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HomeMy WebLinkAbout117-85 RESOLUTION• • SCANNED RESOLUTION ND. 117-85 A RESOLUTION AUTHORIZING THE MAYOR AND CITY CTFRK TO EXECUTE AN AMENDMENT FOR THE BOND GUARANTY, LETTER OF CREDIT AGREEMENT AND TRUST INDENTURE EXECUTED IN CONNECTIONWITH THE ISSUANCE OF INDUSTRIAL DEVELOPMENT REVENUE BONDS FOR THE McINTOSH PROJECT TO PROVIDE FOR THE CANCELLATION OF SAID BONDS. BE TT RESOLVED BY THE HOARD OF DIRECTORS OF THE QTY OF FAYKntVIL E, ARKANSAS: That the Mayor and City Clerk are hereby authorized and directed to execute an amendment to the Bond Guaranty, Letter of Credit Agreement and Trust Indenture executed in connection with the issuance of industrial development revenue bonds for the McIntosh Project to provide for the cancellation of said bonds. A copy of the amendment authorized for execution hereby is attached hereto marked Exhibit "A" and made a part hereof. PASSED AND APPROVED this S iyrsYe,>d , A±TEST 4). k • 5th day of November , 1985. AMENDMENT i disNi441 it F I IAY. ELn (=DC E L L 33 First Commercial BuUWng Little Rock, Arkansas 72201 ' This Amendment dated December 4, 1993 by and between the City of Fayetteville, Arkansas, a city of the first class, existing under the laws of the State of Arkansas, (the "City"); Crocker National Bank, a national banking association, (the "Bank"); First National Bank of Fayetteville, Arkansas, a national banking association, (the "Trustee"); NI Industries, Inc. (formerly known as Norris -NI Industries, Inc.), incorpora- ted in the State of Delaware, ("NI"); and NI West, Inc. (formerly known as Norris Industries, Inc. and the successor -in -interest to the McIntosh Corporation) incorporated in the State of California ("NI West") amends the following agreements: (a) Bond Guaranty made and entered into as of February 1, 1979 by and between NI West and the Trustee as amended by the First Amendment to the Bond Guaranty, made and entered into as of January 20, 1983 by and between NI, NI West, and the Trustee (collectively the "Bond Guaranty"); (b) Letter of Credit Agreement dated as of January 20, 1983, between NI and the Bank (the "Letter of Credit Agreement"); and (c) Trust Indenture executed as of February 1, 1979 by and between the City and the Trustee, as supplemented by the First Supplement Trust Indenture, dated as of January 20, 1983 between the City and the Trustee (collectively the "Indenture"). WITNESSETH: WHEREAS, NI has acquired and is the registered owner of all of the outstanding bonds issued pursuant to the provisions of the Indenture; • WHEREAS, NI as the holder of all of the outstanding bonds issued pursuant to the provisions of the Indenture, is desirous of having the Bond Guaranty, Indenture,. the Letter of Credit Agreement and the letter of credit obtained by NI pursuant to the provisions of the Letter of Credit Agreement (the "Letter of Credit") terminated; WHEREAS, that the Bond Agreement and the Bank, the Guaranty, the the Letter of City, the Trustee, and NI West desire Indenture, the Letter of Credit Credit be terminated; AND NOW THEREFORE, in consideration of the above premises, the mutual promises made herein, it is agreed by and between the parties to this Amendment as follows: EXHIBIT A 1. ..Upon receipt by the Trustee from NI of one or more certificates representing all of the outstanding bonds issued pursuant to the provisions of the Indenture and receipt by the Bank from NI of the Letter of Credit for the purpose of the Bank voiding the Letter of Credit, the Bond Guaranty, the Trust Indenture (except for Section 11.02), the Letter of Credit Agreement (except for Section 1.02), and the Letter of Credit shall be deemed terminated. All obligations incurred pursuant to the provisions of the Bond Guaranty, the Indenture, and the Letter of Credit Agreement shall be deemed to have been satisfied, and each party to the Bond Guaranty, the Indenture, and the Letter of Credit Agreement shall be deemed released from all of theirrespective obligations as set forth ineach of the aforesaid agreements, and that there shall have been a complete accord and satisfaction of each and every obli- gation of each such party asset forth in the Bond Guaranty, the Indenture, and the Letter of Credit Agree- ment; except, that the aforesaid shall not apply to any obligation owed to the Trustee pursuant to Section 1102 of the Indenture, to any obligation owed to the Bank pursuant to Section 1.02 of the. Letter of Credit Agreement and payment to NI of any amounts remaining in any fund created pursuant to the provisions of the Indenture. 2. The Trustee shall upon receipt from NI of all the out- standing bonds which were issued pursuant to the pro- visions of the Indenture cancel such bonds and give written notice to the Bank and the City that all such bonds have been received and cancelled by the Trustee. 3. Upon NI delivering to the Bank the Letter of Credit, the Bank shall void the Letter of Credit and shall record the voiding of the Letter of Credit on its books. As of the date of receipt by the Bank from NI of the Letter of Credit, the Bank shall pay over to NI an amount equal to the quotient of the number of days from which the Bank receives the Letter of Credit from NI through January 20, 1986 divided by 360 times the amount of the commission paid by NI to the Bank for the Letter of Credit for the period ending January 20, 1986. 