HomeMy WebLinkAbout1991-OR-12CO ON CO CXn ORDX ANC .
AN ORDINANCE of the City of Jeffersonville, Indiana
(the "City") authorizing the assumption by Merchant's Grain,
Inc., a Delaware corporation (the "Corporation"), of the rights,
duties and obligations of Merchant Grain Elevators Partners -
Series II, a Kentucky limited partnership (the "Partnership")
under (i) a Loan Agreement dated October 1, 1985, by and between
the City and the Partnership (the "Loan Agreement"), (ii) a
Leasehold Mortgage, Security Agreement and Trust Indenture among
the City, the Partnsrship and CommerceAmerica Banking Company,
as Trustee (the "Trustee") (the "Leasehold Mortgage"), and
(iii) any and all other documents related to the City's Economic
Development Revenue Bonds (Merchant Grain Elevator Partners
Series II Project) (the "Bonds"), in the original principal
amount of $6,000,000, issued to finance the acquisition,
construction and equipping of a facility to use for the purposes
of loading and unloading grain and grain-related products,
fertilizer and other bulk and/or bagged commodities and for the
storage thereof and other activities related or incidental to the
foregoing (the "Project"), located in Clark Maritime Centre;
authorizing the execution and delivery of a Bond Assignment and
Substitution Agreement, and any other bond document related
thereto; and taking other action related thereto.
W~REAS, on October 7, 1985, the Common Council of the
City of Jeffersonville, Indiana, enacted Ordinance No. 85-OR-54
authorizing the City of Jeffersonville to issue its Economic
Development Revenue Bonds (Merchant Grain Elevator Partners -
Series II Project) in the principal amount of $6,000,000 and
authorized other actions in respect thereto; and
WItEREAS, on October 9, 1985, said Bonds were issued in
the principal amount of $6,0Q0,000 pursuant to the Loan Agreement
and the City assigned all of its interest in said Loan Agreement
to CommerceAmerica Banking Company (now INB Banking Company),
Jeffersonville, Indiana, las Trustee; and pursuant to the
Leasehold Mortgage, amon~ the City, the Partnership and
CommerceAmerica Banking Company, as Trustee, the Bonds were
secured by said Leasehold Mortgage and the Loan Agreement and the
Leasehold Mortgage may be amended and supplemented pursuant to
Section 901 thereof with 'the approval of the purchaser of the
Bonds; and
WHEREAS, Citizens Fidelity. Bank and Trust Company is
currently the holder of 100% of the a~gregate principal amount of
the outstanding Bonds issued las aforesaid; and
WHEREAS, the Compalny, with the consent of the Trustee,
and Citizens Fidelity Bank and Trust Company, as purchaser and
owner of 100% of the a:ggregate principal amount of the
outstanding Bonds now wishes to assign and substitute the
Corporation as the obligor under said Loan Agreement, Leasehold
Mortgage and Bonds and in order to effectuate such assumption by
the Corporation of the rights, duties and obligations of the
Partnership, it is necessary for the City to consent and enter
into a Bond Assignmen~ and Substitution Agreement; NOW,
THEREFORE,
BE IT ORDAINED
JEFFERSONVILLE:
'BY THE COMMON COUNCIL OF THE CITY OF
SECTION 1.
that the assignment
obligations of the
approved.
Consent of the City. It is hereby found
and assumption of the rights, duties and
Partne:rship by the Corporation is hereby
SECTION 2. Approval of Bond Assignment and
Substitution Agreement. The form of the Bond Assignment and
Substitution Agreement attached hereto, is hereby approved and
all such documents shall be incorporated herein by reference and
shall be inserted in the minutes of the Common Council and kept
on file by the Clerk of the Council. Two copies of the Documents
are on file with the Clerk of the Council for public inspection.
