Loading...
1765/7~ ORDINANCE No. ORDINANCE AUTHORIZING THE ISSUANCE OF INDUSTRIAL DEVELOPMENT REVENUE BOND IN THE AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $10,000,000 TO FINANCE CERTAIN INDUSTRIAL FACILITIES; AUTHORIZING A TRUST INDENTURE SECURING SAID BOND; AUTHORIZING A LEASE AGREEMENT BETWEEN THE CITY OF WEST MEMPHIS, ARKANSAS AND WATKINS TERMINALS, INC.; APPOINTING A TRUSTEE; PROVIDING FOR THE RIGHTS OF THE HOLDER OF SAID BOND; AND MAKING CERTAIN OTHER COVENANTS AND AGREEMENTS AND AUTHORIZING THE EXECUTION AND DELIVERY OF CERTAIN OTHER DOCUMENTS AND INSTRUMENTS IN CONNECTION WITH THE ISSUANCE AND DELIVERY OF SAID BOND WHEREAS, the City of West Memphis, Arkansas (the "City"), is authorized and empowered under the provisions of the Title 14, Chapter 164, Subchapter 2 of the Arkansas Code of 1987 Annotated, as amended (the "Act"), to issue revenue bonds for the purpose of providing funds for the acquisition, construction and installation of certain industrial facilities (the "Project"); and WHEREAS, in furtherance of the public purpose of the Act, the City purposes to finance the cost of the acquisition, construction and installation of the Project, including expenses incidental thereto, by issuing its not to exceed $10,000,000 in aggregate principal amount Taxable Industrial Development Revenue Bond (Watkins Terminals, Inc. Project), Series 1997 (the "Bond"); and WHEREAS, the City proposes to enter into a Lease Agreement (the "Agreement"), between the City and Watkins Terminals, Inc., a Georgia corporation (the "Company"), under the terms of which the City will agree to use the proceeds of the Bond to finance the cost of the Project, and the Company, in consideration of the issuance of the Bond by the City, will agree to pay to the City payments in such amounts and at such times as will be sufficient to enable the City to pay the principal of and interest on the Bond as the same become due and to make certain other payments with respect to the Bond; and WHEREAS, the Bond will be issued under and secured by a Trust Indenture (the "Indenture"), between the City and SunTrust Bank, Atlanta, a Georgia banking corporation having its principal corporate trust office in Atlanta, Georgia, as trustee (the "Trustee"), under the terms of which the City will assign and pledge to the Trustee all of its rights, title interest in the Agreement as security for the payment of the principal and interest on the Bond; and WHEREAS, it is contemplated that, as security for the Bond, the City and the Company will execute and deliver (i) a Mortgage and Security Agreement (the "Mortgage"), from the City and the Company to SunTrust Bank, Atlanta, as the bondholder (the "Bondholder") and (ii) an Assignment of Rents and Leases, from the City and the Company to the Bondholder (the "Assignment"); and WHEREAS, as further security for the Bond, Watkins Associated Industries, Inc. ("Watkins Associated"), a Georgia corporation, will execute and enter into a Guaranty Agreement (the "Guaranty"), from Watkins Associated to the Bondholder guaranteeing the obligations of the Company under the Bond; and WHEREAS, it is also proposed that the City should appoint the Trustee as Paying Agent and Registrar under the Indenture for the Bond; and WHEREAS, there have been presented to the City proposed forms of the Agreement, the Indenture, the Mortgage, the Assignment and the Guaranty; and WHEREAS, copies of each of the documents as above referred to have been presented to and are before this meeting; and WHEREAS, the City has afforded an opportunity to be heard to all persons desiring to be heard on the question of the proposed issuance of the Bond to finance the cost of the Project; NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of West Memphis, Arkansas: Section 1. Authorization of Protect. The City hereby finds that the acquisition, construction and installation of the Project will provide substantial additional employment and payrolls and will thereby secure and develop industry at the City and surrounding area. The proposed financing of the Project through the issuance of the Bond is hereby approved and authorized pursuant to and in accordance with the Act, the Agreement and the Indenture. Section 2. Authority of the Bond. In order to provide funds to finance the cost of the Project, the issuance of the revenue bonds of the City known as the "City of West Memphis, Arkansas Taxable Industrial Development Revenue Bond (Watkins Terminals, Inc. Project), Series 1997", in the aggregate principal amount of not to exceed $10,000,000, or such lesser amount as requested by the Company, is