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HomeMy WebLinkAboutOrdinances - ORD-16-1788 - 05/02/2016 - ISSUANCE OF IRB'S FOR FABRIKCITY COUNCIL OF THE CITY OF MCHENRY, MCHENRY COUNTY, ILLINOIS ORDINANCE AUTHORIZING THE ISSUANCE OF INDUSTRIAL DEVELOPMENT REVENUE BONDS FOR FABRIK INDUSTRIES, INC. PROJECT AND AUTHORIZING THE EXECUTION OF DOCUMENTS IN CONNECTION THEREWITH WHEREAS, the City of McHenry, McHenry County, Illinois (the "Issuer"), is a municipality and a home rule unit of government under the Constitution and the laws of the State of Illinois; and WHEREAS, The Industrial Project Revenue Bond Act (65 ILCS 5/11-74-1 et seq.), as supplemented and amended, and as further supplemented and where necessary, superseded, by the powers of the Issuer as a home rule unit under the provisions of Section 6 of Article VII of the Illinois Constitution of 1970 (collectively, the "Act"), empowers the Issuer to issue its revenue bonds and to lend the proceeds thereof to finance projects within the meaning of the Act within the territorial limits of the Issuer that benefit its residents and authorizes the issuance of such bonds by ordinance of the Issuer; and WHEREAS, the City Council of the Issuer (the "City Council") adopted a resolution on January 4, 2016 declaring its official intent to issue industrial development revenue bonds to benefit K&L Equity, LLC, an Illinois limited liability company (including other related parties or any entity formed by it); and WHEREAS, K&L Equipment, LLC and Fabrik Industries, Inc., an Illinois corporation (collectively, the "Borrower"), desire to complete a project to be operated by Fabrik Industries, Inc. to manufacture plastic injection molded components consisting of the (i) the acquisition and rehabilitation of an existing approximately 44,000 square foot facility located at 1515 Miller Road, McHenry, Illinois (the "Acquired Facility"), (ii) the acquisition and installation of equipment at the Acquired Facility and the Borrower's existing facility located at 5213 Prime Parkway, McHenry, Illinois (the "Existing Facility"), (iii) a possible second phase of the project consisting of the construction of an addition to the Acquired Facility or the Existing Facility, and (iv) payment of costs of issuance (collectively, the "Project"), which Project is to be located within the corporate limits of the Issuer; and WHEREAS, the City Council of the Issuer held a public hearing on May 2, 2016 in compliance with the requirements of Section 147(o of the Internal Revenue Code of 1986, as amended (the "Code"); and WHD/12578149.2 WHEREAS, in order to finance the Project, the Issuer now proposes to issue its $10,000,000 City of McHenry, McHenry County, Illinois Industrial Development Revenue Bonds, Series 2016A, 2016B and 2016C (Fabrik Industries, Inc. Project) (the "Bonds") as hereinafter provided; and WHEREAS, the Borrower has presented the City Council of the Issuer with proposed documentation for the Bonds, as follows: (a) a Bond Agreement (the "Bond Agreement"), to be entered into by and among the Issuer, the Borrower, American Community Bank & Trust, as trustee (the "Trustee"), and American Community Bank & Trust, as original purchaser (the "Original Purchaser"), providing for the issuance, sale and terms of the Bonds; and (b) a Series A Promissory Note, Series B Promissory Note, and Series C Promissory (collectively, the "Promissory Notes"), in the aggregate principal amount equal to the aggregate principal amount of the Bonds, from the Borrower to the Issuer and assigned by the Issuer to the Trustee; and (c) a No Arbitrage Certificate (the "No Arbitrage Certificate"), by the Issuer and acknowledged by the Borrower; and WHEREAS, the City Council of the Issuer hereby finds and determines that the issuance of the Bonds for the stated purposes is necessary for the welfare of the government and affairs of the Issuer, is a proper public purpose and is in the public interest. