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990ORDINANCE N0. ~ CJ AN ORDINANCE AUTHORIZING THE ISSUANCE OF INDUSTRIAL DEVELOPMENT REVENUE BONDS UNDER ACT NO. 9 OF 1960, AS AMENDED, FOR THE PURPOSE OF PROVIDING PERMANENT FINANCING FOR THE COST OF SECURING AND DEVELOPING INDUSTRY (THE PARTICULAR INDUSTRIAL PROJECT IS DESCRIBED IN THE ORDINANCE); AUTHORIZING THE EXECU- TION AND DELIVERY OF A TRUST INDENTURE SECURING THE BONDS; AUTHORIZING AND PRESCRIBING CERTAIN OTHER MATTERS PERTAINING TO THE INDUSTRIAL PROJECT, THE CONSTRUCTION THEREOF AND THE FINANCING THEREOF; AUTHORIZING A LEASE AGREEMENT BETWEEN THE CITY OF WEST MEMPHIS, AS LESSOR, RICHARD H. UPTON, AS LESSEE, AND ARKANSAS DISTRIBUTING COMPANY, AS SUB-LESSEE, IN SUBSTANTIALLY THE FORM AND WITH SUBSTANTIALLY THE CONTENTS SET FORTH IN AND MADE A PART OF THIS ORDINANCE; AUTHORIZING THE EXECUTION AND DELIVERY OF THE LEASE AGREEMENT; PRESCRIBING OTHER MATTERS RELATING THERETO, AND DECLARING AN EMERGENCY. WHEREAS, the City of West Memphis, Arkansas (the "City") is authorized by Act No. 9 of the First Extraordinary Session of the Sixty-Second General Assembly of the State of Arkansas, approved January 21, 1960, as amended ("Act No, 9"), to acquire lands, construct and equip warehouse buildings, improvements and facilities and to incur other costs and expenses and make other expenditures incidental to and for the implementing and accomplishing of the conduct of warehousing operations; and WHEREAS, the City is authorized by Act No. 9 to issue industrial development revenue bonds payable from revenues derived from the industrial project so acquired and constructed and secured by a lien thereon and security interest therein; and WHEREAS, the necessary arrangements have been made .with Richard H. Upton ("Upton") and Arkansas Distributing Company (the "Company"), for a substantial industrial project consist- ing of the construction of an environmentally controlled ware- house which will be utilized by the Company in its warehousing and distribution operations and such other operations as the Company shall elect to pursue, (the "Project"), and to lease the Project to Upton (and subsequently sublease to the Company) pursuant to the terms of a Lease Agreement; and ~~ vt WHEREAS, permanent financing of the Project costs, necessary costs and expenditures incidental thereto and the cost of the issuance of bonds is being furnished by the City issuing Industrial Development Revenue Bonds under the provisions of Act No, 9 of the principal amount of Six Hundred Eighty-Five Thousand Dollars ($685,000) (the "bonds"); and WHEREAS, the completion of the Project will furnish additional employment and other benefits, and be in the best interests of the City and its residents; and WHEREAS, the bonds are to be sold and 'delivered in the principal amount of $685,000, and are to be dated, bear interest and mature as hereinafter set forth and are to be issued and subject to the provisions of a Truest Indenture substantially in the form authorized by this Ordinance; and WHEREAS, the City proposes to enter into a Bond Purchase Agreement with E F Hutton & Company Inc. (the "Purchaser"), for the sale to the Purchaser of said bonds; NOW, THERFOI'.E, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WEST MEMPHIS, ARKANSAS: Section 1. That there be, and there is hereby authorized and direc~e~he following: (a) The sale of the bonds for the price of $657,600 _ to the Purchaser, according to tree terms of a Bond Purchase Agreement, on the terms and con- ditions recommended by Upton, ~n-hich Bond Purchase Agreement shat] be entered into by the Mayor. and the City Clerk with the Purchaser, and an executed copy of which shall be filed with the City Clerk; (b) The acquisition and construction of the Project, and in connection therewith, the execution of any necessary architectural, engineering or construction contracts or the acceptance of an assignment of any such contracts previously executed by Upton or the Company, for the con- struction and equipping of the Project; and • ~ i (c) The performance of all obligations of the City under the Lease Agreement pertaining to the constructing and equipping of the Project and the performance of all obligations of the City under the contracts referred to above. Section 2, The bonds shall bear interest at the rates of 7 3 %, 8%, 8 1/4%, 8 1/2%, 8 3/4%, 9% and 9 1/4% per "° annum, shall mature serially on January 1 in the years 1982 to 2000, inclusive, and shall be in the original principal amount of $685,000. To prescribe the terms and conditions upon which the Bonds are to be executed, authenticated, issued, accepted, held and secured, the Mayor is hereby authorized and directed to execute and acknowledge a Trust Indenture by and between the City and a bank or trust company which will act .as Trustee thereunder, dated as of January 1, 1980 (the "Indenture"), and the City Clerk is hereby authorized and directed to