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1111 ORDINANCE NO. AN ORDINANCE AUTHORIZING THE ISSUANCE OF INDUSTRIAL DEVELOPMENT REVENUE BONDS FOR THE PURPOSE OF PROVIDING PERMANENT FINANCING FOR INDUSTRIAL FACILITIES; AUTHORIZ- ING ATRUST INDENTURE SECURING THE BONDS; AUTHORIZING A LOAN AGREEMENT BETWEEN THE CITY OF WEST MEMPHIS, ARKANSAS, AS LENDER, AND BUILDERS TRANSPORT, INC. OF GEORGIA, AS BORROWER; AUTHORIZING AN OFFICIAL STATEMENT RELATING TO THE ISSUANCE OF SAID INDUSTRIAL DEVELOPMENT REVENUE BONDS; AUTHORIZING A BOND PURCHASE AGREEMENT AMONG THE CITY, BUILDERS TRANSPORT, INC. OF GEORGIA AND ROBINSON HUMPHREY/AMERICAN EXPRESS INC, A DIVISION OF SHEARSON/AMERICAN EXPRESS INC, AND AUTHORIZING AND PRE- SCRIBING OTHER MATTERS PERTAINING THERETO; AND DECLAR- ING AN EMERGENCY. WHEREAS, the City of West Memphis, Arkansas (herein called the "City"), is authorized and empowered under the provisions of Act No. 9 of the First Extraordinary Session of the Sixty-second General Assembly of the State of Arkansas, approved January 21, 1960, as amended (said act being herein called the "Act"), to issue revenue bonds and to expend the proceeds thereof to finance the acquisition, construction and equipment of land, buildings or facilities which can be used in securing or developing industry; WHEREAS, in order to induce Builders Transport, Inc., a corporation organized and existing under and by virtue of the laws of the State of Georgia and qualified to do business in Arkansas under the name, "Builders Transport, Inc. of Georgia" (herein called the "Company"), to locate within or near the territorial boundaries of the City and within its territorial jurisdiction pursuant to the Act, new over-the-road freight truck tractors (said truck tractors being together called the "Project"), the City has heretofore entered into a letter of intent dated July 15, 1982, with the Company (said letter of intent being called the "Inducement Agreement"); WHEREAS, in the Inducement Agreement the City agreed, among other things, to take one or more actions necessary or helpful in connection with (i) the Company's acquiring said over-the-road freight truck tractors comprising the Project which are to be based, throughout the terms of the Bonds hereinafter authorized, at a truck terminal and distribution facility owned and operated by the Company (said truck terminal and distribution facility being herein called the "Terminal") within or near the territorial boundaries of the City and within its territorial jurisdiction pursuant to the Act and (ii) the sale and issuance of the City's long-term industrial development revenue bonds for the purpose of providing for the permanent financing of the costs of acquiring said over-the-road freight truck tractors; f WHEREAS, in order to fulfill its obligations under the Inducement Agreement, it will be necessary for the City to perform the actions and to enter into the Agreements authorized by this Ordinance; WHEREAS, said over-the-road freight truck tractors comprising the Project will constitute "facilities" within the meaning of Section 2 of the Act with respect to which the City is authorized, pursuant to the Act, to issue its revenue bonds and the issuance of such bonds and the transactions contemplated in connection herewith will help to accomplish the purposes of the Act; WHEREAS, it is proposed that the City provide permanent financing, through the issuance of revenue bonds under the Act of the costs of acquiring said over-the-road freight truck tractors comprising the Project which are to be based at the Terminal within or near the City's territorial boundaries and within its territorial jurisdiction pursuant to the Act and that the City lend the proceeds from the sale of such bonds to the Company for the purpose of acquiring said over-the-road freight truck tractors; WHEREAS, in order to assure the availability of funds for the payment of the principal of and the interest and premium (if any) on the Bonds authorized in Section 1 of this Ordinance below, the Company has entered into a Letter of Credit Agreement dated as of December 1, 1982 (said Letter of Credit Agreement being herein called the "Credit Agreement"), with North Carolina National Bank (said bank, in such capacity, being herein called the "Credit Obligor"), pursuant to which the Credit Obligor will issue to the Trustee hereinafter referred to its Irrevocable Standby Letter of Credit (said Irrevocable Standby Letter of Credit being herein called the "Letter of Credit") under which the said Trustee, under certain circum- stances, may draw against the Letter of Credit in order to provide for the payment of the principal of and the interest and premium (if any) on the said Bonds; WHEREAS, pursuant to and in accordance with the provisions of the Act, a public hearing has been held on this date before the City Council of the City on the question of the adoption of an ordinance authorizing the issuance of up to $2,250,000 in aggregate principal amount of revenue bonds under the Act, and after due consideration the City is now prepared to proceed with financing the Project and, at the request of the Company, to issue and sell $2,250,000 in aggregate principal amount of its Industrial Development Revenue Bonds (Builders Transport, Inc. of Georgia Project), Series 1982-B to provide such financing; and WHEREAS, copies of the hereinafter described Trust Indenture, Loan Agreement, Official Statement and Bond Purchase Agreement have been presented to and are before this meeting; NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of West Memphis, Arkansas: -2- Section 1. Pursuant to the applicable provisions of the Act, and in order to obtain funds