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22 of 1979 - A resolution of mutual inducement authorizing the execution of a Memorandum of Agreement with Martin ROLL CALL I VOTING Aye Nay Mr.Chairman Agraz Greener 4641.4 GAF ij e11 ✓ l Phillips Result 312c Jay Salt Lake City, Utah March 27, 1979 The Board of Commissioners of Salt Lake City met in regular session at its regular meeting place in Salt Lake City, Salt Lake County, Utah, at 10:00 a.m. on March 27, 1979 with the following City officials present: Ted L. Wilson Mayor Jennings Phillips, Jr. Commissioner Jess A. Agraa Commissioner David C. Campbell Commissioner Also present: Mildred Higham City Recorder Absent: Glen N. Greener After the meeting had been duly called to order the following resolution was introduced in writing, read in full, and pursuant to motion duly made by JENNINGS PHILIIPS, JR. it was adopted by the following vote: YEA: Ted L. Wilson Jennings Phillips, Jr. Jess A. Agraz Glen N. Greener Absent David C. Campbell NAY: None The resolution was then signed by the Mayor in open meeting and recorded by the City Recorder in the official records of Salt Lake City, Utah. The resolution is as follows: RESOLUTION OF MUTUAL INDUCEMENT AUTHORIZING THE EXECUTION OF A MEMORANDUM OF AGREEMENT WITH MARTIN OVERHEAD DOORS & ELECTRONICS, A UTAH CORPORATION, REGARDING THE ISSUANCE OF INDUSTRIAL DEVELOPMENT REVENUE BONDS FOR A COMMERCIAL INDUSTRIAL PROJECT. WHEREAS, SALT LAKE CITY CORPORATION, a municipal corporation of the State of Utah, is authorized and empowered under the provisions of Title 11, Chapter 17, Utah Code Annotated 1953, as amended (the "Act"), for the purposes stated therein, to issue revenue bonds for industrial development purposes; and WHEREAS, MARTIN OVERHEAD DOORS & ELECTRONICS, a Utah corporation, authorized to and doing business in Salt Lake County, State of Utah, hereinafter called "COMPANY", has requested that the City issue industrial revenue bonds to -2- finance the cost of a manufacturing, warehousing, retail and wholesale marketing facility for the company consisting of land, building, improvements, machinery and equipment (the "Project") at a cost of approximately $2,000,000.00; and WHEREAS, the City desires, pursuant to Company's representations and request, to issue such bonds to finance the cost of purchasing the land and constructing the building improvements, machinery and equipment for the Project by the issuance of revenue bonds under the Act in the amount of approximately $2,000,000.00; and WHEREAS, such bonds would be payable solely from the revenues and receipts delivered by the City from the mortgage of the Project to the Company and would not constitute nor give rise to any general obligation or liability of the City against its general credit or taxing powers and from which, among other things, Company agrees to hold City harmless; and WHEREAS, the payment of the principal of, and interest on, said bonds would be guaranteed by the Company; and WHEREAS, the Company has agreed to negotiate the sale of the bonds and appoint a Utah trustee, or deal with a Utah mortgagee, all with the approval of the City and in accordance with State law; and WHEREAS, the Company desires that the purchase of the land be consummated immediately: -3- NOW, THEREFORE, BE IT RESOLVED by the Board of Commissioners of Salt Lake City, as follows: 1. The Board of Commissioners of Salt Lake City hereby finds and determines that the issuance of its revenue bonds to finance the cost of the Project will be in furtherance of the public purposes set forth in the said Act, and that the Project will promote the welfare of the City. 2. The Board of Commissioners of Salt Lake City hereby approves the Project to be financed out of the proceeds of approximately $2,000,000.00 principal amount of the Industrial Revenue Bonds, of the Salt Lake City Corporation to be issued pursuant to the provisions of the Act. 3. The City officials are hereby authorized and directed to proceed with the necessary negotiations relating to the Project and the preparation of the legal documents relating thereto for final action by the governing body of the City, provided Company meets all City, State and Federal statutory requirements for the construction of the Project and issuance of said bonds. 4. The attached Memorandum of Agreement of even date by and between the Company and the City, be and the same is hereby approved and the execution thereof is hereby authorized. -4- Passed by the Board of Commissioners of Salt Lake City, Utah, this 27th day of March, 1979. MAY CITY RECORDER -5- After conduct of other business not pertinent to the above, the meeting was, on motion duly made and seconded, adjourned. ` Mayor ATTEST: ‘7040-jia,t,14--. City Recor er (S E A L) -6- STATE OF UTAH ss. COUNTY OF SALT LAKE ) I, Mildred V. Higham, the duly qualified and acting City Recorder of Salt Lake City, Utah, do hereby certify, according to the records of said City in my official possession, that the above and foregoing is a true and correct copy of the minutes of a meeting of the Board of Commissioners of said City, including a resolution adopted at said meeting, insofar as said minutes pertain to the matters therein set out. IN WITNESS WHEREOF, I have