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CC Resolution No. 1219 2354 RESOLUTION NO. 1219 BAYTOWN RESOLUTION NO. A RESOLUTION APPROVING THE RESOLUTION PASSED BY THE BAYTOWN INDUSTRIAL DEVELOPMENT CORPORATION RELATING TO THE ISSUANCE, SALE AND DELIVERY OF ITS INDUSTRIAL DEVELOPMENT REFUNDING REVENUE BONDS (WAL-MART STORES, INC. PROJECT) SERIES 1994, FOR THE PURPOSE OF FUNDING THE REDEMPTION OF $2,660,000 AGGREGATE PRINCIPAL AMOUNT OF ITS INDUSTRIAL DEVELOPMENT REVENUE BONDS (WAL-MART STORES, INC. PROJECT) DATED NOVEMBER 1, 1984; AND OTHER MATTERS IN CONNECTION THEREWITH WHEREAS,the City of Baytown, Texas (the"Unit") has authorized and approved the creation and articles of incorporation of the Baytown Industrial Development Corporation (the "Corporation") in accordance with the Development Corporation Act of 1979, as amended, Texas Revised Civil Statutes Annotated Article 5190.6 (the "Act"); and WHEREAS, by resolution (the "Bond Resolution') approved and adopted on September 8, 1994, the Board of Directors of the Corporation authorized the issuance, sale and delivery of $2,660,000 aggregate principal amount of its Industrial Development Refunding Revenue Bonds(Wal-Mart Stores,Inc. Project)Series 1994(the "Bonds"), for the purpose of refunding $2,660,000 of the Corporation's Industrial Development Revenue Bonds (Wal-Mart Stores, Inc. Project) dated November 1, 1984, which were issued to provide funds for the acquisition and construction of a project consisting of an approximately 79,900 square foot retail store facility located at 4900 Garth Road, Baytown, Texas 77520, with necessary parking, including all necessary furnishings and fixtures in connection therewith, which project has been constructed and is being leased and operated by Wal-Mart Stores, Inc.; and WHEREAS, to comply with the provisions of the Act and the bylaws of the Corporation, the Unit desires to approve the Bond Resolution; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the City Council hereby approves the Bond Resolution, a copy of which is attached hereto as Exhibit "A", and the issuance, sale and delivery of the Bonds pursuant thereto. "11,� 2355 Section 2: That the Mayor, City Manager, and the City Clerk hereby are authorized jointly and severally to executive and deliver all documents necessary to effectuate the purposes of the Bond Resolution including,but not limited to, seeking the approval of the Texas Attorney General of the Bonds. Section 3: The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a part of the judgment and findings of the City Council. Section 4: All ordinances and resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein. Section 5: This Resolution shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. Section 6: If any provision of this Resolution or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Resolution and the application of such provision to other persons and circumstances shall nevertheless be valid, and this City Council hereby declares that this Resolution would have been enacted without such invalid provision. Section 7: It is officially found, determined, and declared that the meeting at which this Resolution is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Resolution, was given, all as required by Chapter 551, as amended, Texas Government Code. Section 8: This Resolution shall be in force and effect from and after its final passage, and it is so resolved. [The remainder of this page intentionally left blank.] 0117442 -2- 2456 PASSED AND APPROVED this 8th day of September, 1994. Mayor ATTEST: ,A2� City Clerk (SEAL) 0117442 -3- EXHIBIT A BOND RESOLUTION ADOPTED BY THE BAYTOWN INDUSTRIAL DEVELOPMENT CORPORATION 0117442 A-1 BAYTOWN RESOLUTION AUTHORIZING THE ISSUANCE, SALE AND DELIVERY OF THE BAYTOWN INDUSTRIAL DEVELOPMENT CORPORATION INDUSTRIAL DEVELOPMENT REFUNDING REVENUE BONDS (WAL-MART STORES, INC. PROJECT) SERIES 1994,FOR THE PURPOSE OF FUNDING THE REDEMPTION OF $2,660,000 AGGREGATE PRINCIPAL AMOUNT OF THE BAYTOWN INDUSTRIAL DEVELOPMENT CORPORATION INDUSTRIAL DEVELOPMENT REVENUE BONDS (WAL-MART STORES, INC. PROJECT) DATED NOVEMBER 1, 1984; AND OTHER MATTERS IN CONNECTION THEREWITH WHEREAS, the Baytown Industrial Development Corporation (the "Issuer"), a non-profit corporation organized with the approval of the City of Baytown, Texas (the "Unit"), and existing pursuant to the Development Corporation Act of 1979, Article 5190.6, Vernon's Annotated Texas Civil Statutes, as amended (the "Act"), is empowered to finance the cost of projects located within the boundaries of the Unit to develop new and expanded industrial, commercial and manufacturing facilities to promote and encourage employment and the public welfare by the issuance of obligations of the Issuer; WHEREAS, the Issuer is authorized by the Act to acquire, construct, improve, maintain, equip and furnish, and to lease or sell projects; WHEREAS, the Issuer is further authorized by the Act to issue its bonds for the purpose of refunding bonds then outstanding and previously issued under the Act; WHEREAS, pursuant to an Indenture of Trust and Mortgage (the "Original Indenture") dated as of November 1, 1984,between the Issuer and Commercial National Bank in Shreveport, as trustee,the Issuer issued$2,660,000 aggregate principal