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1950ORDINANCE NO. ~ 9SD AN ORDINANCE AUTHORIZING THE ISSUANCE OF INDUSTRIAL DEVELOPMENT REVENUE BONDS FOR THE PURPOSE OF FINANCING CERTAIN INDUSTRIAL FACILITIES; AUTHORIZING TRUST INDENTURES SECURING THE BONDS; AUTHORIZING A LEASE AGREEMENT BETWEEN THE CITY OF WEST MEMPHIS AND SB WEST MEMPHIS, L.L.C.; AUTHORIZING A LEASE AGREEMENT BETWEEN THE CITY OF WEST MEMPHIS AND SB POWER TOOL COMPANY; AUTHORIZING THE SALE OF THE BONDS; AUTHORIZING AND. PRESCRIBING OTHER MATTERS PERTAINING THERETO; AND DECLARING AN EMERGENCY. WHEREAS, the City of West Memphis, 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 the acquisition, construction and equipment of land, buildings or facilities which can be used in securing or developing industry; and WHEREAS, it is proposed that the City issue its revenue bonds under the Act for the purpose of financing the acquisition, construction and equipping of an industrial project (the "Project"), generally comprising a distribution center and the necessary land and related machinery, equipment and other personal property; and WHEREAS, the portion of the Project consisting of the real property will be owned by the City and leased to SB .West Memphis, L.L.C., a Delaware limited liability company (the "Company"), and will be initially subleased to SB Power Tool Company, a Delaware general partnership ("SB Power Tool"); and WHEREAS, the portion of the Project consisting of the personal property will be owned by the City and leased to SB Power Tool; 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 is now prepared to proceed with financing the Project and to issue and sell (a) $17,000,000 in principal amount of its Taxable Industrial Development Revenue Bonds (SB Power Tool Project), Series 2000A (the "Series 2000A Bonds"), and (b) $9,000,000 in principal amount of its Taxable Industrial Development Revenue Bonds (SB Power Tool Project), Series 2000B (the "Series 2000B Bonds") (collectively, the "Bonds"), to provide such financing; and WHEREAS, to support the payment of the Series 2000A Bonds, an irrevocable letter of credit will be initially issued by The Chase Manhattan Bank, or such other financial institution as shall be hereafter selected by the Company (as issuer of such letter of credit, the "Bank"), for the benefit of the owners from time to time of the Series 2000A Bonds; and WHEREAS, copies of the hereinafter described Bond Purchase Agreement, Trust Indentures, and Lease Agreements 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: Section 1. The City Council hereby finds that the acquiring, constructing and equipping of the Project, and the issuance of the Bonds to finance the same, will provide substantial additional employment and payrolls and will thereby secure and develop industry within and near the City. Section 2. (a) The issuance of the Series 2000A Bonds in the aggregate principal amount of $17,000,000, or such lesser amount as shall be requested by the Company, is hereby authorized. The Series 2000A Bonds shall be issued in the forms and denominations, shall be dated, shall be numbered, shall bear interest (at fluctuating rates subject to conversion to a fixed rate at the option of the Company, in either case not to exceed the maximum permitted by Amendment No. 60 to the Arkansas Constitution or other applicable law), and shall be subject to redemption prior to maturity all upon the terms and conditions recommended by the Company and set forth in the related Trust Indenture (hereinafter authorized) securing such Bonds. The Series 2000A Bonds shall mature in the year 2021. (b) The issuance of the Series 2000B Bonds in the aggregate principal amount of $9,000,000, or such lesser amount as shall be requested by SB Power Tool, is hereby authorized. The Series 2000B Bonds shall be issued in the forms and denominations, shall be dated, shall be numbered, shall bear interest (at fluctuating rates not to exceed the maximum permitted by Amendment No. 60 to the Arkansas Constitution or other applicable law), and shall be subject to redemption prior to maturity all upon the terms and conditions recommended by the Company and set forth in the related Trust Indenture (hereinafter authorized) securing such Bonds. The Series 2000B Bonds shall mature in the year 2021. Section 3. (a) The Series 2000A Bonds shall be sold to Chase Securities of Texas, Inc. (the "Underwriter"), for the purchase price of 100% of par, plus accrued interest, if any, from the date of the Series 2000A Bonds to the date of delivery, which price is recommended by the Company, and upon the terms and conditions set forth in a Bond Purchase Agreement to be entered into among the City, the Company and the Underwriter (the "Bond Purchase Agreement"). The Mayor is hereby authorized to execute and deliver the Bond Purchase Agreement for and on behalf of the City. The Bond Purchase Agreement is hereby approved in substantially the form submitted to this meeting, and the Mayor is hereby authorized to confer with the Company, the Underwriter and others in order to complete the Series 2000A Bond Purchase Agreement in substantially the form submitted to this meeting with such changes as shall be approved by such persons executing the documents, their execution to constitute conclusive