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HomeMy WebLinkAboutResolutions - R-85-61 - 11/20/1985 - Bonds for TyshenkoRESOLUTION NO. R-85-61 A RESOLUTION PROVIDING FOR THE FINANCING BY THE CITY OF MCHENRY, MCHENRY COUNTY, ILLINOIS, OF AN INDUSTRIAL PROJECT; AUTHORIZING THE ISSUANCE OF A $1,750,000 INDUSTRIAL DEVELOPMENT REVENUE BOND, SERIES 1985 (MCHENRY MOTEL PROJECT) AND CONFIRMING THE SALE THEREOF; AND AUTHORIZING THE EXECUTION AND DELIVERY OF A LOAN AGREEMENT, A MORTGAGE AND SECURITY AGREEMENT, AN INDENTURE OF TRUST, A BOND PURCHASE AGREEMENT AND RELATED DOCUMENTS. WHEREAS, the City of McHenry, McHenry County, Illinois (the "Issuer"), pursuant to Illinois Revised Statutes 1983. Chapter 24, Section 11-74-1 et seq., known as "The Industrial Project Revenue Bond Act", as supplemented and amended (the "Act"), is authorized and empowered to issue its industrial development revenue bonds to finance the costs of "industrial projects" as defined therein for the purpose of relieving con- ditions of unemployment, maintaining existing levels of employ- ment, encouraging the increase of industry within Illinois and increasing the tax base of the Issuer; and WHEREAS, the Issuer, by resolution duly adopted on June 3, 1985, entered into a Memorandum of Agreement with John Tyshenko, a resident of Lake Geneva, Wisconsin and the McHenry Area Economic Development Commission, Inc., an Illinois corporation, regarding the issuance of its industrial development revenue bonds for the purpose of constructing an industrial project; and WHEREAS, as a result of negotiations between the Issuer and John Tyshenko, contracts have been or will be entered into by McHenry State Bank (the "Land Trustee"), as trustee under Trust Number 3428, of which John Tyshenko and Tammy Tyshenko, his wife, are the owners of 100% of the beneficial interest, for the acquisition, construction and equipping of a motel and related facilities (the "Project") within the boundaries of the Issuer and the Project to be owned by the Land Trustee and leased to and operated by Tyshenko, Inc., an Illinois corporation, as a motel and related facilities, and which Project will be of the character, will accomplish the purposes provided by the Act and will be used as an industrial project; and WHEREAS, it is proposed that the Issuer shall enter into a Loan Agreement with the Land Trustee pursuant to which the Issuer shall lend the Land Trustee a sum sufficient, together with other moneys of the Land Trustee, to accomplish the acquisition, construction and equipping of the Project, and the Issuer is willing to issue its industrial development revenue bond to finance the Project upon terms which shall be sufficient to pay all or a portion of the cost of the acquisition, construction and equpping of the Project, as evidenced by such industrial development revenue bond, all as set forth in the de- tails and provisions of said Loan Agreement; and WHEREAS, it is estimated that the costs of the Project, including costs relating to the preparation and issuance of the industrial development revenue bond hereinafter authorized, will be not less than $1,750,000; and WHEREAS, the financing of the Project will further the purposes of the Act; and WHEREAS, the Issuer proposes to sell the industrial development revenue bond hereinafter authorized and designated "City of McHenry, Illinois, Industrial Development Revenue Bond, Series 1985 (McHenry Motel Project)" in the principal amount of $1,750,000 (the "Series 1985 Bond") upon a negotiated basis to McHenry State Bank, McHenry, Illinois, and the Series 1985 Bond will be issued pursuant to an Indenture of Trust dated as of November 1, 1985, from the Issuer to McHenry State Bank, McHenry, Illinois, as Trustee (the "Trustee"); and WHEREAS, the Issuer has caused to be prepared and pre- sented to the members of the City Council the following documents which the Issuer proposes to approve the terms of or enter into: 1. The form of the Loan Agreement dated as of November 1, 1985, by and between the Issuer and the Land Trustee (the "Agreement"); 2. The form of the Mortgage and Security Agree- ment dated as of November 1, 1985, by and between the Land Trustee and the Issuer (the "Mortgage"); 3. The form of the Indenture of Trust dated as of November 1, 1985, from the Issuer to the Trustee (the "Indenture''), setting forth the terms, conditions and security requirements for the proposed bond issue to fi- nance all or a