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IDA-2010-002RESOLUTION NO. IDA 2010 - 0 0 2 A RESOLUTION OF THE INDUSTRIAL DEVELOPMENT AUTHORITY OF THE CITY OF ANAHEIM AUTHORIZING ENTERING INTO A LOAN AGREEMENT PURSUANT TO WHICH THE AUTHORITY WILL BORROW AND LEND TO BORROWER NOT TO EXCEED $20,000,000 FOR THE ACQUISITION, CONSTRUCTION AND INSTALLATION OF CERTAIN PROPERTY AND FACILITIES, AND AUTHORIZING VARIOUS ACTIONS IN CONNECTION THEREWITH BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE INDUSTRIAL DEVELOPMENT AUTHORITY OF THE CITY OF ANAHEIM AS FOLLOWS: Section 1. The Board of Directors hereby finds, determines and declares as follows: A. The California Industrial Development Financing Act (California Government Code Sections 91500 et seq., as amended and supplemented) (the "Act "), permits an industrial development authority to issue revenue bonds for the purpose of financing the acquisition, construction and/or rehabilitation of facilities, including real and personal property suitable for industrial uses such as assembling, fabricating, manufacturing or processing activities with respect to any products of agriculture, forestry or manufacturing, and commercial uses located within a recovery zone designated pursuant to Section 1401 of the American Recovery and Reinvestment Act of 2009, as amended (the "Code "), and the Act deems such revenue bonds to include various types of obligations and evidences of indebtedness. B. The Industrial Development Authority of the City of Anaheim (the "Authority ") is authorized pursuant to the provisions of the Act to exercise powers of acquiring, constructing, improving, furnishing, equipping, repairing, reconstructing and/or rehabilitating facilities and to enter into agreements for the same. C. The Board of Directors of the Authority desires to enter into a Loan Agreement for the benefit of Northgate Gonzalez, LLC, a California limited liability company (the "Borrower "), for the purpose of financing the acquisition and equipping of certain property comprising furniture and equipment to be located at 1201 N. Magnolia Avenue, Anaheim, California, and certain costs of issuance, all of which together constitute a project under the Act (the "Project "). D. The Project is located within the City of Anaheim Federal Recovery Zone designated pursuant to Section 1391 of the Code and will be used for qualified purposes. The City has an available allocation of $20,000,000 consisting of its original allocation of $9,800,000 and a transfer of allocation from the County of Orange of $10,200,000 and the City has committed this allocation to the Project and Bond approved hereby; as of the date of this Resolution, the City has not utilized any of the allocation. E. The Authority has accepted the Borrower's application and has made certain findings by resolution adopted March 23, 2010 (the "Acceptance Resolution "), and, based on the information provided by the Borrower with respect to the Project, the Authority makes in Section 5 hereof certain determinations with respect to the public benefits that may be derived from the financing of the Project and the qualifications of the Project for financing under the Act. F:\ Docs \DEVSVCS\RESOLUTN \Industrail Development Authority Resolution Northgate Bond Approval.DOC F. The Project constitutes "Facilities" within the meaning of the Act and the Borrower is a "Company" within the meaning of the Act. G. For purposes of financing on a tax - exempt basis a portion of the costs of the Project, the Authority now desires to (i) authorize the execution and delivery of a loan agreement (the "Loan Agreement ") pursuant to which the Authority will issue a revenue bond (the "Bond ") to GE Government Finance, Inc. (the "Lender ") in an aggregate principal amount not to exceed $20,000,000, (ii) provide for the payment of the principal, premium, if any, and interest on the Bond with revenues derived from the loan of the proceeds to the Borrower to finance a portion of the costs of the Project pursuant to the terms and provisions of the Loan Agreement, and (iii) take and authorize certain other actions in connection with the foregoing. H. There have been presented prior to this meeting and there are now on file with the Secretary of the Authority, the following documents: (1) a proposed form of Loan Agreement (including the form of bond to be issued by the Authority) to be entered into by and among the Authority, the Borrower and the Lender; and (2) a proposed form of the Escrow Agreement (the "Escrow Agreement ") to be entered into by and among the Lender, the Authority, the Borrower and Marshall & Ilsley Trust Company, N.A, as escrow agent. Section 2. Subject to approval as to form of the City Attorney of the City, serving as counsel to the Authority (the "Authority Attorney "), the Authority hereby approves the form of Loan Agreement presented at this meeting and authorizes the Executive Director of the Authority or any other person authorized in Section 10 hereof (hereafter, the "Authorized Representative ") to execute by manual or facsimile signature and deliver the Loan Agreement and the Bond provided for therein, and the Secretary of the Authority or designee is authorized to attest to the Loan Agreement, in the form presented to this Board with such changes and insertions therein as may be necessary to cause the same to carry out the intent of this Resolution and as are approved by counsel to the Authority, such approval to be conclusively evidenced by the execution and delivery of the Loan Agreement. Payment of the principal, premium, if any, and the interest on the Bond shall be made solely from the revenues received by the Authority from the Borrower pursuant to the Loan Agreement, and the Bond shall not be deemed to constitute a debt or liability of the Authority, the City, the State of California or any political subdivision thereof. The Authority further authorizes and approves lending the proceeds of the Bond to the Borrower to finance a portion of the costs of the Project pursuant to the terms and provisions of