amount of its Industrial Development Revenue Bonds (Wal-Mart Stores, Inc. Project) (the "Refunded Bonds"), for the purpose of financing the construction and acquisition of a project (the 'Project") consisting of an approximately 34,875 square foot retail department store facility, with necessary parking, including all necessary furnishings and fixtures, located at 4900 Garth Road, Baytown, Texas 77520; WHEREAS, the Project has been constructed and is being leased by the Issuer to Wal-Mart Stores, Inc. (the "Company") pursuant to a Lease Agreement (the "Original Lease Agreement"), dated as of November 1, 1984, between the Issuer and the Company; WHEREAS, the Company has requested that the Issuer refinance the Project through the issuance of refunding bonds; 0117327 EXHIBIT A WHEREAS, in view of the currently favorable market conditions, it is considered essential that the refinancing of the Project be completed at the earliest practicable date; WHEREAS, pursuant to Section 301 of the Original Indenture, the Refunded Bonds may be redeemed in whole or in part on any May 1 or November 1 at the option of the Issuer at the request of the Company; WHEREAS, pursuant to Section 9.2 of the Original Lease Agreement, the Issuer is required to take all action necessary to redeem the Refunded Bonds in accordance with their terms and the terms of the Original Indenture at the request of the Company; WHEREAS, at the request of the Company, and to promote and encourage the public purposes of the Issuer, it is proposed that the Issuer issue a series of its industrial development refunding revenue bonds to be known as 'Baytown Industrial Development Corporation Industrial Development Refunding Revenue Bonds(Wal-Mart Stores, Inc. Project) Series 1994" (the 'Bonds"), for the purpose of refunding a portion of the Refunded Bonds; and WHEREAS, proposed forms of the following documents relating to the Bonds have been made available to the Board of Directors of the Issuer for their review: (1) Lease Agreement (the "Lease Agreement"), to be dated as of September 1, 1994, between the Issuer and the Company; (2) Trust Indenture (the "Trust Indenture"), to be dated as of September 1, 1994, between the Issuer and Commercial National Bank in Shreveport (the "Trustee"), as trustee; (3) Escrow Deposit Agreement (the "Escrow Agreement"), to be dated as of September 1, 1994, among the Issuer, the Company and the Trustee, as escrow trustee; (4) Bond Purchase Agreement (the 'Bond Purchase Agreement"), to be dated as of September 16, 1994, among the Issuer, the Company and Stephens Inc. (the "Underwriter"); (5) Guaranty Agreement (the "Guaranty Agreement"), to be dated as of September 1, 1994 between the Company and the Trustee; (6) Form of Release of Indenture of Trust and Mortgage, Lease Agreement and certain other documents related thereto (the "Act of Release") to be executed by the Issuer, the Trustee and the Company; (7) Preliminary Official Statement (the "POS") to be dated September _, 1994; 0117327 -2- and the Secretary of the Issuer has been directed to file the foregoing documents with the minutes of the meeting at which this resolution was adopted; and WHEREAS, the Issuer hereby finds and determines that the adoption of this resolution is in the best interests of the citizens of the Unit, now, therefore, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE BAYTOWN INDUSTRIAL DEVELOPMENT CORPORATION THAT: Section 1. The Issuer hereby confirms its findings and determinations made in connection with the authorization of the Refunded Bonds that the Project is (a) suitable for the promotion of commercial development and expansion of manufacturing and industrial facilities, for the promotion of employment in, and the public welfare of, the Unit and for use by commercial, manufacturing or industrial enterprises and (b) furtherance of the public purposes of the Act. Section 2. The Issuer shall issue the Bonds in an aggregate principal amount not to exceed $2,660,000. The Bonds shall be serial and/or term bonds as determined by the President or any Vice President of the Issuer at the time of the marketing of the Bonds, shall mature on such date or dates on or prior to November 1, 2009 as the President or any Vice President of the Issuer may determine at the time of the marketing of the Bonds, and shall contain such other terms as shall be set forth in the Indenture. The proceeds of the Bonds, together with a cash contribution from the Company, if any, shall be delivered to the Trustee, in its capacity as paying agent for the Refunded Bonds, and shall be used to fund the redemption price of the Refunded Bonds pursuant to Section 301(d) of the Original Indenture, at a redemption price of 100% of the outstanding principal amount thereof, plus a redemption premium of 3%, plus accrued interest thereon to the redemption date. The officers of the Issuer hereby are authorized and directed to take all action necessary to cause the redemption of $2,660,000 aggregate principal amount of the Refunded Bonds on November 1, 1994, pursuant to the Original Indenture. The sale of the Bonds to the Underwriter pursuant to the Bond Purchase Agreement at a price equal to 100% of the par amount thereof and an interest rate or rates of between 2% and 8% per annum [such