms of this Lease Agreement as part of the Project.
(b) The Company shall not be under any obligation to renew, repair or replace any
inadequate, obsolete, worn-out, unsuitable, undesirable or unnecessary machinery, equipment or
16
other tangible personal property which is part of the Project hereunder. In any instance where the
Company in its sound discretion determines that any such items of leased machinery,equipment or
other tangible personal property have become inadequate,obsolete,worn-out,unsuitable,undesirable
or unnecessary,the Company may remove such items from the Project and(on behalf of the Issuer)
sell, trade-in, exchange or otherwise dispose of them (as a whole or in part) without any
responsibility or accountability to the Issuer therefor, provided that the Company may substitute
(either by direct payment of the costs thereof or by advancing to the Issuer the funds necessary
therefor) and install anywhere on or in the Project other machinery, equipment or other tangible
personal property having equal or greater utility(but not necessarily having the same function) in
the operation of the Project as a modern industrial facility(provided such removal and substitution
shall not impair the operating unity of the remaining property),all of which substituted property shall
be free of all liens and encumbrances(other than Permitted Encumbrances)but shall become a part
of the Project hereunder. The removal from the Project of any portion of the leased machinery,
equipment or other tangible personal property shall not entitle the Company to any abatement or
diminution of the rents payable under Section 5.3 hereof.
(c) The Company shall keep the Project insured against fire and other risks as are
customarily insured against by the Company in its other businesses of like size and type,by reputable
insurance companies or,at the Company's election,partially or wholly by means of an adequate self-
insurance program or in conjunction with other companies through an insurance fund,trust or other
agreement. Each policy of insurance shall name the Issuer and the Company as insureds as their
respective interests may appear. All proceeds of such insurance shall be for the account of the
Company or its designee.
Section 6.7. Recordation and Filing. The Company covenants that it will cause the
Indenture and this Lease Agreement, such security agreements, financing statements and all
supplements thereto and other instruments as may be required from time to time to be kept, to be
recorded and filed in such manner and in such places as may be required by law in order to fully
preserve and protect the security of the holders and owners of the Bonds and the rights of Trustee
under such instruments, and to perfect the security interest created by the Indenture.
Section 6.8. Hazardous Substances; Compliance with Environmental Laws. (a) Except
in material compliance with all Environmental Laws,the Company shall not acquire,use,generate,
manufacture,produce, store,release, discharge, dispose of, or arrange for the disposal of on,under
or about the Project or transport to or from the Project any Hazardous Substance or allow any other
person or entity to do so.
(b) The Company shall keep and maintain the Project in material compliance with, and
shall not cause or permit the Project to be in material violation of, any Environmental Law.
(c) The Company shall give prompt written notice to the Issuer of:
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(i) Any proceeding by any government authority with respect to the
presence,use or disposal of any Hazardous Substance on the Project or the migration
thereof from or to other property;
(ii) All claims made in writing by any third party against the Company or
the Project relating to loss or injury from any Hazardous Substance;
(iii) The Company's discovery of any occurrence or condition on the
Project or adjoining real property or in the vicinity of the Project that could
reasonably be expected to cause the Project or part thereof to be subject to any
restrictions on the ownership, occupancy, transferability or use of the Project under
any Environmental Law or to be subject to response or cleanup costs.
Section 6.9. Taxes and Other Impositions. (a) The Company shall pay, promptly as the
same become due and payable,every lawful tax or other governmental imposition of every kind and
nature, foreseen or unforeseen, for the payment of which the Company is or shall become liable by
reason of its estate or interest in the Project or any portion thereof,by reason of any right or interest
of the Company in or under this Lease Agreement,or by reason of or in any manner connected with
or arising out of the possession, operation, maintenance, alteration, repair, rebuilding, use or
occupancy of the Project or any portion thereof,including,without limitation,all taxes,assessments,
whether general or special, and governmental charges of any kind whatsoever that may at any time
be lawfully assessed or levied against or with respect to the Project or any machinery,equipment or
other tangible personal property installed or brought by the Company therein or thereon(including,
without limiting the generality of the foregoing,any taxes levied upon or with respect to the receipts,
income or profits of the Issuer from the Project and all utility and other charges incurred in the
operation, maintenance, use, occupancy and upkeep of the Project); provided, that with respect to
special assessments or other governmental charges that may lawfully be paid in installments over
a period of years,the Company shall be obligated to pay only such installments as they become due;
and provided further, that the Company may contest in good faith any such taxes, assessments and
other charges and, in such event, may permit the taxes, assessments or other charges so contested
to remain unpaid during any period,including appeals,when the Company is in good faith contesting
the same,so long as(a)reserves have been established in an amount reasonably sufficient to pay any
such taxes, assessments or other charges, accrued interest thereon and potential penalties or other
costs relating thereto,or other reasonably adequate provision for the payment thereof shall have been
made, (b) enforcement of the contested tax, assessment or other charge is effectively stayed for the
entire duration of such contest, and (c) any tax, assessment or other charge determined to be due,
together with any interest or penalties thereon, is promptly paid after resolution of such contest.
(b) The parties hereto recite knowledge of the decisions of the Supreme Court of the State
of Arkansas in Wayland v. Snapp, 232 Ark. 57, 334 S.W. 2d 633 (1960) and Pulaski County v.
Jacuzzi Bros. Div., 332 Ark. 91, 964 S.W.2d 788 (1998), concerning the exemption of properties
owned by municipalities and used for securing and developing industry under and pursuant to the
provisions of the Act. The Issuer has represented to the Company and the Issuer and the Company
18
acknowledge that under their and other interpretations of present law,no part of the Project will be
subject to ad valorem taxation by the State of Arkansas or by any political or taxing subdivision
thereof, and these factors, among others, materially induced the Company to enter into this Lease
Agreement. However,the Company will pay all impositions, if any, in connection with the Project
which may be lawfully levied or assessed upon the Project when the same shall become due;
provided,however,that the Company may contest any such impositions and need not pay during the
pendency of such contest except the Company shall in all events, pay to prevent the Project
becoming subject to loss or forfeiture. The Issuer hereby agrees that it will cooperate with the
Company in resisting any such impositions if and to whatever extent the Company may request.
Section 6.10. Condemnation. (a) If all or any part of the Project is taken or condemned as
the result of the exercise of the power of eminent domain,this Lease Agreement shall not terminate
and the rentals hereunder shall not abate. The net amount awarded as damages or paid as a result
of such taking (being the gross award less attorney's fees and other expenses and costs incurred in
the condemnation proceedings) shall be paid to the Company.
(b) The Company shall have the right, proceeding in the name of the Issuer, to handle
defense or prosecution of any condemnation proceeding and to negotiate any settlement or
compensation for a taking pertaining to or affecting the Project. The Issuer agrees that it will
cooperate with the Company in such manner as it requests with the end in view of obtaining the
maximum possible amount justifiable as damages for the taking, and will not settle any
condemnation proceeding without the prior written consent of the Company.
(c) Notwithstanding the fact that all or any part of the Project shall be taken by right of
eminent domain, the Company shall have the right to exercise any option granted to it by the
provisions of Article X hereof.
Section 6.11. Damage or Destruction. If all or any part of the Project is damaged or
destroyed by fire or other casualty, this Lease Agreement shall not terminate and the rentals
hereunder shall not abate. In repairing any damage to the Project resulting from any casualty, the
Company may make such repairs in such manner and to such extent as it deems appropriate for its
purposes, and shall not be liable for the restoration of the Project to the condition existing prior to
such casualty.
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ARTICLE VII
ASSIGNMENT, LEASING AND SELLING
Section 7.1. Conditions. The Company's interest in this Lease Agreement may be assigned
in whole or in part, and the Project may be subleased as a whole or in part (whether a specific
element or unit or an undivided interest), by the Company, subject, however, to the condition that
no assignment or sublease shall relieve the Company from liability for its obligations hereunder,
other than (a) those obligations relating to the utilization of the Project which obligations, to the
extent of the interest assigned, leased or sold, shall be deemed to be satisfied and discharged, and
(b) as described in Section 6.1 hereof.
Section 7.2. Instrument Furnished to Trustee. The Company shall,within fifteen(15) days
after the delivery thereof, furnish to the Issuer and the Trustee a true and complete copy of the
agreements or other documents effectuating any such assignment, lease or sale.
Section 7.3. Limitation. This Lease Agreement shall not be assigned nor shall the Project
be leased or sold, in whole or in part, except as provided in this Article VII or in Section 5.4 or 6.1
hereof.
Section 7.4. Assignment of Issuer's Rights. As security for the payment of the Bonds, the
Issuer will assign to the Trustee the Issuer's rights under this Lease Agreement(except for the Issuer's
rights under Sections 5.3(c), 6.2, 6.5 and 8.5 hereof and any rights of the Issuer to receive notices,
certificates,or other communications hereunder),including the right to receive payments hereunder
and the proceeds thereof, and hereby directs the Company to make said payments, or to cause said
payments to be made, directly to the Trustee. The Company herewith consents to such assignment
and will make payments, or cause payments to be made, directly to the Trustee without defense or
set-off by reason of any dispute between the Company and the Issuer or the Trustee.
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1
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
Section 8.1. Events of Default. Each of the following events shall constitute and is
referred to in this Lease Agreement as an "Event of Default":
(a) Failure by the Company to pay when due any payment required to be made under
Section 5.3(a) hereof, which failure shall continue for a period of ten (10) days.
(b) Failure by the Company to observe and perform any material covenant, condition or
agreement on its part to be observed or performed,other than as referred to in Section 8.1(a),which
failure shall continue for a period of sixty(60)days after written notice,specifying such failure and
requesting that it be remedied, is given to the Company by the Issuer or the Trustee, provided that
if the Company is proceeding with reasonable diligence to remedy the same, then such sixty-day
period shall be extended to such date as may be reasonably necessary to remedy such default. The
Company shall not be deemed in breach or default of this Lease Agreement during such initial sixty-
day cure period, nor (as long as the Company is proceeding with reasonable diligence as set forth
above) during such extended cure period.
(c) The dissolution or liquidation of the Company or the filing by the Company of a
voluntary petition in bankruptcy, or failure by the Company promptly to lift any execution,
garnishment or attachment of such consequence as will impair its ability to carry out its obligations
under this Lease Agreement, or filing of any involuntary bankruptcy proceedings against the
Company which is not timely contested by the Company, or a general assignment by the Company
for the benefit of its creditors, or the entry by the Company into an agreement of composition with
its creditors of such consequence as will impair its ability to carry out its obligations under this Lease
Agreement, or the approval by a court of competent jurisdiction of a petition applicable to the
Company in any proceeding for its reorganization instituted under the provisions of any bankruptcy
act, or under any similar act which may hereafter be enacted. The term "dissolution or liquidation
of the Company", as used in this subsection, shall not be construed to include the cessation of the
corporate existence of the Company resulting either from a merger or consolidation of the Company
into or with another entity or a dissolution or liquidation of the Company following a transfer of all
or substantially all of its assets as an entirety,under the conditions permitting such actions contained
in Section 6.1 hereof.
Section 8.2. Force Majeure. The provisions of Section 8.1 hereof are subject to the
following limitation: if by reason of acts of God; strikes, lockouts or other industrial disturbances;
acts of public enemies; orders or other acts of any kind of the Government of the United States or
of the State of Arkansas, or any other sovereign entity or body politic, or any department, agency,
political subdivision,court or official of any of them,or any civil or military authority;insurrections;
riots;epidemics;landslides;lightning;earthquakes,volcanoes;fires;hurricanes;tornadoes; storms;
floods; washouts; droughts; arrests; restrain of government and people; civil disturbances;
21
explosions, breakage or accident to machinery; partial or entire failure of utilities; or any cause or
event not reasonably within the control of the Company,the Company is unable in whole or in part
to carry out any one or more of its agreements or obligations contained herein, other than its
obligations under Sections 5.3(a), 6.1 and 6.2 hereof, the Company shall not be deemed in default
by reason of not carrying out said agreement or agreements or performing said obligation or
obligations during the continuance of such inability. The Company agrees, however, to use all
reasonable efforts to remedy with all reasonable dispatch the cause or causes preventing it from
carrying out its agreements; provided, that the settlement of strikes, lockouts and other industrial
disturbances shall be entirely within the discretion of the Company, and the Company shall not be
required to make settlement of strikes, lockouts and other industrial disturbances by acceding to the
demands of the opposing party or parties when such course is in the sole discretion of the Company
unfavorable to the Company.
Section 8.3. Remedies on Default. Whenever any Event of Default hereunder shall have
happened and be continuing, any one or more of the following remedial steps may be taken:
(a) The Issuer with the prior consent of the Trustee,or the Trustee,may at its option,and
shall, if acceleration occurs or is declared pursuant to Section 1002 of the Indenture, declare all
unpaid amounts payable under this Lease Agreement,together with interest,then due thereon,to be
immediately due and payable, whereupon the same shall become due and payable.
(b) The Issuer with the prior consent of the Trustee, or the Trustee,may take any action
at law or in equity to collect the payments then due and thereafter to come due hereunder, or to
enforce performance and observance of any obligation,agreement or covenant of the Company under
this Lease Agreement.
Any amounts collected pursuant to action taken under this Section shall be applied in
accordance with the Indenture.
In case any proceeding taken by the Issuer or the Trustee on account of any Event of Default
shall have been discontinued or abandoned for any reason, or shall have been determined adversely
to the Issuer or the Trustee,then and in every case the Issuer,the Company and the Trustee shall be
restored to their former positions and rights hereunder, respectively, and all rights, remedies and
powers of the Issuer, the Company and the Trustee shall continue as though no such proceeding has
been taken.
Section 8.4. No Remedy Exclusive. No remedy conferred upon or reserved to the Issuer
or the Trustee by this Lease Agreement is intended to be exclusive of any other available remedy or
remedies,but each and every such remedy shall be cumulative and shall be in addition to every other
remedy given under this Lease Agreement 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 Event of Default
shall impair any such right or power or shall be construed to be a waiver thereof, but any such right
or power may be exercised from time to time and as often as may be deemed expedient. In order to
22
entitle the Issuer or the Trustee to exercise any remedy reserved to it in this Article, it shall not be
necessary to give any notice other than such notice as may be required in this Article. Nothing in
this Lease Agreement contained shall affect or impair the right of the Purchaser (so long as the
Purchaser is owner of not less than 100% in aggregate principal amount of the Bonds) to institute
in its own name any suit, action or proceeding in equity or at law for the enforcement of this Lease
Agreement for any other remedy hereunder.
Section 8.5. Company to Pay Attorneys' Fees and Expenses. In the event the Company
should default under any of the provisions of this Lease Agreement and the Issuer or the Trustee
should employ attorneys or incur other expenses for the collection of payments due hereunder or for
the enforcement of performance or observance of any obligation or agreement on the part of the
Company contained herein,the Company agrees that it will on demand therefor pay to the Issuer or
the Trustee, as the case may be, the reasonable fees of such attorneys and such other expenses so
incurred.
Section 8.6. Waiver of Breach. In the event that any agreement contained herein shall be
breached by either the Company or the Issuer and such breach shall thereafter be waived by the other
party, such waiver shall be limited to the particular breach so waived and shall not be deemed to
waive any other breach hereunder. In view of the assignment of the Issuer's rights in and under this
Lease Agreement to the Trustee under the Indenture, the Issuer shall have no power to waive any
default hereunder by the Company without the consent of the Trustee,and the Trustee may exercise
any of the rights of the Issuer hereunder(other than the rights retained by the Issuer as set forth in
Section 7.4).
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ARTICLE IX
REDEMPTION OF BONDS
Section 9.1. Optional Redemption of Bonds. The Company shall have and is hereby
granted the option to prepay installments payable hereunder for the purpose of redeeming prior to
maturity the Bonds, in whole or in part, pursuant to Section 301 of the Indenture.
Section 9.2. Amounts Payable 12y Company. (a) In the case of a prepayment for the
redemption of the Bonds in whole pursuant to Section 9.1 hereof, the amount to be prepaid by the
Company hereunder (which shall fully discharge the obligation of the Company to make Lease
Payments hereunder)will be a sum sufficient,together with other funds deposited with Trustee and
available for such purpose, to pay (1) the principal of all Bonds then outstanding, plus interest
accrued and to accrue to the date upon which the Bonds will be redeemed,pursuant to the Indenture,
(2)all reasonable and necessary fees and expenses of the Trustee and any paying agent accrued and
to accrue through final payment of the Bonds, and (3) all other liabilities of the Company accrued
and to accrue under this Lease Agreement.
(b) In case of a prepayment for the redemption of the Bonds in part pursuant to Section
9.1 hereof, the amount to be prepaid by the Company hereunder will be a sum sufficient, together
with other funds deposited with Trustee and available for such purpose, to pay(1) the principal of
all Bonds then being redeemed,plus interest accrued and to accrue to the date upon which the Bonds
will be redeemed, pursuant to the Indenture, (2) all reasonable and necessary fees and expenses of
the Trustee and any paying agent accrued and to accrue in connection with said redemption,and(3)
all other liabilities of the Company accrued and to accrue under this Lease Agreement in connection
with said redemption.
