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HomeMy WebLinkAboutR-662-12-85RESOLUTION NO. 662-12-85(R) RESOLUTION OF THE CITY COUNCIL APPROVING THE ISSUANCE OF BONDS BY THE ALLEN INDUSTRIAL DEVELOPMENT CORPORATION TO FINANCE A PROJECT FOR QUEST MEDICAL, INC. FOLLOWING PUBLIC HEARING WHEREAS, by resolution the City Council (the "Governing Body") of the City of Allen, Texas (the "Unit"), authorized and approved the creation of the Allen Industrial Development Cor- poration (the "Issuer") as a nonprofit industrial development corporation under the provisions of the Development Corporation Act of 1979, Article 5190.6, Vernon's Annotated Texas Civil Statutes, as amended (the "Act"); and WHEREAS, by resolution adopted on November 4, 1985, the Issuer agreed to issue industrial development revenue bonds to finance the cost of facilities (the "Project") on behalf of Quest Medical, Inc. to accomplish the specific public purpose for which the Issuer was created; WHEREAS, the Issuer desires to provide for the issuance and sale of its Industrial Development Revenue Bonds, Series 1985 (Quest Medical, Inc. Project) (the "Bonds"), in the maxi- mum aggregate principal amount of $6,565,000, and has adopted the resolution attached hereto as Exhibit A (the "Resolution"); and WHEREAS, on December 5, 1985, the Issuer held a public hearing in a location which, under the facts and circumstances, was convenient for residents of the Unit, with respect to the Bonds and the Project following publication of reasonable pub- lic notice in the form attached hereto as Exhibit B (the "No- tice") in compliance with Section 103(k) of the Internal Reve- nue Code of 1954, as amended (the "Code"); and ' WHEREAS, the Governing Body is the elected legislative body of the Unit; and WHEREAS, the Act provides that the Governing Body must, by resolution adopted no more than sixty (60) days prior to the date of delivery of the Bonds, specifically approve the resolu- tion of the Issuer providing for the issuance of the Bonds, and Section 103(k) of the Code requires that the "applicable elect- ed representative," which with respect to the Bonds is the Gov- erning Body, approve the Bonds and the Project prior to issu- ance; WHEREAS, Section 103(n) of the Internal Revenue Code of 1954, as amended (the "Code"), imposes a ceiling on the amount of "private activity bonds" issued within a state and RESOLUTION NO. 662-12-85(R) Section 103(n)(6) of the Code provides interim authority for the governor -of a state and final authority for a state to pro- vide for a different formula for allocating the state ceiling among the governmental units in such state; and WHEREAS, the Legislature of the State of Texas has enacted and the Governor of the State of Texas has approved House Bill 690 (as the same may be codified, the "Allocation Act") providing a formula for allocating the state ceiling of Texas with respect to allocations or reservations made on and after August 26, 1985 and providing for the administration by the Texas Economic Development Commission (the "Commission") of procedures to effect such allocation; and WHEREAS, the Issuer has authorized the filing with the Commission of an application for reservation pursuant to the Allocation Act and various other matters in consideration hereof, and the Unit expects that in response to such filing an allocation of the state ceiling with respect to the Bonds will be made to it. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ALLEN, TEXAS THAT: 1. The Resolution of the Issuer providing for the sale and issuance of the Bonds, substantially in the form attached hereto as Exhibit A, is hereby approved. 2. The Governing Body hereby specifically approves the Bonds, as required by Section 103(k) of the Code, and the Proj- ect, all as described in the Notice attached hereto as Exhibit B, and the Governing Body finds and determines that the Project is in furtherance of the public purposes of the Act. 3. The Governing Body hereby specifically assigns to the Issuer, for application in respect of the Bonds, any allocation of the state ceiling that the Unit may receive with respect to the Bond, and the Governing Body hereby severally authorizes and directs its officers, directors, agents and employees to take all action that may be necessary to obtain or assign such allocation pursuant to the Allocation Act. PASSED AND APPROVED this 5th day of December, 1985. Exhibit A - Resolution of Issuer Exhibit B - Notice of Public Hearing Attachment to: Resolution 662-12-85(R) CERTIFICATE OF CITY SECRETARY THE STATE OF TEXAS COUNTY OF COLLIN I, the undersigned City Secretary of the City of Allen, Texas (the "Unit"), do hereby execute and deliver this Cer- tificate for the benefit of all persons interested in proceed- ings of the City Council (the "Governing Body") of the Unit and the validity thereof, and do certify as follows: 1. 