804{
~.
ORDINANCE NO. 80~.
AN ORDINANCE AUTHORIZING THE ISSUANCE OF INDTJSTRIAI~
DEVELOPMENT REVENUE REFUNDING BONDS FOR THE PURPOSE
OF REFUNDING THE OUTSTANDING CITY OF WEST MEMPHIS,
ARKANSAS INDUSTRIAL DEVELOPMENT REVENUE BONDS,
TEMPLE GYPSUM PROJECT, SERIES A; AUTHORIZING A LEASE
AND AGREEMENT AND A TRUST INDENTURE; PRESCRIBING
OTHER MATTERS PERTAINING 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 , 196.0, as
amended ("Act No. 9") , to acquire lands, construct and equip manufacturing
buildings , improvements and facilities and to incur other costs and expenses
and make other expenditures for the securing and developing of industry and to
issue Industrial Development .Revenue Bonds payable from revenues derived from
the Industrial Project so acquired, constructed and equipped and secured by a lien
and security interest; and
WHEREAS, the necessary arrangements were made with Temple Gypsum,
Inc. , an Arkansas corporation ("Gypsum"), for a substantial industrial project
consisting of lands, buildings, improvements, machinery, equipment and
facilities for an industrial plant to be utilized for the manufacturing of such
products as Gypsum shall elect to manufacture (the "Project"); and.
WHEREAS, the City has undertaken the furnishing of permanent financing
of the Project costs and the expenses of authorizing and issuing bonds by the
issuance of Industrial Development Revenue Bonds under Act No. 9, (the "bonds"),
pursuant to the authorization of its electors at a special election called and held
under Act No. 9; and
9; and
WHEREAS, the electors authorised the issuance of not to e::ceed
$5,000,000 in principal amount and the City issued $4,?.00,000 in principal
amount; dated February 15, 1.971, and designated Series A; and
NOW, THEREFORE, 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
directed the following:
(a) The refunding of the City of West Memphis, Arkansas
Industrial Development Revenue Bonds, Temple Gypsum
Project, Series A, dated February 15, 1971 , with the
refunding to be accomplished in accordance with the
provisions of Section 602 of the Trust Indenture herein-
after authorized.
(b) The issuance of City of West Memphis, Arkansas
Industrial Development Revenue Refunding Bonds, Temple
Project (].974 Series) dated February 15 , 1974 (the
" 1974 Bonds") in the principal amount of $3 , 850 , U00
described in detail in Section '~02 of the Trus t Indenture
hereinafter authorized.
(c) The sale of the 1974 Bonds to Rauscher Pierce Securities
Corporation, Dallas, Texas . In this regard, the Mayor and
the City Clerk are authorized to execute a Bond Purchase
Contract covering the sale of the 1974 Bonds.
Section 2. That to prescribe the terms and conditions upon which
the 1974 Bonds (and any additional bonds subsequently issued and secured by the
Indenture} are to be secured, executed, authenticated, accepted and held, the
Mayor is hereby authorized and directed to execute and acknowledge a Trust
Indenture (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 the City Clerk are hereby authorized and directed to cause
the Indenture to be accepted, executed and acknowledged by the Trustee. The
Indenture, which constitutes and is hereby made a part of this Ordinance, shall
be in substantially the following form, to-wit:
...,.,,~,. .. ,. q,~.,,_ _ _ .. _...
Section 3. That the Mayor and the City Clerk, for and on behalf
of the City, be, and they are hereby, authorized and directed to execute and ack-
nowledge a Lease and Agreement (the "Lease Agreement") between the City as
Lessor and Temple as Lessee. The Lease Agreement, which constitutes and is
hereby made a part of this Ordinance, shall be in substantially the following
form to-wit:
A
Section 4. That the Mayor and City Clerk, or either of them, 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 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 1974 Bonds ,
the execution and delivery of an Official Statement or Offering Circular, if necessary
or desirable in connection with the sale of the.1974 Bonds, the execution of the Lease
Agreement and its execution by Temple, and the performance of all acts of what-
ever nature necessary to effect and carry out the authority conferred by the
Indenture, the Lease Agreement and this Ordinance. That the Mayor and the
City Clerk be, and they 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 of such authority or to evidence
the exercise thereof.
I
Section 5. That the Mayor and City Clerk for and on behalf of the
City, be and they are hereby authorized and directed to take all action, and ex~ute
and file all documents, necessary to perfect an election to proceed under
Section 103 (c) (6) (D) of the Internal Revenue Code of 19 54 , a s amended , to the
end of insuring that interesi on the 1974 Bonds is exempt from Federal income
taxes .
Section 6 . 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 and provisions .
Section 7. That all ordinances, resolutions and parts thereof in
conflict herewith are hereby repealed to the extent of such conflict.