(c) The Company agrees to and shall pay to the Trustee any amount required to be paid
by it under this Section 9.2, and the Trustee shall be directed to use the moneys so paid to it to
redeem the Bonds pursuant to the provisions of the Indenture. Any amount required to be paid under
this Section 9.2, shall not be deemed to be paid until immediately available funds are received by
the Trustee.
Section 9.3. Procedure for Exercise of Option. To exercise the option granted in this
Article IX, the Company shall give written notice to the Issuer and the Trustee which shall specify
therein the date upon which redemption of the Bonds will be made. Such date shall not be less than
forty-five (45) days from the date the notice is given. Upon receipt of such notice, the Issuer shall
forthwith take all steps (other than the payment of the money required for such redemption)
necessary under the applicable provisions of the Indenture to effect redemption of all or part,as the
case may be, of the Bonds on the earliest practicable date thereafter on which such redemption may
be made under the applicable provisions of the Indenture.
24
,
ARTICLE X
PURCHASE OF PREMISES
Section 10.1. Purchase of Project. In the event the Company pays or prepays Lease
Payments and other amounts owing to the Issuer and the Trustee under this Lease Agreement and
the Indenture in such a manner so as to permit this Lease Agreement to be released from the lien of
the Indenture in accordance with the terms thereof, then, irrespective of any default hereunder, the
Project shall be transferred by the Issuer to the Company, such payment or prepayment of the Lease
Payments and other amounts owing to the Issuer and the Trustee to constitute the purchase price of
the Project.
Section 10.2. Project to Vest in Company Upon Expiration. Upon expiration of the term
of this Lease Agreement and the satisfaction of all obligations of the Company contained herein,title
to the Project shall automatically and ipso facto vest in the Company. If requested, the Issuer shall
execute,acknowledge where appropriate,and deliver such instrument or instruments as the Company
may reasonably request to confirm the vesting of title to the Project in the Company.
Section 10.3. Method of Transfer. Transfer of title to the Project or any portion thereof shall
be by special warranty deeds, bills of sale, and other appropriate conveyance instruments executed
and acknowledged by the Issuer transferring good and merchantable title to the Company (or its
designee)free and clear of all liens and encumbrances except those to which title was subject when
leased hereunder,Permitted Encumbrances under this Lease Agreement,or resulting from any failure
of the Company to perform any of its obligations under this Lease Agreement. At either party's
option,closing shall occur through an escrow established with a title company mutually acceptable
to the parties.
25
ARTICLE XI
MISCELLANEOUS
Section 11.1. Notices. Except as otherwise provided in this Lease Agreement,all notices,
certificates or other communications shall be sufficiently given and shall be deemed given when
delivered by hand delivery or when the same has been mailed by registered or certified mail,postage
prepaid, to the Issuer, the Company, or the Trustee. Copies of each notice, certificate or other
communication given hereunder by or to the Company shall be mailed by registered or certified mail,
postage prepaid, to the Trustee; provided, however, that the effectiveness of any such notice shall
not be affected by the failure to send any such copies. Notices,certificates or other communications
shall be sent to the following addresses:
Issuer: City of Van Buren, Arkansas
Van Buren Municipal Complex
1003 Broadway St.
Van Buren, Arkansas 72956
Attention: Mayor
Company: Bekaert Corporation
1395 S Marietta Parkway, Bldg. 500, Ste. 100
Marietta, Georgia 30067
Attention:
Trustee: Regions Bank
400 West Capitol Ave., 7th Floor
Little Rock, Arkansas 72201
Attention: Corporate Trust Department
Any of the foregoing may, by notice given hereunder, designate any further or different addresses
to which subsequent notices, certificates or other communications shall be sent.
Section 11.2. Severability. If any provision of this Lease Agreement shall be held or
deemed to be or shall, in fact,be illegal, inoperative or unenforceable, the same shall not affect any
other provision or provisions herein contained or render the same invalid, inoperative, or
unenforceable to any extent whatever.
Section 11.3. Execution of Counterparts. This Lease Agreement 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.
Section 11.4. Amounts Remaining in Bond Fund. It is agreed by the parties hereto that after
payment in full of (i) the Bonds (or the provision for payment thereof having been made in
26
accordance with the provisions of the Indenture), (ii) the fees, charges and expenses of the Trustee
and paying agents (if any) in accordance with the Indenture, and(iii) all other amounts required to
be paid under this Lease Agreement and the Indenture, any amounts remaining in the Bond Fund
shall belong to and be paid by the Trustee to the Company.
Section 11.5. Amendments,Changes and Modifications. Except as otherwise provided in
this Lease Agreement or the Indenture, subsequent to the initial issuance of Bonds and prior to
payment in full of the Bonds(or the provision for payment thereof having been made in accordance
with the provisions of the Indenture), this Lease Agreement may not be effectively amended,
changed,modified, altered or terminated nor any provision waived, without the written consent of
the Trustee.
Section 11.6. Governing Law. This Lease Agreement shall be governed exclusively by and
construed in accordance with the applicable laws of the State of Arkansas.
Section 11.7. Company Representatives. A Company Representative shall act on behalf of
the Company whenever the approval of the Company is required or the Company requests the Issuer
to take some action, and the Issuer and the Trustee shall be authorized to act on any such approval
or request and neither party hereto shall have any complaint against the other or against the Trustee
as a result of any such action taken.
Section 11.8. No Personal Liability. No covenant or agreement contained in this Lease
Agreement shall be deemed to be the covenant or agreement of any official, officer, agent, or
employee of the Issuer in his individual capacity,and no such person shall be subject to any personal
liability or accountability by reason of the issuance thereof.
Section 11.9. Parties in Interest. This Lease Agreement shall inure to the benefit of and shall
be binding upon the Issuer, the Company and their respective successors and assigns, and no other
person, firm or corporation shall have any right, remedy or claim under or by reason of this Lease
Agreement; provided, however, that any obligation of the Issuer created by or arising out of this
Lease Agreement shall be payable solely out of the revenues derived from this Lease Agreement or
the sale of the Bonds or income earned on invested funds as provided in the Indenture and shall not
constitute, and no breach of this Lease Agreement by the Issuer shall impose, a pecuniary liability
upon the Issuer or a charge upon the Issuer's general credit.
27
IN WITNESS WHEREOF,the Issuer and the Company have caused this Lease Agreement
to be executed in their respective names,and the Issuer has caused its seal to be hereunto affixed and
attested by its duly authorized officer, all as of the date first above written.
CITY OF VAN BUREN, ARKANSAS
As Lessor
By:
ATTEST: Mayor
City Clerk
(SEAL)
BEKAERT CORPORATION
As Lessee
By:
Title
28
ACKNOWLEDGMENT
STATE OF ARKANSAS )
)
COUNTY OF CRAWFORD )
On this the day of November, 2018, before me, the
undersigned officer,personally appeared Robert Freeman and Phyllis Thomas,who acknowledged
themselves to be the Mayor and the City Clerk, respectively, of the City of Van Buren, Arkansas,
a municipality,and that they, as such Mayor and City Clerk,being authorized to do so,executed the
foregoing instrument for the purposes therein contained,by signing the name of the municipality by
themselves as Mayor and City Clerk.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this day
of November, 2018.
Notary Public
My Commission expires:
(SEAL)
29
ACKNOWLEDGMENT
STATE OF )
)
COUNTY OF )
On this the day of November, 2018, before me, , the
undersigned officer, personally appeared , who acknowledged
himself/herself to be the of Bekaert Corporation,a Delaware corporation,
and that he/she,as such ,being authorized to do so,executed the
foregoing instrument for the purposes therein contained, by signing the name of the corporation by
himself/herself as
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this day
of November, 2018.
Notary Public
My Commission expires:
(SEAL)
30
EXHIBIT A
Description of Project
The Project to be financed with the proceeds of the Bonds generally consists of (a) an
extension of approximately 100,000 square feet to be added to the existing building(known as the
Hill Building)located on the Plant site;an extension of approximately 11,000 square feet to be added
to the [southwest] portion of the main building located on the Plant site; improvements to the lab
facility located within the main building located on the Plant site, all in the areas highlighted on the
map of the Plant site attached hereto as Exhibit B,and(b)the acquisition and installation of various
machinery, equipment and other tangible personal property, to be used in connection with the
manufacture of ACRS stranded wire.
31
2.2
EXHIBIT B
Map of Plant Site
32
Pcu-f )))) ey-0(- 14 2_3-
EXHIBIT C
Description of Plant Site
The following described land situated in Crawford County, Arkansas, to-wit:
-L
„,
.X.
33
DRAFT
Friday, Eldredge & Clark
CITY OF VAN BUREN, ARKANSAS
to
REGIONS BANK
Little Rock, Arkansas
as Trustee
TRUST INDENTURE
Dated as of November 1, 2018
P j
I.
$16,000,000 City of Van Buren,Arkansas Taxable Industrial Development Revenue Bonds(Bekaert
Corporation Project), Series 2018
g.
TRUST INDENTURE
TABLE OF CONTENTS
(This Table of Contents is not a part of the Trust
Indenture and is only for convenience of reference.)
Parties 1
Recitals 1
Granting Clauses 1
ARTICLE I
DEFINITIONS
Section 101 Definitions 4
Section 102 Use of Words 6
ARTICLE II
THE BONDS
Section 201 Authorized Amount of Bonds 7
Section 202 Details of Bonds 7
Section 203 Form 8
Section 204 Payment 8
Section 205 Execution 8
Section 206 Limited Obligation 9
Section 207 Authentication 9
Section 208 Delivery of the Bonds 9
Section 209 Mutilated, Destroyed or Lost Bonds 9
Section 210 Registration and Transfer of Bonds 10
Section 211 Cancellation 11
Section 212 Temporary Bonds 11
Section 213 Conversion of Bonds Upon Completion Date 11
Section 214 Home Office Payment Agreement 11
ARTICLE III
REDEMPTION OF BONDS BEFORE MATURITY
Section 301 Redemption of Bonds 13
Section 302 Notice 13
Section 303 Redemption Payments 13
Section 304 Cancellation 13
Section 305 Partial Redemption of Bonds 13
ARTICLE IV
4
GENERAL COVENANTS
Section 401 Payment of Principal 15
Section 402 Performance of Covenants 15
Section 403 Instruments of Further Assurance 15
Section 404 Recordation and Other Instruments 15
Section 405 Inspection of Project Books 16
Section 406 Rights Under Lease Agreement 16
ARTICLE V
REVENUES AND FUNDS
Section 501 Creation of Bond Fund 17
Section 502 Payments Into Bond Fund 17
Section 503 Use of Moneys in Bond Fund 17
Section 504 Withdrawals from Bond Fund 17
Section 505 Non-Presentment of Bonds 17
Section 506 Fees, Expenses and Charges of Issuer and Trustee 18
Section 507 Moneys to be Held in Trust 18
Section 508 Refund to Company of Excess Payments 18
Section 509 Termination of Rights of Bondholders 18
ARTICLE VI
APPLICATION OF PROCEEDS OF BONDS
Section 601 Deposits Into the Construction Fund 19
Section 602 Disbursements From Construction Fund 19
Section 603 Balance in Construction Fund 19
ARTICLE VII
INVESTMENTS
Section 701 Investment of Moneys 20
Section 702 Trustee Not Liable for Losses 21
ARTICLE VII
RIGHTS AND OBLIGATIONS UNDER THE
LEASE AGREEMENT
Section 801 Rights of Company Under Lease Agreement 22
Section 802 Rights of Issuer under Lease Agreement 22
Section 803 Trustee's Obligations Under Lease Agreement 22
ARTICLE IX
DISCHARGE OF LIEN
Section 901 Discharge of Lien 23
ARTICLE X
DEFAULT PROVISIONS AND REMEDIES
OF TRUSTEE AND BONDHOLDERS
Section 1001 Events of Default 24
Section 1002 Acceleration 24
Section 1003 Other Remedies; Rights of Bondholders 25
Section 1004 Rights of Bondholders to Direct Proceedings 25
Section 1005 Appointment of Receiver 25
Section 1006 Waiver 26
Section 1007 Application of Moneys 26
Section 1008 Remedies Vested in Trustee 27
Section 1009 Rights and Remedies of Bondholders 27
Section 1010 Termination of Proceedings 28
Section 1011 Waivers of Events of Default 28
ARTICLE XI
TRUSTEE
Section 1101 Acceptance of Trusts 29
Section 1102 Fees, Charges and Expenses of Trustee and Paying Agents; 31
Trustee's Prior Lien
Section 1103 Notice to Bondholders of Default 31
Section 1104 Intervention by Trustee 32
Section 1105 Merger or Consolidation of Trustee 32
Section 1106 Resignation by Trustee 32
Section 1107 Removal of Trustee 32
Section 1108 Appointment of Successor Trustee 32
Section 1109 Concerning Any Successor Trustee 33
Section 1110 Reliance Upon Instruments 33
Section 1111 Appointment of Co-Trustee 33
ARTICLE XII
SUPPLEMENTAL INDENTURES
Section 1201 Supplemental Indentures Not Requiring Consent of Bondholders 35
Section 1202 Supplemental Indentures Requiring Consent of Bondholder 36
Section 1203 Consent of Company 36
.
ARTICLE XIII
AMENDMENT TO LEASE AGREEMENT OR GUARANTY AGREEMENT
Section 1301 Amendments Not Requiring Consent of Bondholders 38
Section 1302 Amendments Requiring Consent of Bondholders 38
ARTICLE XIV
MISCELLANEOUS
Section 1401 Consents of Bondholders 39
Section 1402 Notices 39
Section 1403 Limitation of Rights 40
Section 1404 Severability 40
Section 1405 Applicable Provisions of Law 40
Section 1406 Counterparts 40
Section 1407 Successors and Assigns 40
Section 1408 Captions 40
Section 1409 Bonds Owned by the Issuer or the Company 40
Signatures and Seals 42
Acknowledgments 43
Exhibit A - Form of Initial Bond 45
Exhibit B - Form of Bond After Completion Date 51
Exhibit C - Description of Project Site 56
Exhibit D - Form of Requisition 57
,
TRUST INDENTURE
This TRUST INDENTURE, dated as of November 1, 2018, by and between the CITY OF
VAN BUREN, ARKANSAS, a municipality organized and existing under the laws of the State of
Arkansas(the"Issuer"),and REGIONS BANK,a banking association organized under and existing
by virtue of the laws of the State of Alabama,with a corporate trust office in Little Rock, Arkansas
(the "Trustee").
WITNESSETH:
WHEREAS,the Issuer is authorized and empowered under the laws of the State of Arkansas,
including particularly Title 14,Chapter 164, Subchapter 2 of the Arkansas Code of 1987 Annotated
(the"Act"),to issue revenue bonds and expend the proceeds thereof to finance the cost of acquiring,
constructing and equipping facilities for securing or developing industry; and
WHEREAS, pursuant to and in accordance with the provisions of the Act, the Issuer
proposes to issue its revenue bonds under the Act in the aggregate principal amount of not to exceed
$16,000,000(identified in Article I hereof and referred to herein as the"Bonds"), for the purpose of
financing the cost of acquiring,constructing and equipping certain industrial facilities located within
the boundaries of the Issuer(described in Article I hereof and collectively referred to herein as the
"Project"),and to lease the Project to Bekaert Corporation,a Delaware corporation(the"Company"),
such lease to be upon the terms and conditions set forth in a Lease Agreement dated as of November
1, 2018 (the "Lease Agreement"), by and between the Issuer and the Company; and
WHEREAS, all things necessary to make the Bonds,when authenticated by the Trustee and
issued as in this Trust Indenture provided, the valid, binding and legal obligations of the Issuer
according to the import thereof,and to constitute this Trust Indenture a valid assignment and pledge
of revenues to the payment of the principal of and interest on the Bonds, in accordance with the
provisions hereof, have or will have been done and performed, and the creation, execution and
delivery of this Trust Indenture and the creation,execution and issuance of the Bonds,subject to the
terms hereof, have in all respects been duly authorized; and
WHEREAS, the Trustee has agreed to accept the trusts herein created upon the terms set
forth herein;
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, THIS TRUST
INDENTURE WITNESSETH:
GRANTING CLAUSES
That the Issuer in consideration of the premises and the acceptance by the Trustee of the
trusts hereby created and of the purchase and acceptance of the Bonds by the holders and owners
thereof,and the sum of One Dollar($1.00), lawful money of the United States of America,to it duly
paid by the Trustee,at or before the execution and delivery of these presents, and for other good and
valuable considerations, the receipt of which is hereby acknowledged, and in order to secure the
payment of the principal of and interest on the Bonds according to their tenor and effect and to
secure the performance and observance by the Issuer of all the covenants expressed or implied herein
and in the Bonds, subject to all of the provisions hereof, does hereby grant, bargain, sell, convey,
mortgage, assign and pledge unto the Trustee, and unto its successor or successors in trust, and to
them and their assigns forever, for the securing of the performance of the obligations of the Issuer
hereinafter set forth:
1.