1 am the duly chosen, qualified and acting City Se- cretary of the Unit, and as such I am familiar with the facts herein certified, and I am duly authorized to execute and de- liver this Certificate. 2. The Governing Body convened in Regular Session on the 5th day of December 1985, at the Allen City Hall, One Butler Circle, Allen, Texas, and the roll was called of the duly con- stituted officers and members of the Governing Body and all of said persons were present, except the following: None thus constituting a quorum. Whereup- on, among other business, the following was transacted at said meeting: A written resolution was introduced for the consider- ation of the Governing Body. Thereupon, the presiding officer instructed the members of said Governing Body that if any mem- ber of said Governing Body or any relative by blood or marriage to such member has a substantial interest in any business enti- ty which would be peculiarly affected by action on said Resolu- tion, such member must file an affidavit prior to the vote on said Resolution with the City Secretary of said Unit stating the nature and extent of such interest and must abstain from participating in the discussion and vote on said Resolution, all as more specifically set forth in Article 988b, Vernon's Annotated Texas Civil Statutes, as amended. The following per- sons filed an affidavit and abstained pursuant to the foregoing instructions: None A copy of each affidavit so filed is attached hereto as an ex- hibit to this certificate. It was then duly moved and seconded that said Resolution be adopted; and, after due discussion, said motion, carrying with it the adoption of said Resolution, prevailed and carried by the vote of 7 Ayes, 0 Noes, and 0 Abstentions. 3. A true and complete copy of the aforesaid Resolution adopted at the meeting is attached to and follows this Certificate. Attachment to: Resolution 662-12-85(R) 4. Such Resolution has been duly and lawfully adopted by the Governing Body and has been duly recorded in the minutes of the Governing Body for such meeting. 5. As required by Article 6252-17, Vernon's Annotated Texas Civil Statutes, as amended, written notice of the date, hour, place, and subject of the meeting of the Governing Body was posted and given in advance hereof, such place of posting was readily accessible to the general public at all times from such time of posting until the scheduled time of such meeting, and such meeting was open to the public as required by law at all times during which the Resolution and the subject matter thereof were discussed, considered, and formally acted upon. CV1r�- SIGNED AND SEALED, this S day of December, 1985. City cretary City of Allen, Texas (SEAL) Attachment to: Resolution No. 662-12-85(R) Exhibit "A" RESOLUTION OF THE ALLEN INDUSTRIAL DEVELOPMENT CORPORATION WITH RESPECT TO A PUBLIC HEARING AND AUTHORIZING ISSUANCE OF BONDS AND APPROVING DOCUMENTS WHEREAS, the Development Corporation Act of 1979, Article 5190.6, Vernon's Annotated Texas Civil Statutes, as amended (the "Act"), authorizes and empowers the Allen Industrial De- velopment Corporation (the "Issuer") to issue revenue bonds on behalf of the City of Allen, Texas (the "Unit"), to finance the cost of projects comprising land, buildings, equipment, facili- ties and improvements, found by the Board of Directors of the Issuer (the "Board") to be required or suitable for the promo- tion of development and expansion of manufacturing and indus- trial facilities and in furtherance of the public purposes of the Act; and WHEREAS, the Board adopted a resolution on November 4, 1985, whereby the Issuer agreed to provide for the financing of the cost of the project (the "Project") for Quest Medical, Inc., a Texas corporation (the "User"), which was initially de- scribed in such resolution as is now described in Exhibit A to the Loan Agreement between the Issuer and the User referenced below, in accordance with the provisions of the Act; and WHEREAS, for purposes of financing the cost of the