execute and acknowledge the Indenture and to affix the seal of the City thereto, and the Mayor and City Clerk are hereby authorized and directed to cause the Indenture to be accepted, executed and acknowledged by the Trustee. The Indenture is hereby approved in substantially the form sub- mitted to this meeting,-and the Mayor is hereby authorized to confer with the. Trustee, Upton and the Purchaser in order to complete the Indenture in substantially the form submitted to this meeting with such changes as shall be approved by such persons executing the document, their execution to constitute conclusive evidence of such approval, (Advice is given that, pursuant to Act No. 9, a copy of the Indenture in substantially the form authorized to be executed is on file with the City Clerk of the City of West Memphis, and is available for inspection by any interested person.) Section 3, That there be, and there is hereby authorized the execution and delivery of a Lease Agreement, dated as of January 1, 1980, by and between the City as Lessor, Upton as Lessee, and the Company as Sub-Lessee (the "Lease Agreement"), and the Mayor and City Clerk be, and they are hereby, authoriz- ed to execute, acknowledge and deliver the Lease Agreement for and on behalf of the City. The Lease Agreement is hereby approved substantially in the form submitted to this meeting, and the rlayor is hereby authorized to confer with Upton, the Trustee and the Purchaser in order to complete the Lease Agreement in substantially the form submitted to this meeting ~~ q with such changes as shall be approved by such persons execut- ing the document, their execution to constitute conclusive evidence of such approval. (Advice is given that, pursuant to Act No. 9, a copy of the Lease Agreement in substantially the form authorized to be executed is on file with the City Clerk of the City of West Memphis, and is available for inspection by any interested person.) Section 4. That the Mayor and City Clerk, for and on behalf of the City, be, and they are hereby, authorized and directed to do any and all things necessary to effect the execution and delivery of the Lease Agreement, the performance of the City's obligations under the Lease Agreement, the Axecution and delivery of the Indenture, its execution and acceptance by the Trustee, the performance of all obligations of the City under and pursuant to the Indenture, the execution and delivery of the Bond Purchase Agreement, the execution and delivery of the bonds, the execution and delivery of an official statement (if requested) in form and substance satisfactory to said officers and the purchasers of the bonds, and the performance of all other acts of whatever nature necessary to effect and carry out the authority conferred by this Ordinance. That the Mayor and the City Clerk be, and they are hereby, fur- ther authorized and directed, for and on behalf of the City, to execute all papers, documents, certificates and other instru- ments that may be required for the carrying out of such authority or to evidence the exercise thereof. Section 5. That since the City is here involved with the _ constructing and equipping of a complex industrial project, requiring highly specialized work and specialized types of machinery and equipment, it has been and is hereby determined „r by the City Council that competitive bidding be, and the same is hereby, waived. Section 6. The law firm of Rose, Nash, Williamson, Carroll, Clay & Giroir, a Professional Association, of Little Rock, Arkansas, is hereby appointed as Bond Counsel with respect to the issuance of said bonds, the fees and expenses of which firm shall be costs of the Project. . ,. -• . Section 7. That the provisions of this Ordinance are hereby declared to be severable, and if any section, phrase or provisions shall for any reason be declared to be invalid, such declaration shall not affect the validity of the remainder of the sections, phrases or provisions. Section 8. That all ordinances, resolutions and parts thereof in conflict herewith are hereby repealed to the extent of such conflict. Section 9. That there is hereby found and declared to be an immediate need for the securing and developing of sub- stantial industrial operations in order to provide additional employment, alleviate unemployment and otherwise benefit the public health, safety and welfare of the City and the inhabi- tants thereof, and the issuance of the bonds authorized hereby and the taking of the other action authorized herein are immediately necessary in connection with the securing and developing of substantial industrial operations and deriving the public benefits referred to above. It is, therefore, declared that an emergency exists and this Ordinance being necessary for the immediate preservation of the public health, safety and welfare shall be in force and take effect imme- diately upon and after its passage. Adopted: January 3, 1980. APPROVED: ~~ (S E A L)