All the rights and interest of the Issuer in and to the Lease Agreement(except for the rights
of the Issuer under Sections 5.3(c), 6.2, 6.5 and 8.5 thereof and any rights of the Issuer to receive
notices,certificates,or other communications thereunder);and all Revenues(as hereinafter defined)
and the proceeds of all thereof.
2.
All the rights and interest of the Issuer in and to the Construction Fund and the Bond Fund
(as hereinafter defined),and all moneys and investments therein,but subject to the provisions of this
Trust Indenture pertaining thereto.
3.
All moneys,securities and obligations from time to time held by the Trustee under the terms
of this Trust Indenture (except for moneys, securities or obligations deposited with or paid to the
Trustee for redemption or payment of Bonds which are deemed to have been paid in accordance with
Article IX hereof and funds held pursuant to Section 505 hereof,which shall be held by the Trustee
in accordance with the provisions of said Article IX or Section 505,as the case may be),and any and
all real and personal property of every name and nature from time to time hereafter by delivery or
by writing of any kind conveyed,mortgaged,pledged, assigned or transferred, as and for additional
security hereunder by the Issuer or by anyone in its behalf or with its written consent to the Trustee
which is hereby authorized to receive any and all such property at any and 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 intended so to be,to the Trustee and its successors in said trusts
and to them and their assigns forever;
IN TRUST NEVERTHELESS, upon the terms and trusts herein set forth for the equal and
proportionate benefit, security and protection of all owners of the said Bonds issued under and
secured by this Trust Indenture without privilege, priority or distinction of any of said Bonds over
any of the other of said Bonds;provided, however, that if the Issuer, its successors or assigns, shall
well and truly pay,or cause to be paid,the principal of the Bonds and the interest due thereon,at the
times and in the manner provided in the Bonds according to the true intent and meaning thereof,and
2
shall make the payments into the Bond Fund as required hereunder or shall provide, as permitted
hereby,for the payment thereof by depositing or causing to be deposited with the Trustee the amount
specified herein,and shall well and truly keep,perform and observe all the covenants and conditions
pursuant to the terms of this Trust 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 Trust Indenture to be and remain in full force and
effect.
THIS TRUST INDENTURE FURTHER WITNESSETH that, and it is expressly declared,
all Bonds issued and secured hereunder are to be issued, authenticated and delivered and all said
revenues and income hereby pledged are to be dealt with and disposed of under, upon and subject
to the terms,conditions,stipulations,covenants,agreements,trusts,uses and purposes as hereinafter
expressed,and the Issuer has agreed and covenanted, and does hereby agree and covenant,with the
Trustee and with the respective owners, from time to time of the said Bonds, as follows:
3
ARTICLE I
DEFINITIONS
Section 101. Definitions. In addition to the words and terms elsewhere defined in this
Indenture, the following words and terms as used in this Indenture shall have the following
meanings:
"Act" -- Title 14, Chapter 164, Subchapter 2 of the Arkansas Code of 1987 Annotated, as
enacted and amended from time to time.
"Advance" -- The advancement from time to time of the proceeds of the Bonds to the
Company pursuant to requisitions submitted in accordance with Section 602 hereof.
"Bonds" -- The City of Van Buren, Arkansas Taxable Industrial Development Revenue
Bonds(Bekaert Corporation Project),Series 2018,in the aggregate principal amount ofnot to exceed
$16,000,000, issued under and secured by the Indenture.
"Bond Counsel"--Any firm of nationally recognized municipal bond counsel selected by the
Company and acceptable to the Issuer and the Trustee.
"Bond Fund" -- The fund by that name created and established in Section 501 of this
Indenture.
"Business Day"--A day of the year on which banks located in the city in which the principal
corporate trust office of the Trustee is located are not required or authorized to remain closed and
on which The New York Stock Exchange is not closed.
"City Clerk" --The person holding the office and performing the duties of City Clerk of the
Issuer.
"Code" -- The Internal Revenue Code of 1986, as heretofore or hereafter amended.
"Company" -- Bekaert Corporation, a corporation organized and existing under the laws of
the State of Delaware, and its permitted successors and assigns hereunder.
"Company Representative" -- The person or persons at the time designated to act on behalf
of the Company as evidenced by written certificate furnished to the Issuer and the Trustee containing
the specimen signature of such person and signed on behalf of the Company by its President, any
Vice President, or Treasurer. Such certificate may designate an alternate or alternates.
"Completion Date"--The date of completion of the acquisition,construction and equipment
of the Project(or any phase of the Project financed with the proceeds of a series of Bonds), as that
4
date shall be determined by the Company and certified as provided in Section 3.4 of the Lease
Agreement.
"Construction Fund" --The fund by that name created and established in Section 601 of this
Indenture.
"Event of Default" -- Any event of default specified in Section 1001 hereof.
"Government Securities" -- Direct or fully guaranteed obligations of the United States of
America (including any such securities issued or held in book-entry form on the books of the
Department of Treasury of the United States of America).
"Guaranty Agreement" -- The Guaranty Agreement dated as of November 1, 2018, by and
between the Company and the Trustee,pursuant to which the Company guarantees the payment of
the principal of and interest on the Bonds, and any amendments and supplements thereto.
"Holder" or "bondholder" or "owner of the Bonds" -- The registered owner of any Bond.
"Indenture" -- This Trust Indenture and any amendments and supplements hereto.
"Interest Payment Date" -- Each May 1 and November 1 commencing May 1, 2019, or, if
such day shall not be a Business Day, the next succeeding Business Day.
"Issuer"--City of Van Buren,Arkansas,a municipality organized and existing under the laws
of the State of Arkansas, and its successors and assigns.
"Lease Agreement"--The Lease Agreement dated as of November 1,2018, by and between
the Issuer and the Company, and any amendments and supplements thereto.
"Mayor" -- The person holding the office and performing the duties of the Mayor of the
Issuer.
"Outstanding" -- When used with reference to the Bonds, as of any particular date, the
aggregate of all Bonds authenticated and delivered under this Indenture except:
(a) Bonds canceled at or prior to such date or delivered to or acquired by
the Trustee at or prior to such date for cancellation;
(b) Bonds deemed to be paid in accordance with Article IX of this
Indenture; and
(c) Bonds in lieu of or in exchange or substitution for which other Bonds
shall have been authenticated and delivered pursuant to this Indenture.
5
"Person" -- Includes natural persons, firms, associations, corporations and public bodies.
"Project" -- The buildings, structures and other improvements, and those items of fixtures,
machinery, equipment and other tangible personal property acquired, constructed and equipped, in
whole or in part, with the proceeds of the Bonds, more particularly identified in the Lease
Agreement. For identification purposes only, the Project site is described in Exhibit C attached
hereto.
"Project Costs" — The sum total of all reasonable or necessary costs actually incurred in
constructing the Project and any such costs incidental thereto.
"Purchaser"--Bekaert Corporation,a Delaware corporation,and its successors and assigns.
The Purchaser is the original purchaser of the Bonds.
"Record Date"--The fifteenth day of the calendar month next preceding an Interest Payment
Date, whether or not a Business Day.
"Revenues" -- All amounts payable pursuant to Section 5.3(a) of the Lease Agreement.
"Trustee" -- The bank or trust company designated as Trustee in this Indenture, and its
successor or successors as such Trustee under the provisions of the Indenture or by operation of law.
The original Trustee is Regions Bank, Little Rock, Arkansas.
"Trust Estate" -- The property conveyed to the Trustee pursuant to the Granting Clauses
hereof.
Section 102. Use of Words. 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", "owner", "holder" and "person" shall include the plural, as well as the
singular, number.
6
ARTICLE II
THE BONDS
Section 201. Authorized Amount of Bonds. No Bonds may be issued under the provisions
of this Indenture except in accordance with this Article. The total principal amount of Bonds that
may be issued is hereby expressly limited to $16,000,000, except as provided in Sections 209 and
212 hereof.
Section 202. Details of Bonds. (a)The Bonds(i)shall be designated "City of Van Buren,
Arkansas Taxable Industrial Development Revenue Bonds (Bekaert Corporation Project), Series
2018," (ii) shall be in the aggregate principal amount of not to exceed $16,000,000, (iii) shall be
dated the date of original issuance and delivery thereof to the Purchaser; (iv) shall bear interest at
the rate of four and one-quarter percent(4.25%)per annum until paid,payable semiannually on each
Interest Payment Date,and(v)shall mature,unless sooner redeemed in the manner in this Indenture
set forth,on November 1, 2028. The Bonds shall be issued as registered bonds without coupons as
is hereinafter provided.
The Bonds shall be issued in the denomination of$100,000 each,or any integral multiple of
$5,000 in excess of $100,000, numbered consecutively from R-1 upwards in order of issuance
according to the records of the Trustee.
The Bonds shall be initially issued in the form of one fully registered bond in the principal
amount of$16,000,000 and may not be submitted in exchange for more than one fully registered
bond until the Completion Date, at which time the Series 2018 Bond initially issued may,but shall
not be required to, be submitted to the Trustee pursuant to the provisions of Section 210 hereof in
exchange for more than one fully registered bond. The proceeds of the Bonds shall be advanced
from time to time upon the submission of requisitions by the Company to the Trustee pursuant to
the provisions of Section 602 hereof and Section 4.2 of the Lease Agreement. Upon receipt of each
requisition by the Trustee, the Trustee shall telephonically notify the Purchaser of the principal
amount of the Bonds which the Purchaser must purchase,which shall be the amount set forth in such
requisition. Promptly upon receipt of such notice,the Purchaser shall pay to the Trustee the principal
amount requisitioned by the Company, and the Trustee shall make a notation of such principal
amount purchased on the Record of Advances and Principal Payments attached to the Bond. The
amount shown on the Record of Advances and Principal Payments attached to the Bond shall be
deemed to be conclusive evidence of the principal amount of the Bonds purchased by the Purchaser,
absent manifest error. The principal amount of the Bonds so purchased shall be submitted by the
Purchaser to the Trustee, and such amount shall be deposited by the Trustee into the Construction
Fund. Any portion of the Bonds not sold to the Purchaser and any portion of the corresponding
proceeds not delivered to the Company by the Completion Date shall not be issued or delivered
thereafter. Notwithstanding anything herein to the contrary, until the Completion Date, upon the
request of the Purchaser, the Trustee may maintain custody of the Bond as agent of the Purchaser.
7
The Series 2018 Bond initially issued shall bear interest from its date;provided,that the date
of each Advance under such Bond shall be the interest commencement date from which the principal
amount of such Advance bears interest. Bonds issued on the Completion Date and prior to the next
Interest Payment Date shall bear interest from the Completion Date, and Bonds issued thereafter
shall bear interest from the Interest Payment Date next preceding the date of authentication and
delivery thereof by the Trustee, unless such date of authentication and delivery shall be an Interest
Payment Date, in which case they shall bear interest from such date of authentication and delivery,
or unless such date of authentication and delivery shall be during the period from the Record Date
to the next Interest Payment Date, in which case they shall bear interest from such Interest Payment
Date; provided, however, that if, as shown by the records of the Trustee, interest on any Bonds
surrendered for transfer or exchange shall be in default, the Bonds issued in exchange for Bonds
surrendered for transfer or exchange shall bear interest from the date to which interest has been paid
in full on the Bonds surrendered. Interest shall be computed on the basis of a year of three hundred
sixty(360) days consisting of twelve 30-day months.
Section 203. Form. The Series 2018 Bond originally issued and delivered shall be
substantially in the form set forth in Exhibit A attached hereto, with appropriate variations,
omissions and insertions as permitted or required by this Indenture. The Bonds issued and delivered
on and after the Completion Date shall be substantially in the form set forth in Exhibit B attached
hereto,with such appropriate variations,omissions and insertions as are permitted or required by this
Indenture.
Section 204. Payment. The principal of the Bonds shall be paid upon the presentation and
surrender of said Bonds at the principal corporate trust office of the Trustee. The interest on the
Bonds shall be payable by check or draft drawn upon the Trustee and mailed to or, at the option of
the owners of Bonds in the aggregate principal amount of not less than$1,000,000, transmitted by
wire transfer to the registered owners as of the close of business on the Record Date next preceding
the Interest Payment Date at their respective addresses as such appear as of the close of business on
such Record Date on the bond registration books kept by the Trustee,or in connection with any wire
transfer to the bank account number previously filed by the owner with the Trustee for such purpose,
except that if and to the extent that there shall be a default in the payment of the interest due on such
Interest Payment Date, such defaulted interest shall be paid to the owners in whose name any such
Bonds (or any Bond or Bonds issued upon transfer or exchange thereof) are registered at the close
of business on the fifth Business Day next preceding the date of payment of such defaulted interest.
All payments shall be made in lawful money of the United States of America.
Section 205. Execution. The Bonds shall be executed on behalf of the Issuer by the manual
or facsimile signatures of the Mayor and the City Clerk and shall have impressed or imprinted
thereon the corporate seal of the Issuer. A facsimile signature shall have the same force and effect
as if personally signed. In case any officer whose signature or facsimile of whose signature shall
appear on the Bonds shall cease to be such officer before the delivery of such Bonds, such signature
or such facsimile shall nevertheless be valid and sufficient for all purposes, the same as if he had
remained in office until delivery.
8
Section 206. Limited Obligation. The Bonds, together with interest thereon, shall be
payable from the Bond Fund, as hereinafter set forth, and shall be a valid claim of the holders
thereof only against the Bond Fund and the Revenues pledged to the Bond Fund, which Revenues
are hereby pledged and mortgaged for the equal and ratable payment of the Bonds (principal and
interest)and shall be used for no other purpose than to pay the principal of and interest on the Bonds,
and the Trustee's fees,except as may be otherwise expressly authorized in this Indenture. The Bonds
and interest thereon shall not constitute an indebtedness of the Issuer within the meaning of any
constitutional or statutory provision and shall never constitute an obligation or charge against the
general credit or taxing powers of the Issuer.
Section 207. Authentication. Only such Bonds as shall have endorsed thereon a certificate
of authentication substantially in the form set forth in Exhibits A and B attached hereto duly
executed by the Trustee shall be entitled to any right or benefit under this Indenture. No Bond shall
be valid and obligatory for any purpose unless and until such certificate of authentication shall have
been duly executed by the Trustee, and such certificate of the Trustee upon any such Bond shall be
conclusive evidence that such Bond has been authenticated and delivered under this Indenture. The
Trustee's certificate of authentication on any Bond shall be deemed to have been executed if signed
by an authorized signatory of the Trustee, but it shall not be necessary that the same signatory sign
the certificate of authentication on all of the Bonds issued hereunder.
Section 208. Delivery of the Bonds. The Issuer shall execute and deliver to the Trustee and
the Trustee shall authenticate the Bonds and deliver said Bonds to the Purchaser or the representative
thereof. Prior to the delivery or original issuance by the Trustee of any authenticated Bonds there
shall be or have been delivered to the Trustee:
(a) Original executed counterparts of this Indenture, the Lease Agreement, and the
Guaranty Agreement.
(b) A written order to the Trustee by the Issuer to authenticate and deliver the Bonds to
the Purchaser upon payment to the Trustee, but for the account of the Issuer, of a sum specified in
such order plus or less accrued interest thereon, if any, as the case may be, to the date of delivery.
(c) A copy,duly certified by the City Clerk,of the proceedings of the City Council of the
Issuer authorizing the issuance of the Bonds.
(d) An opinion of Bond Counsel to the effect that the Bonds have been validly issued and
are legally binding and enforceable under this Indenture.
Section 209. Mutilated,Destroyed or Lost Bonds. In case any Bond issued hereunder shall
become mutilated or be destroyed or lost, the Issuer shall, if not then prohibited by law, cause to be
executed and the Trustee or the Trustee, as appropriate, 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, or in lieu of and in substitution for such Bond destroyed or lost, upon the
9
holder's paying the reasonable expenses and charges of the Issuer and the Trustee or the Trustee in
connection therewith, and, in the case of a Bond destroyed or lost,his filing with the Trustee or the
Trustee evidence satisfactory to it that such Bonds were destroyed or lost, and of his ownership
thereof, and furnishing the Issuer and Trustee or the Trustee with indemnity satisfactory to them.
The Trustee is hereby authorized to authenticate any such new Bond. In the event any such Bonds
shall have matured or shall have been called for redemption prior to maturity, instead of issuing a
new Bond, the Issuer may pay the same without the surrender thereof.
Section 210. Registration and Transfer of Bonds. The Issuer hereby constitutes and
appoints the Trustee as Registrar of the Issuer,and as Registrar the Trustee shall keep books for the
registration and for the transfer of the Bonds as provided in this Indenture at the principal corporate
trust office of the Trustee. The person in whose name any Bond shall be registered shall be deemed
and regarded as the absolute owner thereof for all purposes and payment of or on account of the
principal of and interest on any such Bond shall be made only to or upon the order of the registered
owner thereof,or his legal representative,and neither the Issuer,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 sum or sums so paid.