with which (i) to pay the expenses of issuing the Bonds hereinafter authorized and (ii) to pay the costs of acquiring the Project (including the reimburse- ment to the Company of such of those costs as it has previously paid or advanced), there are hereby authorized to be issued by the City $2,250,000 principal amount of Industrial Development Revenue Bonds (Builders Transport, Inc. of Georgia Project), Series 1982-B (said Industrial Development Revenue Bonds being herein called the "Bonds"). As more particularly provided in the Trust Indenture authorized in Section 5 of this Ordinance (said Trust Indenture being herein called the "Indenture"), the Bonds shall be initially issued as bonds with interest coupons attached, registrable as to principal only or as to both principal and interest, in the denomination of $5,000 each, but shall be exchangeable for fully registered bonds without interest coupons in the denomination of $5,000 or any integral multiple thereof. The Bonds and the interest coupons respectively applicable thereto shall bear such date, shall mature at such times and in such manner, shall be payable at such place, shall bear interest from their date until their respective maturities at such per annum rates not to exceed ten percent (10%) per annum, shall bear such numbers and shall be in such form and contain such provisions as are set out in the Indenture and as shall be consistent with the applicable provisions of the Official Statement authorized in Section 6 of this Ordinance. All the provisions of the Indenture and of the Bonds authorized to be issued hereunder are hereby adopted as a part of this Ordinance as though the same were set out in full herein. Section 2. The principal of and the interest and premium (if any) on the Bonds shall be payable solely out of (i) the moneys received by the City from the repayment by the Company to the City of the amount borrowed from the City by the Company pursuant to the Loan Agreement authorized in Section 4 of this Ordinance (said Loan Agreement being herein called the "Loan Agreement") between the City and the Company relating to the loan of the proceeds of the sale of the Bonds (exclusive of the accrued interest thereon paid by the purchaser thereof) and (ii) any other moneys pledged for the payment of the Bonds in Section 2.1 of the Indenture (including, with respect to the payment of such principal, interest and premium, moneys drawn against the Letter of Credit). Neither the Bonds nor any of the agreements contained herein or in the Loan Agreement or the Indenture shall ever constitute an indebtedness of the City, within the meaning of any state constitutional or statutory provision or limitation. The general faith and credit of the City are not pledged to payment of the principal of or the interest or premium (if any) on the Bonds, and neither the Bonds nor the coupons respectively applicable thereto shall be general obligations of the City. No agreement, representation or warranty made or implied in this resolution, or in the issuance of the Bonds and the coupons respectively applicable thereto, shall ever impose any general liability or charge upon the City, whether before or after any breach by the City of any such agreement, representation or warranty, except with respect to the moneys derived by the City from the moneys and rights pledged in the Indenture and the moneys payable under the Loan Agreement. The City shall not in any manner be liable for payment of the principal of or the interest or premium (if any) on the Bonds. Nothing contained in this section, however, shall relieve the City or its officials from its or their obligation to perform the several agreements on its or their part contained herein and in the Loan Agreement or the Indenture so long as such performance does not impose a general liability or charge upon the City. -3- Section 3. All remittances of principal of and interest and premium (if any) on the Bonds and the coupons respectively applicable thereto shall be made to the holders of such bonds and coupons at par without any deduction for exchange or other costs, fees or expenses. The bank or banks at which the principal of and the interest and premium (if any) on the Bonds shall at any time be payable shall be considered, by acceptance of their duties hereunder, to have agreed that they will make or cause to be made remittances of principal of and interest and premium (if any) on the Bonds and the coupons respectively applicable thereto, out of the moneys provided for that purpose, in bankable funds at par without any deduction for exchange or other costs, fees or expenses. The City will pay, or cause to be paid, to such bank or banks all reasonable charges made and expenses incurred by them in making such remittances in bankable funds at par, it being understood that any such payments by the City shall be made in its name and behalf and for its account, or shall be reimbursed to the City, by the Company pursuant to the provisions of Section 3.5 of the Loan Agreement. Section 4. The City is hereby authorized to make a loan to the Company in the aggregate principal amount of $2,250,000, in accordance with the provisions of the Loan Agreement authorized in this section (herein, as previously indicated, called the "Loan Agreement"), for the purpose of assisting the Company in financing the acquisition of the Project. The City is hereby authorized to enter into the Loan Agreement in substantially the form presented to the meeting at which this Ordinance is adopted (which form shall be attached to the minutes of such meeting as Exhibit I and which is hereby adopted in all respects as if set out in full herein), with such