Proj- ect, the Issuer now desires (i) to authorize the issuance of its Industrial Development Revenue Bonds, Series 1985 (Quest Medical, Inc. Project) (the "Bonds"), in the maximum aggregate principal amount of $6,565,000, pursuant to the terms and pro- visions of a trust indenture, (ii) to provide for the sale of the Bonds to the purchaser described herein, (iii) to provide for the payment of the principal of, premium, if any, and in- terest on the Bonds with revenues derived from the loan of pro- ceeds of the sale of the Bonds to the User to finance the costs of the Project pursuant to the terms and provisions of a loan agreement and (iv) to take and authorize certain other actions in connection with the foregoing; and WHEREAS, Section 103(k) of the Internal Revenue Code of 1954, as amended (the "Code"), requires that the Bonds be ap- proved by the "applicable elected representative" (the "AER") after a public hearing following reasonable public notice; and WHEREAS, with respect to the Bonds issued by the Issuer the AER is the City Council (the "Governing Body") of the Unit; and Attachment to: Resolution No. 662-12-85(R) Exhibit "A" WHEREAS, notice of a public hearing with respect to the Project and the Bonds to be held by the Issuer on the date of this resolution was published no less than 14 days before this date in a newspaper of general circulation available to resi- dents within the Unit; and WHEREAS, the Board has held such public hearing on the date and at the time and place set out in such published notice and has conducted such hearing in a manner that provided a rea- sonable opportunity for persons with differing views on the is- suance of the Bonds and on the location and nature of the Proj- ect to be heard; and WHEREAS, the Governing Body of the Unit proposes to adopt a written resolution specifically approving this resolution of the Issuer providing for the issuance of the Bonds and specifi- cally approving the Bonds as required by Section 103(k) of the Code; and WHEREAS, Section 103(n) of the Code imposes a ceiling on the amount of "private activity bonds" issued within a state and Section 103(n)(6) of the Code provides interim authority for the governor of a state and final authority for a state to provide for a different formula for allocating the state ceil- ing among the governmental units in such state; and WHEREAS, the Legislature of the State of Texas has enacted and the Governor of the State of Texas has approved House Bill 690 (as the same may be codified, the "Allocation Act") providing a formula for allocating the state ceiling of Texas with respect to allocations or reservations made on and after August 26, 1985 and providing for the administration by the Texas Economic Development Commission (the "Commission") of procedures to effect such allocation; and WHEREAS, the Allocation Act requires that an issuer file with the Commission an application for reservation; and WHEREAS, the Board wishes to authorize the filing by the Issuer of such application for reservation and various other matters in consideration thereof; and WHEREAS, the Board has been presented with and has exam- ined proposed forms of a trust indenture and a loan agreement, and the Board finds that the form and substance of such docu- ments are satisfactory and the recitals and findings contained therein are true, correct and complete and hereby adopts and incorporates by reference such recitals and findings as if set forth in full in this resolution, and finds that it is in the 2 Attachment to: Resolution No. 662-12-85 (R) Exhibit "A" best interest of the public and the Issuer and assists in car- rying out the public purpose of the Issuer and the Act to au- thorize the execution and delivery of such documents; and WHEREAS, the Board has also been presented with and has examined the proposed form of a deed of trust, security agree- ment, assignment of rents and financing statement, from the User to the mortgage trustee named therein, for the benefit of the Trustee (as hereinafter defined) (for the benefit of the holders of the Bonds), and the Board finds the form and sub- stance of such document are satisfactory; NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE ALLEN INDUSTRIAL DEVELOPMENT CORPORATION THAT: 1. The Board hereby finds, determines, recites and de- clares that a public hearing with respect to the Bonds and the Project was held on this date; that notice of such public hear- ing was published no less than 14 days before this date in a newspaper of general circulation available to residents within the Unit; that such notice included the date, time and place of the public hearing, the location, general nature and the ini- tial owner, operator or manager of the Project and the maximum aggregate principal amount of the Bonds; and that all comments from interested persons were taken at such public hearing. The Board hereby directs that information with respect to the pub- lic hearing be provided to the Governing Body prior to its con- sideration of adoption of a resolution approving the Bonds and the Project. 