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1146ORDINANCB NO. ~-'" AN ORDINANCE AUTHORIZING THE ISSUANCE OF INDUSTRIAL REVENUE BONDS FOR THE PURPOSE OF PROVIDING PERMANENT FINANCING FOR INDUSTRIAL FACILITIES; AUTHORIZING A TRUST INDENTURE SECURING THE BONDS; AUTHORIZING A LOAN AGREE- MENT BETWEEN THE CITY OF WEST MEMPHLS, AS LENDER, AND BUILDERS TRANSPORT, INC. OF GEORGIA, AS BORROWER; AUTHO- RIZING AN OFFICIAL STATEMENT RELATING TO THE ISSUANCE OF SAID INDUSTRIAL REVENUE BONDS; AUTHORIZING A BOND PURCHASE AGREEMENT AMONG THE CITY, BUILDERS TRANSPORT, INC. OF GEORGIA AND ROBINSON-HUMPHREY/AMERICAN EXPRESS INC AND AUTHORIZING AND PRESCRIBING OTHER MATTERS PERTAINING THERETO; AND DECLARING AN EMERGENCY. WHEREAS, the City of West Memphis (herein called the "City") is authorized and empowered under the provisions of Act No. 9 of the First Extra- ordinary Session of the Sixty-second General Assembly of the State of Arkansas, approved January 21, 1960, as amended (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 Georgia qualified to do business in Arkansas under the name, "Builders Transport, Inc. of Georgia" (herein called the "Company"); to locate 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 October 20, 1983, 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") which is located on Air ort Road one-half mile north of Interstate Hi~hwav 40 near the territorial boundaries o the City and within its territorial jurisdiction pursuant to the Act and (ii) the sale and issuance of the City's long-term industrial revenue bonds for the purpose of providing for the permanent financing of the costs of acquiring said over-the-road freight truck tractors; 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; REV. - 1 - ,~. 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 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 on the Bonds authorized in Section 1 of this Ordinance below, the Company has entered into a Letter of Credit Application and Reimbursement Agreement dated as of December 1, 1983 (herein called the "Credit Agreement"), with SouthTrust Bank of Alabama, National Association (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 (herein called the "Letter of Credit") under which the said Trustee, under certain circumstances, may draw against the Letter of Credit in order to provide for the payment of the principal of and not more than 300 days interest 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 $750,000 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 $750,000 in aggregate principal amount of its Industrial Revenue Bonds (Builders Transport, Inc. of Georgia Project), Series 1983 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: 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 reimbursement to the Company of such of those costs as it has previously paid -2- or advanced), there are hereby authorized to be issued by the City $750,000 principal amount of Industrial Revenue Bonds (Builders Transport, Inc. of Georgia Project), Series 1983 (said 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 issued as fully registered bonds without interest coupons in the denomination of $5,000 or any integral multiple thereof. The Bonds shall mature in the following years in the following amounts and shall bear interest at the per annum rates of interest indicated: Year of Stated Principal Amount Per Annum Maturity _ Maturing Interest Rate 1984 $150,000 7.00% 1985 $150,000 7.50% 1986 $150,000 8.00% 1987 $150,000 8.40% 1988 $150,000 8.75% Further the Bonds shall bear such date, shall be payable at such place, 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 apart 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 and interest, 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 constitu- tional 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 the Bonds shall not be general obligations of the City. No agreement, representation or warranty made or implied in this resolution, or in the issuance of the Bonds, 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 shall be made to the holders thereof at par without any deduction for exchange or other costs, fees or expenses. The bank 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 its duties hereunder, to have agreed that it will make or cause to be made remittances of principal of and interest and premium (if any) on the Bonds 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 all reasonable charges made and expenses incurred by it 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 the Loan Agreement. Section 4. The City is hereby authorized to make a loan to the Company in the aggregate principal amount of $750,000 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 his 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, pro rata and without preference or priority of one bond over another, 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 Citizens and Southern National Bank of S.C., Columbia, South Carolina, 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 is hereby adopted in all respects as if the same were 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 -4- Indenture by such officer to be conclusively established by his execution of such document. Section 6. The City Council hereby approves the use of the Preliminary Official Statement in connection with the offering and sale of the Bonds by Robinson-Humphrey/American Express Inc (said firm being herein called the "Under- writer"). The Mayor of the City is hereby authorized and directed to