The Mayor and the Clerk-Treasurer and any other appropriate
officers and employees of the City are hereby authorized and
directed to execute, acknowledge and deliver on behalf of the
City, any and all papers, instruments, certificates, affidavits
and other documents and to do and cause to be done any and all
acts and things necessary or proper for effecting the assumption
and substitution by the Corporation of the rights, duties and
obligations of the Partnership under the Loan Agreement and
Leasehold Mortgage and the Bond documents, including, but not
limited to, the execution, acknowledgment and delivery on behalf
of the City of said Bond Assignment and Substitution Agreement
and any other instrument or document necessary to effect said
assumption as related to the Bonds, provided that NEITHER
CITY NOR ANY OF THE MEMBERS OF ITS COUNCIL, OFFICERS, EMPLOYEES
OR AGENTS INCUR ANY LIABILITY THEREBY WHATSOEVER.
SECTION 3. Severability. The provisions of this
Ordinance are severable, and if any section, phrase or provision
hereof shall for any reason be declared invalid or unenforceable,
such declaration shall not affect the validity of the remainder
of the Ordinance.
SECTION 4. Provisions. The provisions of this
Ordinance and the Bond Assignment and Substitution Agreement
constitute a contract binding between the City and the holder of
the Bonds, and this Ordinance shall not be repealed or amended in
any respect that would adversely affect the rights of such
holder so long as the Bonds or the interest thereon remains
unpaid.
SECTION 5. Effective Date. This Ordinance
full force and effect from and after compliance
procedures required by law.
ATTEST:
Cl~rk-Treasfir~ ~/
Presented by
Jeffersonville, Indiana,
/~r~'sidin'g Officer
me to th~ Mayor of the City
on February 5, 1991.
Approved and signed by me on February ~ 1991.
shall be in
with the
of
· ~1~ -Orem~ Ma~-~r ~
City of Jeffersonville, Indiana
IBG.D5644
5644.ORD1
CERTIFICATE OF ORDINANCE NO.~/~,~/~ OF THE
CLERK-TREASURER OF THE COMMON COUNCIL OF
THE CITY OF JEFFERSONVILLE, INDIANA
The undersigned, Clerk-Treasurer of the Common Council
(the "Council") of the City of Jeffersonville, Indiana (the
"City") DOES HEREBY CERTIFY as follows:
1. That on February 4, 1991, the members of the
Council conducted a meeting, the duly constituted members of the
Council being as follows: Councilpersons Jimmy Carter, Marie Clapp,
Ron Grooms, Tony Harrod, John Perkins, Robert Waiz, and Andrew WilHams.
and all of said persons were present at said meeting, except the
following:
Among other business considered at said meeting, the attached
ORDINANCE NO. ~;~ /~, February 4, 1991, was introduced and
submitted to the members of the Council for immediate passage and
enactment. After due consideration of the Ordinance, a motion
was made by Councilperson Harrodthat the Ordinance be passed and
enacted, via a suspension of the rules on first reading by
unanimous consent. The motion was seconded by Councilperson Clapp
and carried by a vote of the members of the Council, as follows:
7 Yeas 0 Nays 0 Abstained
and the President of the Council then declared the
Ordinance to be fully passed and enacted by the Council, all as
shown in the official minutes of the meeting held on the
aforesaid date.
2. That the Ordinance was submitted by the undersigned
to the Mayor of the City, who duly approved and signed the
Ordinance on February ~ , 1991.
3. That the Ordinance is a true and correct copy of
the original enacted by the Council and approved and signed by
the Mayor and on file and recorded in the official records of the
City, was duly enacted and approved in accordance with the
procedural rules of the City and Indiana law, and is in full
force and effect on the date hereof.
4. That the aforesaid meeting was duly called and held
pursuant to notice duly given in accordance with all requirements'
and procedures of the City and Indiana law, and such meeting was
an open meeting in compliance with all legal requirements of
Indiana law.
(SEAL)
SIGNED AND SEALED this ~ day of February, 1991.
City of Jeffersonville, Indiana
IBG.D5644
5644.MINi
BOND ASSIGNMENT AND SUBSTITUTION AGREEMENT
BY AND ~24ONG
THE CITY OF JEFFERSONVILLE, INDIANA
(ISSUER)
MERCHANT'S GRAIN ELEVATORS PARTNERS - SERIES II
(ORIGINAL BORROWER)
MERCHANT'S GRAIN, INC.