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF MCHENRY, MCHENRY COUNTY, ILLINOIS: Section 1. The City Council hereby finds that all of the recitals contained in the preambles to this Ordinance are full, true and correct, and does incorporate them into this Ordinance by this reference. Section 2. The financing of the Project through the issuance and sale of the Bonds, as hereinafter provided, is hereby found and determined to serve the public purpose of the Issuer and is hereby authorized and approved. Section 3. In order to provide funds to finance the Project, there are hereby authorized to be issued in one or more series of industrial development revenue bonds in an aggregate principal amount not to exceed $10,000,000 and designated as the "Series 2016A Bonds," the "Series 2016B Bonds," and the "Series 2016C Bonds" by the Issuer upon the terms set forth in the Bond Agreement. The Bonds shall be subject to redemption prior to maturity at the times, under the circumstances, in the manner, at the prices, in the amounts and with the effect set forth in the Bond Agreement. 2 WHD/12578149.2 The Bonds shall be executed in the name of the Issuer by the manual or facsimile signature of the Mayor, shall be attested by the manual or facsimile signature of the City Clerk, and shall have the corporate seal of the Issuer impressed or reproduced thereon. No Bonds shall be issued unless first authenticated by the Trustee, to be evidenced by the manual signature of an authorized signatory of the Trustee on the Bonds. The Mayor and the City Clerk are hereby authorized for and in the name of the Issuer to execute the Bonds in the manner authorized above in this paragraph. Subject to the terms and conditions of the Bond Agreement, the Issuer shall deliver the Bonds to the Original Purchaser. The Bonds shall be issued in compliance with and under authority of the provisions of this Ordinance and the Bond Agreement. Section 4. The Bonds and the obligation to pay interest thereon shall be special, limited obligations of the Issuer, payable solely and only from revenues and income derived by or for the account of the Issuer from or for the account of the Borrower pursuant to the terms of the Bond Agreement, including, without limitation: (i) all cash and securities held from time to time in the trust funds held under the Bond Agreement, and the investment earnings thereon (other than any amounts on deposit in the Rebate Account created by the Bond Agreement), and (ii) all payments by the Borrower on the Promissory Notes (collectively, the "Pledged Revenues"). The Bonds shall not in any respect be general obligations of the Issuer, nor shall they be payable in any manner from funds of the Issuer raised by taxation. The Bonds shall state that they do not constitute an indebtedness of the Issuer or a loan of credit thereof within the meaning of any constitutional or statutory provision. Nothing in this Ordinance, the Bond Agreement, the Promissory Notes, the No Arbitrage Certificate or the form of the Bond (hereinafter referred to collectively as the "Bond Documents"), or in any document or agreement required hereby and thereby, shall be construed as an obligation or commitment by the Issuer to expend any of its own revenues or taxpayer funds other than (i) the proceeds derived from the sale of the Bonds and (ii) the revenues and receipts derived from the Pledged Revenues. Section 5. The form, terms and provisions of the Bond Documents presented to this meeting are in all respects approved, and the Mayor and the City Clerk of the Issuer are hereby authorized and empowered to execute, acknowledge and deliver the Bond Documents, with or without an impression of the official seal of the Issuer as required thereby. The Borrower has negotiated for the sale of the Bonds to the Original Purchaser. The Bond Documents, as so executed and delivered, shall be in substantially the form now before the City Council and hereby approved, with only 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 and the approval of the City Council of any and all changes or revisions therein from the forms thereof now before the City Council, and from and after the execution and delivery of the Bond Documents, the Mayor and the City Clerk of the Issuer are hereby authorized and empowered to do all such acts and things, and to execute all documents (including any certifications, financing statements, assignments and other instruments), as may be necessary, in the opinion of counsel to the Issuer, to carry out and 3 WHD/12578149.2 comply with the provisions of the Bond Documents as executed, and in any other documents and instruments required to effectuate any portion of the financing