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HomeMy WebLinkAboutResolutions - RS-97-12 - 04/02/1997 - Bonds for HFK IncRESOLUTION NO. =27-12 A RESOLUTION PROVIDING FOR THE FINANCING BY THE CITY OF MCBEi'.TRY, ILLINOIS OF AN INDUSTRIAL PROJECT CONSISTINGr OF THE ACQUISITION AND CONSTRUCTION OF AN INDUSTRIAL FACILITY AND ACQUISITION OF EQUIPMENT AND RELATED PROPERTY BY 910 TOWER BUILDING PARTNERSHIP AND OZ LEASING PARTNERSHIP (COLLECTIVELY, THE "OBLIGOR"); AUTHORIZING THE ISSUANCE QF ITS NOT TO EXCEED S4,000,000 VARIABLE RATE DEMAND INDUSTRIAL DEVELOPMENT REVENUE BONDS, SERIES 1997 (910 TOWER BUILDING PARTNERSHIP PROJECT) IN CONNECTION THEREWITH; AUTHORIZING THE EXECUTION AND DELIVERY OF A LOAN AGREEMENT BETWEEN THE CITY OF MCHENRY, RLLINOIS AND THE OBLIGOR; AUTHORIZING TI1.EXECUTION A_ID DELIVERY OF A TRUST INDENTURE SECURING SAID BONDS; AND RELATED MATTERS. WHEREAS, the City of McHenry, Illinois, a unit of local government existing under the Constitution and the laws of the State of Illinois (the "Issuer") is authorized and empowered by the - provisions ofithe industrial Project Revenue Bond Act, 65 ILCS 5/11-74-1 eI q., as from timc to time supplemented and amended (the "Act") to issue its revenue bonds to finance the costs of any industrial building project to the end that the Issuer miy be able to relieve conditions of unemployment, to maintain existing levels of employment and to encourage the increase of industry and commerce within the Issuer, thereby reducing the evils attendant upon unemployment and provide for the public safety, benefit and welfare of the residents of the Issuer; and WHEREAS, as a result of negotiations among the Issuer, 910 Tower Building Partnership, an Illinois general partnership ("910 Partnership") and Oz Leasing Partnership, an Illinois general partnership ("Oz Partnership") (910 Partnership and Oz Partnership are jointly and severally liable under the documents to which they are a party, and are hereinafter collectively referred to as the "Obligor "),; the Obligor has provided for financing of the cost of acquiring and constructing an approximately 65,000 square foot manufacturing facility to be located in the McHenry Corporate Center at Ridgeway Drive in McHenry, Illinois and acquiring various equipment for use therein (the "Project"), which constitutes an industrial project under the Act, and the Issuer is willing to issue its revenue bonds to finance the cost of the Project and to enter into a loan agreement with the Obligor upon terms which will produce revenues and receipts sufficient to provide for the prompt payment at maturity of the principal and interest on such revenue bonds, all as set forth in the details and provisions of the Loan Agreement as hereinafter identified; and WHEREAS, it is necessary and proper for the Issuer for the benefit of the inhabitants within the City of McHenry to authorize the financing of the Project and the issuance of the Doer's Variable Rate Demand Industrial Development Revenue Bonds, Series 1997 (910 Tower Building Partnership Project) in the aggregate principal amount of not to exceed $4,000,000 (the "Bonds"); and WHEREAS, Robert W. Baird & Co. Incorporated (the "Underwriter") has indicated its willingness to purchase the Bonds; and Virl`lEYZEAS, it is necessary to authorize the execution of a Loan Agreement between the Issuer and the Obligor under the terms of which the Issuer wtll lend the proceeds of the sale of the Bonds to the Obligor to reimburse the Obligor for the financing of the costs of the Project, the payments to be paid by the Obligor to the Issuer in repayment of the loan to be sufficient to pay at maturity the principal of, premium, if any, and interest on the.Bonds; and WHEREAS, it is necessary for the Issuer to execute and deliver a Trust Indenture to Firstar Trust Company, as Trustee (the "Trustee") for the holders from time to time of the Bonds pursuant to which the Bonds will be issued, and WIMREAS, Amore Bank N.A., Rockford (the "Bank") will issue an Irrevocable Transferable Letter of Credit to the Trustee (the "Letter of Credit"); and - 2 - WHEREAS, a preliminary Official Statement (the "Official Statement") has been prepared and presented to this meeting; and VAi EREAS, it is necessary for the Issuer to enter into the hereinafter described Bond Purchase Agreement with the Underwriter; and WHEREAS, it is necessary for the Issuer to enter into the hereinafter described Tender Agent Agreement with the Trustee and the Underwriter; and Va-WREA$, there have been prepared and presented to this meeting the following documents, which the Issuer proposes to enter into: 1.': The Loan Agreemem dated as of April 1, 1997, among the Issuer and the Obligor (the "Loan Agreement"). The Trust Indenture dated as of April 1, 1997 (the "Indenture"), between the Issuer and the T ustbe, setting forth terms, conditions and security requirements for the proposed bond issue to financ6 tha Project and containing the form of the Bonds; 3, The Bond purchase Agreement (the 'Bond Purchase Agreement") between the Issuer and the Underwriter and approved by the Obligor; 4.1 The Tender Agent Agreement dated as of April 1, 1997 (the "Tender Agent Agreement") among the Issuer, the Trustee and the Underwriter; and VVNMREAS, the Issuaheld a Public Hearing pursuant to Section 147(#) of the Internal dde of 1986; as amended, on April 2, 1997; Revenue]C NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF MCHENRY, MCHENRY COUNTY, ILLINOIS, AS