Bonds may be transferred on the books of registration kept by the Registrar by the registered
owner in person or by his duly authorized attorney, upon surrender thereof, together with a written
instrument of transfer duly executed by the registered owner or his duly authorized attorney. Upon
surrender for transfer of any Bond at the principal corporate trust office of the Trustee, the Issuer
shall execute and the Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Bond or Bonds in the same aggregate principal amount and of any authorized
denomination or denominations.
Bonds issued and delivered on and after the Completion Date may be exchanged at the
principal corporate trust office of the Trustee for an equal aggregate principal amount of Bonds of
any other authorized denomination or denominations. The Issuer shall execute and the Trustee shall
authenticate and deliver Bonds which the bondholder making the exchange is entitled to receive,
bearing numbers not contemporaneously then outstanding. The execution by the Issuer of any Bond
of any denomination shall constitute full and due authorization of such denomination and the Trustee
shall thereby be authorized to authenticate and deliver such bond.
The Trustee shall not be required to transfer or exchange any Bond during the period from
and including a Record Date to the next succeeding Interest Payment Date of such Bond nor to
transfer or exchange any Bond after the mailing of notice calling such Bond for redemption has been
made and prior to such redemption.
Such transfers of registration or exchanges of Bonds shall be without charge to the holders
of such Bonds, but any taxes or other governmental charges required to be paid with respect to the
10
same shall be paid by the holder of the Bond requesting such transfer or exchange as a condition
precedent to the exercise of such privilege.
Section 211. Cancellation. All Bonds surrendered for the purpose of payment or
retirement,or for exchange,or for replacement or payment as provided above shall be canceled upon
surrender thereof to the Trustee and, at the option of the Trustee, either cremated, shredded or
otherwise disposed of. In the case of cremating, shredding or other disposition, the Trustee shall
execute and forward to the Issuer an appropriate certificate describing the Bonds involved and the
manner of disposition.
Section 212. Temporary Bonds. Until Bonds in definitive form are ready for delivery, the
Issuer may execute, and upon the request of the Issuer the Trustee shall authenticate and deliver,
subject to the provisions,limitations and conditions set forth herein,one or more Bonds in temporary
form,whether printed,typewritten,lithographed or otherwise produced,substantially in the form of
the definitive Bonds, with appropriate omissions, variations and insertions, and in authorized
denominations. Until exchanged for Bonds in definitive form, such Bonds in temporary form shall
be entitled to the lien and benefit of this Indenture. Upon the presentation and surrender of any Bond
or Bonds in temporary form, the Issuer shall, without unreasonable delay, prepare, execute and
deliver to the Trustee and the Trustee shall authenticate and deliver, in exchange therefor, a Bond
or Bonds in definitive form. Such exchange shall be made by the Trustee without making any charge
therefor to the holder of such Bond in temporary form.
Section 213. Conversion of Bonds Upon Completion Date. Upon receipt of notice of the
Completion Date as provided in Section 3.4 of the Lease Agreement, the Trustee shall give notice
thereof to the registered owner of the Bonds (unless such registered owner is the Company). Such
notice shall be given by mail in accordance with Section 302 hereof and shall state that such
registered owner must deliver his Bond to the Trustee for conversion. The Trustee shall cancel the
Bond so delivered and issue a form of Bond in lieu thereof pursuant to the provisions hereof.
Section 214. Home Office Payment Agreement. Notwithstanding any provision of this
Indenture or of any Bond to the contrary, the Trustee may enter into a home office payment
agreement with the Company and the owner of any Bond in a principal amount of at least$1,000,000
providing for the making to such owner of all payments of principal, redemption premium (if any)
and interest on such Bond or any part thereof(other than any payment of the entire unpaid principal
amount thereof)at a place and in a manner other than as provided in this Indenture and in the Bonds
without presentation or surrender of such Bonds,upon such conditions as shall be satisfactory to the
Trustee. The Trustee agrees to make payments of principal, redemption premium (if any) and
interest on the Bonds in accordance with the provisions thereof. Upon the transfer of any Bond
being paid in accordance with the provisions of a home office payment agreement permitted by this
Section, the Trustee, prior to the delivery of such Bond to the transferee, shall make a notation on
such Bond of the date to which interest has been paid thereon and the amount of any prepayments
made on account of the principal thereof.
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,
ARTICLE III
REDEMPTION OF BONDS BEFORE MATURITY
Section 301. Redemption of Bonds. The Bonds shall be subject to redemption prior to
maturity at the option of the Issuer, to be exercised solely as directed by the Company, in whole or
in part at any time(and if in part,by lot or in such other manner as may be determined by the Trustee
to be fair and equitable), at a redemption price equal to the principal amount being redeemed plus
accrued interest to the redemption date.
Section 302. Notice. Notice of the call for any redemption, identifying the Bonds or
portions thereof being called and the date on which they shall be presented for payment, shall be
given by the Trustee by registered or certified mail to the registered owner of each such Bond
addressed to such registered owner at his registered address and placed in the mails not less than
thirty(30)nor more than sixty(60)days prior to the date fixed for redemption; provided, however,
that failure to give such notice by mailing, or any defect therein, shall not affect the validity of the
proceedings for the redemption of any Bond with respect to which no such failure or defect has
occurred.
Any notice mailed as provided in this Section shall be conclusively presumed to have been
duly given, whether or not the registered owner receives the notice.
With respect to notice of redemption of the Bonds at the option of the Issuer(at the direction
of the Company), unless moneys sufficient to pay the principal of and interest on the Bonds to be
redeemed shall have been received by the Trustee prior to the giving of such notice,such notice shall
state that said redemption shall be conditional upon the receipt of such moneys by the Trustee on or
prior to the date fixed for such redemption. If such moneys shall not have been so received, such
notice shall be of no force and effect, the Issuer shall not redeem such Bonds and the Trustee shall
give notice, in the manner in which the notice of redemption was given, that such moneys were not
so received.
Section 303. Redemption Payments. On or prior to the date fixed for redemption, funds
shall be deposited with the Trustee to pay, and Trustee is hereby authorized and directed to apply
such funds to the payment of, the Bonds or portions thereof called, together with accrued interest
thereon to the redemption date. Upon the giving of notice and the deposit of funds for redemption,
interest on the Bonds or portions thereof thus called shall no longer accrue after the date fixed for
redemption.
Section 304. Cancellation. All Bonds which have been redeemed shall not be reissued but
shall be canceled and disposed of by the Trustee in accordance with Section 211 hereof.
Section 305. Partial Redemption of Bonds. In case a Bond is of a denomination larger than
$100,000, a portion of such Bond ($100,000 or any integral multiple of $5,000 in excess of
12
$100,000)may be redeemed,but Bonds shall be redeemed only in the principal amount of$100,000
or any integral multiple of $5,000 in excess of $100,000. Upon surrender of any Bond for
redemption in part only,the Issuer shall execute and the Trustee shall authenticate and deliver to the
holder thereof a new Bond or Bonds in the same form and of authorized denominations in an
aggregate principal amount equal to the unredeemed portion of the Bond surrendered.
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ARTICLE IV
GENERAL COVENANTS
Section 401. Payment of Principal and Interest. The Issuer covenants that it will promptly
pay or cause to be paid the principal of and interest on every Bond issued under this Indenture at the
place, on the dates and in the manner provided herein and in the Bond according to the true intent
and meaning thereof. The principal and interest(except interest paid from the proceeds from the sale
of the Bonds and accrued interest) are payable solely from the Trust Estate (including, without
limitation,Revenues),which is hereby specifically pledged to the payment thereof in the manner and
to the extent herein specified, and nothing in the Bonds or this Indenture should be considered as
assigning or pledging any funds or assets of the Issuer other than the Trust Estate in the manner and
to the extent herein specified. Anything in this Indenture to the contrary notwithstanding, it is
understood that whenever the Issuer makes any covenants involving financial commitments,
including,without limitation, those in the various sections of this Article IV, it pledges no funds or
assets other than the Trust Estate in the manner and to the extent herein specified,but nothing herein
shall be construed as prohibiting the Issuer from using any other funds or assets.
Section 402. Performance of Covenants. The Issuer covenants that it will faithfully
perform at all times any and all covenants,undertakings,stipulations and provisions contained in this
Indenture, in any and every Bond executed, authenticated and delivered hereunder and in all
ordinances pertaining thereto. The Issuer covenants that it is duly authorized under the Constitution
and laws of the State of Arkansas, including particularly and without limitation the Act, to issue
Bonds authorized hereby and to execute this Indenture and to make the pledge and covenants in the
manner and to the extent herein set forth; that all action on its part for 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 Issuer according to the import thereof.
Section 403. Instruments of Further Assurance. The Issuer covenants that it will do,
execute,acknowledge and deliver or cause to be done, executed,acknowledged and delivered,such
indenture or indentures supplemental hereto and such further acts, instruments and transfers as the
Trustee may reasonably require for the better assuring,transferring,mortgaging,pledging,assigning
and confirming unto the Trustee the Trust Estate.
Section 404. Recordation and Other Instruments. The Company has covenanted in Section
6.7 of the Lease Agreement to cause this Indenture,the Lease Agreement,such security agreements,
financing statements and all supplements thereto and other instruments as may be required from time
to time to be kept,to be recorded and filed in such manner and in such places as may be required by
law and in the opinion of counsel in order to fully preserve and protect the security of the holders
and owners of the Bonds and the rights of Trustee hereunder, and to perfect the security interest
created by this Indenture. The Issuer and the Trustee covenant that they will cooperate with the
Company in satisfaction of the requirements of Section 6.7 of the Lease Agreement.
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Section 405. Inspection of Project Books. The Issuer and the Trustee covenant and agree
that all books and documents in their possession relating to the Project and the revenues derived
from the Project shall at all reasonable times upon reasonable advance notice be open to inspection
by such accountants or other agencies as the other party may from time to time designate and by the
Company.
Section 406. Rights Under Lease Agreement. The Lease Agreement, duly executed
counterparts of which have been filed with the Trustee, sets forth the covenants and obligations of
the Issuer and the Company,including provisions that subsequent to the issuance of Bonds and prior
to their payment in full or provision for payment thereof in accordance with the provisions hereof
the Lease Agreement may not be effectively amended, changed,modified,altered or terminated,or
any provision waived without the written consent of the Trustee,and reference is hereby made to the
same for a detailed statement of said covenants and obligations of the Company thereunder,and the
Issuer agrees that the Trustee in its name or in the name of the Issuer may enforce all rights of the
Issuer and all obligations of the Company under and pursuant to the Lease Agreement, for and on
behalf of the bondholders, whether or not the Issuer is in default hereunder.
15
ARTICLE V
REVENUES AND FUNDS
Section 501. Creation of Bond Fund. There is hereby created and ordered to be established
with the Trustee a trust fund of and in the name of the Issuer to be designated "Taxable Industrial
Development Revenue Bond Fund - Bekaert Corporation Project."
Section 502. Payments Into Bond Fund. There shall be deposited into the Bond Fund as
and when received:
(a) All Revenues;
(b) All moneys received under the Guaranty Agreement for the payment of the
principal of and interest on the Bonds; and
(c) All moneys received by the Trustee under and pursuant to any of the
provisions of the Lease Agreement or this Indenture which are not directed
to be paid into a fund other than the Bond Fund.
Section 503. Use of Moneys in Bond Fund. Moneys in the Bond Fund shall be used solely
for the payment of the principal of and interest on the Bonds as in the Bonds and this Indenture
provided.
Section 504. Withdrawals from Bond Fund. The Bond Fund shall be in the name of the
Issuer,designated as set forth in Section 501,and the Issuer hereby irrevocably authorizes and directs
the Trustee to withdraw from the Bond Fund sufficient funds to pay the principal of and interest on
the Bonds when due (including at maturity or redemption prior to maturity) and to use such funds
for the purpose of paying principal and interest in accordance with the provisions hereof pertaining
to payment, which authorization and direction the Trustee hereby accepts.
Section 505. Non-Presentment of Bonds. In the event any Bonds shall not be presented for
payment when the principal thereof becomes due,either at maturity or otherwise,or at the date fixed
for redemption thereof, if there shall have been deposited with the Trustee for that purpose, or left
in trust if previously so deposited, funds sufficient to pay the principal thereof, together with all
interest unpaid and due thereon, to the due date thereof, for the benefit of the holder thereof, all
liability of the Issuer to the holder thereof for the payment of the principal thereof and interest
thereon shall forthwith cease,determine and be completely discharged,and thereupon it shall be the
duty of the Trustee to hold such fund or funds, without liability for interest thereon, for benefit of
the holder of such Bond,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, the Bond.
16
Section 506. Fees,Expenses and Charges of Issuer and Trustee. It is understood and agreed
that pursuant to the provisions of Section 5.3(b)of the Lease Agreement,the Company agrees to pay
the reasonable fees,expenses and charges of the Trustee as authorized and provided by this Indenture
and,pursuant to Section 5.3(c) of the Lease Agreement, the reasonable fees, expenses and charges
of the Issuer as authorized, required and provided by this Indenture and by the Lease Agreement.
All such payments under the Lease Agreement which are received by the Trustee shall not be paid
into the Bond Fund, but shall be segregated by the Trustee and expended solely for the purpose for
which such payments are received.
Section 507. Moneys to be Held in Trust. All moneys required to be deposited with or paid
to the Trustee under any provision of this Indenture shall be held by the Trustee in trust, and except
for moneys deposited with or paid to the Trustee for the redemption of Bonds notice of which
redemption has been duly given,for moneys deposited with or paid to the Trustee pursuant to Article
IX hereof, and for moneys held pursuant to Section 505 hereof, shall, while held by the Trustee,
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 provisions of the Lease Agreement calling for the Trustee to hold,
administer and disburse the same in accordance with the specific provisions of the Lease Agreement
shall be held, administered and disbursed pursuant to such provisions, and where required by the
provisions of the Lease Agreement the Trustee shall set the same aside in a separate account. The
Issuer 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 Issuer 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 Issuer agrees that
if it shall receive any moneys derived from the Project, it will forthwith upon receipt thereof pay the
same over to the Trustee to be held, administered and disbursed by the Trustee in accordance with
provisions of the Lease Agreement that would be applicable if the Lease Agreement were then in
force and effect, and if there be no such provisions which would be so applicable, then the Trustee
shall hold, administer and disburse such moneys solely for the discharge of the Issuer's obligations
under this Indenture.
Section 508. Refund to Company of Excess Payments. Anything herein to the contrary
notwithstanding,the Trustee is authorized and directed to refund to the Company all excess amounts
as specified in the Lease Agreement,whether such excess amounts be in the Bond Fund or in special
accounts.
Section 509. Termination of Rights of Bondholders. Anything herein to the contrary
notwithstanding,including,without limitation,the provisions of this Article V and of Article IX and
Article X hereof, all rights of any holder of any Bond hereunder to or with respect to any moneys or
investments held in any fund hereunder shall terminate at the expiration of five years from the date
of maturity of such Bond,whether by scheduled maturity or by call for redemption prior to maturity
in accordance with the terms hereof,with respect to the principal thereof,or at the expiration of five
years from an Interest Payment Date with respect to the interest payable on such date.
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ARTICLE VI
APPLICATION OF PROCEEDS OF BONDS
Section 601. Deposits Into the Construction Fund. All moneys received by the Trustee
from the Purchaser as Advances on the Bond shall be deposited in a special account of the Issuer in
the Trustee, which account shall be designated "City of Van Buren, Arkansas Taxable Industrial
Development Revenue Bond Construction Fund-Bekaert Corporation Project" (the "Construction
Fund").
Section 602. Disbursements From Construction Fund. Moneys in the Construction Fund
shall be disbursed by the Trustee to the Company(or to its order)for Project Costs(as defined in the
Lease Agreement). Such disbursements shall be in accordance with and pursuant to requisitions
which shall be signed by a Company Representative. Each requisition shall be in substantially the
form attached as Exhibit D hereto and shall specify:
(a) The name of the person,firm, corporation or bank to whom payment is to be
made;
(b) The amount of the payment;
(c) The purpose of the expenditure; and
(d) That the disbursement is for a proper item of Project Costs(as defined in the
Lease Agreement).
The Trustee shall keep records concerning and reflecting all disbursements from the
Construction Fund and shall file an accounting of disbursements if and when requested by the Issuer,
the Company, or the Purchaser.
Section 603. Balance in Construction Fund. Upon receipt of the certificate specified in
Section 3.4 of the Lease Agreement, the Trustee shall not accept any further requisitions pursuant
to Section 602 hereof,but shall retain in the Construction Fund a sum equal to the amounts necessary
for payment of the Project Costs not then due and payable as directed by a Company Representative.
