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S8-96 ORDINANCE NO. 58-96 AN ORDINANCE PROVIDING FOR THE FINANCING BY THE CITY OF ELGIN, ILLINOIS OF AN ECONOMIC DEVELOPMENT PROJECT CONSISTING OF THE ACQUISITION OF LAND, CONSTRUCTION OF A MANUFACTURING FACILITY AND ACQUISITION AND INSTALLATION OF EQUIPMENT AND RELATED PROPERTY IN ORDER THAT BAILEY DEVELOPMENT, L.L.C. (THE "COMPANY" ) MAY BE PROVIDED WITH FACILITIES TO PROVIDE INCREASED JOB OPPORTUNITIES AND RETAIN EXISTING JOBS IN A LABOR SURPLUS AREA; AUTHORIZING THE ISSUANCE OF ITS INDUSTRIAL DEVELOPMENT REVENUE BONDS (BAILEY DEVELOPMENT, L.L.C. PROJECT) , SERIES 1996A AND TAXABLE INDUSTRIAL DEVELOPMENT REVENUE BONDS (BAILEY DEVELOPMENT, L.L.C. PROJECT) , SERIES 1996B IN THE AGGREGATE PRINCIPAL AMOUNT OF $5, 000, 000 IN CONNECTION THEREWITH; AUTHORIZING THE EXECUTION AND DELIVERY OF A LOAN AGREEMENT BETWEEN THE CITY OF ELGIN, ILLINOIS AND THE COMPANY; AUTHORIZING THE EXECUTION AND DELIVERY OF AN INDENTURE OF TRUST SECURING SAID BONDS; AUTHORIZING THE EXECUTION AND DELIVERY OF A PLACEMENT AGENCY AGREEMENT AND AN ARBITRAGE REGULATION AGREEMENT; AND RELATED MATTERS . WHEREAS, the City of Elgin, Illinois, a home rule unit and municipal corporation existing under the Constitution and the laws eft of the State of Illinois (the "Issuer" ) is authorized and empowered by the provisions of the 1970 Constitution of the State of Illinois, Article VII, Section 6, and the provisions of an Ordinance adopted by the City Council of the Issuer on February 13 , 1980, as from time to time supplemented and amended (collectively, the "Act" ) to issue its revenue bonds to finance the costs of any "economic development project" in order that the Issuer may be able to relieve conditions of unemployment, to maintain existing levels of employment and to encourage the increase of industry and commerce with 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 eft. WHEREAS, as a result of negotiations between the Issuer and Bailey Development, L.L.C. , an Illinois limited liability company vuis (the "Company") , the Company has provided for financing of the cost of acquiring a parcel of land located at the intersection of Spaulding and Gifford Roads in Elgin, Illinois, the construction of an approximately 46, 000 square foot manufacturing facility thereon and the acquisition and installation of equipment for use therein (hereinafter referred to as the "Project" ) , which constitutes an economic development 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 Company 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 hereinafter identified; and elk WHEREAS, the Project will be leased to Concrete Specialties Co. ; and WHEREAS, it is necessary and proper for the Issuer for the benefit of the inhabitants of the Issuer to authorize the financing of the Project and the issuance of the Issuer' s Industrial Development Revenue Bonds (Bailey Development, L.L.C. Project) , Series 1996A in the initial aggregate principal amount of $1, 500, 000 (the "Series A Bonds" ) and the Issuer' s Taxable Industrial Development Revenue Bonds (Bailey Development, L.L.C. Project, Series 1996B in the initial aggregate principal amount of $3, 500, 000 (the "Series B Bonds" ) (the Series A Bonds and the Series B Bonds are hereinafter collectively referred to as the "Bonds") ; and -2- WHEREAS, LaSalle National Bank (the "Placement Agent" ) has indicated its willingness to place the Bonds with certain purchasers; and WHEREAS, it is necessary to authorize the execution of a Loan Agreement between the Issuer and the Company under the terms of which the Issuer will lend the proceeds of the sale of the Bonds to the Company to reimburse the Company for the financing of the costs of the Project, the payments to be paid by the Company 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 an Indenture of Trust to First American Bank, as Trustee (the "Trustee") for the holders from time to time of the Bonds pursuant to which the Bonds will be issued; and WHEREAS, LaSalle National Bank (the "Initial Letter of Credit Provider" ) will issue an Irrevocable Transferable Direct Pay Letter of Credit to the Trustee (the "Letter of Credit" ) ; and WHEREAS, a Preliminary Private Placement Memorandum (collectively, with the final Private Placement Memorandum, the "Placement Memorandum" ) has been prepared and presented to this meeting; and WHEREAS, it is necessary to authorize the sale of the Bonds and to execute a Placement Agreement as hereinafter defined in connection therewith; and WHEREAS, the Issuer will enter into the hereinafter described Arbitrage Regulation Agreement; and -3- f WHEREAS, the Issuer has caused to be prepared and presented to this meeting the following documents, which the Issuer proposes to enter into: , 1 . The Loan Agreement dated as of September 1, 1996, between the Issuer and the Company (the "Loan Agreement") ; 2 . The Indenture of Trust dated as of September 1, 1996 (the "Indenture" ) , between the Issuer and the Trustee, setting forth terms, conditions and security requirements for the proposed bond issue to finance the Project and containing the forms of the Bonds; 3 . The Placement Agency Agreement dated as of September 1, 1996 (the "Placement Agreement") among the Issuer, the Company and the Placement Agent; 4 . The Arbitrage Regulation Agreement dated as of e"` September 1, 1996 (the "Arbitrage Regulation Agreement") among the Issuer, the Company and the Trustee; 5 . The Remarketing Agreement dated as of September 1, 1996 (the "Remarketing Agreement") among LaSalle National Bank, as remarketing agent (the "Remarketing Agent" ) , the Issuer and the Company. WHEREAS, the Issuer held a Public Hearing pursuant to Section 147 (f) of the Internal Revenue Code of 1986, as amended, on September 11, 1996; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, KANE COUNTY, ILLINOIS, AS