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0966~~ RESOLUTION NO .. ____~~~__ A RESOLUTION AUTHORIZING A MEMORANDUM OF INTENT BY AND BETWEEN THE CITY OF WEST MEMPHIS, ARKANSAS, AND FORBES STEEL & WIRE CORPORATION, A DELAWARE CORPORATION, PERTAINING TO THE ISSUANCE OF INDUSTRIAL DEVELOPMENT REVENUE BONDS FOR FINANCING THE COSTS OF ACQUIRING, CONSTRUCTING AND EQUIPPING INDUSTRIAL FACILITIES; AND PRESCRIBING OTHER MATTERS RELATING THERETO. BE IT RESOLVED by the City Council of the City of West ~ y ~, I ~: Memphis, Arkansas: Section 1. That there be, and there is hereby authorized the execution and delivery of a Memorandum of Intent by and between the City of West Memphis, Arkansas (the "City"), and Forbes Steel & Wire Corporation, a Delaware corporation, (the "Company"), in substantially the contents hereinafter set forth, and the Mayor and City Clerk be, and they are hereby, authorized to execute and deliver the Memorandum of Intent for and on behalf of the City. Section 2. This resolution, and the attached Memorandum of Intent shall constitute "some other similar official action" of the Municipality within the meaning of Section 1.103-8(a)(5) of the Federal Tax Regulations issued by the United States Treasury Department. The form and content of the Memorandum of Intent, which are approved and which are made a part hereto, shall be substantially as follows: 1 MEMORANDUM OF INTENT THIS MEMORANDUM OF INTENT is between the City of West Memphis, Arkansas, party of the first part (hereinafter referred to as the "City"), and Forbes Steel & Wire Corporation, a Delaware corporation, party of the second part (hereinafter referred to as the "Company"). IN CONSIDERATION of the undertakings of the parties set forth herein and the benefits to be derived therefrom and of other good and valuable consideration, receipt of which is hereby acknowledged by the parties, the City and the Company AGREE: I. Preliminary Statement. (a) The City is a duly organized and existing City under the laws of the State of Arkansas and is authorized by the laws of the State of Arkansas, particularly 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 9"), to issue revenue bonds for financing the costs of acquiring, constructing and equipping industrial facilities (as defined and authorized by Act 9), and to lease and/or sell the same for such rentals and payments and upon such terms and conditions as the City deems advisable. (b) In order to secure and develop industry which will furnish substantial employment and payrolls (in furtherance of the public purpose of Act 9), it is proposed that an industrial -2- project (consisting of lands, buildings, improvements, machinery, equipment and facilities) be acquired, constructed and equipped (the "Project"). (c) The Company has determined that it must obtain a commitment from the City that it will issue revenue bonds under Act 9 as the Company and the City, upon advice of counsel, shall deem appropriate and make the proceeds available for the permanent financing of any part of the costs and expenses incurred in acquiring, constructing and equipping the Project. (d) The City is willing to so commit and to proceed with the issuance of such bonds as and when requested by the Company, in principal amounts necessary to furnish such permanent financing subject to compliance with all conditions set forth in Act 9. (e) The City considers that the acquiring, constructing and equipping of the Project and the leasing or sale thereof to the Company, will secure and develop industry and thereby promote the general health and economic welfare of the inhabitants of the City and adjacent areas. 2. Undertakings on the Part of the City Subject to the conditions above stated, the City agrees as follows: (a) That when requested by the Company, it will authorize and take, or cause to be taken, the necessary steps to issue bonds under Act 9, in the aggregate principal amount necessary to furnish the permanent financing or any part of the cost of -3- accomplishing the Project. In this regard, it is estimated at this time that the cost of the Project will be in an aggregate principal amount not to exceed $4,000,000. Thus, Industrial Development Revenue Bonds will be issued under Act 9 in such amount as shall be requested by the Company for accomplishing all or any part of the Project (the "Bonds"). (b) That it will, at the proper time and subject in all respects to the recommendation and approval of the Company, have the Bonds underwritten and will adopt, or cause to be adopted, such proceedings and authorize the execution of such documents as may be necessary and