transaction. Section 6. This Ordinance shall constitute the approval of the Bonds within the meaning of Section 147(f) of the Code, and the Bonds are hereby approved. The Issuer hereby elects to have the provisions of Section 144(a)(4)(A) of the Code apply to the Bonds. Section 7. The Issuer hereby designates and appoints American Community Bank & Trust to perform the functions of the trustee, bond registrar and paying agent under the Bond Agreement. Section 8. The Mayor, the City Clerk and other officers of the Issuer are hereby authorized to do all such acts and things, and to execute all such documents (including Internal Revenue Service Form 8038, any certifications, assignments and other instruments), as may be necessary, in the opinion of counsel to the Issuer, to carry out and comply with the purposes of this Ordinance. Section 9.. No member of the City Council has any pecuniary interest in the Bond Documents, Section 10. The provisions of this Ordinance are hereby declared to be separable, and if any section, phrase or provision shall for any reason be declared by a court of competent jurisdiction to be invalid or unenforceable, such declaration shall not affect the validity of the remainder of the sections, phrases and provisions hereof. Section 11. All ordinances, resolutions and orders, and parts thereof, in conflict herewith are, to the extent of such conflict, hereby repealed. This Ordinance shall take effect and be in full force immediately upon its adoption and approval. Passed and Approved this 2nd day of May, 2016. VOTING AYE: VOTING NAY: ABSENT: NOT VOTING: ABSTAINED: CONDON, PETERSON WIMMER, CURRY, SCHAEFER_ GLAB, SANTI NONE NONE NONE NONE S-iisan E. Low, Mayor ATTEST: Ja ice l b es, �ty Jerk 4 wHDn257a149.� STATE OF ILLINOIS ) )SS MCHENRY COUNTY ) CERTIFICATION OF ORDINANCE AND MINUTES I, the undersigned, do hereby certify that I am the duly elected, qualified and acting City Clerk of the City of McHenry, McHenry County, Illinois (the "Municipality"), and as such official I am the keeper of the records and files of the Municipality and of its City Council (the "Corporate Authorities"). I do further certify that the foregoing constitutes a full, true and complete excerpt from the proceedings of the meeting of the Corporate Authorities held on May 2, 2016, insofar as same relates to the adoption of Ordinance No. 16-1788, entitled: ORDINANCE AUTHORIZING THE ISSUANCE OF INDUSTRIAL DEVELOPMENT REVENUE BONDS FOR FABRIK INDUSTRIES, INC. PROJECT AND AUTHORIZING THE EXECUTION OF DOCUMENTS IN CONNECTION THEREWITH a true, correct and complete copy of which ordinance (the "Ordinance") as adopted at such meeting appears in the proceedings of the minutes of such meeting and is hereto attached. The Ordinance was adopted and approved by the vote and on the date therein set forth. I do further certify that the deliberations of the Corporate Authorities on the adoption of such Ordinance were taken openly, that the vote on the adoption of such Ordinance was taken openly and was preceded by a public recital of the nature of the matter being considered and such other information as would inform the public of the business being conducted, that such meeting was held at a specified time and place convenient to the public, that notice of such meeting was duly given to all of the news media requesting such notice, that the agenda for such meeting was duly posted at the location where such meeting was held and at the principal office of the Corporate Authorities at least 96 hours before such meeting, that said agenda contained a separate specific item concerning the proposed adoption of such Ordinance, that at least one copy of said agenda was continuously available for public review during the entire 96-hour period preceding such meeting, that such meeting was called and held in strict compliance with the provisions of the Open Meeting Act of the State of Illinois, as amended, and the Illinois Municipal Code, as amended, and that the Corporate Authorities have complied with all of the applicable provisions of such Act and such Code and their procedural rules in the adoption of such Ordinance. IN WITNESS WHEREOF, I hereunto affix my official signature and the seal of the City of McHenry, McHenry County, Illinois, this 2nd day of May, 2016. (SEAL) anic Jones,(n- lerk 5 - WHD/12578149.2