4. The Bank, the City and the Trustee each hereby declares that they have not received any notice of default by NI or NI West pursuant to the provisions of the Bond Guaranty, the Indenture, or the Letter of Credit Agree- ment or do any one of them have any knowledge of any such default by NI or NI West. 5. This Amendment as it pertains to the Bond Guaranty, the Indenture and the Letter of Credit Agreement shall be interpreted in respect to each such agreement pursuant to the laws of the jurisdiction which, as the case may be, governs the interpretation of the Bond Guaranty, Indenture or Letter of Credit Agreement. -2- 6. Any party hereto may record this Amendment. 7,. Time is of the essence. 8. Any notice required to be given pursuant to the pro- visions of this Amendment shall be deemed to have been delivered when received by the party to whom ........ it is directed at its address as follows: To, the Bank: Crocker National Bank 333 South Grand Avenue Los Angeles, CA 90071 Attn: Corporate. Banking Department To, the City: City of Fayetteville City Hall Fayetteville, Arkansas 72701 Attn: City Clerk To, NI and/or NI West: NI Industries, Inc. One Golden Shore Long Beach, CA 90802 Attn: The Secretary 9. This Amendment is the entire agreement between any two or more of the parties hereto in respect to the subject matter of this Amendment, cancelling and superseding all previous agreements, whether written or oral, under- standings, and negotiations. This Amendment may be amended or modified only by -a writing executed on be- half of each of the parties hereto. 10. This Amendment may be executed in one or more counter- parts each of which shall be deemed to constitute an original and shall become effective when one or more counterparts have been executed on behalf of each of the parties and delivered to all the parties to this Amendment. 11. This Amendment shall bind and inure tothe benefit of each party to this Amendment and their respective successors and assigns. 12. As used in this Amendment, the singular shall include the_plural and the plural shall include the singular. 13. Each signatory to this Amendment warrants and represents to the parties of this Amendment that such signatory is duly authorized, on behalf of the party whom such signatory purports to represent, to enter into this Amendment on behalf of such party. -3- • • 14. Each party to this Agreement waives any notice that it -may be entitled to pursuant to the provisions of the Bond Guaranty, the Indenture and/or the Letter of Credit Agreement in respect to any matters covered by this Amendment. Attest: AGREED: CITY 9 AYETTEVILLE, ARKANSAS .,, ).�/ By �((�/ //C�l/ric Title Attest: CROCKER NATIONAL BANK By Title Attest: ori Title/"' f' > HJ.:' Attest: "/ d.wid de airaMn Fni• Attest: Title 7177\2 ATIONAL BANK, FAYETTEVILLE, AS FIRST iti riA.L.10 By Title C -c2 y 1) TALINfit-cL NI INDUSTRIES, INC. NI WEST, INC. By Title -4- �. cr}svets ac,LC Pith 21.4 1- i/adX 1 -cd • i; • ACKNOWLEDGEMENT STATE OF ARKANSAS ss COUNTY OF WASHINGTON ) On this day of , 1985, before me a Notary Public duly commissioned, qualified and acting within and for the county and state aforesaid, appeared in person the within named and , the . and respectively, of the City of Fayetteville, Arkansas, a muni- cipality of the State of Arkansas, to me personally known, who stated that they•were duly authorized in their respective capacities to execute the foregoing instruments for and in the name -and -behalf -of the City, and further stated and acknowledged that they have so signed, executed and delivered the foregoing instrument for the considerations, uses and purposes that have been mentioned and set forth. IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this day of , 1985. My commission expires: «l7'YIi1.o // f/�G ISA/ Notary Public • ACKNOWLEDGEMENT STATE OF CALIFORNIA ss COUNTY OF LOS ANGELES On this 4th day of December , 1985, before me a Notary Public duly commissioned, qualified and acting within and for the county and state aforesaid, appeared in person the within named John L. Coonnr, Jr. and Steve A. Kirschbaum , the Vice President and Cor_norate Banking Officer ---respectively, of the Crocker National Bank, Los Angeles, California, a national banking association, authorized to do business in the State of California, to me personally known, who stated that they were duly authorized in their respective capacities to execute the foregoing instrument for and in the name and behalf of the bank, --and further stated and acknowledged that they have so signed, executed and delivered the foregoing instrument for the considerations, uses and purposes that have been mentioned and set forth. IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this 4t1. day of December , 1985. My commission expires: %.<7 /Q, /7/ 7 (SEAL) Notary Public SEAL 1P471 -;..1.-477.17 .i 1 ALE I A 4IINDES �' No -EAR.? PUBLI O A LI£ORNIA ':,;.y 7LOS A'!ELES COUNTY h M0 fa:,.;, es..,o L,m,,; Aur. 14. 