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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