Any amount not to be retained in the Construction Fund for payment of Project Costs shall be used
to prepay the Bonds.
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c
ARTICLE VII
INVESTMENTS
Section 701. Investment of Moneys. (a) Moneys held for the credit of the Construction
Fund shall,upon written direction by a Company Representative,be invested and reinvested by the
Trustee in (i) Government Securities, (ii) interest bearing deposit accounts (which may be
represented by certificates of deposit)in national or state banks(which may include the Trustee and
any Paying Agent)having a combined capital and surplus of not less than$10,000,000;(iii)bankers'
acceptances drawn on and accepted by commercial banks (which may include the Trustee and any
Paying Agent) having a combined capital and surplus of not less than $10,000,000; (iv) direct
obligations of, or obligations the principal of and interest on which are unconditionally guaranteed
by, any State of the United States of America, the District of Columbia or the Commonwealth of
Puerto Rico, or any political subdivision of any of the foregoing, which are rated in any of the two
highest rating categories by a nationally recognized rating agency; (v)obligations of any agency or
instrumentality of the United States of America; (vi) commercial or finance company paper which
is rated in any of the two highest rating categories by a nationally recognized rating agency; (vii)
corporate debt securities rated in any of the two highest rating categories by a nationally recognized
rating agency;(viii)repurchase agreements with banking or financial institutions having a combined
capital and surplus of not less than $10,000,000 (which may include the Trustee and any Paying
Agent) with respect to any of the foregoing obligations or securities; (ix) shares in an investment
company registered under the Federal Investment Company Act of 1940 whose shares are registered
under the Federal Securities Act of 1933,or shares of a common trust fund established by a national
banking association or a bank or trust company organized under the laws of any state (which may
include the Trustee and any Paying Agent) with combined capital and surplus of at least
$10,000,000, under the supervision and regulation of the Comptroller of the Currency pursuant to
12 C.F.R. 9, or any successor regulation, and whose only investments are qualified investments
described hereinabove; (x)money market funds or pooled or mutual investment funds whose assets
consist primarily of investments which are qualified investments described in clause(iv)hereinabove
or which are rated in one of the highest rating categories by a nationally recognized rating agency
(including any such fund managed by the Trustee), and whose average maturity of such investment
is less than twelve(12)months;and(xi)investment agreements or guaranteed investment contracts
with any financial institution rated in one of the highest rating categories by a nationally recognized
rating agency. Such investment shall have maturity dates, or shall be subject to redemption by the
holder at the option of the holder,on or prior to the dates the moneys invested therein will be needed
as reflected by a statement of the Company Representative which statement must be on file with the
Trustee prior to any investment.
(b) Moneys held for the credit of the Bond Fund or any other fund or account shall,upon
written direction by a Company Representative,be invested and reinvested in Government Securities
(or in any fund or other pooling arrangement which exclusively purchases and holds Government
Securities and which is rated in any of the two highest rating categories by a nationally recognized
rating agency)which will mature,or which will be subject to redemption by the holder thereof at the
19
a .
option of the holder, not later than the date or dates on which the money held for credit of the
particular fund or account shall be required for the purposes intended, provided that moneys held
pursuant to Section 505 hereof shall be held uninvested or shall be invested and reinvested in
Government Securities maturing overnight from the date of purchase.
(c) Obligations so purchased as an investment of moneys in any fund or account shall be
deemed at all times a part of such fund or account. Any profit and income realized from such
investments shall be credited to the fund or account and any loss shall be charged to the fund or
account.
Section 702. Trustee Not Liable for Losses. The Trustee shall not be liable or responsible
for any loss resulting from any investment as authorized pursuant to Section 701 hereof.
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ARTICLE VIII
RIGHTS AND OBLIGATIONS UNDER THE LEASE AGREEMENT
Section 801. Rights of Company Under Lease Agreement. Nothing herein contained shall
be deemed to impair the rights and privileges of the Company set forth in the Lease Agreement and
an Event of Default hereunder shall not constitute an"Event of Default"under the Lease Agreement
unless by the terms of the Lease Agreement it constitutes an Event of Default thereunder.
Section 802. Rights of Issuer Under Lease Agreement. The Issuer agrees that the Trustee
in its name or in the name of the Issuer may enforce all rights of the Issuer(except for the rights of
the Issuer under Sections 5.3(c), 6.2, 6.5 and 8.5 thereof and any rights of the Issuer to receive
notices,certificates,or other communications thereunder)and all obligations of the Company under
and pursuant to the Lease Agreement,for and on behalf of the bondholders,whether or not the Issuer
is in default hereunder.
Section 803. Trustee's Obligations Under Lease Agreement. The Trustee represents that
it has familiarized itself with the provisions of the Lease Agreement and covenants and agrees that
it will perform any and all of its obligations set forth therein with respect to the rights of the Issuer
and the Company thereunder.
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ARTICLE IX
DISCHARGE OF LIEN
Section 901. Discharge of Lien. If the Issuer shall pay or cause to be paid to the holders
and owners of the Bonds the principal and interest to become due thereon at the times and in the
manner stipulated therein, and if the Issuer shall keep, perform and observe all and singular the
covenants and promises in the Bonds and in this Indenture expressed as to be kept, performed and
observed by it on its part, then these presents and the estate and rights hereby granted shall cease,
determine and be void. Thereupon the Trustee shall cancel and discharge the lien of this Indenture,
and execute and deliver to the Issuer such instruments in writing as shall be requisite to satisfy the
lien hereof, and reconvey to the Issuer the estate hereby conveyed, and assign and deliver to the
Issuer any property at the time subject to the lien of this Indenture which may then be in its
possession, except moneys or Government Securities held by it for the payment of the principal of
and interest on the Bonds.
Any Bond shall be deemed to be paid within the meaning of this Article when payment of
the principal of and interest on such Bond, (whether at maturity or upon redemption as provided in
this Indenture, or otherwise), either(i)with respect to any Bond shall have been made or caused to
be made in accordance with the terms thereof, or (ii) with respect to any Bond shall have been
provided for by irrevocably depositing with the Trustee,in trust and irrevocably set aside exclusively
for such payment, (1) moneys sufficient to make such payment or (2) noncallable Government
Securities, maturing as to principal and interest in such amount and at such times as will provide
sufficient moneys to make such payment and to purchase such Bonds, and all necessary and proper
fees, compensation and expenses of the Trustee pertaining to the Bonds with respect to which such
deposit is made and all other liabilities of the Company under the Lease Agreement shall have been
paid or the payment thereof provided for to the satisfaction of the Trustee.
The Issuer or the Company may at any time surrender to the Trustee for cancellation by it any
Bonds previously authenticated and delivered hereunder,which the Issuer or the Company may have
acquired in any manner whatsoever,and such Bonds,upon such surrender and cancellation, shall be
deemed to be paid and retired.
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ARTICLE X
DEFAULT PROVISIONS AND REMEDIES
OF TRUSTEE AND BONDHOLDERS
Section 1001. Events of Default. Each of the following events shall constitute and is
referred to in this Indenture as an "Event of Default":
(a) Default in the due and punctual payment of any interest on any Bond hereby secured
and outstanding.
(b) Default in the due and punctual payment of the principal of any Bond hereby secured
and outstanding,whether at the stated maturity thereof,or upon proceedings for redemption thereof,
or upon the maturity thereof by declaration.
(c) Default in the payment of any other amount required to be paid under this Indenture
or the performance or observance of any other of the covenants,agreements or conditions contained
in this Indenture, or in the Bonds issued under this Indenture, and continuance thereof for a period
of sixty(60)days after written notice specifying such failure and requesting that it be remedied,shall
have been given to the Issuer and the Company by the Trustee, which may give such notice in its
discretion and shall give such notice at the written request of bondholders of not less than 10% in
aggregate principal amount of the Bonds then outstanding, unless the Trustee, or the Trustee and
bondholders of an aggregate principal amount of Bonds not less than the aggregate principal amount
of Bonds the bondholders of which requested such notice, as the case may be,shall agree in writing
to an extension of such period prior to its expiration; provided, however, if the failure stated in the
notice cannot be corrected within the applicable period, the Issuer and the Trustee will not
unreasonably withhold their consent to an extension of such time if corrective action is instituted by
the Issuer, or the Company on behalf of the Issuer, within such period and is being diligently
pursued.
(d) The occurrence of an "Event of Default" under the Lease Agreement.
(e) The occurrence of an "Event of Default" under the Guaranty Agreement.
Section 1002. Acceleration. Upon the occurrence of an Event of Default described in the
first paragraph of Section 1001 hereof,the Trustee may, and upon the written request of the holders
of two-thirds (2/3) in aggregate principal amount of Bonds outstanding hereunder, shall, in either
case only with prior written consent of the Purchaser(so long as the Purchaser is owner of not less
than 100%in aggregate principal amount of the Bonds),by notice in writing delivered to the Issuer
and the Company,declare the principal of all Bonds hereby secured then outstanding and the interest
accrued thereon immediately due and payable, and such principal and interest shall thereupon
become and be immediately due and payable and interest shall cease to accrue on all Bonds issued
hereunder.
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Section 1003. Other Remedies; Rights of Bondholders. Upon the occurrence of an Event
of Default,the Trustee may,as an alternative,pursue any available remedy by suit at law or in equity
to enforce the payment of the principal of and interest on the Bonds then outstanding hereunder.
If an Event of Default shall have occurred,and if it shall have been requested so to do by the
holders of two-thirds(2/3)in aggregate principal amount of Bonds outstanding hereunder and shall
have been indemnified as provided in Section 1101 hereof,the Trustee shall be obligated to exercise
such one or more of the rights and powers conferred upon it by this Section and by Section 1002 as
the Trustee,being advised by counsel,shall deem most expedient in the interests of the bondholders.
No remedy by the terms of this Indenture conferred upon or reserved to the Trustee(or to the
bondholders)is intended to be exclusive of any other remedy,but each and every such remedy shall
be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter
existing at 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.
Nothing in this Section 1003 shall be construed to relieve the Trustee of its obligation to
cause an acceleration when required or to pay the bondholders the amounts due them when due.
Section 1004. Rights of Bondholders to Direct Proceedings. 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 delivered to the Trustee,to direct the method and place of conducting all proceedings
to be taken in connection with the enforcement of the terms and conditions of this Indenture,or for
the appointment of a receiver or any other proceeding hereunder;provided that such direction shall
not be otherwise than in accordance with the provisions of law and of this Indenture.
Section 1005. Appointment of Receiver. Upon the occurrence of an Event of Default, and
upon the filing of a suit or other commencement of judicial proceedings to enforce the rights of the
Trustee and of the bondholders under this Indenture,the Trustee shall be entitled,as a matter of right,
to the appointment of a receiver or receivers of the Trust Estate 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.
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Section 1006. Waiver. 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 Issuer nor anyone claiming through it or
under it shall or will set up, claim, or seek to take advantage of any appraisement, valuation, stay,
extension or redemption laws now or thereafter in force, in order to prevent or hinder the
enforcement of this Indenture, but the Issuer, for itself and all who may claim through or under it,
hereby waives, to the extent that it lawfully may do so, the benefit of all such laws and all right of
appraisement and redemption to which it may be entitled under the laws of the State of Arkansas.
Section 1007. Application of Moneys. Moneys remaining after discharge of costs, charges
and liens prior to this Indenture 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 discrimination or privilege;
Second: To the payment to the persons entitled thereto of the unpaid
principal of any of the Bonds which shall have become due(other than Bonds called
for redemption for the payment of which moneys are held pursuant to the provisions
of this Indenture), in the order of their due dates, with interest on such Bonds from
the respective dates upon which they become due,and,if the amount available shall
not be sufficient to pay in full Bonds due on any particular date, together with such
interest, then to the payment ratably, according to the amount of principal due on
such date, to the persons entitled thereto without any discrimination or privilege of
any Bond over any other Bond and without preference or priority of principal over
interest or of interest over principal; 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 Bond over any other Bond, ratably, according to the amounts due
respectively for principal and interest, to the person entitled thereto without discrimination or
privilege.
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(c) If the principal of all the Bonds shall have been declared due and payable,and if such
declaration shall thereafter have been rescinded and annulled under the provisions of this Article
then, subject to the provisions of paragraph (b) of this Section in the event that the principal of all
the Bonds shall later become due or be declared due and payable, the moneys shall be applied in
accordance with the provisions of paragraph (a) of this Section.
Whenever moneys are to be applied by the Trustee pursuant to the provisions of this Section,
such moneys shall be applied by it at such times,and from time to time,as it shall determine,having
due regard to the amount of such moneys available for application and the likelihood of additional
moneys becoming available for such application in the future. Whenever the Trustee shall apply
such funds,it shall fix the date(which shall be an Interest Payment Date unless it shall deem another
date more suitable)upon which such application is to be made and upon such date(other than in the
case of a declaration under Section 1002 hereof) interest on the amounts of principal to be paid on
such dates shall cease to accrue. The Trustee shall give such notice as it may deem appropriate of
the deposit with it of any such moneys and of the fixing of any such date and shall not be required
to make payment to the holder of any unpaid Bond until such Bond shall be presented to the Trustee
for appropriate endorsement or for cancellation if fully paid.
Section 1008. Remedies Vested in Trustee. All rights of action (including the right to file
proof of claim) under this Indenture or under any of the Bonds may be enforced by the Trustee
without the possession of any of the Bonds or the production thereof in any trial or other proceeding
relating thereto and any such suit or proceeding instituted by the Trustee shall be brought in its name
as Trustee, without the necessity of joining as plaintiffs or defendants any holders of the Bonds
hereby secured, and any recovery of judgment shall be for the equal benefit of the holders of the
outstanding Bonds.
Section 1009. Rights and Remedies of Bondholders. No holder of any Bond 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 subsection (g) of Section 1101, or of which by said subsection it is deemed to have notice, nor
unless such default shall have become an Event of Default and the holders of two-thirds (2/3) 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 hereinbefore granted, or to institute such action, suit
or proceeding in its own name; and such notification, request and offer of indemnity are hereby
declared in every such case at the option of the Trustee to be conditions precedent to the execution
of the powers and trusts of this Indenture, and to any action or cause of action for the enforcement
of this Indenture or for the appointment of a receiver or for any other remedy hereunder; it being
understood and intended that no one or more holders of the Bonds 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
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any right hereunder except in the manner herein provided,and that all proceedings at law or in equity
shall be instituted, held and maintained in the manner herein provided for the equal benefit of the
holders of all Bonds outstanding hereunder. Nothing in this Indenture contained shall, however,
affect or impair the right of(i) any bondholders to enforce the payment of the principal of and
interest on any Bonds at and after the maturity thereof, or the obligation of the Issuer 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(ii)the Purchaser(so long as the Purchaser is owner of not less
than 100%in aggregate principal amount of the Bonds)to institute in its own name any suit,action
or proceeding in equity or at law for the enforcement of this Indenture or for the appointment of a
receiver or any other remedy hereunder.
Section 1010. Termination of Proceedings. In case the Trustee shall have proceeded to
enforce any right under this Indenture by the appointment of a receiver or otherwise, and such
proceedings shall have been discontinued or abandoned for any reason, or shall have been
determined adversely to the Trustee, then and in every such case the Issuer 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, except to the extent the Trustee is legally bound by such adverse determination.
Section 1011. Waivers of Events of Default. 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 two-thirds (2/3) in aggregate principal
amount of Bonds outstanding hereunder, in either case only with prior written consent of the
Purchaser(so long as the Purchaser is owner of not less than 100% in aggregate principal amount
of the Bonds),provided,however, that there shall not be waived any Event of Default described in
clause (a) or (b) of the first paragraph of Section 1001 hereof, unless prior to such waiver or
rescission all arrears of principal (due otherwise than by declaration) and interest and all expenses
of the Trustee, shall have been paid or provided for. In case of any such waiver or rescission the
Issuer,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 subsequent thereon.
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ARTICLE XI
TRUSTEE
Section 1101. Acceptance of Trusts. The Trustee hereby accepts the trust imposed upon it
by this Indenture, and agrees to perform said trust as an ordinarily prudent trustee under a corporate
mortgage, but only upon and subject to the following expressed terms and conditions:
(a) The Trustee may execute any of the trusts or powers hereof and perform any duties
required of it by or through attorneys,agents,receivers or employees,and shall be entitled to advice
of counsel concerning all matters of trusts hereof and its duties hereunder,and may in all cases pay
reasonable compensation to all such attorneys, agents, receivers and employees as may reasonably
be employed in connection with the trusts hereof. The Trustee may act upon the opinion or advice
of any attorney, surveyor, engineer or accountant selected by it in the exercise of reasonable care,
or, if selected or retained by the Issuer prior to the occurrence of a default of which the Trustee has
been notified as provided in subsection(g)of this Section 1101,or of which by said subsection the
Trustee is deemed to have notice,approved by the Trustee in the exercise of such care. The Trustee
shall not be responsible for any loss or damage resulting from an action or non-action in accordance
with any such opinion or advice.