1987 • ACKNOWLEDGEMENT STATE OF ARKANSAS ss COUNTY OF WASHINGTON.) On this day of , 1985, before me a Notary Public duly commissioned, qualified and acting within and for the county and state aforesaid, appeared in person the within named and , the and respectively, of the First National Bank, Fayetteville, Arkansas, a national banking association, authorized to do business in the State of Arkansas, to me personally known, who stated that they were duly authorized in their respective capacities to execute the foregoing instrument for and in the name and behalf of the bank, and further stated and acknowledged that they have so signed, executed and delivered the foregoing instrument for the considerations, uses and purposes that have been mentioned and set forth. IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this day of , 1985. My commission expires: (SEAL) I./yublic • ACKNOWLEDGEMENT STATE OF CALIFORNIA ss COUNTY OF LOS ANGELES ) On this 15th day of January , 1986, before me a Notary Public duly commissioned, qualified and acting within and --for the county and state aforesaid, appeared in person the within named R. James Shaffer and A.R. OwensLJr. , the V p & General c nseland V P and Treasurer respectively, of NI Industries, Inc. a Delaware corporation, authorized to do business in the State of California, to me personally known, who stated that they were duly authorized in their respective capacities to execute the foregoing in- strument for and in the name and behalf of the corporation, and further stated and acknowledged that they have so signed, executed and delivered the foregoing instrument for the con- siderations, uses and. purposes that have been mentioned and set forth. IN TESTIMONY WHEREOF, 1 have hereunto set my hand and official seal this 15th day of. January , 1986. My commission expires: June 27, 1986 (SEAL) �;.�:` OFFICIAL SEAL BETTY J. VAUGHN ou - NOTARY PUBLIC - CALIFORNIA ` {Rill LOS ANGELES COUNTY =2 ' - •i My Comm. Expires June 27, 198E Notdry Public • ACKNOWLEDGEMENT STATE OF CALIFORNIA ss COUNTY OF LOS ANGELES ) On this 15th day of January , 198b, before me a Notary Public duly commissioned, qualified and acting within and ---for the county and state aforesaid, appeared in person the within named R. James Shaffer and A R Chvana .Tr , the V.P. & General Counsel and v P And Treac.lirer respectively, of NI West, Inc., a California corporation, authorized to do business in the State of California, to me personally known, who stated that they were duly authorized in their respective capacities to execute the foregoing in- strument for and inthe name and behalf of the Corporation, and further stated and acknowledged that they have so signed, executed and delivered the foregoing instrument for the considerations, uses and purposes that have been mentioned and set forth. IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this 15th day of January , 198e. My commission expires: June 27, 1986 (SEAL) /•,_;� OFFICIAL SEAL. ate. BETTY J. VAUGHP! NOTARY ?CELE S CFLIFOYtiln LOS ANGELES COUNTY /Ay Carom. Expires Ione 27, 1966 Public' Prepared by: Friday, Eldredge & Clark WARRANTY DEED AND BILL OF SALE Know All Men By These Presents: That the CITY OF FAYETTEVILLE, ARKANSAS, a city of the first class duly existing under and by virtue of the laws of the State of Arkansas ("Grantor"), by its officials named below, duly authorized and empowered, for and in consideration of the sum of TEN DOLLARS and other good and valuable consideration paid by NI INDUSTRIES, INC., a Delaware corporation ("Grantee") the receipt of which is hereby acknowledged, does hereby grant, bargain, sell and convey unto the said Grantee, and unto its successors and assigns forever, the following lands lying in the County of Washington, State -of Arkansas, to -wit; A part of Section 26, Township 16 North, Range 30 West, Fayetteville, Washington County, Arkansas, being more particularly described as follows: Beginning at a point that is South 2674.43 feet and East 1768.44 feet from the NW corner of said Section 26; thence S 88° 52' E 1329.04 feet; thence S 1° 09' W 997.71 feet to the center line of an old public road; thence S 84° 55' W 904.57 feet along the center line of said old public road to the North right-of-way of Armstrong Avenue; thence N 70° 42' W 381.96 feet along said right-of-way; thence N 2° 46' W 978.84 feet to the point of beginning, containing 30.99 acres more or less; that certain easement lying in the County of Washington, State of Arkansas, to -wit: A 100 foot wide railroad easement in the Fayetteville Industrial Park Subdivision, Fayetteville, Washington County, Arkansas, being more particularly described as follows: Beginning at a point that is South 1359.95 feet and East 2219.08 feet from the Northwest corner of Section 26, Township 16 North, Range 30 West, said point being a point on the South line of Lot 12 of said Fayetteville Industrial Park subdivision; thence Southeasterly along a circular curve having an arc length of 1421.43 feet and a radius of 904.93 feet; thence S 1° 0`9'. W 1418.65 feet to the South line of said subdivision; thence N 84° 55' E 100.59 feet along said South line; thence N 1°09' E 1407.72 feet; thence Northwesterly along a circular curve having an arc length of 1222.92 feet and a radius of 1004.93 feet to a point on the East line of said Lot 12; thence