2. The Issuer hereby authorizes and directs,the issuance of the Bonds in the maximum aggregate principal amount of $6,565,000, in accordance with a trust indenture substantially in the form of the Trust Indenture, dated as of December 1, 1985 (the "Indenture"), by and between the Issuer and MBank Dallas, National Association, as trustee (the "Trustee"), a copy of which was presented to the Board, the form, terms and provisions of such Indenture and the Bonds being hereby autho- rized and approved, and the President and the Vice President of the Issuer are hereby severally authorized and directed to exe- cute and deliver such Indenture and the Bonds on behalf of the Issuer, and the Secretary of the Issuer is hereby authorized to attest and affix the Issuer's seal thereto, with such changes therein as the officers executing the same may approve, such approval to be conclusively evidenced by such execution there- of. 3. The loan of the proceeds of the sale of the Bonds by the Issuer to the User to provide financing of the costs of Ke Attachment to: Resolution No. 662-12-85(R) Exhibit "A" acquiring and constructing the Project shall be effected pursu- ant to the terms and provisions of a loan agreement substan- tially in the form of the Loan Agreement, dated as of December 1, 1985 (the "Loan Agreement"), by and between the Is- suer and the User, a copy of which was presented to the Board, the form, terms and provisions of such Loan Agreement being hereby authorized and approved, and the President and the Vice President of the Issuer are hereby severally authorized and di- rected to execute and deliver such Loan Agreement on behalf of the Issuer, and the Secretary of the Issuer is hereby autho- rized to attest and affix the Issuer's seal thereto, with such changes therein as the officers executing the same may approve, such approval to be conclusively evidenced by such execution thereof. 4. As a further condition to the actions authorized in Paragraphs 2 and 3 of this resolution, the User shall have exe- cuted a deed of trust, security agreement, assignment of rents and financing statement substantially in the form of the Deed of Trust, Security Agreement, Assignment of Rents and Financing Statement, dated as of December 1, 1985 (the "Mortgage"), from the User to the mortgage trustee named therein, for the benefit of the Trustee (for the benefit of the holders of the Bonds), a copy of which was presented to the Board, the form, terms and provisions thereof being hereby authorized and approved. 5. The sale and delivery of the Bonds by the Issuer to MBank Dallas, National Association (the "Purchaser"), at the par value thereof, are hereby authorized and approved. 6. The actions and obligations authorized in Paragraphs 2 through 5 of this resolution shall be subject to and condi- tioned upon the receipt by the Issuer, at the date of delivery of and payment of the purchase price for the Bonds (the "Closing Date"), of (i) an investment letter, duly authorized and executed by the Purchaser, substantially in the form of the Investment Letter, dated the Closing Date (the "Investment Let- ter"), a copy of which was presented to the Board, the form, terms and provisions of such Investment Letter being hereby au- thorized and approved; (ii) a certificate from a representative of the Commission, acting on behalf of the Commission, evidencing final approval of the Loan Agreement; (iii) the pur- chase price for the Bonds; (iv) evidence, satisfactory to Bond Counsel, of AER approval of the Project and the Bonds; and (v) such opinions, evidences, certificates, instruments or other documents as shall be requested by the Issuer's Counsel or by Bond Counsel, to evidence due performance or satisfaction by the User at or prior to such time of all agreements then to be performed and all conditions then to be satisfied by it. 4 Attachment to: Resolution No. 662-12-85(R) Exhibit "A" 7. The officers, employees and agents of the Issuer shall be and each is authorized, empowered and directed from time to time and at any time to do and perform all acts and things and to execute, acknowledge and deliver in the name and under the corporate seal and on behalf of the Issuer an appli- cation for reservation pursuant to the Allocation Act and any and all certificates and other documents required to reserve an allocation of the state ceiling pursuant to the Allocation Act, and to handle all other matters in consideration thereof. 