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Resolution 1996-06 ` u RESOLUTION NO. �CE; A RESOLUTION PROVIDING FOR THE FINANCING BY THE CITY OF YORKVILLE, ILLINOIS OF AN INDUSTRIAL PROJECT CONSISTING OF ACQUISITION OF LAND, CONSTRUCTION OF A BUILDING AND ACQUISITION OF EQUIPMENT AND RELATED PROPERTY; AUTHORIZING THE ISSUANCE OF ITS $3 , 400, 000 VARIABLE RATE DEMAND INDUSTRIAL DEVELOPMENT REVENUE BONDS (F. E. WHEATON & CO. , INC. PROJECT) , SERIES 1996 IN CONNECTION THEREWITH; AUTHORIZING THE EXECUTION AND DELIVERY OF A LOAN AGREEMENT AMONG THE CITY OF YORKVILLE, ILLINOIS, F. E. WHEATON & CO. , INC. AND WESLEY PROPERTY CORP; AUTHORIZING THE EXECUTION AND DELIVERY OF A TRUST INDENTURE SECURING SAID BONDS; AUTHORIZING THE EXECUTION OF A PLACEMENT AGREEMENT PROVIDING FOR THE SALE OF SAID BONDS; AUTHORIZING THE EXECUTION AND DELIVERY OF AN ARBITRAGE REGULATION AGREEMENT; AND RELATED MATTERS . WHEREAS, the City of Yorkville, Illinois, a municipality existing under the Constitution and the laws of the State of Illinois (the "Issuer" ) is authorized and empowered by the provisions of the Industrial Project Revenue Bond Act, 65 ILCS 5/11-74-1 to 5/11-74-14 , inclusive (1994 State Bar Edition) , as from time to time supplemented and amended (the "Act" ) to issue its revenue bonds to finance the costs of any industrial project to the end 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 within 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 WHEREAS, as a result of negotiations among the Issuer, F. E. Wheaton & Co. , Inc. , an Illinois corporation and Wesley Property Corp. , an Illinois corporation (collectively, the "Borrowers" ) , the Borrowers have provided for financing of the cost of an approximately 27 acre parcel of land located west of Illinois Route 47 and north of the Burlington Northern Railroad in Bristol Township, Kendall County, Yorkville, Illinois, the construction of an approximately 155, 000 square foot building thereon and the acquisition of equipment for use therein (hereinafter referred to as the "Project") , which constitutes an industrial 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 Borrowers 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 WHEREAS, it is necessary and proper for the Issuer for the benefit of its inhabitants to authorize the financing of the Project and the issuance of the Issuer' s Variable Rate Demand Industrial Development Revenue Bonds (F. E. Wheaton & Co. , Inc . Project) , Series 1996 in the aggregate principal amount of $3 , 400, 000 (the "Bonds" ) ; and WHEREAS, American National Bank and Trust Company of Chicago (the "Placement Agent") has indicated its willingness to place the Bonds with certain purchasers to provide the financing of the Project; and WHEREAS, it is necessary to authorize the execution of a Loan Agreement among the Issuer and the Borrowers under the terms of which the Issuer will lend the proceeds of the sale of the Bonds to the Borrowers to provide the Borrowers with the financing of the costs of the Project, the payments to be paid by the Borrowers to the Issuer in repayment of the loan to be sufficient to pay at -2- maturity the principal of, premium, if any, and interest on the Bonds; and WHEREAS, it is necessary for the Issuer to execute and deliver a Trust Indenture to American National Bank and Trust Company of Chicago, as Trustee (the "Trustee" ) for the holders from time to time of the Bonds pursuant to which the Bonds will be issued; and WHEREAS, American National Bank and Trust Company of Chicago (the "Bank" ) will issue an Irrevocable Transferable Direct Pay Letter of Credit to the Trustee (the "Letter of Credit" ) in relation hereto; and WHEREAS, it is necessary to authorize the sale of the Bonds and to execute a Placement Agreement hereinafter defined in connection therewith; and WHEREAS, a Preliminary Private Placement Memorandum (the "Preliminary Private Placement Memorandum" ) has been prepared and presented to the City Council; and WHEREAS, the Issuer will enter into the hereinafter described Arbitrage Regulation Agreement with the Borrowers and the Trustee; and WHEREAS, the Issuer has caused to be prepared and presented to the City Council the following documents, which the Issuer proposes to enter into: 1 . The Loan Agreement dated as of April 1, 1996, among the Issuer and the Borrowers (the "Loan Agreement") ; 2 . The Trust Indenture dated as of April 1, 1996 (the "Indenture" ) , between the Issuer and the Trustee, setting forth -3- terms, conditions and security requirements for the proposed bond issue to finance the Project and containing the form of the Bonds; 3 . The Placement Agreement dated as of April 1, 1996 (the "Placement Agreement") , among the Issuer, the Borrowers and the Placement Agent; and 4 . The Arbitrage Regulation Agreement dated as of April 1, 1996 (the "Arbitrage Regulation Agreement" ) among the Issuer, the Borrowers and the Trustee; and WHEREAS, the Issuer has held a Public Hearing in relation hereto, pursuant to Section 147 (f) of the Internal Revenue Code of 1986, as amended, on April 11, 1996; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YORKVILLE, KENDALL COUNTY, ILLINOIS, AS FOLLOWS : Section 1 . That the form, terms and provisions of the proposed Loan Agreement and Indenture, copies of which are before the City Council, 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 and deliver such instruments in the name and on behalf of the Issuer, to