FOLLOWS : Section 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 -4- e., Issuer be, and they are hereby authorized, empowered and directed to execute and deliver such instruments in the name and on behalf of the Issuer, to cause the Loan Agreement to be delivered to the Company 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 certain rights of the Issuer to notice, indemnification and payment of expenses) and in and to the payments, revenues and receipts payable to the Issuer pursuant thereto, and said revenues are hereby and in the Indenture pledged for such purpose; that the Loan Agreement and the Indenture are to be in substantially the respective forms submitted to this meeting and are hereby approved, with such changes therein as shall be 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 hereby approved; 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 instrument as executed. Section 2 . That the form, terms and provisions of the proposed Placement Agreement, Remarketing Agreement and Arbitrage Regulation Agreement, copies of which are before this meeting, be, and they hereby are, in all respects approved, and that the Mayor and the e., City Clerk of the Issuer be, and they hereby are, authorized, -5- #77 empowered and directed to execute the Placement Agreement, Remarketing Agreement and the Arbitrage Regulation Agreement in the name and behalf of the Issuer and thereupon to cause the Placement Agreement to be delivered to the Company and the Placement Agent, the Remarketing Agreement to be delivered to the Remarketing Agent and the Company and the Arbitrage Regulation Agreement to be delivered to the Company and the Trustee; that the Placement Agreement, the Remarketing Agreement and the Arbitrage Regulation Agreement are to be in substantially the forms thereof submitted to this meeting and hereby approved, with such changes therein as shall be 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 such instruments hereby approved; that the Placement Agreement shall be entered into with the Company and the Placement Agent, the Remarketing Agreement shall be entered into with the Remarketing Agent and the Company and the Arbitrage Regulation Agreement shall be entered into with the Company and 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 necessary to carry out and comply with the provisions of such instruments as executed. Section 3 . That the issuance of the Bonds in the aggregate principal amount of $5, 000, 000, of which the initial aggregate principal amount of the Series A bonds shall be $1, 500, 000 and the ' initial aggregate principal amount of the Series B Bonds shall be -6- $3 , 500, 000 to mature on September 1, 2016 with the interest rate to be at the Weekly Rate, the Semi-Annual Rate or the Multi-Annual Rates, as determined from time to time in accordance with the Indenture and the conversion of the Series B Bonds to Series A Bonds as provided in the Indenture is hereby approved and the Mayor and the City Clerk of the Issuer be and are hereby authorized, empowered and directed to cause to be prepared the Bonds in the forms and having 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 or any other officer of the r"'` 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 $5, 000, 000 aggregate principal amount of Bonds; and the forms of the Bonds submitted to this meeting as the value appears in the Indenture, subject to appropriate insertion and revision 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 contemplated by the Indenture and this Ordinance in the aggregate principal amount of $5, 000, 000, it shall represent the approved forms of the Bonds of the Issuer. Section 4 . That the distribution and use of the Placement Memorandum by the Placement Agent is hereby ratified. -7- em. Section 5 . That the sale of the Bonds, upon the terms and conditions set out in the Placement Memorandum, 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 Placement Agreement and the Arbitrage Regulation 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 Ordinance, including the preamble hereto. Section 7 . That all acts and doings of the officials of the Issuer which are in conformity with the purposes and intent of this Ordinance and in furtherance of the issuance and sale of the Bonds in the aggregate principal amount of $5, 000, 000 and the financing of the Project to that amount be, and the same hereby are, in all respects, approved and confirmed. Section 8 . That approval is hereby granted for the issuance of the Bonds pursuant to Section 147 (f) of the Code. Section 9 . That the Issuer hereby elects to have the provisions of Section 144 (a) (4) (A) of the Internal Revenue Code of 1986, as amended, apply to the Bonds and hereby affirmatively notes said election on this Ordinance. Section 10 . That the Bonds shall be issued in compliance with and under the authority of the provisions of the Act, this Ordinance and the Indenture . -8- eek Section 11 . That the provisions of this Ordinance 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 . Section 12 . That all ordinances, resolutions, orders or parts thereof in conflict with the provisions of this Ordinance are, to the extent of such conflict, hereby superseded. Section 13 . This Ordinance shall be in full force and effect from and after its passage and approval, in accordance with law. Section 14 . That the Issuer' s obligation to issue the Bonds is subject to the allocation of volume cap, and, that the Bonds will be issued only when adequate volume cap therefor, to the feak extent required, has been obtained by the Issuer from the State of Illinois . PASSED this 11th day of September, 1996 . APPROVED this 11th day of September, 1996 . Mayor ATTEST: City Clerk Councilmembers Gavin, Gilliam, McKevitt, Schock, Walters, AYES : Yearman, and Mayor Kelly NAYS : None rink ABSENT: None -9-