HomeMy WebLinkAboutCity Council Resolution 1982-254EXTRACT OF MINUTES OF MEETING OF THE CITY COUNCIL OF
THE CITY OF PLYMOUTH, HENNEPIN COUNTY, MINNESOTA
Pursuant to due call and notice hereof, a special meeting of the City
Council of the City of Plymouth was duly held on Monday, the 24th day of
May, 1982, commencing at 7:40nm o'clock p.m., C.T.
The following members of the Council were present: Mayor Davenport,
Councilmembers Moen, Neils, Schneider and Threinen
and the following were absent: none
Councilmember Moer, introduced the following
resolution and moved its adoption.
RESOLUTION NO. 82- 254
RESOLUTION AUTHORIZING THE ISSUANCE AND SALE OF
$2,340,000 INDUSTRIAL DEVELOPMENT REVENUE BOND
(WHITTAR INDUSTRIES, LTD. PROJECT) SERIES 1982
PURSUANT TO MINNESOTA STATUTES, CHAPTER 474
WHEREAS, the City is authorized by the Act, as amended, to acquire
real property and to acquire and construct buildings and improvements on
such real property, to acquire the existing buildings thereon and to
acquire capital equipment permanently located or used exclusively on such
real property and in such buildings for the public purposes expressed in
th A t d t 1 th d
e c , an o ease a same upon certain terms, an
WHEREAS, the City has issued its $3,000,000 Industrial Development
Revenue Bonds (Whittaker Corporation Project) Series 1976, dated June 1,
1976 ("the Series 1976 Bonds"), for the purpose of acquiring and construc-
ting a Project within the City, which Project was timely completed and
leased to Whittaker Corporation, a California corporation, by the 'City pur-
suant to that certain Lease thereof, dated as- of June 1, 1976 (the
'Lease"), and in conjunction with a certain Mortgage and °Indenture of
Trust, dated as of June 1, 1976 (the "Indenture"), between the City and
Continental Illinois National Bank and Trust Company of Chicago, Chicago,
Illinois, as Trustee thereunder, a certain Guaranty, dated as of June 1,
1976, between the City, the Trustee, and Whittaker Corporation as Guaran-
tor, and in conjunction with all other documents and agreements apper-
taining to the issuance of the Series 1976 Bonds (collectively "the Series
1976 Bond Documents"), and
WHEREAS, Continental Illinois National Bank and Trust Company of
Chicago purchased and still holds the entire issue of the Series 1976 Bonds
and has further duly assigned its interest as Trustee under the Indenture
to The Northern Trust Company, Chicago, Illinois, as successor Trustee, in
accordance with the 1976 Bond Documents; and
WHEREAS, as provided in and permitted by the 1976 Bond Documents,
Whittaker Corporation has assigned its interest in the Lease to Arlen
Metals Corporation, a Pennsylvania corporation, by that certain Assignment
of Lease, dated November 3, 1980; and Arlen Metals Corporation, by another
certain Assignment of Lease, also dated November 3, 1980, in turn assigned
its interest in said Lease to Whittar Metals, Inc., a Minnesota limited
partnership composed of Whittaker Metals Corporation, a California corpo-
ration and a wholly-owned subsidiary of Whittaa;r Corporation, as general
partner, and Arlen Metals Corporation, a Pennsylvania corporation, and
Arlen Realty & Development Corp., a New York corporation, as limited part-
ners; and
WHEREAS, Whittar Metals, Ltd., subsequently and in accordance with law
changed its name to Whittar Industries, Ltd. (the "Company" and the
"Tenant"), and is now the Tenant under the Lease and within the meaning of
the term "Tenant" as used in the Indenture and the Lease; and
WHEREAS, the Lease and the Indenture provide for the expansion of the
Project (the "Project Addition," as more fully described in the Supple-
mental Indenture) and for the issuance of additional Bond or Bonds (the
"Additional Bond") to finance the cost thereof upon execution of an amend-
ment of the Lease (the "Lease Amendment") and a supplement to the Indenture
(the "Supplemental Indenture"); and
WHEREAS, the Project Addition is a project defined as and eligible to
be a project under Section 474.02, Subdivision 1 of the Act, and the City
had determined that the Project Addition will promote the welfare of the
City; and
WHEREAS, the City is, under the Act, authorized to issue and sell its
revenue bonds for the purpose of providing money to finance the Project
Addition; and
-2-
WHEREAS, the City deems it advisable to issue a bond in the principal
amount of $2,340,000 to be designated Industrial Development Revenue Bond