hereunto subscribed my official signature and impressed herein the seal of Salt Lake City, Utah this .2714 day of March, 1979. City Recor eJ (S E A L) -7- STATE OF UTAH ss. CERTIFICATE OF COMPLIANCE COUNTY OF SALT LAKE ) WITH OPEN MEETING LAW I, Mildred V. Higham, the duly qualified and acting City Recorder of Salt Lake City, Salt Lake County, Utah, do hereby certify that on the a24* day of March, 1979, pursuant to Utah Code Annotated Section 52-4-6 (1953), as amended, I personally posted (at least 24 hours prior to the meeting time) at the City Commission Chambers written notice of the regular meeting of the Board of Commissioners held on March 27, 1979 at said City Commission Chambers. I further certify that there was delivered to and posted in the City and County Building at least 24 hours prior to said meeting, a copy of said Notice of Regular Meeting, and that copies thereof were made available to media correspondents of the Salt Lake City area. A correct copy of the Notice is attached hereto. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of said Municipality this ,2744 day of March, 1979. ( S E A L ) City ecorde/ -8- NOTICE OF MEETING OF THE BOARD OF COMMISSIONERS OF SALT LAKE CITY, UTAH PUBLIC NOTICE is hereby given that the Board of Commissioners of Salt Lake City, Utah, will hold a meeting in Room 300 in the City and County Building in Salt Lake City, commencing at 10:00 o'clock A .m. on March 27, , 1979 The Agenda for the meeting consists of the following: CITY ATTORNEY - Submitting Resolution of Mutual Inducement authorizing the execution of a Memorandum of Agreement with Martin Overhead Doors and Electronics, a Utah Corporation, regarding the issuance of Industrial Development Revenue Bonds in the amount of $2,000,000.00. RESOLUTION AND MEMORANDUM OF AGREEMENT. DATED: March 26, 1979 • BY: {', / w i t C STATE OF UTAH : ss. Presentee!to the Cowl of Commissioners 1 AND APPROVED �''"Y� !7/ ) 0 14AR 21+979 CIlY RECARDFA MEMORANDUM OF AGREEMENT THIS MEMORANDUM OF AGREEMENT is entered into as of the 27th day of March, 1979, by and between SALT LAKE CITY CORPORATION, a municipal corporation of the State of Utah, hereinafter "CITY", and MARTIN OVERHEAD DOORS & ELECTRONICS, a Utah corporation, authorized to and doing business in the State of Utah, hereinafter "COMPANY". 1. Preliminary Statement. Among the matters of mutual inducement which have resulted in the execution of this Agreement are the following: A. The City is a political subdivision of the State of Utah, authorized and empowered by the provision of Chapter 17 of Title 11, Utah Code Annotated, 1953, as amended (the "Act"), to issue industrial development revenue bonds for the purpose of defraying the cost of acquiring, improving and equipping land and buildings suitable for manufacturing, warehousing, commercial and industrial purposes, and to lease, sell or mortgage the same to others for such payments and upon such terms and conditions as the City may deem advisable. B. The Company has requested the City to issue industrial development revenue bonds in the amount of approximately $2,000,000 (the "BONDS") to finance the cost of acquiring a partially improved Plant Site located within the City (the "Plant Site") and constructing thereon certain manufacturing, warehousing and commercial facilities and equipping the same (the "Plant"). (The Plant Site and Plant are hereinafter collectively referred to as the "Project".) The Company will grant to the City or its designee a first mortgage on the Plant Site and otherwise secure the City for any capital assets financed and purchased by proceeds of the Bonds. C. On the date hereof the Board of Commissioners of the City at a regular meeting thereof duly adopted a resolution approving the financing of the Project from the proceeds of the Bonds, subject to such Board's approval by future resolution of the interest rate and other specific terms of the Bonds and the related legal documents evidencing the financing arrangements and subject to due compliance with all requirements of law, the obtaining of all necessary consents and approvals, and the happening of all acts, conditions and other things required to exist, happen or be performed precedent to or in connection with the City's issuance of the Bonds pursuant to such statutory authority as may not exist or may hereafter be enacted. D. The City considers that the acquisitoin of the Project by the Company will promote industrial.development of the City, provide employment opportunities for the inhabitants thereof, increase the City's commerce and add to the welfare and prosperity of its inhabitants. -2- 2. Undertaking on the part of Company. A. In order to induce City to proceed with the issuance and sale of approximately $2,000,000 aggregate principal amount of the City's Bonds, the payment of which is to be guaranteed by Company pursuant to a loan and guarantee agreement to be entered into on or prior to the date of delivery of the Bonds, the proceeds of which are to be used to provide funds to finance, in whole or in part, the costs of acquiring the land, buildings, and equipment suitable for the Project, as provided by agreement between Company and City, and with full appreciation and realization of the fact that the