portion of the cost of constructing the Project; 4. The form of the Series 1985 Bond; and -2- 5. The form of the Bond Purchase Agreement (the "Bond Purchase Agreement") dated as of November 1, 1985, by and between the Issuer and McHenry State Bank, McHenry, Illinois (the "Purchaser"); and WHEREAS, it appears that each of the instruments above referred to, which are now before this meeting, is in appropriate form and is an appropriate instrument to be approved, or executed and delivered, by the Issuer for the purposes intended; NOW, THEREFORE, Be It and It Is Hereby Resolved by the City Council of the City of McHenry, McHenry County, Illinois as follows: 1. That the Issuer is a municipal corporation duly incorporated and validly existing under the Con- stitution and laws of the State of Illinois and is not a home rule unit under the provisions of the Illinois Constitution of 1970. That this Resolution is adopted pursuant to and in accord with the Act. 2. That the form, terms and provisions of the Agreement be, and they hereby are, in all respects ap- proved, and that the Mayor and the City Clerk of the Issuer be, and they are hereby, authorized, empowered and directed to execute, acknowledge and deliver the Agreement in the name and on behalf of the Issuer, and thereupon to cause the Agreement to be executed, acknowledged and delivered by the Land Trustee; that the Agreement is to be in substantially the same form now before this meeting and hereby approved, or with such changes therein as shall be approved by the officers 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 form of Agreement now before this meeting; and that from and after the execution and delivery of the Agreement, the officers, 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 the Agreement as executed, including the endorsement of the promissory note of the Land Trustee issued there- under (the "Note") by the Issuer to the order of the Trustee. 3. That the form, terms and provisions of the Mortgage 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 -3- and directed to execute, acknowledge and deliver the Mortgage in the name and on behalf of the Issuer, and thereupon to cause the Mortgage to be executed, acknow- ledged and delivered by the Land Trustee; that the Mortgage is to be in substantially the same form now before this meeting and hereby approved, or with such changes therein as shall be approved by the officers 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 form of Mortgage now before this meeting; and that from and after the execution and delivery of the Mortgage, the officers, 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 the Mortgage as executed. 4. That the form, terms and provisions of the In- denture 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 to execute, acknowledge and deliver the Indenture in the name and on behalf of the Issuer, and thereupon to cause the Indenture to be executed, acknow- ledged and delivered by the Trustee, and the Indenture shall constitute an assignment and pledge for the secur- ity of the Bonds issued thereunder of the revenues and income to be received by the Issuer pursuant to the Agreement and the Note and an assignment and pledge of other rights under the Agreement, the Note and the Mortgage, as described in the Indenture; that the Inden- ture is to be in substantially the same form now before this meeting and hereby approved, or with such changes therein as shall be approved by the officers 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 form of Indenture now before this meeting; and that from and after the execution and delivery of the Indenture, the officers, 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 the Indenture as executed. 5. That the Mayor and the City Clerk of the Issuer be, and they hereby are, authorized, empowered and directed to cause to be prepared an Industrial Development Revenue Bond, Series 1985 (McHenry Motel -4- Project) of the Issuer in the principal amount of $1,750,000, in the form, bearing interest at the rate or rates, maturing, subject to redemption prior to maturity and having the other terms and provisions specified in the Indenture (as executed and delivered); that the Series 1985 Bond shall be executed in the name of the Issuer with the manual signature of its Mayor and attested with the manual signature of its City Clerk and the seal of the Issuer shall be impressed thereon; and that the Mayor or City Clerk of the Issuer shall cause the Series 1985 Bond, as so executed and attested, to be delivered to the Trustee for authentication. 