(SUBSTITUTED BORROWER)
CITIZENS FIDELITY BANK AND TRUST COMPANY
(OWNER OF BONDS)
AND
INB BANKING COMPANY
(TRUSTEE)
$6,000,000'
CITY OF JEFFERSONVILLE, INDIANA
ECONOMIC DEVELOPMENT REVENUE BONDS, SERIES
1985
(MERCHANT'S GRAIN ELEVATORS PARTNERS - SERIES II PROJ?~CT)
This Bond Assignment and Substitution
Agreement amends a Loan Agreement between
the Issuer and the Original Borrower, dated as of
October 1, 1985, and a Leasehold Mortgage, Security
Agreement and Trust Indenture among the Issuer, the
Original Borrower and the Trustee, dated the same date,
recorded in the Office of the Recorder of Clark County
on October 9, 1985, in Mortgage Drawer 17 as Instrument No.
10548.
TABLE OF CONTENTS
BOND ASSIGNMENT AND SUBSTITUTION AGREEMENT
ARTICLE
TITLE
PAGE
III.
IV.
DEFINITIONS ..................................... 2
ASSUMPTIONS OF OBLIGATIONS UNDER LOAN
DOCUSIENT AND MORTGAGE BY SUBSTITUTED
BORROWER AND RELEASE OF ORIGINAL BORROWER ....... 2
2.01.
2.02.
2.03.
2.04.
Assumption ...... ...................... 2
Release of Original Borrower and
his Affiliates ...................... 2
Warranties, Representations and
Covenants of Original Borrower and
Substituted Borrower ................ 2
Other Actions ......................... 3
AMENDMENTS TO LOAN AGREEMENT AND NOTE
AND CONSENTS TO TRANSFER ........................ 4
3.01.
3.02.
3.03
3.04
Amendments ............................ 4
Consent of Trustee .................... 4
Consent of Bond Owners ................ 4
Consent of Issuer ..................... 5
MISCELLANEOUS.... ................................ 5
4.01.
4.02.
4.03.
4.04.
4.05.
4.06.
4.07.
Simultaneous Transactions ............. 5
Recording and Filing ............... ....5
Governing Law ......................... 5
Assignment ............................ 5
Amendments .... i ....................... 5
Binding Effect ........................ 6
Counterparts .......................... 6
BOND ASSIGNMENT AND SUBSTITUTION AGREEMENT
$6,000,000
CITY OF JEFFERSONVILLE, INDIANA
ECONOMIC DEVELOPMENT REVENUE BONDS, SERIES 1985
(.MERCHANT'S GRAIN ELEVATORS PARTNERS - SERIES II PROJECT)
(THE "BONDS")
THIS BOND ASSIGNMENT AND SUBSTITUTION AGREEMENT (the
"Substitution Agreement") dated as of February 1, 1991, by
and among INB BANKING COMPANY, Jeffersonvi!le, Indiana, in
its capacity as Trustee under an Indenture of Trust dated as
of October 1, 1985, (the "Trustee"), CITIZENS FIDELITY BANK
AND TRUST COMPANY, Louisville, Kentucky, in its capacity as
owner of 100% of the principal outstanding amount of the
Bonds (the "Owner"), MERCHANT'S GRAIN ELEVATORS PARTNERS -
SERIES II, a Kentucky limited partnership (the "Original
Borrower"), MERCHANT'S GRAIN, INC., a Delaware corporation
(the "Substituted Borrower"), and the CITY OF
JEFFERSONVILLE, INDIANA, a political subdivision and
municipal corporation of the State of Indiana (the
"Issuer").