Section 8. That there is hereby found and declared to be an immediate
need for the securing and developing of industry in order to provide and assuro the
continuance of employment and E~ayrolls, alleviate unemployment and otherwise
benefit 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 immediate preservation of the
public health, safety and welfare shall be in force and effect immediately upon
and after its passage.
PASSED: l~iarch 21 , 1974.
APPROVED:
gy
Mayor
ATTEST:
- ~ - ~
._._`~~
~~~ City Clerk
(SEAL)
4
ti ~
City of West Memphis ~ ~
City Hall
West Memphis, Arkansas .. .
Gentlemen:
The electors of the City of West Memphis, Arkansas ("City") have authorized
Industrial Development Revenue Refunding Bonds 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 ("Act No. 9") ,
in the principal amount of not to exceed $5, 000, 000 for the purpose of financing
the acquiring, constructing and equipping of an industrial project (the "Project").
Series A Bonds in the principal amount of $4, 200, 000, dated February 15, 1971 ,
have been heretofore issued. The Series A Bonds are now being refunded by an
issue in the principal amount of $3, 850, 000 (the "bonds") . The Project has
been leased by the City to the undersigned by a Lease and Agreement dated as
of the 15th day of February, 1974, which is to be recorded in the office of the
Circuit Clerk and Ex-Officio Recorder of Crittenden County, Arkansas (the "Lease
and Agreement") . The bonds are secured by a pledge of all revenues derived
from the Project including particularly the lease rentals paid under the Lease and
Agreement between the City and the undersigned and are secured by a mortgage
lien on and security interest in the Project. .
Article IV of the Lease and Agreement provides that the undersigned is obligated
to pay all taxes and assessments, general and special, levied and assessed on
the Project during the term, and all water and sewer charges, assessments and
other governmental charges and impositions whatsoever, all of which are therein
designated as "impositions" . The undersigned is informed and understands
that, notwithstanding the provisions of Article IV of the Lease and Agreement,
under the decision of the Supreme Court of the State of Arkansas in the case of
Wayland v. Snapp, 232 Ark. 57, 334 S.W.2d 633 (1960), the Project will be
exempt from ad valorem taxes because it is owned by the City and used for a
public purpose within the meaning of the applicable Constitutional provision
affording the exemption. Thus, the undersigned understands that it, as Lessee
of the Project owned by the City, will, in fact, have no ad valorem taxes to pay
under the provisions of Article IV of the Lease and Agreement. The City has
indicated a reluctance to lose tax revenues which would otherwise be received
if the properties involved were privately owned. Therefore, to induce the City
to proceed with the issuance of the bonds for the purposes indicated, which
will inure to the benefit of the undersigned, and for other valuable considerations,
the receipt of which is hereby acknowledged by the City, the undersigned
agrees with the City as follows:
Page 2
r
1 . The undersigned will pay to the City the sum of Five Thousand
Dollars ($5, 000.00) annually with the first such payment to be made on ~~~,
May 1 ,1974, and with payments in said amount to be made on each~~~
May 1 during the initial and any renewal term of the Lease and
Agreement, and with such payments being a required business expense of the
undersigned. The undersigned reserves the right to make monthly, rather than
annual, payments and ii the undersigned elects to make monthly payments, it
agrees to pay one-twelfth (1/12) of the specified annual payment on the first
business day of each month.
2. If by reason of a change in the Constitution, a change by the
Supreme Court of the State of Arkansas in its interpretation of the Constitution
or otherwise, the undersigned is required to pay any ad valorem taxes with
reference to the Project properties owned by the City, the undersigned, may
deduct the aggregate of any such payments made by it from the amount herein
agreed to be paid and need only pay the difference to the City.
_ 3. The agreement herein made by the undersigned shall terminate
and be of no further force and effect from and after the date that the Lease and
Agreement shall terminate for any purpose other than a default on the part of
the undersigned. If such termination shall be at a point constituting a portion
of a year, the undersigned shall pay for the year in which termination occurred
that proportion of the specified annual payment that the number of days in such
year that the undersigned was Lessee prior to the termination bears to 365 days,
4. This agreement shall be binding upon the successors and assigns
of the undersigned, but no assignment shall be effective to relieve the under-
signed of any of its obligations hereunder unless expressly authorized and
approved in writing by the City, or unless made in a manner permitted ~{t~der ~~
the Lease and Agreement without the consent of the City.
If the foregoing is acceptable, please so indicate by executing the acceptance
set forth below and returning one copy to the undersigned, whereupon this
instrument shall constitute a valid and binding contract between the undersigned
and the City
DATED: '~ 1-ti : E ' ~- - ~' 1974.
Yours very truly ,
TEMPLE INDUSTRIES , INC .
ATTEST: •
_~ ct,
~--
~~.~~ ~~ '
1
Page 3 ..
:~
ACCEPTED:
• CITY OF WEST MEMPHIS, ARKANSAS
ATTEST: ~
~- "~^ By !
~ Mayor
City Clerk
(SEAL)
• 1