(Whittar Industries, Ltd. Project) Series 1982 (herein referred to as "the
Series 1982 Bond" or "the Bond") which shall be registerable as to princi-
pal only as hereinafter provided; and
WHEREAS, the proceeds of the Series 1982 Bond, together with any other
required funds, will be used for the specific authorized purpose of
providing funds to pay Project Addition Costs; and
WHEREAS, the Lease Amendment requires the Company to make payments
thereunder in amounts and at times sufficient to pay the principal of,
premium (if any) on and interest on the Series 1982 Bond when due; and
WHEREAS, Continental Illinois National Bank and Trust Company of
Chicago (the "Purchaser"), in the City of Chicago, Illinois, has agreed to
execute a certain Bond Purchase Agreement by which it will purchase the
Series 1982 Bond in accordance with the terms thereof; and
WHEREAS, the City Council of the City adopted a preliminary resolution
on September 8, 1981, giving preliminary approval of the Project Addition,
and the Commissioner of Securities and Real Estate for the State of
Minnesota has, by letter dated December 16, 1981, approved the Project
Addition as tending to further the purposes and policies of the Act; and
WHEREAS, the City has made the necessary arrangements with the Company
for the construction of the Project Addition to be leased by the City to
the Company and used in connection with the Company's business of fabri-
cating and warehousing steel products, which will be of the character con-
templated by and will accomplish the purposes provided by the Act; and
WHEREAS, it has been determined that a bond in the principal amount of
$2,340,000 should be issued, sold and delivered to provide proceeds to pay
a part or all of the cost of the Project Addition:
NOW, THEREFORE, BE IT RESOLVED By the City Council of the City of
Plymouth, Minnesota as follows:
ARTICLE ONE
DEFINITION, EXHIBITS AND GENERAL PROVISIONS
Section 1-1. Definitions. In this Resolution the following terms
have the following respective meanings unless the context hereof clearly
requires otherwise:
"Act" means the Minnesota Municipal Industrial Development Act,
Minnesota Statutes, Chapter 474, as amended from time to time.
"Additional Bonds" means any additional Bonds issued pursuant to the
terms and conditions of Section 2-13 of the Indenture.
-3-
"Bonds" means Series 1976 Bonds, the Series 1982 Bond, any Additional
Bonds issued under a supplement to the Indenture, and any Bonds issued in
exchange therefor.
"Building" means that certain 96,000 square foot building constructed
on the Leased Land with the proceeds of the Series 1976 Bonds.
t.
"Building Addition" means that certain 85,000 square foot addition to
the Building to be constructed on the Leased Land with the proceeds of the
Series 1982 Bond.
"Company" means Whittar Industries, Ltd., a Minnesota limited partner-
ship, its successors and assigns.
"Indenture" means the Mortgage and Indenture of Trust between the City
and the Continental Illinois National Bank and Trust Company of Chicago, as
Trustee, dated June 1, 1976, and now assigned to The Northern Trust Com-
pany, Chicago, Illinois, as successor Trustee, pursuant to which the Bonds
are authorized to be issued and the City's interest in the Lease and the
rents and other revenues to be received by the City are pledged and a
mortgage and security interest therein granted as security for the payment
of the principal of, interest and premium, if any, on the Bonds.
"Indentures" means the Indenture and every indenture supplemental
thereto, including the Supplemental Indenture.
"Leased Land" means the real property described in and leased to the
Tenant under the Leases.
"Lease" means the Lease, dated June 1, 1976, between the City and the
Tenant, in which certain improved real property located in the City is
leased to the Tenant.
"Leases" means the Lease and the Lease Amendment.
"Lease Amendment" means the Lease Amendment, dated as of April 1,
1982, between the City as Lessor and the Company as Tenant.
"Purchaser" means Continental Illinois National Bank and Trust Company
of Chicago, Chicago, Ilinois, as purchaser and current holder of all of the
outstanding Series 1976 Bonds and as purchaser of the Series 1982 Bond.
"Registered Holder" or "Holder" means the Purchaser and any transferee
registered holder of the Series 1962 Bond.
"Series 1976 Bonds" means the initial series of Bonds in the aggregate
principal amount of $3,000,000, dated as of June 1, 1976, issued under the
Indenture.