RECITALS
A. The Trustee, the Original Borrower and the Issuer
are parties to the original Loan Agreement (the "Loan
Agreement") dated as of October 1, 1985, and the Leasehold
Mortgage, Security Agreement and Trust Indenture among the
Issuer, the Original Borrower and the Trustee dated as of
October 1, 1985 (the "Trust Indenture"), and various other
documents and proceedings collected in a transcript of
proceedings of the City of jeffersonville, Indiana,
Economic Development Revenue Bonds, Series 1985 (Merhant's
Grain Elevators Partners - Series II Project) in the
original principal amount of Six Million Dollars
($6,000,000) dated October 1, 1985 (the "Transcript"),
pursuant to which the Issuer issued and the Owner purchased
the Bonds to finance the acquisition, construction and
equipping of a facility to use for the purposes of loading
and unloading grain and grain-related products, fertlizer
and other bulk and/or bagged commodities and for the storage
thereof and other activities related or incidental to the
foregoing (the "Project"), contemplated by the documents
contained in the Transcript (collectively, the "Loan
Documents"). The Substituted Borrower has agreed to, and
has purchased the Original Borrower's interest in the
Project and now wishes to formalize that arrangement as it
pertains to the Bonds through the execution of this
SubstitRtion Agreement and the consummation of the
transactions contemplated herein.
B. The parties contemplate that, in a simultaneous
transaction, the Substituted Borrower shall be substituted
for the Original Borrower under the Loan Documents, as they
are amended in part by this Substitution Agreement, on the
terms and conditions contained herein.
C. The Issuer is a party to this contract only for
the purpose of granting its consent to the transactions
contemplated by this Substitution Agreement, and to
discharge its duty to cooperate with the Trustee.
NOW, THEREFORE, in consideration of the premises, the
mutual promises and covenants contained herein and for other
good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as
follows:
ARTICLE I
DEFINITIONS
Unless the context requires otherwise, all words and
phrases defined in Section 101 of the Loan Agreement and
Section 101 of Trust Indenture shall have the same meaning
in this Substitution Agreement.
ARTICLE II
ASSUMPTIONS OF OBLIGATIONS UNDER
LOAN DOCUMENT AND MORTGAGE BY SUBSTITUTED
BORROWER AND RELEASE OF ORIGINAL BORROWER
2.01.
Assumption.
The Substituted Borrower hereby assumes all of the
duties and obligations of the Original Borrower that arise
on or after the date that legal title passed and passes
to the Substituted Borrower, under the Loan Documents
including the Trust Indenture and the obligations arising
from the Mortgage which is a part of that Trust Indenture,
all as they are amended by or pursuant to this Substitution
Agreement, and any and all other obligations relating to or
arising out of the Note (as defined in the Loan Agreement
and Trust Indenture), said Project and the Bonds. The
Substituted Borrower agrees to pay the Note and'its
obligations under the Loan Agreement and Trust Indenture in
accordance with the terms therein, and perform all the terms
and obligations set forth therein, as amended by or pursuant
to this Substitution Agreement.
2.02.
Affiliates.
%he time of
transfer of
partners and
assets and
Release of Original Borrower and his
Upon execution of this Substitution Agreement
which shall relate back to the date of the
the Project, the Origianl Borrower, and its
affiliates, and any and all of its respective
properties, are hereby released from all
2
obligations and liability to the Issuer, the Trustee and the
Owners that arise on or after the Closing under the Loan
Documents, and any and all other obligations relating to or
arising out of the Bonds or the Project, except as provided
herein.
2.03. Warranties, Representations and Covenants of
Original Borrower and Substituted Borrower. To induce tI~e
Issuer to consent to the assumption conLemplated by this
Substitution Agreement, the Original Borrower and the
Substituted Borrower hereby represent and warrant to and
covenant with the Issuer and Bond Purchaser as follows:
(a) The consu~L~Lation of the transfer and
assumption contemplated by this Substitution Agreement will
not require the consent, approval or authorization of any
person, corporation, partnership, entity or public authority
which has not already consented or which shall, prior to the
execution he~eof, have consented to the transfer and
assumption, and the transfer and assumption contemplated by
this Substitution Agreement will not result in the
termination of any contract or other instrument, obligation
or agreement relating to the Project to which the Original
Borrower or the Substituted Borrower is a party or by which
either of them or the Project may be bound or affected or
violate any governmental order, law or regulation applicable
to the Substituted Borrower or the Project.