(b) The Trustee shall not be responsible for any recital herein, or in the Bonds (except
in respect to the certificate of the Trustee endorsed on such Bonds), or for insuring the property
herein conveyed or collecting any insurance moneys,or for the validity of the execution by the Issuer
of this Indenture or of any supplemental indentures or instrument of further assurance, or for the
sufficiency of the security for the Bonds issued hereunder or intended to be secured hereby, or for
the value of the title of the property herein conveyed or otherwise as to the maintenance of the
security hereof; except that in the event the Trustee enters into possession of a part or all of the
property herein conveyed pursuant to any provision of this Indenture, it shall use due diligence in
preserving such property; and the Trustee shall not be bound to ascertain or inquire as to the
performance or observance of any covenants,conditions and agreements aforesaid as to the condition
of the property herein conveyed.
(c) The Trustee may become the owner of Bonds secured hereby with the same rights
which it would have if not Trustee.
(d) The Trustee shall be protected in acting upon any notice,request,consent,certificate,
order, affidavit, letter, telegram or other paper or document believed by it, in the exercise of
reasonable care, to be genuine and correct and to have been signed or sent by the proper person or
persons. Any action taken by the Trustee pursuant to this Indenture upon the request or authority or
consent of the owner of any Bond secured hereby, shall be conclusive and binding upon all future
owners of the same Bond and upon Bonds issued in exchange therefor or in place thereof.
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(e) As to the existence or non-existence of any fact or as to the sufficiency or validity of
any instrument, paper or proceeding, the Trustee shall be entitled to rely upon a certificate of the
Issuer signed by its Mayor and attested by its City Clerk as sufficient evidence of the facts therein
contained and prior to the occurrence of a default of which it has been notified as provided in
subsection(g) of this Section 1101, or of which by that subsection it is deemed to have notice, and
shall also be at liberty to accept a similar certificate to the effect that any particular dealing,
transaction or action is necessary or expedient, but may at its discretion, at the reasonable expense
of the Issuer, in every case secure such further evidence as it may think necessary or advisable but
shall in no case be bound to secure the same. The Trustee may accept a certificate of the City Clerk
of the Issuer under its seal to the effect that a resolution or ordinance in the form therein set forth has
been adopted by the Issuer as conclusive evidence that such resolution or ordinance has been duly
adopted, and is in full force and effect.
(0 The permissive right of the Trustee to do things enumerated in this Indenture shall
not be construed as a duty of the Trustee, and the Trustee shall be answerable only for its own
negligence or willful default.
(g) The Trustee shall not be required to take notice or be deemed to have notice of any
default hereunder(except a default under clause(a),(b)or(c)of the first paragraph of Section 1001
hereof concerning which the Trustee shall be deemed to have notice) unless the Trustee shall be
specifically notified in writing of such default by the Issuer or by the holders of at least ten percent
(10%) in aggregate principal amount of Bonds outstanding hereunder and all notices or other
instruments required by this Indenture to be delivered to the Trustee must, in order to be effective,
be delivered to the office of the Trustee, and in the absence of such notice so delivered, the Trustee
may conclusively assume there is no such 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 times the Trustee,and its duly authorized agents,attorneys,
experts, engineers, accountants and representatives, shall have the right fully to inspect any and all
of the property herein conveyed, including all books, papers and records of the Issuer pertaining to
the Project and the Bonds,and to take such memoranda from and in regard thereto as may be desired,
provided, however, that nothing contained in this subsection or in any other provision of this
Indenture shall be construed to entitle the above named persons to any information or inspection
involving the confidential know-how of the Company.
(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.
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(k) Notwithstanding anything elsewhere in this Indenture contained, the Trustee shall
have the right, but shall not be required, to demand, in respect of the authentication of any Bonds,
the withdrawal of any cash,the release of any property,or any action whatsoever within the purview
of this Indenture,any showings,certificates,opinions,appraisals,or other information,or corporate
action or evidence thereof, in addition to that by the terms hereof required as a condition of such
action by the Trustee, deemed desirable for the purpose of establishing the right of the Issuer 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 or other security satisfactory to it for the reimbursement to it of all expenses to
which it may be put and to protect it against all liability,except liability which is adjudicated to have
resulted from the gross negligence or willful default of the Trustee,by reason of any action so taken
by the Trustee; provided, however, the Trustee shall not require that it be furnished an indemnity
bond prior to (i) declaring the maturity of principal of the Bonds pursuant to Section 1002 hereof,
or(ii) holding, administering and disbursing moneys deposited in the Bond Fund.
Section 1102. Fees, Charges and Expenses of Trustee; Trustee's Prior Lien. The Trustee
shall be entitled to payment and/or reimbursement for its reasonable fees for services rendered
hereunder and all advances, counsel fees and other expenses reasonably and necessarily made or
incurred by the Trustee in and about the execution of the trusts created by this Indenture and in and
about the exercise and performance by the Trustee of the powers and duties of the Trustee hereunder,
and for all reasonable and necessary costs and expenses incurred in defending any liability in the
premises of any character whatsoever(unless such liability is adjudicated to have resulted from the
gross negligence or willful default of the Trustee). The Issuer has made provisions in the Lease
Agreement for the payment of such reasonable and necessary advances,fees,costs and expenses and
reference is hereby made to the Lease Agreement for the provisions so made. In this regard, it is
understood that the Issuer pledges no funds or revenues other than those derived from and the avails
of the Trust Estate to the payment of any obligation of the Issuer set forth in this Indenture,including
the obligations set forth in this Section 1102,but nothing herein shall be construed as prohibiting the
Issuer from using any other funds and revenues for the payment of any of its obligations under this
Indenture. Upon default by the Issuer, but only upon default, pursuant to the provisions of this
Indenture pertaining to default, the Trustee shall have a first lien with right of payment prior to
payment on account of principal or interest of any Bond issued hereunder upon the Trust Estate
(other than moneys, securities or obligations held for the redemption or payment of Bonds deemed
to have been paid in accordance with Article IX hereof,or funds held pursuant to Section 505 hereof)
for such reasonable and necessary advances, fees, costs and expenses incurred by the Trustee.
Section 1103. Notice to Bondholders of Default. The Trustee shall be required to make
demand upon and give notice to the Company and each registered owner of Bonds then outstanding
as follows:
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,
(a) If the Company shall fail to make any installment payment under the Lease
Agreement on the day such payment is due and payable, the Trustee shall give notice to and make
demand upon the Company on the next succeeding Business Day.
(b) If a default occurs of which the Trustee is pursuant to the provisions of Section
1101(g) deemed to have or is given notice, the Trustee shall promptly give notice to the Company
and to bondholders generally; provided, however, that no notice shall be required to be given to
bondholders generally unless the default is such that the bondholders could require the Trustee to
act pursuant to Section 1002 hereof.
Section 1104. Intervention12y Trustee. In any judicial proceeding to which the Issuer is a
party and which in the opinion of the Trustee and its counsel has a substantial bearing on the interests
of holders of Bonds issued hereunder,the Trustee may intervene on behalf of bondholders and shall
do so if requested in writing by the holders of at least ten percent (10%) of the aggregate principal
amount of Bonds outstanding hereunder. The rights and obligations of the Trustee under this Section
1104 are subject to the approval of the court having jurisdiction in the premises.
Section 1105. Merger or Consolidation of Trustee. Any bank or trust company to which the
Trustee may be merged, or with which it may be consolidated, or to which it may sell or transfer its
trust business and assets as a whole or substantially as a whole, or any bank or trust company
resulting from any such sale,merger,consolidation or transfer to which it is a party,ipso facto,shall
be and become successor trustee hereunder and vested with all of the title to the whole property or
Trust Estate and all the trusts,powers, discretions, immunities, privileges, and all other matters as
was its predecessor, without the execution or filing of any instrument or any further act, deed or
conveyance on the part of any of the parties hereto,anything herein to the contrary notwithstanding;
provided,however,that such successor trustee shall have capital and surplus of at least$50,000,000.
Section 1106. Resignation 12y Trustee. 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 Issuer,and
such resignation shall take effect at the end of such thirty(30)days(provided a successor trustee has
been duly appointed) or upon the earlier appointment of a successor trustee by the bondholders or
by the Issuer. Such notice may be served personally or sent by registered mail.
Section 1107. Removal of Trustee. The Trustee may be removed at any time by an
instrument or concurrent instruments in writing delivered to the Trustee and to the Issuer,and signed
by the holders of a majority in aggregate principal amount of Bonds outstanding hereunder. Such
removal shall not take effect until the appointment of a successor trustee.
Section 1108. Appointment of Successor Trustee. In case the Trustee hereunder shall resign
or be removed, or be dissolved, or shall be in course of dissolution or liquidation, or otherwise
become incapable of acting hereunder, or in case it shall be taken under the control of any public
officer or officers, or of a receiver appointed by the court, a successor may be appointed by the
Issuer,as directed by the Company(so long as no Event of Default has occurred and is continuing),
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by an instrument executed and signed by its Mayor and attested by its City Clerk under its seal, or
by the holders of a majority in aggregate principal amount of Bonds outstanding hereunder(if an
Event of Default has occurred and is continuing), by an instrument or concurrent instruments in
writing signed by such holders,or by their attorneys in fact,duly authorized;provided,nevertheless,
that if within thirty(30)days of the resignation,removal or dissolution of the Trustee hereunder the
Issuer or the holders, as the case may be, fail to so appoint a successor to fill such vacancy, the
Trustee may apply to a court of competent jurisdiction which shall have authority to appoint a
temporary trustee until a successor trustee shall be appointed by the Issuer or the bondholders in the
manner above provided. Any such temporary trustee so appointed by a court of competent
jurisdiction shall immediately and without further act be superseded by the trustee so appointed by
the Issuer or such bondholders. Every such temporary trustee and every such successor trustee shall
be a trust company or bank in good standing,having capital and surplus ofnot less than$50,000,000,
and shall be satisfactory to the Company so long as there is no termination of the interest of the
Company by virtue of an event of default or otherwise.
Section 1109. Concerning Any Successor Trustee. Every successor or temporary trustee
appointed hereunder shall execute,acknowledge and deliver to its predecessor and also to the Issuer
an instrument in writing accepting such appointment hereunder, and thereupon such successor or
temporary trustee, without any further act 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 Issuer or of its successor trustee,execute
and deliver an instrument transferring to such successor all the estate,properties,rights,powers and
trusts of such predecessor hereunder; and every predecessor trustee shall deliver all securities,
moneys and any other property held by it as trustee hereunder to its successor. Should any
instrument in writing from the Issuer 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 Issuer. The resignation of any trustee and the
instrument or instruments removing any trustee and appointing a successor hereunder,together with
all other instruments provided for in this Article shall,at the expense of the Issuer,be forthwith filed
and/or recorded by the successor trustee in each recording office where the Indenture shall have been
filed and/or recorded.
Section 1110. Reliance Upon Instruments. The resolutions,opinions,certificates and other
instruments provided for in this Indenture may be accepted and relied upon by the Trustee as
conclusive evidence of the facts and conclusions stated therein and shall be full warrant,protection
and authority to the Trustee for its actions taken hereunder.
Section 1111. Appointment of Co-Trustee. The Issuer and the Trustee shall have power to
appoint and upon the request of the Trustee the Issuer shall for such purpose join with the Trustee
in the execution of all instruments necessary or proper to appoint another corporation or one or more
persons approved by the Trustee,and satisfactory to the Company so long as there is no termination
of the interest of the Company by virtue of an event of default or otherwise,either to act as co-trustee
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or co-trustees jointly with the Trustee of all or any of the property subject to the lien hereof,or to act
as separate trustee or trustee of all or any such property,with such powers as may be provided in the
instrument of appointment and to vest in such corporation or person or persons as such separate
trustee or co-trustee any property, title, right or power deemed necessary or desirable. In the event
that the Issuer shall not have joined in such appointment within fifteen(15)days after the receipt by
it of a request so to do, the Trustee alone shall have the power to make such appointment. Should
any deed, conveyance or instrument in writing from the Issuer be required by separate trustee or
co-trustee so appointed for more fully and certainly vesting in and confirming to him or to it such
properties, rights, powers, trusts, duties and obligations, any and all such deeds, conveyances and
instruments in writing shall, on request, be executed, acknowledged and delivered by the Issuer.
Every such co-trustee and separate trustee shall,to the extent permitted by law,be appointed subject
to the following provisions and conditions, namely:
(a) The Bonds shall be authenticated and delivered, and all powers,
duties,obligations and rights conferred upon the Trustee in respect of the custody of
all money and securities pledged or deposited hereunder,shall be exercised solely by
the Trustee; and
(b) The Trustee,at any time by an instrument in writing,may remove any
such separate Trustee or co-trustee.
Every instrument, other than this Indenture, appointing any such co-trustee or separate
trustee, shall refer to this Indenture and the conditions of this Article XI expressed, and upon the
acceptance in writing by such separate trustee or co-trustee, he, they or it shall be vested with the
estate or property specified in such instrument,jointly with the Trustee(except insofar as local law
makes it necessary for any separate trustee to act alone), subject to all the trusts, conditions and
provisions of this Indenture. Any such separate trustee or co-trustee may at any time, by an
instrument in writing, constitute the Trustee as his, their or its agent or attorney-in-fact with full
power and authority, to the extent authorized by law, to do all acts and things and exercise all
discretion authorized or permitted by him,them or it, for and on behalf of him,them or it and in his,
their or its name. In case any separate trustee or co-trustee shall die, become incapable of acting,
resign or be removed, all the estate,properties, rights,powers, trusts, duties and obligations of said
separate trustee or co-trustee shall vest in and be exercised by the Trustee until the appointment of
a new trustee or a successor to such separate trustee or co-trustee.
33
ARTICLE XII
SUPPLEMENTAL INDENTURES
Section 1201. Supplemental Indentures Not Requiring Consent of Bondholders. The Issuer
and the Trustee may, from time to time and at any time, without the consent of or notice to the
bondholders, enter into supplemental indentures as follows:
(a) to cure any formal defect,omission,inconsistency or ambiguity in this
Indenture;
(b) to grant to or confer or impose upon the Trustee for the benefit of the
bondholders any additional rights, remedies, powers, authority, security, liabilities
or duties which may lawfully be granted, conferred or imposed and which are not
contrary to or inconsistent with this Indenture as theretofore in effect,provided that
no such additional liabilities or duties shall be imposed upon the Trustee without its
consent;
(c) to add to the covenants and agreements of, and limitations and
restrictions upon,the Issuer in this Indenture other covenants,agreements,limitations
and restrictions to be observed by the Issuer which are not contrary to or inconsistent
with this Indenture as theretofore in effect;
(d) to confirm,as further assurance,any pledge under,and the subjection
to any claim, lien or pledge created or to be created by, this Indenture, of the
Revenues of the Issuer from the Lease Agreement or of any other moneys,securities
or funds;
(e) to comply with the requirements of the Trust Indenture Act of 1939,
as from time to amended;
(0 to modify, alter, amend or supplement this Indenture in any other
respect which is not materially adverse to the bondholder and which does not involve
a change described in clause (a), (b), (c), (d), (e) or(f) of Section 1202 hereof and
which, in the judgment of the Trustee, is not to the prejudice of the Trustee; and
(g) to effect any change required in connection with the rating of the
Bonds.
Section 1202. Supplemental Indentures Requiring Consent of Bondholders. Subject to the
terms and provisions contained in this Section, and not otherwise, the holders of not less than two
thirds (2/3) in aggregate principal amount of the Bonds then outstanding shall have the right, from
time to time, anything contained in this Indenture to the contrary notwithstanding to consent to and
34
approve the execution by the Issuer and the Trustee of such indenture or indentures supplemental
hereto as shall be deemed necessary and desirable by the Issuer for the purpose of modifying,
altering, amending, adding to or rescinding, in any particular, any of the terms or provisions
contained in this Indenture or in any supplemental indenture;provided,however,that nothing herein
contained shall permit,or be construed as permitting,without the consent and approval of the holders
of all of the Bonds then outstanding(a)an extension of the maturity(or mandatory redemption date)
of the principal of or the interest on any Bond issued hereunder, or(b) a reduction in the principal
amount of or rate of interest on any Bond issued hereunder, or(c) the creation of any lien ranking
prior to or on a parity with the lien of this Indenture on the Trust Estate or any part thereof, except
as hereinbefore expressly permitted, 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, or(f) deprive the holder of any Bond then outstanding of
the lien hereby created on the Trust Estate. 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 Issuer shall request the Trustee to enter into any supplemental indenture
for any of the purposes of this Section, the Trustee shall, at the expense of the Issuer, cause notice
of the proposed execution of such supplemental indenture to be mailed by first class mail to each
registered owner of the Bonds. 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 bondholders. The Trustee shall not, however, be subject to any liability
to any bondholder by reason of its failure to mail 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
Issuer 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 deemed to be modified and
amended in accordance therewith.