S 00 03' W 38.09 feet along said East line to the Southeast corner of said Lot 12; thence N 88° 51' W 348.01 feet along said South line of Lot 12 to the point of beginning, containing 6.05 acres, more or less; and all of the machinery and equipment leased by Grantor to Grantee under the Agreement for Construction, Financing, Leasing and Option to Purchase, dated as of February 1, 1979, by and between Grantor and McIntosh Corporation, as amended by a First Supplemental Agreement, dated as of January 20, 1983, by and among the Grantor, the Grantee (formerly Norris -NI Industries, Inc.), and NI West, Inc. (formerly Norris Industries, Inc.) (collectively, the "Agreement"). To have and to hold the same unto the said Grantee, and unto its successors and assigns forever, with all appurtenances to said real property thereunto belonging. And Grantor hereby covenants with the said Grantee that it will forever warrant and defend thu title to said lands against all claims whatever, sub- ject to liens and encumbrances listed on Exhibit A hereto, and any exceptions created pursuant to Section 4.15 of the Agreement. IN TESTIMONY WHEREOF, the name of the Grantor is here- unto affixed by its Mayor and its seal affixed by its City Clerk, this day of , 1985. ,' ATTESTI L �/u j r til . (SEAL) CITY,O FAYEILLE, ARKANSAS By / e Mayor • • EXHIBIT A 1. Taxes for the year 1978 and subsequent years. 2. Ordinance No. 1781, dated February 1, 1971, filed for Record February 17, 1971, at 3:31 P.M. and Recorded in Record Book 800 at Page 432, of the Records of the Circuit Clerk and Ex -Officio Recorder of Washington County, Arkansas. Ordinance No. 1795, April 23, 1971 at 3 806 at Page 190, of Ex -Officio Recorder dated April 19, 1971, filed for Record :58 P.M. and Recorded in Record Book the: Records of the Circuit Clerk and of Washington County, Arkansas. 4. Easement dated December 19, 1978, granted by the City of Fayetteville, Arkansas for public utility services and recorded at 3:49 p.m. December 28, 1978 in Record Book 980, Pages 465 and 466 of the Records of the Circuit Clerk, Washington County, Arkansas. • • STATE OF ARKANSAS COUNTY OF ACKNOWLEDGMENT On this day of , 1985, before me, a _Notary Public, duly commissioned, qualified and acting, within and for the said County and State, appeared in person the within named and to me personally well known, who stated that they were the Mayor and City Clerk of the City of Fayetteville, Arkansas, a municipality of the State of Arkansas, and were duly authorized in their respective capacities to execute the foregoing instrument for and in the name and behalf of said municipality and further stated and acknowledged that they had so signed, executed and delivered said foregoing instrument for the consideration, uses and purposes therein mentioned and set forth. IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal. My Commission Expires: (SEAL) Notary Public 1 • • HERSCHEL H. FRIDAY, P.A. WILLIAM A. ELDREDGE. JR., P.A. B. S. CLARK WILLIAM L. TERRY, P.A. ROBERT V. LIGHT, P.A. WILLIAM H. SUTTON. P.A. GEORGE E. PIKE, JR.. P.A. JAMES W. MOORE WILLIAM L. PATTON. JR., P.A. BYRON M. EISEMAN. JR.. P.A. JOE D. BELL. P.A. MICHAEL G. THOMPSON, P.A. JOHN C. ECHOLS, P.A. JAMES A. BUTTRY. P.A. FREDERICK 5. URSERY, P.A. H. T. LARZELERE. P.A. OSCAR E. DAVIS. JR.. P.A. THOMAS P. LEGGETT, P.A. JOHN OEWEY WATSON, P.A. LEWIS MATHIS. P.A. PAUL B. BENHAM III. P.A. LARRY W. BURKS. P.A. A. WYCKLIFF NISBET. JR.. P.A. FEDERAL EXPRESS FRIDAY, ELDREDGE & CLARK A PARTNERSHIP OF INDIVIDUALS AND PROFESSIONAL ASSOCIATIONS ATTORNEYS AT LAW 2000 FIRST COMMERCIAL BUILDING LITTLE ROCK, ARKANSAS TELEPHONE 501-376-2011 72201 January 24, 1986 Mr. James N. McCord City Attorney City Hall Fayetteville, Arkansas 72701 Re: Dear Jim: City of Fayetteville, Arkansas Industrial Development Revenue Bonds (McIntosh Project), Series 1985 1 7 • JAMES EDWARD HARRIS, P.A. J. PHILLIP MALCOM, P.A. JAMES M. SIMPSON, P.A. MEREDITH P. CATLETT. P.A. JAMES M. $A%TON J. SHEPHERD RUSSELL IU DONALD H. BACON, P.A. ROBERT K. WALSH WILLIAM THOMAS BAXTER. P.A. WALTER A. PAULSON 11, P.A. BARRY E. COPLIN RICHARD D. TAYLOR JOSEPH B. HURST. JR. ELIZABETH J. ROBBER CHRISTOPHER HELLER LAURA A. HENSLEY ROBERT 5. SHAFER MICHAEL G. SMITH WILLIAM M. GRIFFIN 111 THOMAS N. ROSE MICHAEL 5. MOORE DIANE 5. MACKEY JEFF BROADWATER JERRY V. ELLIOTT WALTER M. EBEL 111 KEVIN A. CRASS WILLIAM A, WADDELL, JR. CLYDE ..TAB' TURNER CALVIN J. HALL SCOTT J LANCASTER JERRY L. MALONE M. GAYLE CORLEY ROBERT B. BEACH. JR. COVNEEL WILLIAM J. SMITH JOHN T. WILLIAMS WRITER'S DIRECT NO. I am enclosing a copy of the executed Amendment with respect to the above -styled Bonds. The Bonds have been acquired by NI Industries, Inc. and simultaneously herewith I am forwarding the Bonds to First National Bank for cancellation along with UCC Termination Statements and a Release Deed. I am also enclosing for execution by the City (1) a Warranty Deed and Bill of Sale and (2) UCC Termination Statements. Please have these executed and returned to me. Please also forward me a certified copy of the Resolution adopted by the City Board of Directors authorizing the execution of the Amendment. Thank you for your cooperation and assistance in this matter. JSR/blb Enclosures