FOLLOWS: 3 - Sgction 1. That the form, terms and provisions of the proposed Loan Agreement and Indenture be, and they hereby are, in all respects approved, and that the Mayor and the City Clerk of the Issuer be, and they are hereby authorized, empowered and directed, subject to the terms and conditions of the Loan Agreement and the Indenture, to executie and deliver such instruments in the name and on 'behalf of the Issuer, to cause the Loan Agreement to be delivered to the Obligor and to cause the Indenture to be delivered to the Trustee; that the Indenture shall constitute a lien for the security of the Bonds and upon all right, title and interest of the Issuer in and to the Loan Agreement (except for the Reserved Rights of the Issuer, as defined in the Loan Agreement) and in and to the payments, revenues and receipts payable to the Issuer pursuant to the Loan Agreement (except for paymenn tpvernics and roocipts;of the Issuer derived pursuant to its Reserved;Rights), and said revenues lare heresy and in the Indenture pledged for such purpose; that the Loan Agreement and the Indenture art to be in substantially the form presented at this meeting and are hereby approved, with such changes therein as shall be required or approved by counsel to the Issuer and approved by the officials of the Issuer executing the same, their execution thereof to constitute conclusive evidence of their approval of any and all changes or revisions therein from the forms of the Loan Agreement and the Indenture presented at this meeting and hereby approved; that the Loan Agreement shall be entered into with the Obligor and the Indenture shall be entered into with the Trustee; and that from and after the execution and delivery of such instruments, the officials, agents and employees of the Issuer are hereby authorized, empowered and directed to do all such acts and things and to execute all such documents as may be necessary to carry out and comply with the provisions of such instruments as executed. - 4 - Section 2. That the form, terms and provisions of the proposed Bond Purchase Agreement and Tender Agent Agreement, copies of which are before this meeting, be, and they hereby are, in all respects approved, and that the Mayor and the City Clerk of the Issuer be, and they hereby are, authorized, empowered and directed, subject to the terms and conditions of the Loan Agreement and the Indenture, to execute the Bond Purchase Agreement and the Tender Agent Agreement in the name and behalf of the Issuer and thereupon to cause (i) the Bond Purchase Agreement to be delivered to the Underwriter and (i) the Tender Agent Agreement to be delivered to the Trustee and the Underwriter, that the Bond Purchase Agreement and the Tender Agent Agreement are to be in substantiolly Che respective forms presented at this meeting and hereby approved, with such changes therein ag shall be required or approved by counsel to the Issuer and approved by the officials of the Issuer exerting the same, their execution thereof to constitute conclusive evidence of their approval of any and all changes or revisions therein from the form of such instrument hereby approved; that (a) the Along Purchmc Agreement shall be entered into with the Underwriter and (b) the Tender Agent Agreement shall be entered into with the Underwriter and the Trustee; and that from and after the exect#iori and delivery of such instruments, the officials, agents and employees of the Issuer are hereby authorized, empowcnd and directed to do all such acts and things necessary to carry out and comply *ith'the provisions of such instruments as executed. SaW 3. That, subject to the terms and conditions of the Loan Agreement, the issuance of the Bonds in the aggregate principal amount of not to exceed $4,000,000 to mature and with the interest fates to be at the Weekly Rate or the Fixed Rate, as determined from time to tirne in accordance 'with the Indenture, is hereby approved and the Mayor and the City Clerk of the Issuer be and arie h=by authorized, empowered and directed to cause to be prepared the Bonds in the form - 5 - and havinS the other terms and provisions specified in the Indenture (as executed and delivered); that the Bonds shall be executed in the name of the Issuer with the manual or facsimile signature of its Mayor and the manual or facsimile signature of its City Clerk and the seal of the Issuer shall be impressed or reproduced thereon, and that the Mayor of the City Board or any other officer of the Issuer shall cause the Bonds, as so executed and attested, to be delivered to the Trustee for authentication and the 'trustee is hereby requested to authenticate the not to exceed $4,000,000 aggregate principal amount of Bonds; and the forms of the Bonds attached to the Indenture, subject to appropriate insertions in order to comply with the provisions of said Indenture be, and the same hereby is approved, and when the same shall be executed on behalf of the Issuer in the manner contentpl6e& by the Indenture and this Resolution in the aggrepte principal amount of'not to exceed $4,000,0t}0,-'it shalt represent the approved form of the Bonds of the Issuer. Section 4. That the distribution and use of the Official Statement presented at this meeting (with sut h changes therein as shall be required or approved by counsel to the Issuer) by the Underwniter is hereby approved, and the distribution and use of a Final Official Statement (in substantillly the form of the Official Statement but with appropriate variations to reflect the final terms of'the Loan Agreement, the Indenture, the Bonds, the Bond Purchase Agreement and the Letter of Credit) is hereby authorized and the Mayor is authorized, empowered and directed to execute the same; provided, however, that the distribution and use of the Official Statement and the Final Oflacial Statement, and the Issuer's authorization and the execution of same, does not constitute a represeittation or approval by the Issuer of the accuracy or sufficiency of any information contained in the Official Statement or the Final Official Statement except to the extent of the information contained under the heading "THE ISSUER." 