(b) The Loan Documents, as amended by or pursuant
to this Substitution Agreement, shall be legal, valid and
binding obligations of the Substituted Borrower, enforceable
in accordance with their terms.
(c) The substituted Borrower shall deliver to the
Trustee the opinion of legal counsel for the Substituted
Borrower in the form and substance satisfactory to all
parties hereto, to t~e effect that all filings necessary for
the establishment of the substituted Borrower have been
made, and that the Substituted Borrower has full power and
authority to acquire the Project and assume the liabilities
of the Original Borrower, The Original Borrower and the
Substituted Borrower shall each deliver to the Trustee the
opinion of their respective legal counsel, to the effect
that the Original Borrower and the Substituted Borrower
respectively have full power and authority to enter into
this Substitution Agreement, that this Substitution
Agreement, and any other documents required hereunder have
been duly authorized, executed and delivered, and are legal,
valid and binding obligations of the Original Borrower and
the Substituted Borrower, enforceable in accordance with
their terms, and that the transactions contemplated hereby
will not violate any provision of any agreement of the
Original Borrower or the Substituted Borrower or any
governmental order, law or regulation applicable to them it.
3
2.04.
Other Actions.
The parties covenant and
they shall take any and all
necessary to consummate and
contemplated by this Article
Agreement.
agree with each other that
other action reasonably
effect the transactions
II of this Substitution
ARTICLE III
AMENDMENTS TO LOAN AGREEMENT AND NOTE
AND CONSENTS TO TRANSFER
3.01.
Amendments.
(a) The Loan Agreement is hereby amended as follows:
to
Merchant's
720 Olive
Attention:
Section 101 and Section 807 are hereby amended to add
that Section the definition of Substituted Borrower as
Grain, Inc., a Delaware corporation,
Street, Suite 2800~:St. Louis, Missouri 63101,
Mr. Wendell Padgett. .~
(b) The Note is hereby amended and restated in such
manner to reflect the substitution of the Substituted
Borrower for the Original Borrower.
(c) The Trust Indenture is hereby amended as of the
execution hereof as follows:
Section 1104(b). Under Notices, Company shall be
substituted to Merchant's Grain, Inc., 720 Olive Street,
Suite 2800, St. Louis, Missouri 63101, Attention: Chief
Financial Officer.
(d) The Bon~ is hereby authorized to be amended and
restated to reflect the substitution of the Substituted
Borrower for the Original Borrower.
3.02. Consent of Trustee.
Pursuant to the written instruction and consent of the
Bond holders, as evidenced by their signatures hereto, the
Trustee hereby consents to the proposed sale of the Project
and the amendments to the Loan Agreement described herein,
and otherwise consents, based upon such written instruction
and consent, to the transactions contemplated in this
Agreement.
4
3.03.
Consent of Bond Owners.
The Owner, being the holder of 100% of the outstanding
aggregate principal amount of Bonds, hereby consents to the
sale of the Project and the amendments to the Loan Agreement
and the Trust Indenture described herein, and otherwise
consents to the transactions contemplated in this Agreement.
3.04.
Consent of Issuer.
The Issuer hereby consents and agrees to the proposed
sale of the Project and the amendments to the Loan Agreement
and the Trust Indenture described herein and otherwise
consents to the transactions contained in this Agreement.
ARTICLE IV
MISCELLANEOUS
4.01.
Simultaneous Transactions.
The parties represent, warran{ to and covenant with
each other that the various transactions contemplated by
this Substitution Agreement are intended to occur
simultaneously. The occurrence of each event and the
consummation of each transaction is conditional upon the
occurrence of all other events and consummation of all other
transactions.