investment value and marketability of the Bonds are, in large part, dependent upon the credit standing of Company and in consideration of the foregoing, Company makes the following representations and warranties to City, all of which will survive the delivery of the Bonds: (1) Company is a corporation duly incorporated under the laws of the State of Utah and is in good standing in Utah with full power to undertake and carry out the Project as described herein, to execute and deliver the lease or loan and guaranty agreement, and this Memorandum of Agreement, and to perform its obligations thereunder and hereunder, and the execution and delivery of the loan guaranty and this Memorandum of Agreement, and compliance with the provision of each will not -3- conflict with or constitute on the part of the Company a violation of, breach of, or default under its certificate of incorporation or bylaws or any statute, indenture, or other agreement or instrument which the Company is party or by which the Company is bound. (2) Company will duly authorize the execution and delivery of said loan guaranty agreement and this Memorandum of Agreement. (3) The financial statements of the Company referred to or contained in any disclosure documents to be issued in connection with this bond issue, and any and all supplements and amendments thereto, hereinafter referred to as the "Official Statement", shall fairly present the financial position of the Company as of the dates indicated therein and the results of its operations for the period specified therein and the financial statements shall have been prepared in conformity with generally accepted accounting principals consistantly applied, except as may be noted in the footnotes thereto, in all material respects with respect to the periods involved. (4) The descriptions and information contained in said Official Statement regarding the Project, and relating to the Company's participation in the transactions contemplated by: (i) the guaranty documents, and (ii) the indenture, if -4- any, shall be true and correct and shall not contain any untrue statement of a material fact or fail to state any material fact necessary to make the statements made therein, in light of the circumstance under which they are made, not misleading; provided however, that none of the representations and warranties in this Memorandum of Agreement shall apply to the information contained in the cover page or elsewhere relating to the yield on the Bonds or to statements in or omissions from the Official Statement made in reliance upon and in conformity with information furnished to the Company by the City. (5) None of the information contained in the Official Statement, to the best of Company's knowledge, shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading. (6) Except as is to be set forth in the Official Statement, there shall be no action, suit, proceeding, inquiry, or investigation at law or in equity or before or by any public board of body pending, or, to the knowledge of the Company, threatened against or affecting the Company, or to the best of the knowledge of the Company, any basis therefore wherein any unfavorable decision, ruling or finding would have a material adverse effect on the transactions contemplated by the said -5- I Official Statement or would have a material adverse effect on the validity or enforceability of the Bond, the indenture, the loan or guaranty agreement, or this Memorandum of Agreement. (7) The loan or guarantee documents, when executed and delivered by the Company, will be legal, valid and binding obligations of the Company enforceable in accordance with their respective terms, except to the extent enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditor's rights and excepting the enforceability of certain of the remedies contained therein which may be limited by the laws of the State of Utah, but such limitations do not render the remedies contained in such documents, when considered in the aggregate, inadequate for the practical realization of the rights and objectives which are contemplated by the City hereunder. (8) The Company will not make or omit to take any action, which action or omission will, in any way, cause the proceeds from the sale of the Bonds to be applied in a manner other than as provided in the said loan of guaranty document and the mortgage and indenture of trust, if any, to be completed and executed in the future between City and the trustee named therein, pursuant to which the Bonds are to be issued (the Indenture). The Company will not take or omit to take any action -6- which would, in any way, cause the Bonds not to qualify under the exemptions provided in Section 103(6)(d) of the Internal Revenue Code of 1954, as amended. B. The Company also agrees, subject to the conditions above stated, as follows: (1) It will cooperate with the City in connection with the sale and delivery of the Bonds upon terms satisfactory to the City and acceptable to the Company. (2) It will mortgage and pledge to the City as security, the Plant Site and all improvements and equipment in connection therewith and will undertake construction and equipping of the Plant, and the City will be secured for the entire project and all improvements