execute and deliver, for and in the name and behalf of the City, an Official Statement (herein called the "Official Statement") with respect to the Bonds, said Official Statement to 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 said meeting as Exhibit III and which is hereby adopted in all respects as if the same were set out i herein), with such minor changes as the said Mayor shall determine to be necessary or desirable in order to describe accurately the Bonds and all other aspects of the transactions authorized by this resolution, the determination by such officer of any changes to the Official Statement to be conclusively established by his execution thereof. The use of the Official Statement by the Underwriter in connection with the offering and sale of the Bonds is hereby authorized and approved. Section 7. The Bonds shall be and hereby are sold and awarded to the Underwriter at and for a purchase price of $736,875.00 plus accrued interest on the Bonds from their date to the date of their delivery, such sale of the Bonds to be pursuant to and on the terms and conditions specified in a Bond Purchase Agreement (said Bond Purchase Agreement being herein called the "Bond Purchase Agreement") among the City, the Company and the Underwriter in substantially the form presented to the meeting at which this resolution is adopted (which form shall be attached to the minutes of said meeting as Exhibit N and is hereby adopted in all respects as if the same were set out in full herein). The Mayor of the City is hereby authorized and directed to execute the Bond Purchase Agreement for and in the name and behalf of the City, with such changes, not inconsistent with the provisions hereof, as such officer shall determine to be necessary or desirable in order to consummate the transactions authorized by this resolution, the determination by such officer of the definitive form of the Bond Purchase Agreement to be conclusively established by his execution thereof. Section 8. The Mayor of the City is hereby authorized and directed to execute the Bonds, in the name and behalf of the City by causing a facsimile of his signature to be imprinted thereon, and the City Clerk is hereby authorized and directed to cause a facsimile of the seal of the City to be imprinted on the Bonds and to attest the same by causing a facsimile of his signature to be imprinted thereon, all in the manner provided in the Indenture. The Mayor of the City is hereby directed thereupon to deliver the Bonds to the Trustee and to direct the Trustee to authenticate all the Bonds and to deliver them to the Underwriter upon payment to the City of the purchase price therefor. Section 9. The entire proceeds derived by the City from the sale of the Bonds shall be paid by the City to the Trustee, which is thereupon authorized and -5- directed to apply and disburse such moneys for the purposes and in the order specified in Section 7.8 of the Indenture, viz.: (a) payment into the Bond Fund Primary Account created in Section 9.1 of the Indenture of that portion of such proceeds that is allocable to accrued interest; (b) payment of the balance of the proceeds from the sale of the Bonds into the Loan Fund Primary Account created in Section 8.1 of the Indenture. Section 10. The Mayor of the City is hereby authorized and directed, prior to the issuance of the Bonds, to file with the Internal Revenue Service an appropriate "statement" electing, under the provisions of Section 103(b)(6)(D) of the Internal Revenue Code of 1954, as amended, to have the provisions of said Section 103(b)(6)(D) -- the so-called $10,000,000 small issue exemption -- apply to the Bonds. Section 11. The Mayor of the City and the City Clerk are hereby further authorized and directed to execute, deliver, seal and attest such other ancillary documents and certificates (including, without limitation, a so-called "No- Arbitrage Certificate") as may be necessary to effect the issuance of the Bonds and to carry out fully the transactions contemplated in the documents authorized in this Ordinance to be executed and delivered on behalf of the City. Section 12. The City Council hereby directs that a copy of this Ordi- nance with all exhibits thereto be filed with the City Clerk, and the public is hereby advised that a copy of the Loan Agreement, Indenture, Official Statement and Bond Purchase Agreement in the forms attached hereto as Exhibits I, II, III and IV, respectively, will be on file in the office of the City Clerk for inspection by any interested person all pursuant to the requirements of the Act. Section 13. The provisions of this Ordinance pertaining to the Bonds shall constitute a contract between the City and each holder of the Bonds. Section 14. The various provisions of this Ordinance are hereby declared to be severable. In the event any provision hereof shall be held invalid by a court of competent jurisdiction, such invalidity shall not affect any other provision of this resolution. Section 15. All ordinances, resolutions and parts thereof in conflict herewith are hereby repealed to the extent of such conflict. Section 16. There is hereby found and declared to be an immediate need for the securing and developing of industry in order to provide employment and payrolls, alleviate unemployment and otherwise benefit the public health, safety and -6- s l • . ~ 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 immediate preservation of the public peace, health and safety shall be in force and effect immediately upon and after its passage. -7- y ~ ~ F ->