"Series 1982 Bond" or "Bond" means the Bond dated as of date of
delivery, in the principal amount of $2,340,000, issued under the Supple-
mental Indenture, or any fully registered bond or bonds exchanged therefor
as provided in the Indentures.
-4-
"Supplemental Indenturat" means the Supplemental Mortgage and Indenture
' of Trust between the City and The Northern Trust Company, as Trustee, dated
as of April 1, 1982, pursuant to which the Series 1982 Bond is issued.
"Tenant" means the Company, its successors and assigns, and any sur-
viving, resulting or transferee corporation which, may assume its obliga-
tions in accordance with the provisions of the Lease. -
"Trustee" means The Northern Trust Company, Chicago, Illinois, a
banking association incorporated under the laws of the State of Illinois,
and any successor trustee appointed, qualified and acting as such under the
provisions of the Indenture.
Section 1-2: Rules of Interpretation.
(1) This Resolution shall be interpreted in accordance with and
governed by the laws of the State of Minnesota.
(2) The words "herein" and "hereof" and "hereunder" and words of
similar import, without reference to any particular section or subdivision,
refer to this Resolution as a whole rather than to any particular section
or subdivision hereof.
(3) References in this Resolution to any particular article, section
or subdivision hereof are to the designated article, section or subdivision
of this Resolution as originally adopted.
(4) Any terms not defined herein but defined in the Loan Agreement or
the Mortgage shall have the same meaning herein unless the context hereof
requires otherwise.
(5) The headings of articles and sections hereof are for convenience
only and are not a part of this Resolution.
(6) Unless the context hereof clearly requires otherwise, the singu-
lar shall include the plural and vice versa and the masculine shall include
the feminine and vice versa.
ARTICLE TWO
APPROVAL OF DOCUMENTS: GENERAL PROVISIONS
RELATING TO THE BOND
Section 2-1. Authorization. The City is authorized by the Act to
issue revenue bonds to finance the acquisition and construction of
"projects" as defined in the Act, to lease the same upon certain terms, and
to make all contracts, execute all instruments, and do all things necessary
or convenient in the exercise of such authority. The City is also author-
ized to issue the Series 1982•Bond as an Additional Bond under and within
the meaning of the Series 1976 Bond Documents.
-5-
Section 2-2. Preliminary City Approval: Approval by Commissioner of
Securities. By Resolution No. 81-560, duly adopted by this Council on
September 8, 1981, the Council gave preliminary approval to the sale of
revenue bonds for the construction of the Project Addition, and authorized
the preparation of such documents as slay be appropriate to the Project
Addition and the issuance and sale of the Series 1982 Bond. The Commis-
sioner of Securities and Real Estate of the State of Minnesota approved the
Project Addition on December 16, 1981.
Section 2-3. Approval of Documents. Pursuant to the above, there
have been prepared and presented to this Council copies of the following
documents, all of which are now, or shall be placed on file in the office
of the City Clerk, and which are approved substantially in the form pre-
sented, subject to such modifications as are acceptable to the parties and
the City Attorney:
(a) the Bond Purchase Agreement;
(b) the Supplemental Mortgage and Indenture of Trust;
(c) the Lease Amendment;
(d) the Guaranty; and
(e) the Bill of Sale.
Section 2-4. Form and Authorized Amount. The Bond shall be issued
substantially in the form set forth in Exhibit 1 attached to and made a
part of this resolution, with such appropriate variations, omissions and
insertions as are permitted or required by this Resolution, and in accor-
dance with the further provisions of this Article and Article Three. The
total principal amount of the Bond to be delivered hereunder is expressly
limited to $2,340,000.
Section 2-5. Execution. The Bond may be in typewritten form and
shall be executed on behalf of the City by the manual or facsimile signa-
tures of the Mayor and City Manager, duly authenticated as provided in the
attached Exhibit 1, shall have the official seal of the City affixed or
imprinted thereon, and shall.be delivered fully registered in the name of
the Purchaser. In case any officer whose signature appears on the Bond
shall' cease" to be such officer before the delivery of the Bond, such
signature shall nevertheless be valid and sufficient for all purposes, the
same as if he had remained in office until delivery.