the Loan Agreement. Section 3. Subject to approval as to form of the Authority Attorney, the form of the Escrow Agreement presented at this meeting is hereby approved and the Authorized Representative is hereby authorized to execute by manual or facsimile signature and deliver the Escrow Agreement with such changes and insertions therein as may be necessary to cause the same to carry out the intent of this Resolution and as are approved by counsel to Authority, such approval to be conclusively evidenced by execution and delivery of the Escrow Agreement by an Authorized Representative. Section 4. The Board of Directors of the Authority hereby finds and determines that: A. the use of the Project in a Recovery Zone is in accord with Section 91503 of the Act; 2 DOCSOC/ 1396425v3/022363 -0004 B. the use of the Project is likely to result in public benefits and employment benefits by securing or increasing the number of employees of the Borrower, and any other direct users of the Project or the compensation for such employment, and economic benefits to the community and the state may ensue; C. the Bond issued by the Authority in the amount sufficient to finance all or a portion of the costs of the Project is likely to be a substantial factor in the accrual of each of such public benefits from the use of the Project; and D. the proposed financing of the Project is otherwise in accord with the purposes and requirements of the Act. Section 5. In no event shall the Bond constitute a pledge of faith and credit of the Authority, the City, the State of California (the "State ") or any political corporation, subdivision or agency of the State, and none of the City, the State or any political corporation, subdivision or agency of the State shall be liable to make any appropriation for the repayment of the Bond. The Bond shall constitute a special obligation of the Authority payable solely from the revenues or other sources provided for in the Loan Agreement and proceedings relating to the Bond. Section 6. The Authorized Representative or his or her designee is hereby requested and authorized to (i) file a copy of this Resolution and the Application with the Clerk of the City, and (ii) file such information with the California Industrial Development Financing Advisory Commission as may be required for the review and approval of the Project pursuant to Section 91531 of the Act. Publication of the notice of the filing of the Application by the Applicant in accordance with Section 91530(e) of the Act in a newspaper of general circulation within the City on April 29, 2010 is hereby approved, confirmed and ratified. Sectio 7. The City Council is hereby requested to conduct a public hearing with respect to the financing of the Project for the purpose of satisfying the public approval requirements of Section 147(f) of the Internal Revenue Code of 1986. Publication of the notice of such public hearing in a newspaper of general circulation within the City on April 29, 2010 is hereby approved, confirmed and ratified. Section 8. The Authorized Representative or duly appointed designee, on behalf of the Authority, is authorized to execute all documents, certificates, and instruments necessary or appropriate to this transaction and undertaking the issuance of the Bond and entering into the Loan Agreement; provided, however that the issuance of the Bond will not be undertaken and the Loan Agreement shall not be entered into and delivered on behalf of the Authority until the California Industrial Development Financing Advisory Commission has made all necessary findings and determinations and given all necessary approvals as required by the Act. Section 9. Prior to execution of the Loan Agreement, the Authorized Representative or duly appointed designee, on behalf of the Authority, shall approve in writing the final compensation being made to the financing team. Section 10. All actions heretofore taken by the officers and agents of the Authority with respect to the approval of the Bond and the loan of the proceeds to the Borrower are hereby approved, confirmed and ratified, and the officers of the Authority and their authorized designees, deputies and agents are each hereby authorized and directed, jointly and severally, to do any and all DOCSOC/ 1396425v3/022363 -0004 things and to execute and deliver any and all certificates and documents which they, bond counsel and the Authority Attorney may deem necessary or advisable in order to consummate the issuance of the Bond and loan of the proceeds to the Borrower and otherwise to effectuate the purpose of this Resolution (including without limitation a tax certificate as to no arbitrage use of proceeds and recovery zone facility bond matters). For this purpose and in addition to other authorized officers, the Executive Director of Community Development of the City may act as the Executive Director of the Authority for all purposes of the Project and shall be authorized to execute all documents and make any determinations of the Authority related thereto without regard to the terms of any Authority by- laws or prior resolutions. Section 11. This Resolution shall take effect from and after its inception. THE FOREGOING RESOLUTION IS PASSED, APPROVED AND ADOPTED BY THE GOVERNING BOARD OF THE INDUSTRIAL DEVELOPMENT AUTHORITY THIS EIGHTEENTH (18 DAY OF MAY, 2010, BY THE FOLLOWING ROLL CALL VOTE: AYES: Mayor Pringle, Council Members Sidhu, Hernandez, Galloway, Kring NOES: NONE ABSTAIN: NONE ABSENT: NONE APPROVED AS TO FORM: Cristina L. Talley, City Attorney By: John E. Woodhead, Assistant City Attorney daoe)6 - Curt Pringle, Mayof 4 DOC SOC/ 1396425v3/022363-0004 CERTIFICATE OF ATTESTATION AND ORIGINALITY I, Linda N. Andal, Secretary of the Industrial Development Authority, do hereby attest to and certify the attached Resolution No. IDA 2010 -002 to be the original resolution adopted by the Industrial Development Authority of the City of Anaheim on May 18, 2010 Date: May 18, 2010 PA,,, Secre ary of the Industrial Dev lopment Authority City of Anaheim 5 DOC SOC/ 1396425 v3 /022363 -0004