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HomeMy WebLinkAboutResolutions - R-86-22 - 11/05/1986 - NIMED BondsAMENDING BOND RESOLUTION NO. R-86-22 of the CITY OF MCHENRY, ILLINOIS WHEREAS, pursuant to the authority contained in the Illinois Industrial Project Revenue Bond Act, Chapter 24, Sections 11-74-1 through 11-74-14, Illinois Revised Statutes, as supplemented and amended (the "Act"), the City of McHenry, Illinois (the "Issuer"), a municipality and body corporate and politic duly organized and existing under the Constitution of the State of Illinois, is authorized and empowered to issue its revenue bonds to finance the costs of an "industrial project" as defined in the Act; and WHEREAS, the Issuer on December 17, 1984 adopted its Resolution No. R-84-27 (the "Bond Resolution") authorizing and approving, among other things, the issuance and sale of the $2,000,000 principal amount City of McHenry, Illinois Economic Development Revenue Bond (NIMED Corp. Project) (the "Bond"), the proceeds of which were loaned to NIMED Corp., an Illinois not for profit corporation (the "Borrower"), pursuant to a Loan Agreement dated as of December 21, 1984 (the "Agreement") between the Issuer, as lender, and the Borrower, as borrower; and WHEREAS, the loan to the Borrower of the proceeds of the Bond was secured by the $2,000,000 Promissory Note (the "Note") of the Borrower issued under and pursuant to the Agree- ment; and WHEREAS, the Borrower has requested that the Issuer amend the Bond Resolution, the Agreement and related documents in order to permit the conversion of the interest rate borne on the Bond and the Note from a variable rate to a fixed rate; and WHEREAS, the Issuer desires to authorize and approve the issuance, execution and delivery of a form of Bond bearing interest at a fixed rate of 10%; and WHEREAS, the Issuer desires to approve its acceptance of a substitute Note bearing interest at a fixed rate equal to the rate on the Bond; and WHEREAS, Community Bank of Greater Peoria, as holder of the Bond, has consented in writing to the amendment of the Bond Resolution pursuant to the power granted to it .by Section 14 of said Bond Resolution and to the amendment of the Agreement pursuant to the power granted to it by Section 9.6 of the Agree- ment. NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF McHENRY, ILLINOIS, AS FOLLOWS: ARTICLE I DEFINITIONS Certain terms are defined in the Bond Resolution and the Agreement and such terms shall have the meanings ascribed to them therein unless the context requires otherwise and except to the extent the definitions of such terms have been supplemented as provided herein. The foregoing notwithstanding, the word "Code" when used herein shall mean the Internal Revenue Code of 1986, as amended and supplemented from time to time. ARTICLE II AMENDMENTS SECTION 2.1. AMENDMENT OF SECTION 3(b). Section 3(b) of the Bond Resolution is amended by deleting such section in its entirety, and in lieu thereof inserting the following: "(b) Prepayment of Bond. The Bond is subject to prepayment, in whole or in part (but if in part, then in multiples of $1,000), at the option of the Borrower, at any time, at a prepayment price of 100% of the principal amount thereof plus accrued interest to the prepayment date and without premium. The Borrower shall give the Issuer and the Bank notice of any such prepayment at least 3 business days prior to the prepayment date. Upon any partial prepayment of the Bond, the Amortization Schedule attached thereto shall be amended to provide that the principal amount remaining to be paid on the Bond after taking into account such prepayment will be amortized by monthly payments commencing with the 15th day of the next succeeding month and continuing until the 15th day of January, 2010, based on a level debt service basis. Such amended Amortization Schedule shall be prepared by an independent third party selected by the Borrower and acceptable to the Issuer and the holder of the Bond." -2- SECTION 2.2. AMENDMENT OF SECTION 4. Section 4 of the Bond Resolution is amended by deleting such section in its entirety and inserting in lieu thereof the following: "BOND FORM Section 4. The Bond shall be in substantially the following form: THIS BOND MAY BE TRANSFERRED ONLY AS A WHOLE UNITED STATES OF AMERICA STATE OF ILLINOIS COUNTY OF MCHENRY CITY OF MCHENRY, ILLINOIS ECONOMIC DEVELOPMENT REVENUE BOND (NIMED CORP. PROJECT) . $1,965,563.13 The City of McHenry, Illinois, a municipality and body corporate and politic duly organized and existing under the Constitution of the State of Illinois (the "Issuer"), for value received, promises to pay, solely and only from the source and in the manner and as hereinafter provided, to Community Bank of Greater Peoria, (the "Bank") or registered assigns thereof as noted on the