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0828,,.. ,Q -Z RESOLUTION N0. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WEST MEMPHIS AUTHORIZING THE EIVTFtY TN'I~0 AN AGREE[~lT TO ISSUE BONDS FOR THE PURPOSE OF SECURING AND DE~IELOPING INDUS- TRY P7ITHIN OR NEAR THE CITY. WHEREAS, the City of West P~nphis, 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 acquire, construct, and equip facilities to secure and develop industry and to assist in the financing thereof by the issuance of bonds payable from the revenues derived frcen such facilities; and WfIEREAS, CPS Chemical Company, Inc., of Old Bridge, New Jersey, has evidenced its interest, either directly or through a subsidiary corporation, in purchasing manufacturing facilities and constructing and equipping additional facilities within or near the City of West Memphis if the costs of the purchase of existing facilities and constructing and equipping additional facilities can be provided through the issuance of bonds under the authority of said Act; and WHEREAS, the City of West Memphis desires to assist CPS Chemical Corp. to accomplish such industrial activity, and to aid in the financing thereof under the provisions of said Act 9; and WHEREAS, i.t is desirable that the City of West Memphis enter into an Agreement to Issue Bonds for such purpose; N0P7, T~FORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WEST MEMPHIS, 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: ~~e ;;~: ~~ ~~ -""' ~' ~ ~0i30 r. AGRF~',MQ~rl' TO ISSUE BONDS THIS AG~VT is made as of February 1981, by and between the City of West Memphis, Arkansas, a municipal corporation under the laws of the State of Arkansas (herein called "City"), and CPS Chemical Ccs~q~any, Inc., a New Jersey corporation (herein, together with any subsidiary corporation, successor or assignee to its rights and duties hereunder, called "Company"), for the purpose of carrying out the purposes 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 purposes described herein, called the "Act"). W I T N E S S E T H: WHERE~IS, 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 WHERF~AS, the City has determined that such purposes may be served by cooperation with the Company for the purchase of industrial facilities and the construction and equipping of additions thereto within or near the City for the purpose of manufacturing and distributing chemical products, and for other industrial and cca~mercial purposes of the C~npany as may be profitable to it (such industrial facilities are herein called the "Project"); and WHEREAS, the City and the Company desire to cooperate in the ` acquisition, 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 $7,500,000 (excluding any bonds issued to refund the Bonds); and WI-~EAS, 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 together with other moneys available shall be sufficient to pay debt service on the Bonds and all related costs; NOV~], THEREFORE, 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 in 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 the Act. All references contained herein to the issuance of the Bonds, shall be subject to compliance with the formalities of the Act when the facts required to do so are determined. 2. Construction. The City and the Co~tpany will cooperate in causing to be camnenced and continued the required acquisition, construc- tion, re-construction, extension, equipping and improvement of the Project, and the Company may provide, or cause to be provided, the r`~ necessary interim financing to permit such work on the Project to c~t- mence 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 Ccenpany will convey and transfer or cause to be conveyed and transferred to the City, for an amount approx- imately equal to that then expended by the Ccenpany for the Project or portions thereof which are financed by the Bonds then issued (including at the Cca~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-way necessary to permit acquisi- tion, 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 Ccanpany 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 necessary 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 Cca~ipany of the purchaser(s) or underwriter(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 Ccanpany. The City further agrees that it will enter into the lease, and if required, an indenture of trust with a bank or trust ccenpany, 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 frcgn the proceeds of the Bonds, to pay the principal of, premium if any, and interest on the Bonds as they beccar~e 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~nents, and the Bonds shall contain such terms and conditions as are agreed upon by the City and the Cc~ipany. The City will cooperate in consummating the transaction so contemplated and in attempting to realize the desire of the parties hereto that the interest on all Bonds be exempt frcm Federal income 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 constitute 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 fran time to time, in such aggregate principal amount or amounts as the Canpany 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 regulations prcgnulgated 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-of-pocket expenses incurred by any employee of the City; fees and out-of-pocket expenses of counsel for the City, Rose Law Firm, a Professional Association of Little Rock, Arkansas, as bond counsel, 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 initial series of the Bonds .shall not be sold within three years from the date hereof, this Agreement shall automatically terminate unless the parties hereto shall agree in writing to its extension for a further period of time specified in such writing. The Canpany may unilaterally terminate this Agreement without liability to the City (except for any amounts due and awing by the Company to the City arising out of the transactions occurring on or before the time of such termination, which shall be promptly paid by the Company to the City) by giving notice by ordinary mail, postage prepaid, to the City specifying therein the date of termination which may be the date of the notice. 9. Protection to the City. The Ccanpany shall pay all of the City's costs and expenses reasonably and necessarily incurred in connection with this Agreement or any other related doctiument or instnunent. 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 matters in connection with this Agreement. 10. Payment in Lieu of Taxes. The City and the Company recognize that under decisions of the Supreme Court of Arkansas the Project will be exempt from ad valorem taxation. The Ccsmpany agrees, however, to enter into an agreement with the City for payments in lieu of taxes, in such amounts 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 docLUne_nts shall be in conformity therewith. The City intends this Agreement to be its official binding commitment, pursuant to the terms hereof, to issue the Bonds up to $7,500,000 aggregate principal amount outstanding at any one time, and also to issue additional 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. 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 MEMPHIS, ARKANSAS By: , ~~ i ATTEST: yor _~ 'ty Clerk (SEAL) CPS CHEMICAL COMPANY, INC. ATTEST: Secretary By: President (SEAL) 2. This Resolution shall be in full force and effect from and after its adoption. ADOPTED this ~_ day of ,~~,,`~,~~. 1981. ~~ Mayor ATTEST Cit