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HomeMy WebLinkAbout52-84 RESOLUTIONRESOLUTION NO. 52-84 . —0 WHEREAS, the City issued its $2,000,000 City of Fayetteville, Arkansas Industrial Development Revenue Bonds (Mexican Original Project), Series 1982, dated February 1, 1982 (the "Bonds"), for the purpose of financing an industrial project (the "Project"); and WHEREAS, the Project is being leased by the City to Tyson Foods, Inc. ("Tyson"), as successor to Mexican Original Products, Inc. ("Mexican Original"), pursuant to a Lease Agreement, dated February 1, 1982 (the "Lease"); and WHEREAS, the Lease gives Tyson the option to purchase the Project for a purchase price sufficient to make an adequate provision for the retirement of the Bonds; and . WHEREAS, the Bonds were issued pursuant to a Trust Indenture dated February 1, 1982 (the "Indenture") by and between the City and Worthen Bank So Trust Company, N.A. ("Worthen"); and WHEREAS, the Indenture provides for a release of the lien of the Indenture upon deposit with Worthen of moneys and/or government obligations adequate to provide for the payment as due of the principal and interest on the Bonds and to discharge the bther obligations of the City under the Indenture; and WHEREAS, Tyson desires to purcbaserthe Project and in furtherance of this purpose has requested eh City, to sell the Project to Tyson and Tyson is willing to deposit with Worthen, on behalf of the City, moneys and government obligations necessary to pay the principal of, premium, and interest on the Bonds at maturity or at redemption prior to maturity; and WHEREAS, such moneys and government obligations will be deposited with Worthen pursuant to an Escrow Agreement which has been presented to and is before this meeting; NOW THEREFORE, BE IT RESOLVED by the Board of Directors of the City of Fayetteville, Arkansas. Section 1. That there be and there is hereby authorized the execution and delivery of an Escrow Agreement, by and between the City, Worthen and Tyson (the "Escrow Agreement") and the Mayor and City Clerk be, and they are hereby authorized to execute and deliver the Escrow Agreement for and on behalf of the City. The Escrow Agreement is hereby approved in substantially the form submitted to this meeting, and the Mayor is authorized to confer with Tyson and Worthen in order to complete the Escrow 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 2. That the Mayor and City Clerk, for and on behalf of the City be, and they are hereby authorized to do any and all things necessary to effect the execution of the Escrow Agreement, the performance of the City's obligations under the Escrow Agreement, the execution and delivery of a bill of sale conveying the Project to Tyson and the performance of all other acts of whatever nature necessary to carry out the authority conferred by this Resolution. Section 3. That the provisions of this Resolution are hereby declared to be severable and if a section, phrase or provision shall be declared invalid, such declaration shall not affect the validity of the remainder of this Resolution. Section 4. That this Resolution shall be in full force and effect from and after its adoption. ADOPTED: Apri1117 , 1984. ATTEST: 1, - 7;,eo,s,"/ -2- • CERTIFICATE The undersigned, City Clerk of the City of Fayetteville, Arkansas, hereby certifies that the foregoing pages are a true and correct copy of Resolution No. 52-84 , adopted at a Regular session of the Board of Directors of the City of Fayetteville, Arkansas, held at the regular meeting place of the Board in said City at 7:30 o'clock p .m., on the 17th day of April 1984, and that the Resolution is of record in Resolution Record Book No. 1 Page now in my possession. GIVEN under my hand and seal this 17th day of April , 1984. -A(SEAWjhc i% • = 0, • AtApr—rl1/44-erig 1"TS !-.11 Zet)- ',..- -3- 1 • ESCROW AGREEMENT THIS AGREEMENT made this 18th day of April, 1984, by and among the City of Fayetteville, Arkansas (the "City"), Tyson Foods, Inc., an Arkansas corporation (the "Company"), and Worthen Bank & Trust Company, N.A., Little Rock, Arkansas (the "Escrow Agent"); WITNESSETH: WHEREAS, the City issued its $2,000,000 City of Fayetteville, Arkansas Industrial Development Revenue Bonds (Mexican Original Project), Series 1982, dated February 1, 1982 (the "Bonds") for the purpose of financing an industrial project consisting of facilities, machinery and equipment (the "Project") to be used by Mexican Original Products, Inc., an Arkansas corporation ("MexicanOriginal"); and WHEREAS, the Project was leased to Mexican Original pursuant to a Lease Agreement dated as of February 1, 1982 (the "Lease"), giving an option to Mexican Original to purchase the Project for a purchase price sufficient to retire, or make adequate provision for retirement of, the Bonds, upon .termination of the Lease; and WHEREAS, Mexican Original has been merged into the Company and the Company has assumed all rights and obligations of Mexican Original under the Lease and the Credit Agreement and Bond Guaranty (hereinafter identified); and WHEREAS, the Bonds were issued and are secured under and pursuant to a Trust Indenture dated as of February 1982, by and between the City and the Escrow Agent (the "Indenture"); and WHEREAS, Section 901 of the Indenture provides for the release of the lien of the Indenture upon the deposit with the Escrow Agent of moneys and/or "Goverment Obligations" (as therein defined) adequate to provide for the payment as due of the principal of, premium, if any, and interest on the Bonds and to discharge the other obligations of the City under the Indenture; and • WHEREAS, the payment of the Bonds is secured by Letter of Credit No. 821 of the Escrow Agent (the "Credit") pursuant to a Letter of Credit Agreement, dated as of February 1, 1982, by and among the City, Mexican Original and the Escrow Agent, in the capacity of Trustee and as Letter of Credit Issuer (the "Credit Agreement"); and 1 WHEREAS, Mexican Original and Mexican Original Transportation, Inc., an Arkansas corporation which has also been merged into the Company ("Mexican Transportation") guarantees payment of the Bonds pursuant to a Bond Guaranty, dated as of February 1, 1982 among the Escrow Agent, the City, Mexican Original and Mexican Transportation (the "Bond Guaranty"); and WHEREAS, the Company desires