Registration Schedule appended hereto, the principal sum of: One Million, Nine Hundred Sixty -Five Thousand, Five Hundred Sixty -Three and 13/100 Dollars $1,965,563.13 and to pay interest thereon (calculated on the basis of a 360 day year for actual days elapsed) at the fixed rate of ten percent (10%) per annum, such principal and interest to be paid in two hundred seventy-nine (279) consecutive equal monthly installments in the amount of $18,174.01 on the fifteenth day of each calendar month commencing November 15, 1986. -3- Notwithstanding the foregoing, in the event of a Determination of Taxability (as hereinafter defined), this Bond shall bear interest from the Taxable Date (as defined in the Agreement) on the unpaid principal balance hereof at a fixed rate of twelve percent (12%) per annum. The following terms, as used in this Bond, shall have the following meanings: "Act" means the Illinois Industrial Project Revenue Bond Act, Chapter 24, Sections 11-74-1 through 11-74-14, Illinois Revised Statutes, as supplemented and amended. "Borrower" shall mean NIMED Corp., an Illinois not for profit corporation, and its successors and assigns. "Business Day" means a day on which national and state banks in Illinois are open for the general conduct of business. "Determination of Taxability" means the occurrence of any of the following: (i) Any proposed deficiency letter shall be issued to any Bondholder by the Internal Revenue Service stating in effect that any payment of interest on this Bond or any amount in respect of interest on this Bond, as a whole or in part, is includable in such Bondholder's federal gross income, and a complete copy of such proposed deficiency letter shall be given to the Borrower by the Bondholder; or (ii) Any amendment, modification, addition or change shall be made in Section 103, Section 144, Section 148 or any other provision of the Internal Revenue Code (the "Code") after the date hereof or in any regulation or proposed regulation thereunder; or any ruling shall be issued or revoked by the Internal Revenue Service, or any other action shall be taken by the Internal Revenue Service, the Department of Treasury or any other governmental agency, authority or instrumentality; or any opinion of any federal court or of the United States Tax Court shall be rendered, and (x) the holder hereof shall have notified the Borrower that bond counsel wholly satisfactory to such holder, as a result of any such event or condition, is unable to give an unqualified opinion that any payment of interest on this Bond or any amount in respect of interest on this Bond, as a whole or in part, made on or after a date specified in said notice is excludable from a Bondholder's federal gross income (other than a qualification with respect to the inclusion of such interest in the calculation of an alterna- tive minimum tax) and (y) within 30 days after the notice -4- given to the Borrower of any occurrence herein described, the Borrower shall not have delivered an unqualified opinion of other bond counsel wholly satisfactory to the holder hereof addressed to such holder to the effect that any payment of interest on this Bond or any amount in respect of interest on this Bond, as a whole, is and will be excludable from such Bondholder's federal gross income (except for the purpose of calculating an alternative minimum tax). This Bond shall bear interest on any overdue install- ment of principal and (to the extent that the payment of such interest shall be legally enforceable) on any overdue installment of interest at a rate of 12% per annum. Both principal hereof and interest hereon are payable in immediately available funds at or before 11 A.M. Chicago time at the principal office of the Bank, in East Peoria, Illinois. This Bond is issued in the principal sum of $1,965,563.13 pursuant to the Act and to a Bond Resolution duly adopted by the City Council of the Issuer on December 17, 1984 and an Amending Bond Resolution adopted by the City Council of the Issuer on November 5, 1986 (as so amended, the "Bond Resolution") for the purpose of providing funds to finance the cost of acquiring, constructing and equipping a professional arts building located in McHenry, Illinois (the "Project"), to the end that the Issuer may be able to encourage economic development within the City of McHenry. The proceeds of the Bond will be loaned by the Issuer to the Borrower for payment of part of the costs of acquisition, construction and equipping of the Project, under the terms of a Loan Agreement dated as of December 21, 1984, as amended by a First Supplemental Loan Agreement dated as of November 1, 1986 (such Loan Agreement, as amended, is herein- after referred to as the "Agreement"). This Bond is secured by a pledge and assignment of revenues and receipts derived by the Issuer pursuant to