cc: Jim Shaffer Yours very truly, J. Shepherd Russell, III • l A • • RESOLUTION NO. 117-85 A RESOLUTION AUTHORIZING THE MAYOR AND CITY rr.FRK TO EXECUTE AN AMENDMENT FOR THE BOND GUARANTY, LETTER OF CREDIT AGREEMENT AND TRUST INDENTURE EXECUTED IN CONNECTION WITH THE ISSUANCE OF INDUSTRIAL DEVELOPMENT REVENUE BONDS FOR THE McINTOSH PROJECT TO PROVIDE FOR THE CANCELLATION OF SAID BONDS. BE IT RESOLVED BY THE BOARD OF DIREC IURS OF THE CITY OF FAYFPIBVILR, ARKANSAS: That the Mayor and City Clerk are hereby authorized and directed to execute an amendment to the Bond Guaranty, Letter of Credit Agreement and Trust Indenture executed in connection with the issuance of industrial development revenue bonds for the McIntosh Project to provide for the cancellation of said bonds. A copy of the amendment authorized for execution hereby is attached hereto marked Exhibit "A" and made a part hereof. PASSED AND APPROVED this 5th day of November , 1985. AMENDMENT F.('".Y. ELM(DC..41::>_ -t;;a) First Commercial Euil_.ing Little Rock, Arkansas 72201 ' This Amendment dated December 4, 1995 by and between the City of Fayetteville, Arkansas, a city of the first class, existing under the laws of the State of Arkansas, (the "City"); Crocker National Bank, a national banking association, (the "Bank"); First National Bank of Fayetteville, Arkansas, a national banking association, (the "Trustee"); NI Industries, Inc. (formerly known as Norris -NI Industries, Inc.),. incorpora- ted in the State of Delaware, ("NI"); and NI West, Inc. (formerly known as Norris Industries, Inc. and the successor -in -interest to the McIntosh Corporation) incorporated in the State of California ("NI West") amends the following agreements: (a) Bond Guaranty made and entered into as of February 1, 1979 by and between NI West and the Trustee as amended by the First Amendment to the Bond Guaranty, made and entered into as bf January 20, 1983 by and between NI, NI West, and the Trustee (collectively the "Bond Guaranty"); (b) Letter of Credit Agreement dated as of January 20, 1983, between NI and the Bank (the "Letter of Credit Agreement"); and (c) Trust Indenture executed as of February 1, 1979 by and between the City and the Trustee, as supplemented by the First Supplement Trust Indenture, dated as of January 20, 1983 between the City and the Trustee (collectively the "Indenture"). WITNESSETH: WHEREAS, NI has acquired and is the registered owner of all of the outstanding bonds issued pursuant to the provisions of the Indenture; WHEREAS, NI as the holder of all of the outstanding bonds issued pursuant to the provisions of the Indenture, is desirous of having the Bond Guaranty, Indenture,. the Letter of Credit Agreement and the letter of credit obtained by NI pursuant to the provisions of the Letter of Credit Agreement (the "Letter of Credit") terminated; WHEREAS, that the Bond Agreement and the Bank, the Guaranty, the the Letter of City, the Trustee, and NI West desire Indenture, the Letter of Credit Credit be terminated; AND NOW THEREFORE, in consideration of the above premises, the mutual promises made herein, it is agreed by and between the parties to this Amendment as follows: EXHIBIT A • .Upon receipt by the Trustee from NI of one or more certificates representing all of the outstanding bonds issued pufsuant to the provisions of the Indenture and •receipt by the Bank from NI of the Letter of Credit for the purpose of the Bank voiding the Letter of Credit, the Bond Guaranty, the Trust Indenture (except for Section 11.02), the Letter of Credit Agreement (except for Section 1.02), and the Letter of Credit shall be deemed terminated. All obligations incurred pursuant to the provisions of the Bond Guaranty, the Indenture, and the Letter of Credit Agreement shall be deemed to have been satisfied, and each party to the Bond Guaranty, the Indenture, and the Letter of Credit Agreement shall be deemed released from all of theirrespective obligations as set forth ineach of the aforesaid agreements, and that there shall have been a complete accord and` satisfaction of each and every obli- gation of each such party asset forth in the Bond Guaranty, the Indenture, and the Letter of Credit Agree- ment; except, that the aforesaid shall not apply to any obligation owed to the Trustee pursuant to Section 1102 of the Indenture, to any obligation owed to the Bank pursuant to Section 1.02 of the Letter of Credit Agreement and payment to NI of any amounts remaining in any fund created pursuant to the provisions of the Indenture. 2. The Trustee shall upon receipt .from NI of all the out- standing bonds which were issued pursuant to the pro- visions of the Indenture cancel such bonds and give written notice to the Bank and the City that all such bonds have been received and cancelled by the Trustee. 3. Upon NI delivering to the Bank. the Letter of Credit, the Bank shall void the Letter of Credit and shall record the voiding of the Letter of Credit on its books. As of the date of receipt by the Bank from NI of the Letter of Credit, the Bank shall pay over to NI an amount equal to the quotient of the number of days from which the Bank receives the Letter of Credit from NI through January 20, 1986 divided by 360 times the amount of the commission paid by NI to the Bank for the Letter of Credit for the period ending January 20, 1986. 