hereby authorized. The Bond shall bear interest at such rate or rates (not to exceed the maximum permitted by law), be dated, mature in the year (not to exceed 30 years), be payable and subject to redemption prior to maturity all or recommend by the Company and as provided in the Indenture. The Bond shall be issuable as fully registered bond without coupons and shall be issued in the denominations as provided in the Indenture. The Bond shall have such rights of exchangeability, registration and transfer and shall be in the forms and executed and -2- authenticated in the manner provided in the Indenture. The term "Bond" as used herein shall be to mean and include the Bond as initially issued and delivered and the Bond issued in exchange therefor or in exchange for the Bond previously issued. Section 3. Source of Payment: Limited Obli atg ions. The Bond will be a limited obligation of the City payable solely from the "City of West Memphis, Arkansas -Bond Fund, Watkins Terminals, Inc." (the "Bond Fund"), created in the Indenture and will not constitute an indebtedness of the City within the meaning of any constitutional or statutory limitation of the State of Arkansas. The Bond shall not be a general obligation of the City. The Bond will never constitute or give rise to a pecuniary liability of the City or a charge against its general credit or taxing power. No recourse shall be had for the enforcement of any obligation, covenant, promise or agreement of the City contained in the Indenture or the Bond or any claim based thereon or otherwise in respect thereto or upon any obligation, covenant, promise or agreement of the City contained in the Agreement, the Mortgage or the Assignment against any officer or employee, as such, in its individual capacity, past, present or future, of the City or of any successor entity, either directly or through the City or any successor entity, whether by virtue of any constitutional provision, statute or rule of law, or by enforcement of any assessment or penalty or otherwise. No personal liability whatsoever shall attach to or be incurred by, any officer or employee, as such, past, present or future, of the City or any successor entity, either directly or by reason of any of the obligations, covenants, promises or agreements entered into between the City or the Trustee in the Indenture or to be implied therefrom as being supplemental thereto, and all personal liability of that character against every such officer and employee will be, by the acceptance of the Bond, as a condition of, and as a part of the consideration for, the issuance of the Bond, expressly waived and released by the holders thereof. The payments to be made by the Company under the Agreement are hereby determined to be sufficient to pay the principal of, premium (if any), and the interest on the Bond as the same become due, and all other payment obligations of the Company with respect to the Bond, and all rights, title, interest of the City in and to the Agreement (except certain rights reserved by the City under the terms of the Indenture), and all amounts on deposit from time to time in the Bond Fund, are pledged and assigned for that purpose and condition for such other purposes as are more fully set forth as provided for in the Indenture. Section 4. Authorization of Indenture. The execution, delivery and performance of the Indenture by the City be and the same are hereby authorized. The Indenture shall be in substantially the form presented to the City at this meeting and on file with the City Clerk of the City, subject to such changes, insertions or omissions as may be approved by the Mayor, and the execution of the Indenture by the Mayor and City Clerk as hereby authorized shall be conclusive evidence of any such approval. Section 5. Authorization of Agreement. The execution, delivery and performance of the Agreement, as evidenced by a promissory note (the "Note") by the City be and the same are hereby authorized. The Agreement and the Note shall be in substantially the form presented to the City at this meeting and on file with the City Clerk of the City, subject to -3- such changes, insertions or omissions as may be approved by the Mayor, and the execution of the Agreement by the Mayor and City Clerk as hereby authorized shall be conclusive evidence of any such approval. Section 6. Approval of Guaranty. The Guaranty, in substantially the form presented to the City at this meeting and on file with the City Clerk of the City, is hereby approved, subject to such changes, insertions or omissions as may be approved by the Mayor. Section 7. Authorization of