Section 1203. Consent of Company. Anything herein to the contrary notwithstanding, a
supplemental indenture under this Article XII shall not become effective unless and until the
Company shall have consented to the execution and delivery of such supplemental indenture. In this
regard, the Trustee shall cause notice of the proposed execution and delivery of any such
supplemental indenture together with a copy of the proposed supplemental indenture to be mailed
by certified or registered mail to the Company at least fifteen (15) days prior to the proposed date
of execution and delivery of any such supplemental indenture. The Company shall be deemed to
have consented to the execution and delivery of any such supplemental indenture if the Trustee
receives a letter or other instrument signed by an authorized officer of the Company expressing
consent.
35
ARTICLE XIII
AMENDMENT TO LEASE AGREEMENT OR GUARANTY AGREEMENT
Section 1301. Amendments Not Requiring Consent of Bondholders. The Trustee may from
time to time, and at any time, consent to any amendment, change or modification of the Lease
Agreement or the Guaranty 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 the prejudice of the Trustee or the holders of the Bonds. The Trustee shall not consent to any
other amendment, change or modification of the Lease Agreement or the Guaranty Agreement
without the approval or consent of the holders of not less than two-thirds(2/3)in aggregate principal
amount of the Bonds at the time outstanding, evidenced in the manner provided in Section 1401
hereof.
Section 1302. Amendments Requiring Consent of Bondholders. If at any time the Issuer or
the Company 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 modification to be mailed in
the same manner as provided by Section 1202 hereof with respect to supplemental indentures. Such
notice shall briefly set forth the nature of such proposed amendment, change or modification and
shall state that copies of the instrument embodying the same are on file in the principal office of the
Trustee for inspection by any interested bondholder. The Trustee shall not, however, be subject to
any liability to any bondholder by reason of its failure to publish or mail such notice, and any such
failure shall not affect the validity of such amendment, change or modification when consented to
by the Trustee in the manner hereinabove provided.
36
ARTICLE XIV
MISCELLANEOUS
Section 1401. Consents of Bondholders. Any request, direction, objection or other
instrument required by this Indenture to be signed and executed by the bondholders may be in any
number of concurrent writings of similar tenor and may be signed or executed by such bondholders
in person or by agent appointed in writing. Proof of the execution of any such request, direction,
objection or other instrument or of the writing appointing any such agent and of the ownership of
Bonds,if made in the following manner,shall be sufficient for any of the purposes of this Indenture,
and shall be conclusive in favor of the Trustee with regard to any action taken by it under such
request or other instrument, namely:
(a) The fact and date of the execution by any person of any such writing may be proved
by the certificate of any officer in any jurisdiction who by law has power to take acknowledgments
within such jurisdiction that the person signing such writing acknowledged before him the execution
thereof, or by an affidavit of any witness to such execution.
(b) The fact of ownership of Bonds and the amount or amounts, numbers and other
identification of such Bonds, and the date of holding the same shall be proved by the registration
books of the Issuer maintained by the Trustee as Bond Registrar.
Section 1402. Notices. Except as otherwise provided in this Indenture, all notices,
certificates or other communications shall be sufficiently given and shall be deemed given when
delivered by hand delivery or when the same has been mailed by registered or certified mail,postage
prepaid,to the Issuer,the Company,and the Trustee. Notices,certificates or other communications
shall be sent to the following addresses:
Issuer: City of Van Buren, Arkansas
Van Buren Municipal Complex
1003 Broadway St.
Van Buren, Arkansas 72956
Attention: Mayor
Company: Bekaert Corporation
1395 S Marietta Parkway, Bldg. 500, Ste. 100
Marietta, Georgia 30067
Attention:
Trustee: Regions Bank
400 West Capitol Ave., 7th Floor
Little Rock, Arkansas 72201
Attention: Corporate Trust Department
37
Any of the foregoing may, by notice given hereunder, designate any further or different addresses
to which subsequent notices, certificates or other communications shall be sent.
Section 1403. Limitation ofRights. With the exception of rights herein expressly conferred,
nothing expressed or mentioned in or to be implied from this Indenture, or the Bonds issued
hereunder,is intended or shall be construed to give to any person or company other than the parties
hereto,and the holders of the Bonds secured by this Indenture any legal or equitable rights,remedy
or claim under or in respect to this Indenture or any covenants, conditions and provisions hereof
being intended to be and being for the sole exclusive benefit of the parties hereto and the holders of
the Bonds hereby secured as herein provided.
Section 1404. Severability. If any provisions of this Indenture shall be held or deemed to
be or shall, in fact, be inoperative or unenforceable as applied in any particular case in any
jurisdiction or jurisdictions or in all jurisdictions or in all cases because it conflicts with any
provisions or any constitution or statute or rule of public policy, or for any other reason, such
circumstances shall not have the effect of rendering the provision in question inoperative or
unenforceable in any other case or circumstance, or of rendering any other provision or provisions
herein contained invalid, inoperative or unenforceable to any extent whatever.
The invalidity of any one or more phrases, sentences,clauses or paragraphs in this Indenture
contained shall not affect the remaining portions of this Indenture or any part thereof.
Section 1405. Applicable Provisions of Law. This Indenture shall be considered to have
been executed in the State of Arkansas and it is the intention of the parties that the substantive law
of the State of Arkansas govern as to all questions of interpretation, validity and effect.
Section 1406. Counterparts. This Indenture may be executed in several counterparts, each
of which shall be an original and all of which shall constitute but one and the same instrument.
Section 1407. Successors and Assigns. All the covenants, stipulations, provisions,
agreements, rights, remedies and claims of the parties hereto in this Indenture contained shall bind
and inure to the benefit of their successors and assigns.
Section 1408. Captions. The captions or headings in this Indenture are for convenience only
and in no way define, limit or describe the scope or intent of any provisions or sections of this
Indenture.
Section 1409. Bonds Owned y the Issuer or the Company. In determining whether
bondholders of the requisite aggregate principal amount of the Bonds have concurred in any
direction, consent or waiver under this Indenture, Bonds which are owned by the Issuer or the
Company or by any person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company(unless the Company or any person directly or indirectly
controlling or controlled by or under direct or indirect common control with the Company shall own
38
not less than 100% in aggregate principal amount of the Bonds then outstanding) shall be
disregarded and deemed not to be outstanding for the purpose of any such determination,except that,
for the purpose of determining whether the Trustee shall be protected in relying on any such
direction, consent or waiver, only Bonds which the Trustee knows are so owned shall be so
disregarded. Bonds so owned which have been pledged in good faith may be regarded as
outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Bonds and that the pledgee is not the Issuer or the Company or any person
directly or indirectly controlling or controlled by or under direct or indirect common control with the
Company. In case of a dispute as to such right, any decision by the Trustee taken upon the advice
of counsel shall be full protection to the Trustee.
39
IN WITNESS WHEREOF,the Issuer has caused these presents to be signed in its name and
behalf by its Vice 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, the Trustee has caused these presents to
be signed in its behalf by its duly authorized officer.
CITY OF VAN BUREN, ARKANSAS
By:
ATTEST: Mayor
City Clerk
(SEAL)
REGIONS BANK
Trustee
By:
Title
40
ACKNOWLEDGMENT
STATE OF ARKANSAS )
)
COUNTY OF CRAWFORD )
On this the day of November, 2018, before me, the
undersigned officer,personally appeared Robert Freeman and Phyllis Thomas,who acknowledged
themselves to be the Mayor and the City Clerk, respectively, of the City of Van Buren, Arkansas,
a municipality,and that they,as such Mayor and City Clerk,being authorized to do so,executed the
foregoing instrument for the purposes therein contained,by signing the name of the municipality by
themselves as Mayor and City Clerk.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this day
of November, 2018.
Notary Public
My Commission expires:
(SEAL)
41
ACKNOWLEDGMENT
STATE OF ARKANSAS )
)
COUNTY OF PULASKI )
On this the day of November, 2018, before me, the
undersigned officer, personally appeared Debi DeHan, who acknowledged herself to be a Senior
Vice President of Regions Bank, a banking institution, and that she,as such Senior Vice President,
being authorized to do so, executed the foregoing instrument for the purposes therein contained,by
signing the name of the bank by herself as Senior Vice President.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this day
of November, 2018.
Notary Public
My Commission expires:
(SEAL)
42
EXHIBIT A
Form of Initial Bond
No. R-1 $16,000,000
UNITED STATES OF AMERICA
STATE OF ARKANSAS
CITY OF VAN BUREN, ARKANSAS
TAXABLE INDUSTRIAL DEVELOPMENT REVENUE BOND
(BEKAERT CORPORATION PROJECT)
SERIES 2018
Date of Bond: , 2018 Maturity Date: November 1, 2028
Interest Rate: 4.25%per annum
Registered Owner: BEKAERT CORPORATION
Principal Amount: SIXTEEN MILLION DOLLARS
(or the total principal amount outstanding as reflected by the
Record of Advances and Principal Payments attached hereto)
KNOW ALL MEN BY THESE PRESENTS:
That the City of Van Buren,Arkansas, a municipality organized and existing under the laws
of the State of Arkansas (the "Issuer"), for value received, promises to pay to the registered owner
shown above, or registered assigns, but solely from the source and in the manner hereinafter set
forth,the principal amount shown above and in like manner to pay interest on said amount from the
date hereof shown above until payment of such principal amount has been made or duly provided
for, at the rate per annum shown above, semiannually on May 1 and November 1 of each year
commencing on May 1, 2019, except as the provisions hereinafter set forth with respect to
redemption of this Bond prior to maturity may become applicable hereto. The principal of this Bond
is payable in lawful money of the United States of America upon the presentation and surrender
hereof at the principal corporate trust office of Regions Bank,Little Rock,Arkansas,or its successor
or successors, as Trustee (the "Trustee"), and interest on this Bond is payable in like money to the
registered owner hereof by check or draft drawn upon the Trustee and mailed or, in certain
circumstances described in the Indenture, by wire transfer to the person in whose name this Bond
is registered at the close of business on the fifteenth day of the calendar month next preceding that
in which such interest payment shall fall(the"Record Date"),at his address as it appears on the bond
registration books of the Issuer kept by the Trustee.
43
This Bond is the single bond comprising a series of Bonds in the aggregate principal amount
of not to exceed$16,000,000(the"Bonds"),issued for the purpose of financing the cost of acquiring,
constructing and installing an industrial project within the boundaries of the Issuer(the "Project"),
for use by Bekaert Corporation, a Delaware corporation (the "Company"), and paying the expenses
of issuing the Bonds. The Bonds are all issued under and are all equally and ratably secured and
entitled to the protection given by a Trust Indenture dated as of November 1,2018(the"Indenture"),
duly executed and delivered by the Issuer to the Trustee. Reference is hereby made to the Indenture
and all indentures supplemental thereto for the provisions,among others,with respect to the nature
and extent of the security, the rights, duties and obligations of the Issuer, the Trustee and the
registered owners of the Bonds, and the terms upon which the Bonds are issued and secured. The
terms and conditions of the financing of the Project, the use of the proceeds of the Bonds by the
Company for such purpose, and the payment of certain amounts thereunder, are contained a Lease
Agreement dated as of November 1, 2018 (the "Lease Agreement"), by and between the Issuer and
the Company.
The Bonds are issued pursuant to and in full compliance with the laws of the State of
Arkansas,particularly Title 14,Chapter 164,Subchapter 2 of the Arkansas Code of 1987 Annotated
(the "Act"), and pursuant to an Order of the Issuer,which authorized the execution and delivery of
the Indenture. The Bonds and the interest thereon do not constitute an indebtedness of the Issuer
within the meaning of any constitutional or statutory limitation.
The Bonds are not general obligations of the Issuer but are special obligations payable solely
from revenues derived from the Lease Agreement. The Lease Agreement provide for lease payments
by the Company in amounts sufficient to provide for the payment of the principal of and interest on
the Bonds as due and payable. Provision has been made in the Lease Agreement for such payments
to be paid directly to the Trustee and deposited in a special account of the Issuer designated"Taxable
Industrial Development Revenue Bond Fund - Bekaert Corporation Project," and such payments
have been duly assigned to the Trustee for that purpose. All the rights and interest of the Issuer in
and to the Lease Agreement(except for certain rights specified in the Indenture)have been assigned
under the Indenture to the Trustee to secure the payment of the principal of and interest on the
Bonds. In addition, the payment of the principal and interest has been unconditionally guaranteed
by the Company pursuant to a Guaranty Agreement dated as of November 1, 2018, entered into
between the Company and the Trustee.
The owner of this Bond shall have no right to enforce the provisions of the Indenture or to
institute action to enforce the covenants therein, or to take any action with respect to any event of
default under the Indenture, or to institute, appear in and defend any suit or other proceeding with
respect thereto, except as provided in the Indenture. In certain events, on the conditions, in the
manner and with the effect set forth in the Indenture,the principal of this Bond may be declared and
may become due and payable before the stated maturity thereof, together with accrued interest
thereon.
44
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 are subject to redemption prior to maturity at the option of the Issuer, to be
exercised solely as directed by the Company,in whole or in part at any time(and if in part,by lot or
in such other manner as may be determined by the Trustee to be fair and equitable),at a redemption
price equal to the principal amount being redeemed plus accrued interest to the redemption date.
In the event any of the Bonds or portions thereof(which shall be $100,000 or any integral
multiple of$5,000 in excess of$100,000) are called for redemption, notice thereof shall be given
by the Trustee by registered or certified mail to the registered owner of each such Bond addressed
to such registered owner at his registered address, and placed in the mails not less than thirty(30)
nor more than sixty(60)days prior to the date fixed for redemption;provided,however,that failure
to give such notice by mailing,or any defect therein, shall not affect the validity of the proceedings
for the redemption of any Bond with respect to which no such failure or defect has occurred. Each
notice shall identify the Bonds or portions thereof being called, and the date on which they shall be
presented for payment. After the date specified in such call,the Bond or Bonds so called will cease
to bear interest provided funds sufficient for their redemption have been deposited with the Trustee,
and, except for the purpose of payment, shall no longer be protected by the Indenture and shall not
be deemed to be outstanding under the provisions of the Indenture.
With respect to notice of redemption of the Bonds, unless moneys sufficient to pay the
principal of and interest on the Bonds to be redeemed shall have been received by the Trustee prior
to the giving of such notice, such notice shall state that said redemption shall be conditional upon
the receipt of such moneys by the Trustee on or prior to the date fixed for such redemption. If such
moneys shall not have been so received, such notice shall be of no force and effect, the Issuer shall
not redeem such Bonds and the Trustee shall give notice, in the manner in which the notice of
redemption was given, that such moneys were not so received.
This Bond may be transferred on the books of registration kept by the Trustee by the
registered owner or by his duly authorized attorney upon surrender hereof, together with a written
instrument of transfer duly executed by the registered owner or his duly authorized attorney.
The Bonds are issuable as registered Bonds without coupons in denominations of$100,000
or any integral multiple of $5,000 in excess of $100,000. Subject to the limitations and upon
payment of the charges provided in the Indenture, Bonds may be exchanged for a like aggregate
principal amount of Bonds of other authorized denominations.
This Bond is issued with the intent that the laws of the State of Arkansas will govern its
construction.
IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all acts, conditions and
things required to exist, happen and be performed precedent to and in the issuance of the Bonds do
45
exist,have happened and have been performed in due time,form and manner as required by law;that
the indebtedness represented by the Bonds, together with all obligations of the Issuer, does not
exceed any constitutional or statutory limitation; and that the above referred to revenues pledged to
the payment of the principal of and interest on the Bonds as the same become due and payable will
be sufficient in amount for that purpose.
This Bond shall not be valid or become obligatory for any purpose or be entitled to any
security or benefit under the Indenture until the Certificate of Authentication hereon shall have been
signed by the Trustee.
IN WITNESS WHEREOF, the City of Van Buren, Arkansas has caused this Bond to be
executed by its Mayor and City Clerk, thereunto duly authorized (by their manual or facsimile
signatures), and its corporate seal to be affixed or imprinted, all as of the date of this Bond shown
above.
CITY OF VAN BUREN, ARKANSAS
By:
ATTEST: Mayor
City Clerk
(SEAL)
46
(Form of Certificate of Authentication)
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the issue described in and issued under the provisions of
the within mentioned Indenture.
Date of registration and authentication:
REGIONS BANK
Trustee
By
Authorized Signature
(Form of Assignment)
ASSIGNMENT
FOR VALUE RECEIVED, ("Transferor"), hereby sells, assigns and
transfers unto ,the within Bond and all rights thereunder,and hereby irrevocably
constitutes and appoints ("Transferee") as attorney to transfer the within Bond on the
books kept for registration thereof with full power of substitution in the premises.
DATE: ,
Transferor
GUARANTEED BY:
NOTICE: Signature(s) must be guaranteed by a member firm of the New York Stock
Exchange or a commercial bank or a trust company.