4. The Bank, the City and the Trustee each hereby declares that they have not received any notice of default by NI or NI West pursuant to the provisions of the Bond Guaranty, the Indenture, or the Letter of Credit Agree- ment or do any one of them have any knowledge of any such default by NI or NI West. 5. This Amendment as it pertains to the Bond Guaranty, the Indenture and the Letter of Credit Agreement shall be interpreted in respect to each such agreement pursuant to the laws of the jurisdiction which, as the case may be, governs the interpretation of the Bond Guaranty, Indenture or Letter of Credit Agreement. -2- 6 Any party hereto may record this Amendment. 7„ Time is of the essence. 8. Any notice required to be given pursuant to the pro- visions of this Amendment shall be deemed to have been delivered when received by the party to whom it is directed at its address as follows: To, the Bank: Crocker National Bank 333 South Grand Avenue Los Angeles, CA 90071 Attn: Corporate Banking Department To, the City: City of Fayetteville City Hall Fayetteville, Arkansas 72701 Attn: City Clerk To, NI and/or NI West: NI Industries, Inc. One Golden Shore Long Beach, CA 90802 Attn: The Secretary 9. This Amendment is the entire agreement between any two or more of the parties hereto in respect to the subject matter of this Amendment, cancelling and superseding all previous agreements, whether written or oral, under- standings, and negotiations. This Amendment may be amended or modified only by a writing executed on be- half of each of the parties hereto. 10. This Amendment may be executed in one or more counter- parts each of which shall be deemed to constitute an original and shall become effective when one or more counterparts have been executed on behalf of each of the parties and delivered to all the parties to this Amendment. 11. This Amendment shall bind and inure to the benefit of each party to this Amendment and their respective successors and assigns. 12. As used in this Amendment, the singular shall include the_plural and the plural shall include the singular. 13. Each signatory to this Amendment warrants and represents to the parties of this Amendment that such signatory is duly authorized, on behalf of the party whom such signatory purports to represent, to enter into this Amendment on behalf of such party. 14. Each party to this Agreement waives any notice that it -may be entitled to pursuant to the provisions of the Bond Guaranty, the Indenture and/or the Letter of Credit Agreement in respect to any matters covered by this Amendment. Attest: Attest: Title _, r• Attest: Title Attest: Attest: AGREED: CITY-EAYETTEVILLE, ARKANSAS By , .;/>' '(/� /i.>//:.., r. Title CROCKER NATIONAL BANK By Title FIRST ' TIONAL BANK, FAYETTEVILLE, AS n By i � R Title C-CJy'/�L .r-. T/Ltj haffi-cL NI INDUSTRIES, INC. By 0. . r2ue.sue- Title aie 9 NI WEST, INC. BY 0 , f` Ci2wEcoi Title /.1.411 PIAQ-d r.Ob_W -(el-edW,u.GV -4- ACKNOWLEDGEMENT STATE OF ARKANSAS ss COUNTY OF WASHINGTON ) On this day of , 1985, before me a Notary Public duly commissioned, qualified and acting within and for the county and state aforesaid, appeared in person the within named and , the and respectively, of the City of Fayetteville, Arkansas, a muni- cipality of the State of Arkansas, to me personally known, who stated that they were duly authorized in their respective capacities to execute the foregoing instruments for and in the name and behalf of the City, and further stated and acknowledged that they have so signed, executed and delivered the foregoing instrument for the considerations, uses and purposes that have been mentioned and set forth. IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this day of , 1985. My commission expires: � Gv(f Notary�Pub is • • ACKNOWLEDGEMENT STATE OF CALIFORNIA ss COUNTY OF LOS ANGELES ) On this 4th day of December , 1985, before me a Notary Public duly commissioned, qualified and acting within and for the county and state aforesaid, appeared in person the within named John L. Cooper, Jr. and Steve A. Kirschbaum , the Vice President and Corporate Banking Officer respectively, of the Crocker National Bank, Los Angeles, California, a national banking association, authorized to do business in the State of California, to me personally known, who stated that they were duly authorized in their respective capacities to execute the foregoing instrument for and in the name and behalf of the bank, -and further stated and acknowledged that they have so signed, executed and delivered the foregoing instrument for the considerations, uses and purposes that have been mentioned and set forth. IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this 4th day of December , 1985. My commission expires: (SEAL) at -it -4441-14 Notary /( (- Notary Public :� OFF!CiAL SEAL t'- .r+s; r�'\ ALE -(A b71NDES l) a r -! NOTARY PUBLIC -CALIFORNIA t;f'�:.y My CL m s..:..G t,E, COUNTY -- . 