Section 2-6. Mutilated, Lost and Destroyed Bond. In case the Bond
shall become mutilated or be destroyed or lost, the City shall, if not then
prohibited by law, cause to be executed and delivered, a new Bond of like
amount, number, maturity date and tenor in exchange and substitution for
and upon cancellation of such mutilated Bond or in lieu of and in substitu-
tion for such Bond destroyed or lost, upon the Holder's paying the reason-
able expenses and charges of the City in connection therewith, and, in case
of a Bond destroyed or lost, his filing with the City evidence of such loss
or destruction satisfactory to it together with the indemnity required by
Minnesota Statutes., Section 475.70. If the multilated, destroyed or lost
Bond has already matured or been called for redemption in accordance with
-6-
its terms it shall not be necessary to issue a new Bond prior to payment.
Section 2-7. Optional Redemption. At the request of the Registered
Holder of the Bond, the Bond shall be subject to prior redemption on
June 1, 1988, at a price of par plus accrued interest. The Bond shall also
be subject to prior redemption as provided in the Indentures.
Section 2-8. [Intentionally Left Blank.]
Section 2-9. [Intentionally Left Blank.]
Section 2-10. Exchange of Bonds. As provided in Section 2-5(b) of
the Indenture, the Series 1982 Bond, or any fully registered bonds
exchanged therefor, upon surrender for transfer at the principal corporate
trust office of the Trustee, may be exchanged for one or more new fully
registered bonds, of the same tenor and aggregate principal amount as the
bonds to exchanged, upon the further terms and payment of the charges
provided in the Indentures; provided, that the Series 1982 Bond, or any
bonds exchanged therefor, shall not be exchangeable for coupon bonds or for.
non -fully registered bonds. Request for such exchange shall be made:. in
writing to the City and to the Trustee at least fifteen (15) days in
advance of the date of exchange, which date shall be a Payment Date and
upon surrender of the Bond to be exchanged at the office of the City Clerk
in Plymouth, Minnesota. The Purchaser requesting such exchange shall bear
all expenses in connection with such exchange. The new bonds shall bear
interest at the same rate as.the Bond to be exchanged and shall be in an
aggregate principal amount equal to the then unpaid principal amount of
such Bond, maturing serially and annually in the same amount, and on the
same dates as the unpaid installments of principal of the Bond and shall be
in such form, and with necessary modifications thereto as shall be approved
by the City Attorney and bond counsel to the City.
Section 2-11. Cancellation. When the Bond has been redeemed and paid
in full, it shall be cancelled by the City and shall not be reissued. The
Holder shall deliver to the City either the cancelled Bond or a certificate
of a responsible officer of the Holder certifying as to the destruction
thereof.
Section 2-12. Registration: Securities Act. The Bond has not been
registered under the Securities Act of 1933, as amended (the "Securities
Act"), or under any state securities laws for initial distribution, and the
Bond has been sold initially only to the Bank pursuant to the investment
representation of the Bank as Purchaser.
Section 2-13. Registration of Transfer. The City will cause to be
kept at the office of the City Clerk or at the office of the Trustee a Bond
Register in which, subject to such reasonable regulations as it may
prescribe, the City shall provide for the registration of transfers of
ownership of the Bond. The Bond shall be transferable only upon the Bond
Register by the Registered Holder thereof in person or by its attorney duly
authorized in writing, upon surrender of the Bond together with a written
instrument of transfer satisfactory to the Clerk and the City Attorney or
the Trustee, duly executed by the Registered Holder or its duly authorized
attorney. Upon such transfer the City shall note the date of registration
and the name and address of the new registered owner in the Bond Register
-7-
and in the registration blank appearing on the Bond. Alternatively, the
City shall, at the request and expense of the registered Holder, issue a
new Bond in aggregate outstanding principal amount equal to that of the
bond surrendered, and of like tenor except as to principal amount, and
registered in the name of the registered Holder or such transferee as may
be designated by the registered Holder. The City may deem and treat the
person in whose name the Bond is last registered in the Bonff Register and
by notation on the Bond as the absolute owner thereof, whether or not the
principal balance or any part thereof is overdue, for the purpose of
receiving payment of or on account of the principal balance, redemption
price or interest and for all other purposes. The Bond shall be initially
registered in the name of the Purchaser.
Section 2-14. Cessation and Continuation of Interest. Interest on
the Bond shall cease on its payment in full. If the Bond is not presented
for payment when due, and if funds sufficient to pay the Bond shall have
been paid to the Holder, (i) all liability of the City for payment of the
Bond shall forthwith cease and (ii) the Holder of the Bond shall thereafter
have no rights with respect thereof except to receive payment therefor.