4.02. Recording and Filing.
The Substituted Borrower agrees to file for recording
any necessary financing statements, termination statements,
continuation statements or such other documents as may be
necessary to protect the existence and priority of the lien
of the Issuer (assigned to the Trustee) on the Project and
on loan payments payable by the Substituted Borrower under
the Loan Agreement, which liens have been assigned to the
Trustee.
4.03. Governing Law.
This Substitution Agreement shall be governed and
construed in accordance with the laws of the State of
Indiana.
4.04. Assignment.
Thks Substitution Agreement
transferred by any party hereto.
shall not be assigned or
5
4.05. Amendments.
This Substitution Agreement may not be amended,
modified or altered without the prior consent of all the
parties hereto.
4.06.
This
inure to
respective
Binding Effect.
Substitution Agreement will be binding upon and
the benefit of each of the parties and their
heirs, personal representatives, successors and
permitted assigns.
4.07. Counterparts.
This Substitution Agreement may be executed in
counterparts each of which shall constitute an original, but
all of which, when taken together, shall constitute but one
agreement.
IN WITNESS WHEREOF, the ~parties have caused this
' ' n
Subst~tutlo Agreement
authorized officers as
written.
ATTEST:
to be' executed by their duly
of the '~ay and year first above
INB BANKING COMPANY,
as Trustee
By
Its
ATTEST:
CITIZENS FIDELITY BANK AND
TRUST COMPANY, as 100% Owner
of the Principal Amount of
Outstanding Bonds
By
Its
ATTEST:
MERCHANT'S GRAIN ELEVATORS
PARTNERS SERIES II, as
Original Borrower
By
Its
6
ATTEST:
Clerk-Treas~re~/
MERCHANT'S GRAIN, INC.,
as Substituted Borrower
By~
Its
CITY OF JEFFERSONVILLE,
INDIANA, as Issuer
Its M~_v~r
STATE OF )
)
COUNTY OF )
The foregoing instrument wa's acknowledged before me
this day of , 1991, by
and , as
and os INB Banking Company,
Jeffersonville, Indiana, on behalf of said company.
My commission expires:
STATE OF
)
COUNTY OF )
NOTARY PUBLIC, STATE AT LAR~
The foregoing instrument was acknowledged before me
this day of , 1991, by
and , as
and of Citizens Fidelity Bank and Trust
Company, Louisville, Kentucky, a state banking company, on
behalf of said company.
My .commission expires:
NOTARY PUBLIC, STATE AT LARGE
7
STATE OF )
)
cOUNTY OF )
The foregoing instrument was acknowledged before me
this day of ., 1991, by
and · as
and of Merchant's Grain Elevators
Partners - Series II, on behalf of said partnership.
My commission expires:
NOTARY PUBLIC, STATE AT LAR~
STATE OF )
)
COUNTY OF ) ~
The foregoing instrument was acknowledged before me
this day of , 1991, by
and , as
and of Merchant's Grain· Inc., on
behalf of said corporation.
My conunission expires:
STATE OF INDIANA )
)
cOUNTY OF CLARK )
NOTARY PUBLIC, STATE AT LARG~
I, the undersigned Notary Public in and for the State
of Indiana and the County aforesaid, do hereby
certify that on 4th day of February , 1991, the
aforementioned instrument as produced to me in said county
by Dale L. Orem and.
C. Richard Spencer, Jr. , personally known to me and
personally known to me to be the Mayor and the C_lerk-
Treasurer , respectively, of the City of
jeffersonville, Indiana and acknowledged before me by them
and each of them to be their free act and deed as
Mayor and Clerk-Treasurer of said City and
acknowledged before me by them on behalf of the City, to be
8
the act and deed of said City as authorized by Ordinance No.
91-0R-12 , enacted on February 4, 1991.
My commission expires: June 21. 1992
NOTARY PUBLIC, STATE AT LAR~
THIS INSTRUMENT pREPARED BY:
William L. Skees, Jr.
BROWN, TODD & ~EYBUR~
1600 Citizens Plaza
Louisville, Kentucky
(502) 589-5400
40202
By
IBG.D5644
5644.BASA