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0717~ e ,' RESOLUTI~T NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WEST MEMPHIS AUTHORIZING THE ENTRY INTO AN AGREEME[~1T TO ISSUE HOUNDS FOR THE PURPO6E OF SECURII~tG AND DEVEIAPING IlVDUSTRY WITfiIN OR NEAR THE CITY WHEREAS, the City of West Memphis, Arkansas, is authorized under the provisions of Act No. 9 of the Special Session of the General Assembly of the State of Arkansas for the year 1960, as amended ("Act 9"), to issue bonds to assist in the securing and developing of industry; and WHEREAS, Arkansas Distributing Company and its predecessor proprietorship have done business in the City of West Memphis for _ years providing employment for residents in or near the City of West Memphis, as well as generating valuable tax revenues for the City of West Memphis; and WHE1~E'AS, Arkansas Distributing Co~any has requested that the City of West Memphis provide such term financing, through the issuance of bonds under the authority of said Act, to enable Arkansas Distributing Coa~any to do business in the City; and WHEREAS, the City of West Memphis desires to assist Arkansas Distributing Company to secure its operations in the City of West Memphis, and to aid in the r financing thereof under the provisions of said Act 9; and Wes, it is desirable that the City of West Memphis enter into an Agree- meet to Issue Bonds for such purpose; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WEST N~'IPHIS, ARKANSAS, that: 1. The Mayor and the City Clerk of the City of West Memphis, Arkansas, be authorized to enter into an Agreement to Issue Bonds in substantially the form and substance as follows: ~. s ~( f AGREEN~IT TO ISSUE BONDS THIS AGREEMII~iT is made as of September " 1979, by and among the City of West Memphis, Arkansas, a municipal corporation under the laws of the State of Arkansas (herein called "City"), and Arkansas Distributing Ccxmpany, an Arkansas corporation (herein, together with any successor or assignee to its rights and duties hereunder, called "Company"), for the purpose of carrying out the pur- poses set forth in Act No. 9 of the Special Session of the General Assembly of ~, the State of Arkansas for the year 1960, as amended (herein, together with any ~,,', subsequent laws authorizing the issuance of the revenue bonds of the City for the purpose;described herein, called the "Act"). W I T N E S S E T H: WHEREAS, the City is authorized by the Act to own, acquire, construct, equip, operate, maintain, sell, lease or contract concerning or otherwise deal in or dispose of any land, buildings, or facilities of any and every nature whatever that can be used in securing or developing industry within or near the City; and WHEREAS, the City has determined that such purposes may be served by coopera- tiari with the Company for the acquisition, constructica~ and equipping of an industrial facility within the City for use as a warehouse and related facilities, and for other industrial and ccatsnercial purposes of the Company as may be profit- able to it (such industrial facilities are herein called the "Project"); and WHEREAS, the City and the Company desire to cooperate in the aoquisiticm, construction and equipping of the Project and to have the costs of the Project financed from the proceeds of revenue bonds of the City (herein called the "Bonds") to be issued pursuant to the Act in an aggregate principal amount now estimated not to exceed $800,000 (excluding any bonds issued to refund the Bonds); and WHEREAS, the City and the Company contemplate that the Project will be leased to the Company, with an option to purchase, and the rental payments therefor to- gether with other moneys available shall be sufficient to pay debt service on the Bonds and all related costs; NOW, ARE, in consideration of the premises and other good and valuable consideration under the mutual benefits, covenants and agreements herein expressed, the City and the Company agree as follows: 1. Proceedings. All proceedings i.ri connection with the issuance of the bonds shall be consistent with the requirements of Act 9, including notice to all state agencies, and the publication of notice as required by Act No. 1239 of the Extended Session of the General Assembly for the State of Arkansas for the year 1976. All references contained herein to the issuance of the Bonds shall be sub- ject to compliance with the formalities of said Act 1239 when the facts required to do so are determined. 2. Construction. The City and the Company will cooperate in causing to be commenced and ccazt~.nued the required acquisition, construction, reamstruction, extension, equipping and improvement of the Project, and the Canpany may provide, or cause to be provided, the necessary interim financing to permit such work on the Project to commence and continue expeditiously pending the issuance of interim and/or permanent bonds. Not later than the time of issuance of the Bonds for any portion of the Project, the Cott~any will convey and transfer or cause to be con- veyed and transferred to the City, for an amount approximately equal to that then extended by the Company for the Project or porticazs thereof which are financed by the Bonds then issued (including at the Ccs~any's option any costs of interim financing), the Project or portions thereof to be then financed. There shall also be conveyed to the 'City any easements and rights-of~aay necessary to permit acquisi- tica~, construction, equipping, operation and maintenance of the Project or such _ portion. .~ 3. Lease. The City shall enter into a lease, or leases, under which the Company will lease, with an option to purchase, frcan the City, such Project or portions thereof and will agree to make rental payments sufficient to pay the principal of, premium, if any, and interest on the Bonds, together with all charges of any Trustee and/or any Paying Agent for the Bonds. 