thereon, upon completion thereof. (3) Contemporaneously with the sale of the Bonds, it will enter into a loan and guaranty agreement with the City under the terms of which the Company will obligate itself to pay the City sums sufficient in the aggregate to pay the principal of and interest and redemption premium, and all other costs and expenses, if any, on said Bonds, as and when the same shall become due and payable, such agreement to contain such provisions required by law and such other provisions as shall be acceptable to the City and the Company, and, to the extent it may be necessary or appropriate to purchasers of said Bonds. -7- (4) It will take such further action and adopt such further proceedings as the City may deem necessary or appropriate to implement the aforesaid undertakings. (5) The Company shall indemnify, save harmless and defend the City and each official or employee thereof from all losses, expenses, claims, damages and liabilities, including any expenses incurred by the City in defending any suits or actions, which may arise out of or be based upon (i) loss or damage to property or any injury to or death of any person occasioned subsequent to the date hereof by any cause whatsoever in relation to the Project, (ii) labor, services, materials and supplies, including equipment, ordered or used in connection with the acquisition of the Plant Site or the construction and equipping of the Plant, and (iii) the Securities Act of 1933, the Securities Exchange Act of 1934, any state securities laws or otherwise, arising out of any untrue statement of a material fact contained in the loan documents, in any form of Official Statement or prospectus which may be furnished by the Company to the purchaser or purchasers of the Bonds, except as to information furnished to the Company by the City, or in the financial statements referred to in Section 2A(3) hereof, or arising out of the omission from any such instrument, document or financial statements of a material fact required to be stated therein or necessary to make the statements therein, in the -8- light of the circumstances under which they were made, not misleading. Such indemnification of the City by the Company shall include the amount paid in settlement of any litigation commenced or threatened or of any claim based upon any such alleged untrue statement or omission if such settlement is effected with the written consent of the Company, provided that the Company shall not be required to defend or indemnify the City with respect to any such claim unless the Company shall be notified in writing of the nature of such claim within a reasonable time after the assertion thereof, and the Company shall be obligated, at its own expense to participate in or assume the defense of any suit brought to enforce any such claims and to select counsel to conduct such defense (who shall be satisfactory to the City or any official or employee thereof named as defendant), and provided further that if the Company elects to assume the defense of any such suit and retains counsel therefor, the City or any official or employee thereof named as defendant in such suit shall bear the reasonable fees and expenses of any additional counsel retained by them. The Company agrees to notify the City within a reasonable time of the assertion of any claim against it, any of its officers or directors, or any person who controls the Company within the meaning of Section 15 of the Securities Act of 1933 in connection with the sale of the Bonds. -9- 3. Undertakings on the part of the City. Subject to the conditions stated above, the City agrees as follows: A. It will authorize or cause to be authorized, the issuance and sale of the Bonds, pursuant to the provisions of the Act as then in force, in an aggregate principal amount of approximately $2,000,000 and including such specific terms as it shall require and are mutually agreed to by the Company. The City will also apply the proceeds of the Bonds to pay the costs of acquiring the Plant Site and constructing and equipping the Plant, including reimbursement to the City of all expenses incurred by it in connection with the Project and its issuance of the Bonds. B. It will adopt or cause to be adopted, from time to time, such proceedings and authorize the execution of such documents as may be necessary or advisable for the authorization, issuance and sale of the Bonds, and the acquisiton, construction and equipping of the Project as aforesaid, and the leasing or selling of the Project to the Company, or the mortgaging of the project by the Company all as shall be authorized by law, and deemed requisite or proper by City to complete the Project. C. The aggregate basic payments to be used to pay the principal, interest and premium, if any, of the Bonds, under the instruments encumbering the Project shall be such funds as shall -10- be sufficient to pay the principal of and interest and redemption premium, together with all other costs and expenses, if any, on all Bonds as and when the same shall be due and payable. In the event the Company shall elect to pay off the said encumbrances on the Project it may do so for aggregate amounts equal to the amounts required to retire the outstandings Bonds and pay all of said costs and expenses. 