ARTICLE THREE
AUTHORIZATION AND SALE: TERMS AND
CONDITIONS OF THE BOND
Section 3-1. Approval of Terms. The City shall forthwith issue and
sell the Bond in the principal amount of $2,40,000. The Bond shall be in
substantially the form set forth hereto in Exaibit 1, which terms and pro-
visions are hereby approved and incorporated herein. Principal and
interest shall be payable at The Northern Trust Company, 125 South Wacker
Drive, Chicago, Illinois 60675..
Section 3-2. Sale of Series 1982 Bond. The offer of the Purchaser to
purchase the Series 1982 Bond at a price of $2,340,000 in accordance with
the terms of the Bond Purchase Agreement is hereby found to be reasonable
and is accepted.
Section 3-3. Delivery of the Bond. The Bond shall be delivered to
the Purchaser upon payment of all of the purchase price on the Closing Date
as defined in the Bond Purchase Agreement, and upon compliance with all
conditions of the Bond Purchase Agreement relating to closing and delivery.
ARTICLE FOUR
APPROVALS AND AUTHORIZATION: LIMITATIONS OF
CITY OBLIGATION
Section 4-1. Authorization: Authentication of Transcript. Upon the
execution of the documents approved in Article Two hereof, the Mayor, and
-8-
City Manager and City Clerk are authorized and directed to execute the Bond
on behalf of the City &Ad to cause it to be delivered to the Purchaser by
the Trustee, and to execute such other certifications, documents or
instructions as may be required by the Bond Purchase Agreement, or as bond
counsel or counsel for the Trustee shall require, subject to the approval
of the City Attorney, and all such certifications; recitals Ond represen-
tations of the City, including any heretofore furnished, shall constitute
representations of the City as to the accuracy of all statements contained
therein. Upon delivery of the Bond, the proceeds thereof shall be dis-
bursed to the Company pursuant to the Bond Purchase Agreement and the
Indentures. Execution of any instrument or document by one or more appro-
priate officers of the City shall constitute, and shall be deemed the
conclusive evidence of, the approval and authorization by the City and the
Council of the instrument or document so executed. In the event of the
absence or disability of the Mayor, City Manager, or City Clerk, such
officers of the City as, in the opinion of the City Attorney, may act in
their behalf, shall without further act or authorization of the Council do
all things and execute all instruments and documents required to be done or
executed by such absent or disabled officials.
Section 4-2. Registration Records. The City Clerk, or the Trustee,
as bond' registrar, shall keep a bond register in which the City shall pro-
vide for the registration of the Bond and for transfers of the Bond. The
principal of and interest on the Bond shall be paid to the Trustee for the
account of the Holder entitled thereto in Federal or other immediately
available funds. The City Clerk is authorized and directed to deliver a
certified copy of this Bond Resolution to the Director of Property Taxation
of Hennepin County, together with such other information as said Director
may require, and to obtain the certificate of the said Director as to entry
of the Bond on his bond register as required by the Act and Minnesota
Statutes, Section 475.63.
Section 4-3. Limitation of the City's Obligations. Notwithstanding
anything contained in the Bond, the Bond Purchase Agreement, the Inden-
tures, or any ,other documents relating thereto, the Bond shall not consti-
tute a debt of the City within the meaning of any constitutional or statu-
tory limitation, and shall not be payable from or charged upon any funds
other than the revenue pledged to the payment thereof, and the City shall
not be subject to any liability thereon, and no holder of the Bond shall
ever have the right to compel any exercise of the taxing power of the City
to pay the Bond or the interest thereon, or to enforce payment thereof
against any property of the City, and the Bond shall not constitute a
charge, lien or encumbrance, legal or equitable, upon any property of the
City. The agreement of the City to perform the covenants and other provi-
sions contained in the Bond and the Indentures shall be subject at all
times to the availability of revenues furnished by the Company sufficient
to pay all costs of such performance or the enforcement thereof, and
neither the City nor any of its officials, officers, agents or employees
shall be subject to any personal liability thereon.
Section 4-4. Execution and Delivery. The Mayor, the City !tanager,
the City Clerk and the City Attorney are authorized and directed to take
all actions necessary to carry out the provisions of this Resolution
relating to the execution and delivery of the documents described herein.
-9-
Resolution 082-254
Page 10