6. That the form of Series 1985 Bond submitted to this meeting, subject to appropriate insertions and revisions in order to comply with the provisions of the Indenture, be, and the same hereby is, approved and when the Series 1985 Bond shall be executed on behalf of the Issuer in the manner contemplated by the Indenture and this Resolution in the principal amount of $1,750,000, it shall represent the approved form of Series 1985 Bond of the Issuer. 7. That the form, terms and provisions of the Bond Purchase Agreement be, and they are hereby, in all respects approved, and the Mayor and the City Clerk of the Issuer be, and they are hereby, authorized empowered and directed to execute, acknowledge and deliver the Bond Purchase Agreement in substantially the form sub- mitted to this meeting in the name and on behalf of the Issuer, and thereupon to cause the Bond Purchase Agree- ment to be executed, acknowledged and delivered by the Purchaser; and that the Mayor, City Clerk or any other officer of the Issuer be and they are hereby authorized, empowered and directed to deliver to the Purchaser the Series 1985 Bond at a price of $1,750,000 plus accrued interest, if any, to the date of delivery. 8. That from and after the execution and delivery of the aforesaid documents, the officers, agents and employees of the Issuer are hereby authorized, empowered and directed to do all such acts and things and to exe- cute all such documents as may be necessary to carry out and comply with the provisions of said documents as executed. 9. That the Series 1985 Bond shall be payable solely out of the revenues and income derived from or in respect of the loan of the proceeds of the Series 1985 Bond to the Land Trustee to finance the Project pursuant -5- to the Agreement, and the enforcement of the covenants of the Land Trustee to make payments under the Agreement and the Note, and shall in no event be a charge against the credit or general taxing powers of the Issuer. 10. That all acts and undertakings of the officers 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 Series 1985 Bond in the prin- cipal amount of $1,750,000 and the construction of the Project and the financing of the Project shall be, and the same are hereby, in all respects, approved and con- firmed. 11. That with respect to Section 103(c) of the In- ternal Revenue Code of 1954, as amended (the "Code"), the Land Trustee and the Issuer have made certain covenants in Section 3.6 of the Agreement, and the Land Trustee will make certain certifications and representa- tions on the date of purchase of the Series 1985 Bond, which certifications and representations the Issuer shall adopt as hereinafter provided, and the Issuer hereby covenants with the Purchaser and any subsequent owners of the Series 1985 Bond that so long as any prin- cipal of, premium, if any, or interest on the Series 1985 Bond remains unpaid, the Issuer will not take or authorize the taking of any action which will cause the Series 1985 Bond to be classified as an "arbitrage bond" within the meaning of Section 103(c) of the Code and any lawful regulations promulgated or proposed thereunder, including Sections 1.103-13, 1.103-14 and 1.103-15 of the Income Tax Regulations (26 C.F.R., Part l) as the same presently exist, or may from time to time hereafter be amended, supplemented or revised. 12. That any officer of the Issuer is hereby di- rected to execute, in conjunction with the Land Trustee, the Trustee and the Beneficiaries (as defined in the Agreement) an appropriate statement with respect to arbitrage and any and all other matters with respect to the use of the proceeds of the Series 1985 Bond. 13. 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. 14. That all resolutions, orders or parts thereof, in conflict with the provisions of this Resolution, are to the extent of such conflict hereby repealed. 15. That this Resolution shall be in full force and effect from and after its passage and approval as provided by law. Passed by the City Council of the City of McHenry, McHenry County, Illinois, this 20th day of November, 1985. Approved by the Mayor of the City of McHenry, McHenry County, Illinois, this 20th day of November, 1985. Attest: City Clerk City of McHenry, McHenry County, Illinois e�� Mayor City of Mc nr McHenry County, Illinois -7-