8. The officers, employees and agents of the Issuer, and each of them, shall be and each is expressly authorized, empow- ered and directed from time to time and at any time to do and perform all acts and things and to execute, acknowledge and de- liver in the name and under the corporate seal and on behalf of the Issuer all certificates, financing statements, instruments and other papers, whether or not herein mentioned, as they may determine to be necessary or desirable to carry out the terms and provisions of this resolution and of the Bonds to be issued hereunder, as well as the terms and provisions of the Inden- ture, the Mortgage and the Loan Agreement hereby authorized and approved, such determination to be conclusively evidenced by the performance of such acts and things and the execution of any such certificate, financing statement, instrument or other paper. 9. The officers of the Issuer (with the assistance of the User) shall prepare a final transcript of the proceedings relating to the authorization, issuance, sale and delivery of the Bonds, which transcript shall be submitted to the Commis- sion within sixty (60) days after the Closing Date. 10. The Issuer hereby elects to have Section 103(b)(6)(D) of the Internal Revenue Code of 1954, as amended, and the regu- lations promulgated thereunder, apply to the Bonds, and the President, the Vice President and the Secretary of the Issuer are hereby severally authorized and directed to execute and de- liver a statement to the Internal Revenue Service to the effect that the Issuer has so elected, and to deliver a copy of such statement to the Purchaser and the User. The Board further di- rects that an officer of the Issuer submit to the Secretary of the Treasury, not later than the 15th day of the second calen- dar month after the close of the calendar quarter in which the Bonds are issued, a statement containing the information re- quired by Section 103(l) of the Code. 11. Based upon representations made by the User to the Board, the Board hereby affirmatively finds that: Attachment to: Resolution No. 662-12-85(R) Exhibit "A" (a) the Project is required and suitable for the promotion of development and expansion of manufacturing and industrial facilities and is in furtherance of the public purposes of the Act; and (b) the Project will contribute to the economic growth or stability of the Unit by: (i) increasing or stabilizing employment oppor- tunity; (ii) significantly increasing or stabilizing the property tax base; and (iii) promoting commerce within the Unit and the State of Texas. 12. This resolution shall take effect and be in full force and effect upon and after its passage. PASSED AND APPROVED this 5th day of December, 1985. dpl:45858 6 FX4AI/ 8 Attachment to: Resolution No. 662-12-85(R) Exhibit "B" NOTICE OF PUBLIC HEARING The Allen Industrial Development Corporation (the "Issuer") will hold a public hearing on behalf of the City of Allen, Texas at 6:30 p.m. on December 5, 1985 in Allen City Hall, One Butler Circle, Allen, Texas, on the proposed issuance by the Issuer of one or more series of its industrial development revenue bonds (the "Bonds") in an amount not to exceed $7,864,500 to finance the cost of the acquisition of approximately 20 acres of land and the construction thereon in one or more phases of a 138,000 square foot laboratory, manufacturing and office facility, together with equipment and facilities functionally related and subordinate to the foregoing (the "Project"), to be owned by Quest Medical, Inc. The Project will be located on State Highway 5 in the City of Allen, Texas, (Rufus Sewell Survey, Abstract Number 875). All interested persons are invited to attend and express any comments they have regarding the proposed issuance of the Bonds and the Project to be financed thereby.