47
Y \
RECORD OF ADVANCES AND PRINCIPAL PAYMENTS
Date of
Advance or Amount of Total Signature of
Principal Amount of Principal Principal Authorized
Payment Advance Payment Outstanding Officer
*The date of each Advance shall be the interest commencement date from which the principal
amount of such Advance bears interest.
48
EXHIBIT B
Form of Bond After Completion Date
No. R- $
UNITED STATES OF AMERICA
STATE OF ARKANSAS
CITY OF VAN BUREN, ARKANSAS
TAXABLE INDUSTRIAL DEVELOPMENT REVENUE BOND
(BEKAERT CORPORATION PROJECT)
SERIES 2018
Date of Bond: , 2018 Maturity Date: November 1, 2028
Interest Rate: 4.25%per annum
Registered Owner:
Principal Amount: DOLLARS
KNOW ALL MEN BY THESE PRESENTS:
That the City of Van Buren,Arkansas,a municipality organized and existing under the laws
of the State of Arkansas (the "Issuer"), for value received, promises to pay to the registered owner
shown above, or registered assigns, but solely from the source and in the manner hereinafter set
forth, the principal amount shown above and in like manner to pay interest on said amount until
payment of such principal amount has been made or duly provided for,at the rate per annum shown
above, semiannually on May 1 and November 1 of each year, from the May 1 or November 1 next
preceding the date on which this Bond is authenticated unless this Bond is authenticated on an
interest payment date, in which case it shall bear interest from such date, or unless this Bond is
authenticated during the period from the Record Date (as hereinafter defined) to the next interest
payment date, in which case it shall bear interest from such interest payment date, or unless at the
time of authentication of this Bond interest is in default hereon, in which case it shall bear interest
from the date to which interest has been paid, except as the provisions hereinafter set forth with
respect to redemption of this Bond prior to maturity may become applicable hereto. The principal
of this Bond is payable in lawful money of the United States of America upon the presentation and
surrender hereof at the principal corporate trust office of Regions Bank, Little Rock, Arkansas, or
its successor or successors, as Trustee (the "Trustee"), and interest on this Bond is payable in like
money to the registered owner hereof by check or draft drawn upon the Trustee and mailed or, in
certain circumstances described in the Indenture, by wire transfer to the person in whose name this
Bond is registered at the close of business on the fifteenth day of the calendar month next preceding
49
vi
that in which such interest payment shall fall(the "Record Date"),at his address as it appears on the
bond registration books of the Issuer kept by the Trustee.
This Bond is one of a series of Bonds in the aggregate principal amount of$
(the "Bonds"), issued for the purpose of financing the cost of acquiring, constructing and installing
an industrial project within the boundaries of the Issuer (the "Project"), for use by Bekaert
Corporation, a Delaware corporation (the "Company"), and paying the expenses of issuing the
Bonds. The Bonds are all issued under and are all equally and ratably secured and entitled to the
protection given by a Trust Indenture dated as ofNovember 1,2018(the"Indenture"),duly executed
and delivered by the Issuer to the Trustee. Reference is hereby made to the Indenture and all
indentures supplemental thereto for the provisions, among others, with respect to the nature and
extent of the security, the rights, duties and obligations of the Issuer, the Trustee and the registered
owners of the Bonds, and the terms upon which the Bonds are issued and secured. The terms and
conditions of the financing of the Project, the use of the proceeds of the Bonds by the Company for
such purpose, and the payment of certain amounts thereunder, are contained a Lease Agreement
dated as ofNovember 1,2018(the"Lease Agreement"),by and between the Issuer and the Company.
The Bonds are issued pursuant to and in full compliance with the laws of the State of
Arkansas,particularly Title 14,Chapter 164, Subchapter 2 of the Arkansas Code of 1987 Annotated
(the "Act"), and pursuant to an Order of the Issuer,which authorized the execution and delivery of
the Indenture. The Bonds and the interest thereon do not constitute an indebtedness of the Issuer
within the meaning of any constitutional or statutory limitation.
The Bonds are not general obligations of the Issuer but are special obligations payable solely
from revenues derived from the Lease Agreement. The Lease Agreement provide for lease payments
by the Company in amounts sufficient to provide for the payment of the principal of and interest on
the Bonds as due and payable. Provision has been made in the Lease Agreement for such payments
to be paid directly to the Trustee and deposited in a special account of the Issuer designated"Taxable
Industrial Development Revenue Bond Fund - Bekaert Corporation Project," and such payments
have been duly assigned to the Trustee for that purpose. All the rights and interest of the Issuer in
and to the Lease Agreement(except for certain rights specified in the Indenture)have been assigned
under the Indenture to the Trustee to secure the payment of the principal of and interest on the
Bonds. In addition, the payment of the principal and interest has been unconditionally guaranteed
by the Company pursuant to a Guaranty Agreement dated as of November 1, 2018, entered into
between the Company and the Trustee.
The owner of this Bond shall have no right to enforce the provisions of the Indenture or to
institute action to enforce the covenants therein, or to take any action with respect to any event of
default under the Indenture, or to institute, appear in and defend any suit or other proceeding with
respect thereto, except as provided in the Indenture. In certain events, on the conditions, in the
manner and with the effect set forth in the Indenture,the principal of this Bond may be declared and
may become due and payable before the stated maturity thereof, together with accrued interest
thereon.
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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 are subject to redemption prior to maturity at the option of the Issuer, to be
exercised solely as directed by the Company,in whole or in part at any time(and if in part,by lot or
in such other manner as may be determined by the Trustee to be fair and equitable), at a redemption
price equal to the principal amount being redeemed plus accrued interest to the redemption date.
In the event any of the Bonds or portions thereof(which shall be $100,000 or any integral
multiple of$5,000 in excess of$100,000) are called for redemption, notice thereof shall be given
by the Trustee by registered or certified mail to the registered owner of each such Bond addressed
to such registered owner at his registered address, and placed in the mails not less than thirty(30)
nor more than sixty(60)days prior to the date fixed for redemption;provided,however,that failure
to give such notice by mailing,or any defect therein, shall not affect the validity of the proceedings
for the redemption of any Bond with respect to which no such failure or defect has occurred. Each
notice shall identify the Bonds or portions thereof being called, and the date on which they shall be
presented for payment. After the date specified in such call,the Bond or Bonds so called will cease
to bear interest provided funds sufficient for their redemption have been deposited with the Trustee,
and, except for the purpose of payment, shall no longer be protected by the Indenture and shall not
be deemed to be outstanding under the provisions of the Indenture.
With respect to notice of redemption of the Bonds, unless moneys sufficient to pay the
principal of and interest on the Bonds to be redeemed shall have been received by the Trustee prior
to the giving of such notice, such notice shall state that said redemption shall be conditional upon
the receipt of such moneys by the Trustee on or prior to the date fixed for such redemption. If such
moneys shall not have been so received, such notice shall be of no force and effect, the Issuer shall
not redeem such Bonds and the Trustee shall give notice, in the manner in which the notice of
redemption was given, that such moneys were not so received.
This Bond may be transferred on the books of registration kept by the Trustee by the
registered owner or by his duly authorized attorney upon surrender hereof, together with a written
instrument of transfer duly executed by the registered owner or his duly authorized attorney.
The Bonds are issuable as registered Bonds without coupons in denominations of$100,000
each, or any integral multiple of$5,000 in excess of$100,000. Subject to the limitations and upon
payment of the charges provided in the Indenture, Bonds may be exchanged for a like aggregate
principal amount of Bonds of other authorized denominations.
This Bond is issued with the intent that the laws of the State of Arkansas will govern its
construction.
IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all acts, conditions and
things required to exist, happen and be performed precedent to and in the issuance of the Bonds do
exist,have happened and have been performed in due time,form and manner as required by law;that
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the indebtedness represented by the Bonds, together with all obligations of the Issuer, does not
exceed any constitutional or statutory limitation; and that the above referred to revenues pledged to
the payment of the principal of and interest on the Bonds as the same become due and payable will
be sufficient in amount for that purpose.
This Bond shall not be valid or become obligatory for any purpose or be entitled to any
security or benefit under the Indenture until the Certificate of Authentication hereon shall have been
signed by the Trustee.
IN WITNESS WHEREOF, the City of Van Buren, Arkansas has caused this Bond to be
executed by its Mayor and City Clerk, thereunto duly authorized (by their manual or facsimile
signatures), and its corporate seal to be affixed or imprinted, all as of the date of this Bond shown
above.
CITY OF VAN BUREN, ARKANSAS
By:
ATTEST: Mayor
City Clerk
(SEAL)
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's '
(Form of Certificate of Authentication)
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the issue described in and issued under the provisions of
the within mentioned Indenture.
Date of registration and authentication:
REGIONS BANK
Trustee
By
Authorized Signature
(Form of Assignment)
ASSIGNMENT
FOR VALUE RECEIVED, ("Transferor"), hereby sells, assigns and
transfers unto ,the within Bond and all rights thereunder,and hereby irrevocably
constitutes and appoints ("Transferee") as attorney to transfer the within Bond on the
books kept for registration thereof with full power of substitution in the premises.
DATE: ,
Transferor
GUARANTEED BY:
NOTICE: Signature(s) must be guaranteed by a member firm of the New York Stock
Exchange or a commercial bank or a trust company.
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5L-(
' EXHIBIT C
D: cri s tion o ' 'ect Site
The following described real estate situated in Crawford County, Arkansas, to-wit:
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EXHIBIT D
Form of Requisition
REQUISITION NO.
DATE:
Regions Bank, as Trustee
Little Rock, Arkansas
Re: City of Van Buren, Arkansas Taxable Industrial Development
Revenue Bond Construction Fund - Bekaert Corporation Project
You are requested and authorized to make payment from the above account to:
for:
in the amount of$
I hereby certify on behalf of Bekaert Corporation (the "Company") that:
1. The disbursement is for a proper item of Project Costs.
2. The disbursement does not render inaccurate any of the representations with respect
thereto contained in the Lease Agreement dated as of November 1, 2018, between City of Van
Buren, Arkansas and the Company.
CERTIFIED this day of ,
BEKAERT
CORPORATION
By
Company Representative
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DRAFT
Friday, Eldredge & Clark
AGREEMENT FOR PAYMENTS IN LIEU OF TAXES
City of Van Buren, Arkansas
Van Buren Municipal Complex
1003 Broadway St.
Van Buren, Arkansas 72956
Attention: Mayor
Bekaert Corporation,a Delaware corporation(the"Company"),has requested the City of Van
Buren,Arkansas (the "City")to issue not to exceed$16,000,000 in principal amount of its Taxable
Industrial Development Revenue Bonds (Bekaert Corporation Project), Series 2018 (the "Bonds"),
under the laws of the State of Arkansas, including particularly Title 14, Chapter 164, Subchapter 2
of the Arkansas Code of 1987 Annotated (the "Act"), for the purpose of assisting the Company in
financing an expansion to the Company's existing industrial facility located within the boundaries
of the City(the"Project"),generally consisting of the construction of various improvements and the
acquisition and installation of various machinery, equipment and other tangible personal property.
The Project will be leased by the City to the Company under a Lease Agreement dated as of
November 1,2018 (the"Lease Agreement"). The Lease Agreement will have a stated term expiring
on November 1,2028,with the ownership of the Project reverting to the Company at the conclusion
of the Lease Agreement upon the happening of certain events which will be more fully described in
the Lease Agreement. The properties leased under the Lease Agreement, including, without
limitation,all replacements and substitutions of the Project which become the property of the Issuer
pursuant to the provisions of this Lease Agreement,are herein referred to as the "Leased Premises."
The Lease Agreement provides that the Company is obligated to pay all taxes and
assessments levied and assessed on the Leased Premises during the term of the Lease Agreement.
The Company and the City understand and agree that, notwithstanding such provision in the Lease
Agreement, under Article 16, Section 5 of the Constitution of the State of Arkansas, as interpreted
by the Arkansas Supreme Court in Wayland v. Snapp, 232 Ark. 57, 334 S.W.2d 633 (1960), and
Pulaski County v.Jacuzzi Bros.Div.,332 Ark.91,964 S.W.2d 788(1998),the Leased Premises will
be exempt from ad valorem taxes because they will be owned by the City and used for a public
purpose within the meaning of the applicable Constitutional and statutory provisions affording the
exemption. Thus, the Company and the City agree that the Company, as lessee of the Project,will,
in fact, have no ad valorem taxes to pay under the provisions of the Lease Agreement.
To induce the City to proceed with the issuance of the Bonds,which will inure to the benefit
of the Company, and for other valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the Company agrees with the City as follows:
1. Payments. The Company will make annual payments in lieu of taxes to the City or,
at the option of the City, to the Treasurer of Crawford County, Arkansas (the "County"), annually
at the times regular ad valorem taxes are payable, as follows:
(a) During the stated term of the Lease Agreement, an amount equal to fifty
percent(50%)of the ad valorem taxes which would be payable if the property
comprising the Leased Premises were subject to ad valorem taxes.
(b) Thereafter,an amount equal to one hundred percent(100%)of the ad valorem
taxes which would be payable if the property comprising the Leased Premises
were subject to ad valorem taxes.
2. Assessed Valuation. Representatives of the Company will meet annually with the
Assessor of the County and determine the assessed valuation of the properties comprising the
Project. The determination shall be made by mutual agreement if possible,and if not shall be made
by the Assessor as though the Project were privately owned. The amount to be paid each year shall
be determined by applying the millage that would be applicable to the Project for that year if the
Project were privately owned. The Company shall be entitled to any refund occasioned by
overpayment or a reduction in millage which requires a refund by the taxing authorities.
3. Distribution. Each payment made pursuant to Section 1 hereof shall be distributed
to the political subdivisions which would have received ad valorem tax payments on the Leased
Premises had the Leased Premises not been exempt from ad valorem taxes in accordance with
applicable law.
4. Payments Limited. The payments to be made by the Company under Section 1 hereof
are intended to be in lieu of all ad valorem taxes that would have to be paid on the Leased Premises
to the State of Arkansas, the City, the County, Van Buren School District (the "District"), and/or
other present and future political subdivisions of the State of Arkansas if the Leased Premises were
not exempt from ad valorem taxes under the provisions of Article 16, Section 5 of the Constitution
of the State of Arkansas as interpreted by the Supreme Court of the State of Arkansas in Wayland
v. Snapp, 232 Ark. 57, 334 S.W.2d 633 (1960), and Pulaski County v. Jacuzzi Bros. Div., 332 Ark.
91, 964 S.W.2d 788 (1998). Therefore, such payments shall not as to any year be in an amount
greater than would be payable for such year in ad valorem taxes, in the aggregate, if the Leased
Premises were not exempt from ad valorem taxes.
5. Change of Law or Application. If by reason of a change in the Constitution,a change
by the Supreme Court of the State of Arkansas in its interpretation of the Constitution,or otherwise
ad valorem taxes are no longer imposed on property of the type comprising the Leased Premises,no
payments shall be due by the Company hereunder from and after the effective date of such change.
Furthermore,if by reason of a change in the Constitution,a change by the Supreme Court of the State
of Arkansas in its interpretation of the Constitution,or otherwise the Company is required to pay any
real or personal property ad valorem tax which the payments specified herein are intended to be in
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lieu of, the Company may deduct the aggregate of any such payments made by it from the amount
herein agreed to be paid in lieu of taxes and need only pay the difference, if any, to the City. It is
understood that such deduction shall include payments made by the Company for sales taxes, use
taxes, or any other taxes, excises or imposts of any kind or character which have been imposed by
the State of Arkansas, the City, the County, the District, and/or any other taxing authority in lieu of
and as a substitute for ad valorem taxes.
6. Parties to Support Agreement. The City and the Company agree to use their best
efforts to sustain the validity and enforceability of this Agreement.
7. Termination. This Agreement shall terminate and be of no further force and effect
from and after the date that the Lease Agreement shall terminate for any purpose other than an
uncured default on the part of the Company. If such termination shall be at a point constituting a
portion of a tax year, the Company shall pay for the year in which termination occurred that portion
of the specified annual payment that the number of days in such tax year that the Company was
Lessee prior to the termination bears to 365 or 366 days, as appropriate.
8. Successors and Assigns. This Agreement shall be binding upon the successors and
assigns of the Company. This Agreement may be assigned by the Company to a corporation,limited
liability company, or other entity organized under the laws of the United States of America, the
District of Columbia or one of the states of the United States qualified to do business in the State of
Arkansas, but no assignment shall be effective to relieve the Company of any of its obligations
hereunder unless the Company simultaneously assigns the Lease Agreement and under the terms
thereof is thereby relieved of further obligations thereunder.
9. Counterparts. This Agreement may be executed simultaneously in several
counterparts, each of which shall be deemed an original, and it shall not be necessary in making
proof of this Agreement to produce or account for more than one such counterpart.
10. Governing Law. This Agreement shall be governed by,and interpreted in accordance
with, the laws of the State of Arkansas.
When executed, this instrument shall constitute a valid and binding contract between the
Company and the City.
[EXECUTION PAGE FOLLOWS]
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