to purchase the Project and in furtherance of this purpose has requested the City to obtain the release of the lien of the Indenture pursuant to and in accordance with Section 901 of the Indenture and has deposited with the Escrow Agent, on behalf of the City, the moneys and investment securities necessary to provide for the payment as due of all principal of, premium, if any, and interest on the Bonds and all fees due the Escrow. Agent as Trustee and Paying Agent for the Bonds and for its services under this Agreement; and WHEREAS, the Company has requested the Escrow Agent to cancel the Credit and release its interest in the Project and related real property; NOW THEREFORE, in consideration of the mutual covenants and benefits herein set forth and for other valuable consideration, the receipt of which is hereby acknowledged by each party, the City, the Company, and the Escrow Agent agree as follows: 1. Escrow Fund. Simultaneously with the execution and delivery of this Agreement the Company has deposited with the Escrow Agent direct or fully guaranteed obligations of the United States of America ("Government Obligations") and cash. The Government Obligations and cash deposited with the Escrow Agent are described on Schedule I attached hereto. Such Government Obligations and cash and investments therefrom and investment earnings thereon shall constitute the "Escrow Fund" under this Agreement. 2. Fees to Escrow Agent. The Escrow Agent is Trustee and Paying Agent for the Bonds and shall pay to itself from the Escrow Fund the sum of $4,450 as a one-time fee for its services in such capacities and as Escrow Agent hereunder. -2- • 3. Application of Escrow Fund. The Escrow Agent will hold the Escrow Fund (including earnings thereon) in trust for the sole and exclusive benefit of the holders of the Bonds and shall apply the Escrow Fund solely to the payment of (a) principal of and interest on the Bonds as due at maturity, in accordance with the requirements of Schedule II attached hereto, (b) Trustee and Paying Agent fees in accordance with paragraph 2, (c) Escrow Agent fees in accordance with the provisions of paragraph 2, and (d) Principal of, premium and interest on all other outstanding Bonds which shall be called for redemption on February 1, 1987. The Escrow Agent shall withdraw from the Escrow Fund and apply to the payment of the principal of, premium, if any, and interest on the Bonds the amounts and at the times necessary to pay principal, premium, and interest as due in accordance with clauses (a) and (d) above. Schedule III attached hereto shows the availability and application of moneys in the Escrow Fund necessary to meet the requirements of this paragraph. 4. Further Investments and Reinvestments; With- drawals from Escrow Fund. (a) The Escrow Agent shall make no further investment or reinvestment of, or withdrawals from, the Escrow Fund except as expressly authorized by paragraph 3 or by subparagraph (b) of this paragraph 4. (b) The Escrow Agent may from time to time, upon the written request of the Company, (1) invest any cash then on deposit in the Escrow Fund in Government Obligations, (2) permit the Company to substitute other Government Obligations or cash for any Government Obligations or cash then in the Escrow Fund, or (3) permit the Company to withdraw any cash or Government Obligations from the Escrow Fund, without substitution, provided in each instance of such investment, substitution, or withdrawal the Escrow Agent shall have previously obtained (a) an opinion of an independent certified public accountant that the investment, substitution or withdrawal will not adversely affect the availability of moneys in the Escrow Fund at times and in amounts sufficient to Meet the required payments provided for in paragraph 3 and (b) an opinion of bond counsel that the investment, substitution or withdrawal will not adversely affect the tax exemption of interest on the Bonds; provided, however, that moneys in the Escrow Fund which result from payment of principal and • • interest on the Government Obligations on or before each principal and interest payment date on the Bonds may be reinvested in Government Obligations which mature on or before the next principal and interest payment date on the Bonds without such opinions so long as the yield on such Government Obligations does not exceed the "yield" on the Bonds within the meaning of Section 103(c) of the Internal Revenue Code of 1954, as amended. 5. Agreements on the Part of the Escrow Agent and the City. The Escrow Agent agrees to cause the Credit to be cancelled. The Escrow Agent and the City agree to release, and do hereby release, the Company from its obligations under the Bond Guaranty and the Credit Agreement. The Escrow Agent agrees to timely publish and mail notice for the redemption of Bonds on Februrary 1, 1987 in accordance with the terms of the Indenture. ' 6. Escrow Agent to Remain in Office. The Escrow Agent agrees to remain in office until all of the Bonds,have been retired and to accept as full compensation for its services hereunder, and its services as Trustee and Paying Agent for the Bonds the fees provided for in paragraph 2. 7. Remaining Balance. Any balance remaining in the Escrow Fund after retirement of all Bonds and the payment of all fees due the Escrow Agent, shall be paid to the Company. 8. Miscellaneous. This Agreement shall be irrevocable and the agreements herein set forth shall be strictly performed and enforced. Except for the purpose of curing any ambiguity herein or of further assuring the security and rights hereunder of the holders of the Bonds, this Agreement shall not be modified, altered or amended by the parties hereto without the prior written consent of the holders of all of the outstanding Bonds. If for any reason the Escrow Fund is insUfficient to pay the principal of, premium, if any, and interest on the Bonds when due (at maturity or at redemption prior to maturity), the Company agrees to pay to the trustee the amount of such deficiency. -4- • IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the year and date first above written. ATTEST: CITY OF FAYETTEVILLE, ARKANSAS By gaiii Mayo TYSON FOODS, INC. By thorized Officer i/P (Title) WORTHEN BANK & TRUST COMPANY, N.A. Little Rock, Arkansas ,Z42, V CE SIDENT ut °ridded Officer CORM= TRUST OFPICEI (Title) -5-