6 - Section 5. That the sale of the Bonds, upon the terms and conditions set out in the Official Statemeit the Loan Agreement and the Indenture, be, and is, in all respects authorized and approved. Section 6. That from and after the execution and delivery of the Loan Agreement, the Indenture the Bond Purchase Agreement and the Tender Agent Agreement, the proper officials, agents and employees of the Issuer are hereby authorized, empowered and directed to do all such 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 to further the purposes and intent of this Resolution, includingthe',preamble hereto. Scction 7: That all acts and doings of the officials of the Issuer which are in conformity with the purposes' and intent of this Resolution and in furtherance of the issuance and sale of the Bonds in the aggregate principal amount of not to exceed $4,000,000 and the financing of the Project to that amount bie, and the same hereby are, in all respects, approved and confirmed. Suction $. No pledge, agreement covenant, representation, obligation or undertaking by the Issuer contained in this Resolution and no other pledge, agreement, covenant, representation, obligation or undertaking by the issuer contained in any document executed by the Issuer in connection with the Project or the Bonds shall give rise to any pecuniary liability of the Issuer or charge against its general credit, or shall obligate the Issuer financially in any way, except out of payments to be made by the Obligor under the Loan Agreement other than payments to be made by the Obligor pursuant to the issuer's Reserved Rights (as defined in the Loan Agreement). No failure of the Issuer to comply with any term, condition, covenant, obligation or agreement herein shall subject the Issuer to liability for any claim for damages, costs or other financial or pecuniary charge except to the extent the same is paid by the Obligor, and no execution of any claim, demand, cause - 7 - of action or judgment shall be levied upon or collected from the general credit, general funds or other property of the Issuer. The principal of, premium, if any, and the interest on the Bonds are special limited obligations of the Issuer; No owner of the Bonds has the right to compel any exercise of the taxing power of the Issuer, the State of Illinois or any political subdivision thereof to pay the Bonds or the interest or the premium,';if any, thereon. The Bonds do not and shall never constitute or give rise to any pecuniary liability of the Issuer or a charge against its general credit or taxing powers. The Bonds do not and shall never constitute or evidence an indebtedness of the Issuer, the State of Illinois or any political subdivision thereof or a loan of credit thereof within the meaning of any constitutional or statutory provision. Section 9_. That a public hearing pursuant to Section 147(f) of the Code relating to the issuance of the Bonds was held on April 2, 1997 and, subject to the terms and conditions of the Loan Agreement and the Indenture, the issuance of the Bonds is hereby approved. SCglio 10. That the Issuer hereby elects to have the provisions of Section 144(a)(4)(A) of the IntemW Revenue Code of 1986, as amended, apply to the hereinabove described bond issue and hereby affirmatively notes said election in this Resolution. Section 11. That the Bonds shall be issued in compliance with and under the authority of the provisions of the Act, this Resolution and the Indenture. Section 12. The obligation of the Issuer to issue and deliver the Bonds is subject to the availability for such purpose of a necessary and sufficient cap allocation under Section 146 of the Internal Revenue Code of 1986, as amended. - 8 - S=ion J,. That the provisions of this Resolution are hereby declared to be separable, and if any section, phrase or provision shall, for any reason, be declared to be invalid, such declaration shall not affect the! validity of the remainder of the sections, phrases or provisions; provided, however, that no holding of invalidity shall require the Issuer to make any payments from revenues other than the proceeds';derived from the We of the Bonds issued under the Indenture and the proceeds derived from the Loan Agreement (except such proceeds as may be derived by the Issuer pursuant to its Reserved Rights, as defined in the Loan Agreement) or impose any personal liability on any director, member, elected or appointed officer, official, employee, attorney or agent of the Issuer. Section 14. This Resolution shall be in full force and effect from and after its passage and approval as provided by law. AYES: Bolger, Bates, Lawson, Baird. i NAYS: None. !ABSENT: Locke. P`ASSED'this 2"d day of April, 1997. APPROVED this 2' day of April, 1997. (SEAL) ATTEST: City Clerk ! i 104.1 f - 9 -