4. Sale of Bonds, Security. The City will take such steps as are neces- sary to issue, sell and deliver pursuant to the terms of the Act, the Bonds for the purposes of financing the costs of the Project, in each case only upon ~ receipt of the written designation by the Company of the purchaser(s) or under- writer(s) thereof, such Bonds to be in such principal amount, to mature in such amount and times, to bear interest at such rate or rates and to be payable on such dates and to have such optional and mandatory redemption features and prices as are determined by the City and approved in writing by the Ccenpany. The City further agrees that it will enter into the lease, and if required, an indenture of trust with a bank or trust company, qualified to exercise trust powers where necessary, for the purpose of providing rental payments sufficient, with other amounts available from the Company or directly or indirectly from the proceeds of the Bonds, to pay the principal of, premium if any, and interest on the Bonds as they become due together with the charges of any Trustee and/or any Paying Agent for the Bonds, and pledging and/or otherwise securing the payment of such rental payments for the benefit of the holder(s) of the Bonds. The lease, the indenture, and other related doc~mients, and the Bonds shall contain such terms and conditions as are agreed upon by the City and the Company. The City will cooperate in consum- mating the transaction so contemplated and in attempting to realize the desire of the parties hereto that the interest on all Bonds be exempt fran Federal incane taxation. 5. Bonds to be Special Obligations. The City shall have no financial responsibility with respect to the Project, the Bonds or the costs associated with either, and the bonds shall be special obligations of the City and shall never con- stitute a general obligation, indebtedness or pledge of the credit of the City within the meaning of any constitution or statutory provision and shall never be paid in whole or in part out of any funds raised or to be raised by taxation or any other revenues or other funds of the City except those (including unexpended ,, Bond proceeds) derived from or in connection with the sale or lease of the Project as provided for herein. 6. Conditions of Issuance. The Bonds may be issued either at one time or in several series and/or issues from time to time, in such aggregate principal amounf or amounts as the Company shall request in writing; provided, however, that all conditions of the Act shall have been met. It is further agreed that the proceeds of the Bonds shall not be invested so as to constitute any of the Bonds as arbitrage bonds within the meaning of Section 103 (c) of the Internal Revenue Code of 1954, as amended, and applicable regu lations prcanulgated pursuant thereto. 7. Costs to be Financed. The costs of the Project may include any costs permissible under the Act, including but not limited to reasonable and necessary costs, expenses and fees incurred by the City in connection with the issuance of the Bonds or in connection with the Project, such as out-4f-pocket expenses incurred by any employee of the City; fees and out~f-pocket expenses of counsel for the City, bond wunsel, and any trustee; fees and expenses, if any, required in connection with the underwriting or placement of the Bonds; recording costs; rating agency's fees and printing costs. The City will upon request provide or cause to be provided any data or information which may be reasonably required to verify any of the costs, expenses and fees enumerated above. 8. Termination. In the event that the Bonds shall not be sold within three years from the date hereof, this Agreement shall autcanatically terminate unless the parties hereto shall agree in writing to its extension for a further period of time specified in such writing. The Oompany may unilaterally terminate this Agreement without liability to the City (except for any amounts due and owing by the Company to the City arising out of the transactions occurring on or before the time of such termination, which shall be prca~~tly paid by the Company to the City) by giving notice by ordinary email, postage prepaid, to the City specifying therein the date of termination which may be the date of the notice. -2- .~ 2. This Resolution shall be in full force and effect frcgn and after its adoption. ADOPTED this L flay of ~Gr /~ ~ , 1979. Mayor // -4- .. . -. 9. Protection to the City. The Company shall pay all of the City's costs and expenses reasonably and necessarily incurred in connection with this Agree- ment or any other related doc~nent or instrument. The Company will at all times indemnify and hold harmless the City against any and all losses, costs, damages, expenses and liabilities of whatsoever nature directly or indirectly resulting from, arising out of, or related to natters in connection with this Agreement. 10. Payment in Lieu of Taxes. The City and the Conq~any recognize that under decisions of the Supreme Court of Arkansas the Project will be exempt from ad valorem taxation. The Company agrees, however, to enter into an agreement with the City for payments in lieu of taxes, in such ampunts and on such terms as shall be acceptable to the City and the Company, to local public bodies with taxing authority. 11. Purpose and Effect. The Bonds are to be issued, sold and delivered under the authority of the Act and all related actions and doctmients shall be in conformity therewith. The City intends this Agreement to be its official binding conanitment, pursuant to the terms hereof, to issue the Bonds up to $800,000 '- aggregate principal amount outstanding at any one time, and also to issue addi- tional Bonds if the Project costs exceeds such amount, and to expend the Bond proceeds to defray the costs of the Project. The City considers this Agreement to be an official action for all ,purposes of the Federal Income Tax Regulations. 12. Assignment. The Ccenpany shall have the right to assign the Agreement and its rights, privileges and duties hereunder with the consent of the City pro- vided that such assignee expressly assumes the obligations of the Conpany hereunder and provided the Co~any remains liable as guarantor of the performance of such assignee. . IN WITNESS WHEREOF, the City of West Memphis, Arkansas, acting pursuant to resolution of its City Council, has caused its name to be hereunto subscribed and the Company has caused its corporate name to be subscribed hereto by its duly authorized officer, all as of the year and date first above written. CITY OF WEST M~HIS, ARKANSAS ~~ . By: yor ARKANSAS DISTRIBUTING C~ANY By ; ~s -3-