evidence of such approval. m` (b) The Series 2000E Bonds shall be sold to the purchaser or purchasers designated by SB Power Tool for the 1~, purchase price of 1000 of par, plus accrued interest, if any, from the date of the Bonds to the date of delivery, which price is recommended by SB Power Tool. Section 4. (a) To prescribe the terms and conditions upon which the Series 2000A 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 between the City and The Chase Manhattan Bank, which will act as Trustee thereunder (the "Series 2000A Indenture"), and the City Clerk is hereby authorized and directed to execute and acknowledge the Series 2000A Indenture and to affix the seal of the City thereto, and the Mayor and City Clerk are hereby authorized and directed to cause the Series 2000A Indenture to be accepted, executed and acknowledged by the Trustee. The Series 2000A 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 Series 2000A 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. (b) To prescribe the terms and conditions upon which the ,~ Series 20008 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 between the City and The Chase Manhattan Bank, which. will act as Trustee thereunder (the "Series 20008 Indenture"), and the City Clerk is hereby authorized and directed to execute and acknowledge the Series 2000E Indenture and to affix the seal of the City thereto, and the Mayor and City Clerk are hereby authorized and directed to cause the Series 20008 Indenture to be accepted, executed and acknowledged by the Trustee. The Series 20008 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 Series 20008 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. Section 5. (a) There is hereby authorized the execution and delivery of a Lease Agreement between the City and the Company (the "Series 2000A Lease Agreement"), pursuant to which the portion of the Project consisting of the real property will be leased to the Company, and the Mayor and City Clerk are hereby authorized to execute, acknowledge and deliver the Series 2000A Lease Agreement for and on behalf of the City. The Series 2000A 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 Series 2000A Lease Agreement 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. (b) There is hereby authorized the execution and delivery of a Lease Agreement between the City and the SB Power Tool (the "Series 20008 Lease Agreement"), pursuant to which the portion of the Project consisting of the personal property will be leased to SB Power Tool in connection with the issuance of the Series 20008 Bonds, 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 Series 20008 Lease Agreement is hereby approved in substantially the form submitted to this meeting, and the Mayor is hereby authorized to confer with SB Power Tool and others in order to complete the Series 20008 Lease Agreement 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. Section 6. (a) There is hereby authorized the execution and delivery of an Agreement for Payments in Lieu of Taxes between the City and the Company (the "Series 2000A PILOT Agreement"), and the Mayor is hereby authorized to execute and deliver the Series 2000A PILOT Agreement for and on behalf of the City. The Series 2000A PILOT Agreement is hereby approved in the form submitted to this meeting. (b) There is hereby authorized the execution and delivery of an Agreement for Payments in Lieu of Taxes between the City and SB Power Tool (the "Series 20008 PILOT Agreement"), and the Mayor is hereby authorized to execute and deliver the Series 2000E PILOT Agreement for and on behalf of the City. The Series 20008 PILOT Agreement is hereby approved in the form submitted to this meeting. Section 7. There is hereby authorized the preparation and distribution to various prospective and actual purchasers of the Series 2000A Bonds of an Official Statement (and preliminary Official Statement) describing the Series 2000A Bonds and setting forth such other information as may be determined to be necessary or desirable. The Mayor is hereby authorized to execute such Official Statement on behalf of the City. Section 8. The issuance and sale of the Bonds are an exceptional situation 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 9. 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 10. 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 Bond Purchase Agreement, the Series 2000A and Series 20008 Indentures, the Series 2000A and Series 2000E Lease Agreements, and the Series 2000A and Series 20008 PILOT Agreements, and such documents shall be on file for inspection by any interested person. Section 11. Chase Securities of Texas, Inc. is hereby appointed the initial Remarketing Agent under the Series 2000A Indenture, which appointment is recommended by the Company. Section 12. 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 13. All ordinances, resolutions and parts thereof in conflict herewith are hereby repealed to the extent of such conflict. Section 14. 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 . ~Vr~b2+' 7 ~o~ .~ PASSED: , APPROVED: ATTEST: -~.- --. C' Clerk (SEAL) SPONSORED BY: . '/mss ~ -- •~~t~lo~-~'~ M or ' /l/ i~6 riL`~ ~/-'-~--r ----' William H. Johnson ~-~ E~EIVE CITY CLERKS OFFICE DATE~O O $ 2 t~ Cam. FROM D . tl~ r~_~,,~.•~/ 0 k=