4uz. 14.1987 37 • ACKNOWLEDGEMENT STATE OF ARKANSAS ss COUNTY OF WASHINGTON ) On this day of , 1985, before me a Notary Public duly commissioned, qualified and acting within and for the county and state aforesaid, appeared in person the within named and , the and respectively, of the First National Bank, Fayetteville, Arkansas, a national banking association, authorized to do business in the State of Arkansas, to me personally known, who stated that they were duly authorized in their respective capacities to execute the foregoing instrument for and in the name and behalf of the bank, and further stated and acknowledged that: they have so signed, executed and delivered the foregoing instrument for the considerations, uses and purposes that have been mentioned and set forth. IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this day of , 1985. My commission expires: (SEAL) 9d 4P0740,4 Notary Pu is ACKNOWLEDGEMENT STATE OF CALIFORNIA ss COUNTY OF LOS ANGELES ) On this 15th day of January , 1986, before me a Notary Public duly commissioned, qualified and acting within and _for the county and state aforesaid, appeared in person the within named R. James Shaffer and A.R. Owens, Jr. , the V.P. & Gpnpral Cnunspiand V P. and Trpnsiirpr respectively, of NI Industries, Inc. a Delaware corporation, authorized to do business in the State of California, to me personally known, who stated that they were duly authorized in their respective capacities to execute the foregoing in- strument for and in the name and behalf of the corporation, and further stated and acknowledged that they have so signed, executed and delivered the foregoing instrument for the con- siderations,_ uses and purposes that have been mentioned and set forth. IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this 15th day of January , 1986. Notary Public My commission expires: June 27, 1986 OFFICIALSEAL BETTY J. VAUGHN NOTARY FUDL!C - CALIFORNIA (SEAL) y LOS ANC- ES COUNTY My Comm. Expires lune 27, 1986 • ACKNOWLEDGEMENT STATE OF CALIFORNIA ) ss COUNTY OF LOS ANGELES ) On this 15th day of January , 1986, before me a Notary Public duly commissioned, qualified and acting within and -for the county and state aforesaid, appeared in person the within named R. James Shaffer and A R ntvanc Jr , the V.P. & General Counsel and V p and Troesurer respectively, of NI West, Inc., a California corporation, authorized to do business in the State of California, to me personally known, who stated that they wereduly authorized in their respective capacities to execute the foregoing in- strument for and inthe name and behalf of the Corporation, and further stated and acknowledged that they have so signed, executed and delivered the foregoing instrument for the considerations, uses and purposes that have been mentioned and set forth. IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this 15th day of January , 1984. kNoar Pub1ie My commission expires: June 27, 1986 OFFICIAL SEAL A �" ''aa` BETTY J. VAUGHN (SEAL) I NOTARY PUBLIC - CA; IFOE IA • LOS ANGELES COUNTY Prepared by: Friday, Eldredge & Clark WARRANTY DEED AND BILL OF SALE Know All Men By These Presents: That the CITY OF FAYETTEVILLE, ARKANSAS, a city of the first class duly existing under and by virtue of the laws of the State of Arkansas ("Grantor"), by its officials named below, duly authorized and empowered, for and in consideration of the sum of TEN DOLLARS and other good and valuable consideration paid by NI INDUSTRIES, INC., a Delaware corporation ("Grantee") the receipt of which is hereby acknowledged, does hereby grant, bargain, sell and convey unto the said Grantee, and unto its successors and assigns forever, the following lands lying in the County of Washington, State -of Arkansas, to -wit; A part of Section 26, Township 16 North, Range 30 West, Fayetteville, Washington County, Arkansas, being more particularly described as follows: Beginning at a point that is South 2674.43 feet and East 1768.44 feet from the NW corner of said Section 26; thence 5 88° 52' E 1329.04 feet; thence S 1° 09' W 997.71 feet to the center line of an old public road; thence S 84° 55' W 904.57 feet along the center line of said old public road to the North right-of-way of Armstrong Avenue; thence N 70° 42' W 381.96 feet along said right-of-way; thence N 2° 46' W 978.84 feet to the point of beginning, containing 30.99 acres more or less; that certain easement lying in the County of Washington, State of Arkansas, to -wit: A 100 foot wide railroad easement in the Fayetteville Industrial Park Subdivision, Fayetteville, Washington County, Arkansas, being more particularly described as follows: Beginning at a point that is South 1359.95 feet and East 2219.08 feet from the Northwest corner of Section 26, Township 16 North, Range 30 West, said point being a point on the South line of Lot 12 of said Fayetteville Industrial Park subdivision; thence Southeasterly along a circular curve having an arc length of 1421.43 feet and a radius of 904.93 feet; thence S 1° 09' W 1418.65 feet to the South line of said subdivision; thence N 84° 55' E 100.59 feet along said South line; thence N 1°09' E 1407.72 feet; thence Northwesterly along a circular curve having an arc length of 1222.92 feet and a radius of 1004.93 feet to a point on the East line of said Lot 12; thence S 0° 03' W 38.09 feet along said East line to the Southeast corner of said Lot 12; thence N 88° 51' W 348.01 feet along said South line of Lot 12 to the