the Agreement, the Note issued by the Borrower and a Mortgage and Security Agreement, as amended, and an Assignment of Rents and Leases, as amended, on the Project, as more fully described in the Bond Resolution. Reference is made to the Bond Resolution for a description of the provisions, among others, with respect to the nature and extent of the security, the rights, duties and obligations of the Issuer, the rights of the owner of this Bond, and the terms on which this Bond is or may be issued and to all the provisions of which the owner hereof by the acceptance of this Bond assents. Voluntary prepayments may be made on this Bond by the Borrower on behalf of the Issuer on the terms and in the manner -5- and amounts as provided in the Bond Resolution. Upon any partial prepayment of this Bond, the Amortization Schedule attached hereto shall be amended to provide that the principal amount remaining to be paid on this Bond after taking into account such prepayment will be amortized by monthly payments commencing with the 15th day of the next succeeding month and continuing until the 15th day of January, 2010, based on a level debt service basis. Such amended Amortization Schedule shall be prepared by an independent third party selected by the Borrower and acceptable to the Issuer and the holder of the Bond. This Bond is issued pursuant to and in full compliance with the laws of the State of Illinois. This Bond and the obligation to pay interest hereon are limited obligations of the Issuer, secured by the Agreement, the Note of the Borrower delivered pursuant to the Agreement, the Mortgage and Security Agreement, as amended, and the Assignment of Rents and Leases, as amended, and payable solely out of the revenues and receipts derived by the Issuer under the Agreement and otherwise as provided in the Bond Resolution and the Agreement. This Bond and the obligation to pay interest hereon shall not be deemed to constitute an indebtedness or a loan of the credit of the Issuer, the State of Illinois or any political subdivision thereof, or a charge against their general credit or taxing powers, within the meaning of any constitutional or statutory provision of the State of Illinois. Pursuant to the provisions of the Agreement, payments sufficient for the prompt payment when due of the principal installments of and interest on this Bond are to be paid by the Borrower to the Bank and deposited in a special account designated "City of McHenry, Illinois Economic Develop- ment Revenue Bond (MIMED Corp. Project) Bond Fund", and all revenues and receipts under the Agreement have been duly pledged and assigned to the Bank to secure payment of such principal installments and interest. IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all acts, conditions and things required by the Constitution and laws of Illinois to happen, exist and be performed precedent to and in the issuance of this Bond have happened, exist and have been performed in due time, form and manner as required by law. WE IN WITNESS WHEREOF, the City of McHenry, Illinois, by its City Council, has caused this Bond to be signed on its behalf by its Mayor and attested by its City Clerk and the corporate seal of said City to be affixed hereto, all as of , 1986. ATTEST: (SEAL) City Clerk CITY OF MCHENRY, ILLINOIS By Its: Mayor REGISTRATION SCHEDULE Date of Registration Name of Registered Owner SECTION 2.3. AMENDMENT OF SECTION 7. Section 7 of the Bond Resolution is amended by deleting such section in its entirety, and in lieu thereof inserting the following: Section 7. [Reserved]. SECTION 2.4. AMENDMENT OF SECTION 8. Section 8 of the Bond Resolution is amended by deleting such section in its entirety, and in lieu thereof inserting the following: Section 8. [Reserved]. SECTION 2.5. AMENDMENT OF SECTION 9. Section 9 of the. Bond Resolution is amended by deleting such section in its entirety and inserting in lieu thereof the following: "The Issuer agrees that it will direct the Borrower to make all payments on the Note directly to the Bank or any other holder of the Bond. -7- With respect to Section 148 of the Code, the Borrower has made certain certifications and representations to the Issuer in Section 3.6 of the Agreement, which certifications and representations by this reference are incorporated herein and made a part hereof and the Issuer, acting in reliance on such certifications and representations, adopts and ratifies such certifications and representa- tions as of November 11, 1986 and hereby covenants with the purchaser and any owner of the Bond that so long as any principal installment of the Bond remains unpaid, the Issuer will not take or authorize the taking of any action which will cause the Bond to be classified as an "arbitrage bond" within the meaning of Section 148 of the Code and any lawful regulations