advisable for the authorization, sale and issuance of the Bonds, the acquiring, constructing and equipping of the Project, and for the leasing or sale thereof to the Company, all in conformity with Act 9 and any other applicable federal and state laws and upon terms and conditions mutually satisfactory to the City and the Company. ' (c) That the aggregate basic rents or payments (i.e., the L ~ rents or payments to be used to pay the principal of, premium, if any, and interest on the Bonds ) payable under leases or sale agreements between the City and the Company, shall be sufficient to pay the principal of, premium, if any, and interest on the Bonds when due. The leases or sale agreements shall contain such provisions as are necessary or desirable, consistent with the authority conferred by Act 9. -4- (d) That it will take or cause to be taken such other acts and adopt such further proceedings as may be required to implement the aforesaid undertakings or as it may deem appropriate in pursuance thereof. (e) That the Mayor and City Clerk be, and they are hereby authorized and directed, for and on behalf of the City, to do all things, execute all instruments and otherwise take all action necessary to the realization of the City's obligations under the Memorandum of Intent. 3. Undertakings on the Part of the Company. Subject to the conditions above stated, the Company agrees as follows: (a) That it will obtain the services of a qualified underwriter or financial advisor, if the Company in its judgment determines that the assistance of such an underwriter or financial advisor will be necessary, who will assist with the structuring of the bond issue and that it will cooperate with the City in the sale and issuance of the Bonds to the end of ~; achieving timely and favorable marketing thereof. (b) That it will enter into such leases, sale agreements or other appropriate agreements with the City under which the Company will obligate itself to pay to the City rents or payments sufficient to pay the principal of, premium, if any, and interest on the Bonds when due and containing such other provisions as are necessary or desirable consistent with the authority conferred by Act 9. -5- (c) That it will take such further action and adopt such further proceedings as may be required to implement its afore- said undertakings or as it may deem appropriate in pursuance thereof. 4. General Provisions. (a) This Memorandum shall con- tinue in full force and effect until the Project and its financ- ing by Bonds, as herein specified, is accomplished, and in this regard it is understood that the Bonds may be issued as a single series or in multiple series. The City will take appropriate action by ordinance to sell and authorize the Bonds and to au- thorize and execute such agreements and documents as may be determined necessary or desirable by the City and tYie Company. (b) The City and the Company agree that the law firm of Wright, Lindsey & Jennings, Little Rock, Arkansas, shall be ap- pointed to serve as Bond Counsel to the City in the issuance and sale of the Bonds. (c) The Company agrees that it will' make payments in lieu of ad valorem taxes in such amount as shall be fixed by agreement between the City and the Company. (d) This memorandum and the agreements contained herein, may be assigned by the Company to any person or persons, company or companies for the purposes of completing the industrial fi- nancing contemplated hereby. -6- IN WITNESS WHEREOF, the parties hereto have entered into this Memorandum by their ~oJfficers thereunto duly authorized as of the ~ day of GY/°1Q/.L 1984. ATTEST: WEST MEM HIS, ARKANSAS • BY ity Cle V~C~ Mayor (SEAL) ATTEST: FORBES STEEL & WIRE CORPORATION ~~yt.'Ls' -- title) (SEAL) (title) -7- Section 3. That the Mayor and City Clerk be, and they are hereby authorized and directed, for and on behalf of the City, to do all things, execute all instruments and otherwise take all action necessary to the realization of the City's obligations under the Memoran//jdum of Intent. PASSED : /7Ple I < ~ ~ 1984 . APPROVED: ~~ Mayor ATTEST: City Clerk (SEAL) -8- STATE OF ARKANSAS COUNTY OF CRITTENDEN I • ~/gN C. /QA F'T City Clerk within and for West Memphis, Arkansas, do hereby certify that the annexed and foregoing resolution is a true and correct copy of the original Resolution approved on Ap,Q/L / ~j 1984, by the City Council of West Memphis, Arkansas, and the same is as it appears of record in Ordinance and Resolution Book on file in my office. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal this lg~ day of /~P,e/~ 1984. ~;:; . City erk (SEAL) -9-