point of beginning, containing 6.05 acres, more or less; and all of the machinery and equipment leased by Grantor to Grantee under the Agreement for Construction, Financing, Leasing and Option to Purchase, dated as of February 1, 1979, by and between Grantor and McIntosh Corporation, as amended by a First Supplemental Agreement, dated as of January 20, 1983, by and among the Grantor, the Grantee (formerly Norris -NI Industries, Inc.), and NI West, Inc. (formerly Norris Industries, Inc.) (collectively, the "Agreement"). To have and to hold the same unto the said Grantee, and unto its successors and assigns forever, with all appurtenances to said real property thereunto belonging. And Grantor hereby covenants with the said Grantee that it will forever warrant and defend the title to said lands against all claims whatever, sub- ject to liens and encumbrances listed on Exhibit A hereto, and any exceptions created pursuant to Section 4.15 of the Agreement. IN TESTIMONY WHEREOF, the name of the Grantor is here- unto affixed by its Mayor and its seal affixed by its City Clerk, this day of , 1985. CITY 9E FAYETTTEVILLE, ARKANSAS ATTESTh\, % i716<G (SEAL) --s By Mayor, • EXHIBIT A 1. Taxes forthe year 1978 and subsequent years. 2. Ordinance No. 1781, dated February 1, 1971, filed for Record February 17, 1971, at 3:31 P.M. and Recorded in Record Book 800 at Page 432, of the Records of the Circuit Clerk and Ex -Officio Recorder of Washington County, Arkansas. Ordinance No. 1795, dated April 19, 1971, filed for Record April 23, 1971 at 3:58 P.M. and Recorded in Record Book 806 at Page 190, of the. Records of the Circuit Clerk and Ex -Officio Recorder of Washington County, Arkansas. • 4 Easement dated December 19, 1978, granted by the City of Fayetteville, Arkansas for public utility services and recorded at 3:49 p.m. December 28, 1978 in Record Book 980, Pages 465 and 466 of the Records of the Circuit Clerk, Washington County, Arkansas. • ACKNOWLEDGMENT STATE OF ARKANSAS COUNTY OF On this day of _Notary Public, duly commissioned, and for the said County and State, named and 1985, before qualified and acting, appeared in person the me, a within within to me personally well known, who stated that they were the Mayor and City Clerk of the City of Fayetteville, Arkansas, a municipality of the State of Arkansas, and were duly authorized in their respective capacities to execute the foregoing instrument for and in the name and behalf of said municipality and further stated and acknowledged that they had so signed, executed and delivered said foregoing instrument for the consideration, uses and purposes therein mentioned and set forth. IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal. Notary Public My Commission Epires: (SEAL) • • HERSCHEL H. FRIDAY, P.A. WILLIAM A. ELDREDGE. JR., P.A. B. 5. CLARK . WILLIAM L. TERRY. P.A. ROBERT V. LIGHT. P.A. WILLIAM H. SUTTON. P.A. GEORGE E. PIKE. JR., P.A. JAMES W. MOORE WILLIAM L. PATTON. JR.. P.A. BYRON M. EISEMAN, JR., P.A. JOE D. BELL, P.A. MICHAEL G. THOMPSON, P.A JOHN C. ECHOLS. P.A. JAMES A. BUTTRY, P.A. FREDERICK 5. URSERY, P.A. H. T. LARZELERE, P.A. OSCAR E. DAVIS. JR.. P.A. JAMES C. CLARK, JR., P.A. THOMAS P. LEGGETT. P.A. JOHN DEWEY WATSON, P.A. LEWIS MATHIS, P.A. PAUL B. BENHAM III. P.A. LARRY W. BURKS, P.A. A. WYCKLIFF NISBET, JR., P.A. FEDERAL EXPRESS FRIDAY, ELDREDGE & CLARK A PARTNERSHIP OF INDIVIDUALS AND PROFESSIONAL ASSOCIATIONS ATTORNEYS AT LAW 2000 FIRST COMMERCIAL BUILDING LITTLE ROCK, ARKANSAS TELEPHONE 501-376-2011 72201 January 24, 1986 Mr. James N. McCord City Attorney City Hall Fayetteville, Arkansas 72701 Re: Dear Jim: • City of Fayetteville, Arkansas Industrial Development Revenue Bonds (McIntosh Project), Series 1985 • JAMES EDWARD HARRIS, P.A. J. PHILLIP MALCOM. P.A. JAMES M. SIMPSON, P.A. , MEREDITH P. CATLETT, P.A. JAMES M. SAXTON • J. SHEPHERD RUSSELL 111 DONALD M. BACON, P.A. ▪ ROBERT K. WALSH WILLIAM THOMAS BAXTER, P.A. WALTER A. PAULSON II, P.A. BARRY E. COPLIN 4 RICHARD D. TAYLOR JOSEPH B. HURST, JR. ELIZABETH J. ROBBER CHRISTOPHER HELLER LAURA A. HENSLEY ROBERT S. SHAFER MICHAEL G. SMITH WILLIAM M. GRIFFIN 111 THOMAS N. ROSE MICHAEL 5. MOORE DIANE 5. MACKEY JEFF BROADWATER JERRY V. ELLIOTT WALTER M. EBEL III KEVIN A. CRASS WILLIAM A. WADDELL, JR. CLYDE "TAB" TURNER CALVIN J. HALL SCOTT J. LANCASTER JERRY L. MALONE M. GAYLE CORLEY ROBERT 5, BEACH. JR. COUNSEL WILLIAM J. SMITH JOHN T. WILLIAMS WRITER'S DIRECT NO. I am enclosing a copy of the executed Amendment with respect to the above -styled Bonds. The Bonds have been acquired by NI Industries, Inc. and simultaneously herewith I am forwarding the Bonds to First National Bank for cancellation along with UCC Termination Statements and a Release Deed. I am also enclosing for execution by the City (1) a Warranty Deed and Bill of Sale and (2) UCC Termination Statements. Please have these executed and returned to me. Please also forward me a certified copy of the Resolution adopted by the City Board of Directors authorizing the execution of the Amendment. Thank you for your cooperation and assistance in this matter. JSR/blb Enclosures cc: Jim Shaffer Yours very truly, \9 ,A.Q12-Q-e\b\b J. Shepherd Russell, III • 40fortePt•Go Svc- i(etwsu, 640 /1/AL atv/ d4 ' • • •