4. General Provisions. A. All commitments of the City under paragraph 3 hereof and of the Company under paragraph 2 hereof are subject to the condition that on or before April 1, 1982 (or such other earlier date as shall be mutually satisfactory to the City and the Company), the City and the Company shall have agreed to mutually acceptable specific terms for the Bonds and for the sale and delivery thereof, and mutually acceptable terms and conditions of the loan or guaranty documents referred to in paragraph 2B(3) and the proceedings referred to in paragraph 2B(4) and 3(B) hereof. B. If the events set forth in A of this paragraph do not take place within the time set forth or any extension thereof, the Company agrees that it will, at the request of the City, reimburse the City for all reasonable and necessary direct out-of-pocket expenses which the City may incure at the request of the Company arising from the execution of this Agreement and the performance by the City of its obligations hereunder. -11- C. The City and the Company mutually agree that with respect to any market study, feasibility report or legal opinion with respect to the Bonds, the City shall not incur any liability for the payment of the fees and expenses in connection with the same, except as may be paid out of the proceeds of the Bonds. D. The Bonds herein contemplated to be issued by the City pursuant to the Act shall be limited obligations of the City and shall not constitute nor give rise to a general obligation or liability of the City or a charge against its general credit or taxing powers, which limitation shall be plainly stated upon the face of the Bonds. The Bonds may, as provided in the Act, be secured by a mortgage or deed of trust which may provide that, in the event of a default in the payment thereof or the violation of any agreement contained therein, said mortgage or deed of trust may be foreclosed or otherwise realized on in any manner now or hereafter permitted by law, except that no breach thereof shall impose any general obligation or liability upon the City or any charge upon its general credit or against its taxing powers. E. It is understood and agreed by the City and the Company that the issuance of the Bonds and the execution of said loan or guarantee documents are subject fo obtaining (i) all necessary government approvals, (ii) approval of the Board of -12- Directors of the Company, (iii) approval of the Board of Commissioners, (iv) any necessary determination of the environmental impact of the Project by the City and (v) agreement by the City, the Company and the purchasers of the Bonds upon mutually acceptable specific terms for the Bonds and for the sale and delivery thereof, and mutually acceptable terms and conditions for the lease or sale agreement. F. All representations and warranties of the Company contained herein shall survive issuance and delivery of the Bonds and remain in full force and effect regardless of any investigation made by or on behalf of the City or any official or employee thereof. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective successors, assigns and designees of the parties hereto. G. This Agreement and all transactions contemplated hereby shall be construed in accordance with and governed by the laws of the State of Utah. -13- IN WITNESS WHEREOF, the parties hereto have entered into this Agreement by their officers thereunto duly authorized as of the 27th day of March, 1979. SALT LARK ITYCORPORATION By GI ayor ATTEST: City Recorder ft/ /(:.4.444-' MARTIN OVERHEAD DOORS & ELECTRONICS By Tit e: /Cfio� ATTEST: -14- STATE OF UTAH ) ss. COUNTY OF SALT LAKE ) On the p27 day of , 1979, personally appeared before me TED L. WILSON an MILDRED V. HIGHAM, who being by me duly sworn, did say that they are the Mayor and City Recorder, respectively, of SALT LAKE CITY CORPORATION, a municipal corporation of the State of Utah, and that they executed the foregoing instrument on behalf of said corporation by authority of a motion of the Board of Commissioners of Salt Lake City, passed on the 27"4' day of ywu,�,/t, , 1979; and said persons acknowledged to me that said corporation executed the same. NOToY PUBLIk)si ing in Salt Lake County, Utah My Commission Expires: 113 -15- STATE OF UTAH ) ss. COUNTY OF SALT LAKE On the 27th day of March , 1979, personally appeared bed me David 0. Martin and Virginia H. Martin , who being by me duly sworn, did say that they are the President and Secretary of MARTIN OVERHEAD DOORS & ELECTRONICS, and that the foregoing instrument was signed in behalf of said coproration by authority of a resolution of its board of directors; and said persons acknowledged to me that said corporation executed the same. / /'n 1 Vk TARY PUBLIC,-'residing in My Commission Expires: /Salt Lake City, Utah 5/7/79 -16- Resolution No. tit ` 1 By Jennings Phillips, Jr. COMMISSIONER Resolution of mutual inducement auth- orizing the execution of a Memorandum of Agreement with Martin Overhead Doors & Electronics, a Utah Corpora- tion, regarding the issuance of Industrial Development Revenue Bonds for a commercial industrial project. Presented to the hard of Commissional , AND PASSED MAR 2 7 9 99 ?lama % 4 r; cart R "^r 1 , 11111116.