promulgated or proposed thereunder, including Section 1.103-13 and Section 1.103-14 of the Income Tax Regulations as the same presently exist, or may from time to time hereafter be amended, supplemented or revised." SECTION 2.6. AMENDMENT OF SECTION 15. Section 15 of the Bond Resolution is amended by deleting such section in its entirety, and inserting in lieu thereof the following: "Section 15. All rights and obligations of the Issuer and the Borrower under the Agreement, the Bond, the Bond Purchase Agreement and this Bond Resolution shall terminate and such instruments shall cease to be of further effect, and the Bank shall cancel the Bond, deliver it to the Issuer, and deliver a copy of the cancelled Bond to the Borrower, and shall assign and deliver to the Borrower any moneys in the Bond Fund required to be paid to the Borrower under Section 6 hereof (except moneys held by the Bank for the payment of principal of or interest on the Bond) when: (a) all expenses of the Issuer and the Bank incurred in connection with the Bond shall have been paid; (b) the Issuer and the Borrower shall have performed all of their covenants and promises in the Agreement, the Bond, the Mortgage, the Bond Purchase Agreement, the Assignment and in this Bond Resolution; and (c) all principal installments and interest on the Bond have been paid." ARTICLE III APPROVAL OF DOCUMENTS; EXECUTION OF NEW BOND The forms, terms and provisions of the First Supple- mental Loan Agreement dated as of November 1, 1986 between the Issuer and Borrower (the "First Supplemental Agreement"), the amended form of Note dated as of November 11, 1986, the First Supplemental Assignment and Security Agreement dated as of November 1, 1986 from the Issuer to the Bank (the "First Supple- mental Assignment"), the First Supplemental Mortgage and Security Agreement dated as of November 1, 1986 from the Borrower to the Issuer (the "First Supplemental Mortgage") and the First Supple- mental Assignment of Rents and Leases dated as of November 1, 1986 from the Borrower to the Issuer (the "First Supplemental Assignment of Rents") are approved and the Issuer shall enter into the First Supplemental Agreement and the First Supplemental Assignment in substantially the forms of each of such documents presented at this meeting, with such subsequent changes therein as shall be approved by the Mayor, as evidenced by his execution thereof. The Mayor is hereby authorized and directed to execute and deliver the First Supplemental Agreement, the First Supple- mental Assignment, the First Supplemental Mortgage and the First Supplemental Assignment of Rents and the City Clerk is hereby authorized and directed to affix the seal to and attest to the First Supplemental Agreement, the First Supplemental Assignment, the First Supplemental Assignment of Rents and the First Supplemental Mortgage. The form, terms and provisions of the amended form of Bond, as set forth in Section 2.2 hereof, are approved, with such changes therein as are not inconsistent herewith. The Mayor is hereby authorized and directed to execute the Bond, and the City Clerk is hereby authorized and directed to attest the Bond, and each is authorized to deliver the Bond. The seal of the Issuer is hereby authorized and directed to be affixed to the Bond. cm ARTICLE IV APPROVAL OF RELEASE OF MONEY ON DEPOSIT IN INTEREST RESERVE FUND The City approves the release by the Bank to the Borrower of all amounts on deposit in the Interest Reserve Fund established by Section 7 of the Bond Resolution. ARTICLE V RATIFICATION OF BOND RESOLUTION In all respects not inconsistent with the terms and provisions of this Amended Bond Resolution, the Bond Resolution, as hereby amended, is ratified, approved and confirmed. Passed and approved at a regular meeting of the Mayor and City Council of the City of McHenry, Illinois held on the 5th day of November, 1986. By: Wi I liAoJ. sse Its Mayor ATTEST: By: Barbara E. Gilpin/ Its City Clerk -10- I do further certify that the deliberations of the City Council of the City of McHenry, Illinois on the adoption of said Amended Bond Resolution were taken openly; that the vote on the adoption of said Amending Bond Resolution was taken openly; that said meeting was held at a specified time and place convenient to the public; that notice of said meeting was duly given; and that said meeting was called and held in strict accordance with the provisions of all applicable open meeting laws, and that the Mayor and City Council have complied with all of the applicable provisions of said Act and its procedural rules in the adoption of said Amending Bond Resolution. IN WITNESS WHEREOF, I have hereunto affixed my official signature and the corporate seal of the City of McHenry, Illinois this 5th day of November, 1986. (SEAL) By �arara . i pi n Its City Clerk Doc