cause the Loan Agreement to be delivered to the Borrowers 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 -4- for such purpose; that the Loan Agreement and the Indenture are to be in substantially the respective forms submitted to the City Council 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 instruments as executed. Section 2 . That the form, terms and provisions of the proposed Placement Agreement, a copy of which is before the City Council, be, and it hereby is, in all respects approved, and that the Mayor and the City Clerk of the Issuer be, and they hereby are, authorized, empowered and directed to execute the Placement Agreement in the name and on behalf of the Issuer and thereupon to cause the Placement Agreement to be delivered to the Placement Agent and the Borrowers; that the Placement Agreement is to be in substantially the form thereof submitted to the City Council 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 form of such instrument hereby approved; that the Placement Agreement shall be entered into with the Placement Agent and the Borrowers; and that -5- from and after the execution and delivery of such instrument, 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 instrument as executed. Section 3 . That the form, terms and provisions of the proposed Arbitrage Regulation Agreement, a copy of which is before the City Council, be, and it hereby is, in all respects approved, and that the Mayor and the City Clerk of the Issuer be, and they hereby are, authorized, empowered and directed to execute the Arbitrage Regulation Agreement in the name and behalf of the Issuer and thereupon to cause the Arbitrage Regulation Agreement to be delivered to the Borrowers and the Trustee; that the Arbitrage Regulation Agreement is to be in substantially the form thereof submitted to the City Council 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 form of such instrument hereby approved; that the Arbitrage Regulation Agreement shall be entered into with the Borrowers and the Trustee; and that from and after the execution and delivery of such instrument, 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 instrument as executed. Section 4 . That the issuance of the Bonds in the aggregate principal amount of $3 ,400, 000 to mature on April 1, at -6- interest rates per annum as provided in the Indenture but in no event to exceed twelve percent (12U per annum is hereby approved and the Mayor and the City Clerk of the Issuer be, and they hereby are, authorized, empowered and directed to cause to be prepared the Bonds in the form 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 the Mayor and the manual or facsimile signature of the City Clerk and the seal of the Issuer shall be impressed or reproduced thereon, and that the Mayor or any other officer of the Issuer shall cause the Bonds, as so executed and attested, to be delivered to the Trustee for authentication and the Trustee be and is hereby requested to authenticate the $3, 400, 000 aggregate principal amount of Bonds; and that the form of the Bonds submitted to the City Council as they appear 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 Resolution in the aggregate principal amount of $3, 400, 000, it shall represent the approved form of the Bonds of the Issuer. Section 5 . That the distribution and use of the Preliminary Private Placement Memorandum by the Placement Agent be and is hereby authorized and that the distribution and use of a final Private Placement Memorandum be and is hereby authorized. -7- Section 6 . That the sale of the Bonds, upon the terms and conditions set out in the Placement Agreement, be, and hereby is, in all respects authorized and approved. Section 7. 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 be and 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 the Act and this Resolution, including the preamble hereto. Section 8 . That all acts and doings of the officials, agents and employees 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 Bonds in the aggregate principal amount of $3 , 400, 000 and the financing of the Project to that amount be, and the same hereby are, in all respects, approved and confirmed. Section 9 . The Issuer hereby acknowledges that a Public Hearing was held on April 11, 1996 and hereby approves the Project and the plan of financing. Section 10 . 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 hereinabove described bond issue and hereby affirmatively notes said election in this Resolution. Section 11 . The obligation of the Issuer to issue and deliver the Bonds is subject to the availability for such purpose of a -8- necessary and sufficient cap allocation under Section 146 of the Internal Revenue Code of 1986, as amended. Section 12 . That the Bonds shall be issued in compliance with and under the authority of the provisions of the Act, this Resolution and the Indenture. Section 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 . Section 14 . That all ordinances, resolutions, orders or parts thereof in conflict with the provisions of this Resolution are, to the extent of such conflict, hereby superseded. Section 15 . This Resolution shall be in full force and effect from and after its passage and approval, in accordance with law. PASSED this 11th day of April, 1996 pursuant to a roll call vote as follows : AYES : NAYS : Q ABSENT: 0 APPROVED by me this 11th day of April, 1996 . z—Z ayor ATTEST: .l EI-XI- Ci y erk r -9-