rate or rates to be determined by the President or any Vice President of the Issuer pursuant to the execution of a certificate (the "Approval Certificate") at such time as the Bonds are marketed and to be based on interest rates payable on tax-exempt securities of comparable credit worthiness and terms as that of the Bonds] is hereby authorized and approved. Any determination of a term or terms of the Bonds by the President or a Vice President of the Issuer pursuant hereto shall be set forth in the Bond Purchase Agreement or the Approval Certificate, and such determination shall be conclusively evidenced by the execution of the Bond Purchase Agreement or the Approval Certificate by the President or any Vice President on behalf of the Issuer. Section 3. The Bonds shall be issued in compliance with and under the authority of the provision of the Act, this Resolution and the Indenture. Additional bonds may be issued on a parity with the Bonds in accordance with the provisions and limitations 0117327 -3- set forth in the Indenture. To the extent required, the Issuer hereby makes and authorizes the making of the election of the $10,000,000 limit in connection with the Bonds under and pursuant to Section 144(a)(4) of the Internal Revenue Code of 1986, as amended. Section 4. The Bonds shall be special, limited obligations of the Issuer payable solely from the funds of the Issuer derived from or in connection with the sale or lease of the Project, and the Bonds shall never constitute an indebtedness, liability, general, special or moral obligation, pledge or loan of the faith or credit or taxing power of the State of Texas, the Unit, or of any other political subdivision or municipal or political corporation or governmental unit, nor shall the Bonds ever be deemed to be an obligation or agreement of any officer, director, agent or employee of the Issuer, in any capacity, and the Bonds shall never be paid in whole or in part out of any funds to be raised by taxation or any other funds of the Unit. Section 5. The Indenture, the Lease Agreement, the Escrow Agreement, the Guaranty Agreement, and the Bond Purchase Agreement, and the performance by the Issuer of its obligations thereunder, hereby are approved and adopted in all respects. The President, any Vice President, the Treasurer, the Secretary and any Assistant Secretary are hereby authorized and directed to execute and deliver the Indenture, the Lease Agreement, the Escrow Agreement, the Guaranty Agreement, and the Bond Purchase Agreement for and on behalf of the Issuer in substantially the forms presented to the Board of Directors in the manner provided in the Issuer's bylaws, with such changes thereto as any such officer may approve in his or her absolute discretion (any such officer's approval to be conclusively evidenced by his execution and delivery of such documents on behalf of the Issuer). The form, terms, covenants and conditions of the Bonds set forth in the Indenture hereby are authorized, approved and adopted. The President, any Vice President, the Treasurer, the Secretary and any Assistant Secretary of the Issuer are hereby authorized and directed to execute the Bonds in the manner provided in the Issuer's bylaws, or have their facsimile signatures placed upon the Bonds, and each is hereby authorized and directed to deliver the Bonds, and the seal of the Issuer is hereby authorized and directed to be affixed or placed in facsimile on the Bonds. Section 6. The officers of the Issuer are each hereby authorized to execute, attest, affix the Issuer's seal to, and deliver, or to accept delivery of, any and all other agreements, assignments, bonds, certificates, contracts, documents, instruments, releases, financing statements, letters of instruction, written requests, and other papers,whether or not mentioned herein, as may be necessary or convenient to carry out or assist in carrying out the purposes of this Resolution and the issuance of the Bonds, including, without limitation, the following: General Certificate, Approval Certificate, a Certificate as to Tax-Exemption, an Investment Instructions Letter, an Order to Authenticate and Deliver Bonds, a Certificate as to Specimen Bond, a Cross Receipt, an IRS Form 8038, and all documents required to be filed with the Texas Department of Commerce and Texas Attorney General. 0117327 -4- Section 7. After the passage of this Resolution, the President of the Issuer shall have the custody and charge of the Bonds and when the same have been prepared in accordance with these proceedings, he shall cause them to be delivered to the Attorney General of the State of Texas for approval and to the Comptroller of Public Accounts of the State of Texas for registration, after which they shall be held for delivery to the initial purchasers of the Bonds. Section 8. The Board of Directors hereby deems the POS "final' as of its date solely for purposes of satisfying the requirements of Rule 15c2-12 promulgated by the Securities and Exchange Commission. The Issuer hereby authorizes and approves the use and distribution of the POS by the Underwriter in connection with the sale of the Bonds. The officers of the Issuer hereby are authorized and directed to cause to be prepared a definitive official statement relating to the Bonds (the "Official Statement"), which shall be in substantially the form as the POS with such changes as are required to reflect the definitive terms of the Bonds, the Indenture, the Lease Agreement, the Escrow Agreement, and the Guaranty Agreement, and such other changes as the officers of the Issuer, or any of them, may approve (such approval to be conclusively evidenced by the execution of the Official Statement on behalf of the Issuer). The Issuer hereby authorizes and approves the use and distribution of the Official Statement, as so prepared,by the Underwriter in connection with the sale of the Bonds. The President and each Vice President of the Issuer hereby are each severally authorized and directed to execute the Official Statement on behalf of and in the name of the Issuer. Section 9. Commercial National Bank in Shreveport, a national banking association with its principal corporate trust office in Shreveport, Louisiana, is hereby appointed as initial trustee, registrar, and paying agent for the Bonds. Section 10. Each of the President, any Vice President, the Secretary and any Assistant Secretary of the Issuer are hereby severally authorized to execute and deliver to the Trustee the written order of the Issuer for the authentication and delivery of the Bonds by the Trustee in accordance with the Indenture. Section 11. All action (not inconsistent with provisions of this Resolution) heretofore taken by the Board and officers of the Issuer directed toward the issuance of the Bonds is hereby ratified, approved, and confirmed. Section 12. The officers of the Issuer shall take all action in conformity with the Act, if necessary, or reasonably required to effectuate the issuance of the Bonds and the redemption of the Refunded Bonds, and take all action necessary effect to, and consummating the transactions contemplated by this Resolution. Section 13. No stipulation, obligation, or agreement herein contained or contained in the Indenture, the Bonds, the Lease Agreement, the Act of Release, the Escrow Agreement, the Guaranty Agreement, the Preliminary Official Statement, the final Official Statement,the Bond Purchase Agreement,or any other instrument related 0117327 -5- to the issuance of the Bonds shall be deemed to be a stipulation, obligation, or agreement of any officer, director, agent or employee of the Issuer in his or her individual capacity, and no such officer, director, agent or employee shall be personally liable on the Bonds or be subject to personal liability or accountability by reason of the issuance thereof. Section 14. The Issuer hereby consents to the payment by the Company for all fees required by the Texas Attorney General and Texas Department of Commerce as a condition precedent to the issuance of the Bonds. The Issuer hereby waives any and all rules and regulations of the Issuer with respect to application procedures, inducement and indemnity agreements and fees in connection with this financing on the grounds that this financing is a refunding of the Prior Bonds; provided that the Company shall pay the Issuer's legal fees and expenses in connection herewith. Section 15. The issuance of the Bonds by the Issuer shall be further subject to (i) the presentation by the Company to the Issuer, within 60 days of the date hereof, of financing documents, and such other agreements, instruments and documents related to the issuance of the Bonds and the Project as the Issuer shall require, satisfactory in form and substance to the Issuer and Bond Counsel, and (ii) the approving opinions of the Attorney General of the State of Texas to the effect that the Bonds are validly issued in accordance with the laws of the State of Texas and of Bond Counsel to the effect that the Bonds are validly issued in accordance with the laws of the State of Texas and that the interest earned thereon is excludable from the gross income of the recipients thereof for the purpose of federal income taxation under existing statutes, regulations, published rulings and judicial decisions. Section 16. After any of the Bonds are issued, this Resolution shall be and remain in effect until the Bonds and interest thereon shall have been fully paid or provisions for payment shall have been made pursuant to the Indenture. Section 17. If any section, paragraph, clause, or provision of the Resolution shall be held to be invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, clause, or provision shall not affect any of the remaining provisions of this Resolution. In case any obligation of the Issuer authorized or established by this Resolution or the Bonds is held to be in violation of law as applied to any person or in any circumstance, such obligation shall be deemed to be the obligation of the Issuer to the fullest extent permitted by law. Section 18. This Resolution shall be in full force and effect immediately upon its approval and adoption, and all other resolutions previously adopted by the Board of Directors which conflict with this Resolution are hereby repealed, but only to the extent that such resolutions conflict with this Resolution. [The remainder of this page intentionally left blank] 0117327 -6- APPROVED AND ADOPTED THIS Sth day of September, 1994. President, Board of Directors (SEAL) ATTEST: Secretary, Board of Directors 0117327 -7-