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1749 ORDINANCE NO . ! 7 ~ 9 AN ORDINANCE AUTHORIZING THE ISSUANCE OF INDUSTRIAL DEVELOPMENT REVENUE BONDS TO FINANCE CERTAIN INDUSTRIAL FACILITIES; AUTHORIZING A TRUST INDENTURE SECURING THE BONDS; AUTHORIZING A LEASE AGREEMENT BETWEEN THE CITY OF WEST MEMPHIS, ARKANSAS AND PROFORM COMPANY, LLC; AUTHORIZING THE SALE OF THE BONDS AND THE EXECUTION OF A PLACEMENT AGENCY AGREEMENT IN CONNECTION THEREWITH; AUTHORIZING AND PRESCRIBING OTHER MATTERS PERTAINING THERETO. 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 an approximately 48,000 square foot industrial facility, including land, for the manufacture of covering systems for river barges, to be located in the port area of West Memphis, Arkansas, on the south side of a new proposed road to be constructed off of Port Road near the existing TETRA Chemicals plant; and WHEREAS, pursuant to and in accordance with applicable provisions of Arkansas law and Section 147 (f) of the Internal Revenue Code of 1986, as amended (the "Code"), 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 not to exceed $4,400,000 in principal amount of its Variable Rate Demand Industrial Development Revenue Bonds (Proform Company, LLC Project) , Series 1996 (the "Bonds") , to provide such financing; and WHEREAS, to support the payment of the Bonds, an irrevocable letter of credit will be initially issued by First Bank National Association, or such other financial institution as shall be 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 Bonds; and WHEREAS, copies of the hereinafter described Placement Agency Agreement, Indenture of Trust, and Lease 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: 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 employment and payrolls and will thereby secure and develop industry within and near the City. • Section 2. The issuance of the Bonds in the aggregate principal amount of $4,400,000, or such lesser amount as shall be requested by the Company, is hereby authorized. The Bonds shall be issued in the forms and denominations, shall be dated, shall be numbered, shall mature (within the period permitted by Section 147(b) of the Code as recommended by the Company, but not to exceed 30 years), shall bear interest (at fluctuating rates subject to conversion to a fixed rate at the option of the Company, in either case not to exceed the maximum permitted by law), and shall be subject to redemption prior to maturity all upon the terms and conditions recommended by the Company and set forth in the Indenture of Trust (hereinafter authorized) securing the Bonds. Section 3. The Bonds shall be sold to the purchaser or purchasers designated by FBS Investment Services, Inc., as Placement Agent (the "Placement Agent"), for the purchase price of 100$ of par, plus accrued interest, if any, from the date of the Bonds to the date of delivery, which price is recommended by the Company, and upon the terms and conditions set forth in a Placement Agency Agreement by and among the City, the Company and the Placement Agent (the "Placement Agreement"). The Mayor is hereby authorized to execute and deliver the Placement Agreement for and on behalf of the City. The Placement Agreement is hereby approved in substantially the form submitted to this meeting, and the Mayor is hereby authorized to confer with the Company, the Placement Agent and others in order to complete the Placement 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. Section 4. 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, acknowledge and deliver an Indenture of Trust by and between the City and First Trust National Association, St. Paul, Minnesota, which will act as Trustee thereunder (the "Indenture"),.and the City Clerk is hereby authorized and directed to execute, acknowledge and deliver 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 submitted to this meeting, and the Mayor is hereby authorized to confer with the Trustee and others 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. Section 5. There is hereby authorized the execution and delivery of a Lease Agreement by and between the City and the Company (the "Lease Agreement"), 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 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 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. There is hereby authorized the securing of the payment of the Bonds, or the payment of amounts owed by the Company and its affiliates to the Bank in connection with the issuance by the Bank of its letter of credit supporting the payment of the Bonds, by a lien on and security interest in all or a portion of the properties comprising the Project as may be hereafter determined to be necessary or desirable by the Placement Agent, the Company and the Bank. The Mayor and City Clerk are hereby authorized to execute, acknowledge and deliver a mortgage and security instrument for and on behalf of the City. Section 7. There is hereby authorized the preparation and distribution to various prospective and actual purchasers of the Bonds of a placement memorandum (and preliminary placement memorandum) describing the Bonds and their security, and setting forth such other information as may be determined to be necessary or desirable. Section 8. Because the undertaking authorized hereby involves the accomplishment of industrial facilities, pursuant to applicable laws of the State of Arkansas, including particularly the Act, competitive bidding is waived. Section 9. The City hereby elects to have the provisions of Section 144(a)(4)(A) of the Code apply to the Bonds. Section 10. 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 Placement Agreement, the Lease Agreement and the Indenture 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 il. 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 Placement Agreement, the Indenture and the Lease Agreement, and such documents shall be on file for inspection by any interested person. '~ Section 12. FBS Investment Services, Inc. is hereby ~ appointed as the initial Remarketing Agent under the Indenture, ~,: which appointment is recommended by the Company. Section 13. 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 14. All ordinances, resolutions and parts thereof in conflict herewith are hereby repealed to the extent of such conflict. PASSED: October 17, 1996. APPROVED: ATTEST: i Mayor City Cler ~ sEAL ) 9 RECEIVED CITY CLERK OFFICE DATE l o ~ l ~ I q ( ~ 11_~ "I' rw~ CERTIFICATE The undersigned, City Clerk of the City of West Memphis, Arkansas, hereby certifies that the foregoing pages are a true and perfect copy of Ordinance No. 1`7'49 , adopted at a regular session of the City Council of the City of West Memphis, Arkansas, held at the regular meeting place of the City at 5:30 o~clock p.m., on the 17th day of October, 1996, and that the Ordinance is of record in Ordinance Record Book No. 19910 , at page - , now in my possession. GIVEN under my hand and seal on th' ~ day of Oc~1~eY' , 1996. ity er (SEAL)