Mort~a~e. The execution, delivery and performance of the Mortgage among the City, the Bondholder and the Company be and the same are hereby authorized. The Mortgage shall be in substantially the form presented to the City at this meeting and on file with the City Clerk of the City, subject to such changes, insertions or omissions as may be approved by the Mayor, and the execution of the Mortgage by the Mayor and City Clerk as hereby authorized shall be conclusive evidence of any such approval. Section 8. Authorization of Assignment. The execution, delivery and performance of the Assignment among the City, the Company and the Bondholder be and the same are hereby authorized. The Assignment shall be in substantially the form presented to the City at this meeting and on file with the City Clerk of the City, subject to changes, insertions or omissions as may be approved by the Mayor, and the execution of the Assignment by the Mayor and City Clerk as hereby authorized shall be conclusive evidence of any such approval. Section 9. Appointment of Trustee. SunTrust Bank, Atlanta is hereby designated Trustee for the Bond under the Indenture. Section 10. General Authority. The Mayor and City Clerk are hereby authorized, empowered and directed to do all acts and things and to execute all such documents as may be necessary to carry out and comply with the provisions of said documents as executed and are further authorized to take any and all further actions and to execute and deliver any and ~ all documents and certificates as may be necessary and desirable in connection with the issuance, delivery and sale of the Bond and the execution, sale and delivery and performance of the Indenture and the Agreement and to document compliance with the provisions of the Code and the laws of the State of Arkansas. Section 11. General Authorization. The Mayor and the City Clerk are hereby authorized and directed to prepare and furnish to the Bondholder, when the Bond is issued, certified copies of all proceedings and records of the City relating to the Bond, and such other certificates as may be required to show the facts relating to the legality and marketability of the Bond as such facts appear from the books and records of the City or as otherwise known to them, and all such certificates, including any heretofore furnished, shall constitute representations of the City as to the truths of all statements contained therein. -4- Section 12. Actions Approved and Confirmed. All acts and doings of the officers and employees of the City which are in conformity with the purposes and intent of this Bond Ordinance and in furtherance of the issuance and delivery of the Bond and the execution, delivery and performance of the Indenture, the Agreement, the Mortgage and the Assignment shall be, and the same hereby are, in all respects approved and confirmed. Section 13. Filing with City Clerk. 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 of which this Ordinance is adopted, for inspection by any interested person, a copy of the Agreement, the « Indenture, the Mortgage and the Assignment, and such documents shall be on file for inspection by interested person. Section 14. Severability of Invalid Provisions. Any one or more of the agreements or provisions herein contained shall be held contrary to any express provisions of law or contrary to the policy of express law, though not expressly prohibited, or against public policy, or shall for any reason whatsoever be held invalid, then such covenants, agreements or provisions shall be null and void and shall be deemed severable from the remaining agreements and provisions and shall in no way affect the validity of the other agreements or provisions hereof. All ordinances or resolutions or parts thereof of the City in conflict with the provisions herein contained are, to the extent of such conflict, hereby superseded and repealed. -5- ADOPTED this ~p _ day of February, 1997. CITY OF WEST MEMPHIS, ARKANSAS By: c-CX. Mayor Attest: City Cler RECEIVE CITY CLERK OFFICE DATE~I i7 19'Y i1:oo~+~-~ -6- CERTIFICATE The undersigned, City Clerk of the City of West Memphis, Arkansas, HEREBY CERTIFIES that the foregoing pages are a true and correct of excerpts of the Minutes of the Meeting of the City Council of the City of West Memphis, Arkansas at a regular session held at the regular meeting place of the Council in said City at 1:30 o'clock p . on the 20th day of February, 1997, and the time and place of the meeting was furnish t ~ each perso ~vho made a { request therefor and in accordance with the provisions of the Ar ns Freedo I ation Act. ,, City Clerk (SEAL) -7-