changes, not inconsistent with the provisions hereof, as the Mayor of the City, acting with the advice of counsel to the City, shall determine to be necessary or desirable in order to consummate the transactions authorized by this Ordinance, the determination of the definitive form of the Loan Agreement by such officer to be conclusively established by her execution of such document. The Mayor of the City is hereby authorized and directed to execute and deliver the Loan Agreement for and in the name and behalf of the City, and the City Clerk is hereby authorized and directed to affix the seal of the City and to attest the same. Section 5. As security for payment of the principal of and the interest and premium (if any) on the Bonds and any additional parity bonds that may be issued under the Indenture hereinafter authorized, pro rata and without preference or priority of one bond over another or of the bonds of any one series over those of any other, the City Council does hereby authorize and direct the Mayor of the City to execute and deliver, for and in the name and behalf of the City, a Trust Indenture (herein, as previously indicated, called the "Indenture") with The First National Bank of Birmingham, Birmingham, Alabama, as Trustee (said bank, together with its successors in trust under the Indenture, being herein called the "Trustee") and there shall be assigned and pledged to the Trustee all right, title and interest of the City in and to the Loan Agreement and all other properties, moneys, rights and privileges described or intended so to be in Section 2.1 of the Indenture. The City Council does also hereby authorize and direct the City Clerk to affix the seal of the City to the Indenture and to attest the same. The Indenture shall be in substantially the form presented to the meeting of the City Council at which this Ordinance is adopted (which form shall be attached to the minutes of such meeting as Exhibit II and which -4- 10-26-82 -ED DUST BROUGHT THIS ORIGINAL TO CITY CLERK'S OFFICE . AND ADVISED AVIS MAILED PROOF OF PUBLICATION TO THE ATTORNEYS TAKING CARE OF THIS BOND ISSUE. ACT NUMBER 9 -INFORMATION FILING ~ In conformity with the provisions of Section 4 of Act Number 9 of the First Extraordinary Session of the Sixty-second General Assembly of the State of Arkansas, approved January 21, 1960, as amended (the "Act"), the following notice is given: A. The City Council (the "City Council") of the City of West Memphis, Arkansas (the "City"), will hold a public hearing at 1:30 o'clock p.m., on the 4th day of November, 1982, in the City Hall in the City of West Memphis, Arkansas, on the question of the adoption by the City Council of an Ordinance authorizing the issuance by the City of its Industrial Development Revenue Bonds (the "Bonds") for the purpose of financing the acquisition of certain motor vehicles to be based at a truck terminal within or near the City and within its territorial jurisdiction pursuant to the Act. The City will publish a notice of a hearing in a newspaper of general circulation in West Memphis, Arkansas,at least ten (10) days prior to the hearing. The notice will be filed in the office of the City Clerk and a copy is attached hereto. tj .. B. The bond issue will be in the aggregate principal amount of $2,250,000. The interest rate on the Bonds will not exceed an overall average of 10% per annum. The Bonds will mature severally in incre- ments of $450,000 per year over five years beginning approximately one year after the Bonds are issued. The total aggregate principal amount of the Bond will be sold to Robinson Humphrey/American Express Inc., a division of Shearson/American Express, Inc., which is acting as under- writer in connection with the Bond issue. __-~ -_ C. The proposed project will involve the acquisition of over-the- road freight tractors to be acquired by Builders Transport, Inc., a corporation organized and existing under the laws of the State of Georgia and qualified to do business in the State of Arkansas as a foreign corporation under the name "R»ilders Transpor±_ Inc. of ~_~oruia" (the "Company"). The over-the-road freight tractors comprising the project will be based throughout the terms of the Bonds at a truck terminal within or near the City and within its territorial jurisdiction pursuant to the Act. The acquisition, construction and equipping of the truck terminal was financed recently through the issuance of the City's Industrial Develop- ment Revenue Bonds to assist the Company in acquiring, constructing and equipping such truck terminal. The Company will enter into a loan agreement with the City providing for the payment of loan payments sufficient to provide for the payment of the principal of, premium (if any) and interest on the Bonds. The Company's obligation to make the payments to the City will be evidenced by a promissory note. -1- ~%' ~.~ D. The names and addresses of the persons authorized to receive correspondence on behalf of the City are: City of West Memphis, Arkansas West Memphis City Hall 205 South Redding West Memphis, Arkansas 27301 Attention: Joyce Ferguson, Mayor City of West Memphis, Arkansas West Memphis City Hall 205 South Redding West Memphis, Arkansas 27301 Attention: D,¢n Craft, City Clerk E. The name and address of the person authorized to receive correspondence on behalf of the company is: Mr. Lee A. Gay Post Office Box 500 Camden, South Carolina 29020 F. The name and address of the bond counsel is: North Haskell Slaughter Young & Lewis, Professional Association 1710 First National-Southern Natural Building Birmingham, Alabama 35203 Attention: Robert E. Lee Garner A. Lee Martin, Jr. EXECUTED this ~G day of October, 1982. By Its -2- V _.'F