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HomeMy WebLinkAbout1991-OR-52AN ORDINANCE OF THE CITY OF JEFFERSONVILLE, INDIANA, AUTHORIZING THE ISSUANCE OF UP TO $8,000,000 PRINCIPAL AMOUNT OF #CITY OF JEFFERSONVILLE, INDIANA, VARIABLE RATE DEMAND ECONOMIC DEVELOPMENT REVENUE BONDS (APOLLO AMERICA CORPORATION PROJECT), SERIES 1991"; APPROVING AND AUTHORIZING THE EXECUTION AND DELIVERY OF A LOAN AGREEMENT BETWEEN THE CITY OF JEFFERSONVILLE, INDIANA (THE "ISSUER") AND APOLLO AMERICA CORPORATION (THE "COMPANY"); A TRUST INDENTURE AMONG THE ISSUER, TOKAI TRUST COMPANY OF NEW YORK AND CITIZENS FIDELITY BANK AND TRUST COMPANY INDIANA; A PLACEMENT AGENCY AGREEMENT AMONG BANK OF AMERICA NT&SA, THE ISSUER AND THE COMPANY; A PRELIMINARY PLACEMENT MEMORANDUM AND A PLACEMENT MEMORANDUM AND ANY AND ALL OTHER RELATED DOCUMENTS. WHEREAS, the city of Jeffersonville, Indiana (the "Issuer"), a political subdivision of the state of Indiana (the "State"), pursuant to the provisions of Indiana Code (#IC#) 36-7-12 (the "Act"), is specifically authorized and empowered to issue its economic development revenue bonds and utilize the proceeds from the sale thereof for the acquisition, installation and construction of "economic development facilities," as defined in IC 36-7-11.9, and is vested With powers necessary to enable it to accomplish such purposes; and WHEREAS, Apollo America Corporation (the "Company"), a Delaware corporation in good standing and authorized to do business in the State, proposes that the Issuer, pursuant to the Act, assist the Company by lending to it funds for the acquisition, installation and construction by the Company of an economic development facility, comprised of an approximately 50,000 square foot manufacturing facility, including equipment, for processing, blending, distribution and sale of petroleum products, petroleum based products and petrochemicals to be located on an approximately 30-acre tract of land at the Northeast corner of Utica Pike and Port Road in the Clark Maritime Centre within the boundaries of the Issuer (the "Project") (which is more particularly described in the Loan Agreement hereinafter identified and approved); and the Project qualifies for financing within the meaning of the Act; and WHEREAS, on June 15, 1991, the Issuer passed a resolution, authorizing the Company to undertake the Project in Jeffersonville, Indiana, and authorized the preparation of the documents necessary to issue its economic development revenue bonds in an aggregate principal amount not exceeding eight million dollars ($8,000,000); and WHEREAS, it is necessary and proper in the interests of the health, prosperity, economic stability and general welfare of the Issuer and its inhabitants that the Issuer (a) authorize the issuance of the Bonds (as hereinafter defined) and use the proceeds thereof to finance a portion of the costs of the acquisition, installation and construction of the Project; (b) authorize the execution and delivery of a Loan Agreement (the "Loan Agreement"), to be dated as of October 1, 1991, between the Issuer and the Company; (c) authorize the execution and delivery of a Trust Indenture (the #Indenture#), to be dated as of October 1, 1991, among the Company, Tokai Trust Company of New York (the "Trustee") and citizens Fidelity Bank and Trust Company Indiana (the "Co-Trustee") (or to any other institution which may serve as Trustee as described in the Indenture); (d) authorize the execution and delivery of a Placement Agency Agreement (the "Placement Agreement") among the Issuer, Bank of America NT&SA (the "Placement Agent") and the Company; (e) authorize the execution and delivery of a Preliminary Placement Memorandum (the "PPM") with respect to the issuance and sale of the Bonds; (f) authorize the execution and delivery of a Placement Memorandum (the "PM#) with respect to the issuance and sale of the Bonds; (g) authorize the execution and ~elivery of any other certificates, documents or forms to which ~he Issuer is a party in connection with the issuance of the Bonds; and (h) confirm and approve the sale of the Bonds and approve other necessary or related documents and actions; NOWr THEREFOREr BE IT ORDAINED BY THE CITY OF JEFFERSONVILLE, INDIANA, ACTING BY AND THROUGH ITS COMMON COUNCIL~ AS FOLLOWS: Section 1. Bond ADproval. For the purposes set forth in the preambles, which are incorporated as a part hereof, the Issuer, acting by and through its Common Council, hereby: (A) Confirms and ratifies the Preliminary Bond Resolution of the Common Council, adopted on June 15, 1991; (B) Authorizes the issuance, sale, execution and delivery of up to $8,000,000 principal amount of "city of Jeffersonville, Indiana Variable Rate Demand Economic Development Revenue Bonds (Apollo America Corporation Project), Series 1991" (the "Bonds"), the Bonds to be issued in the form and subject to the terms and specifications set forth inlthe Indenture; (C) Authorizes the use of proceeds of the Bonds, as provided in the Indenture and in the Loan Agreement hereinafter identified and approved, for the acquisition, installation and construction of the Project; t (D) Authorizes and approves the appointment of Tokai Trust Company of New York, to serve as Trustee, Registrar, Paying Agent and Tender Agent in connection with the Bonds; and (E) Authorizes and approves the appointment of citizens Fidelity Bank and Trust Company Indiana to serve as Co-Trustee in connection with the Bonds. Section 2. Loan Agreement. The Mayor is hereby authorized, empowered and directed to execute and deliver on behalf of the Issuer, with the attestation of the Clerk/Treasurer, the Loan Agreement, which Loan Agreement is hereby approved, authorized and adopted in substantially the form submitted herewith and designated Exhibit A with such changes therein as the officials executing the same may requi~e or approve, such approval to be conclusively evidenced by the execution and delivery thereof.. Section 3. Indenture. In order to provide for the authorization and security of the Bonds to be issued pursuant to the Act (to finance the acquisition, installation and construction of the Project and expenses incident to such financing) and to prescribe the terms and conditions upon which the Bonds are to be secured, executed, authenticated, accepted and held, the Mayor is hereby authorized, empowered and directed to execute and acknowledge on behalf of the Issuer, with the attestation of the Clerk/Treasurer, the Indenture, and said officials are hereby authorized, empowered and directed to cause the Indenture to be accepted, executed and acknowledged by the Trustee and the Co- Trustee, hereby appointed (or other institution(s) as described in the Indenture). The Indenture is hereby approved, authorized and adopted in substantially the form submitted herewith and designated Exhibit B, with such changes as the officials executing the same may require or approve, such approval to be conclusively evidenced by the execution and delivery thereof. The Bonds will mature as to principal no later than October 1, 2011, will be subject to purchase, redemption and prepayment in certain events and will bear interest payable periodically at the rate or rates determined from time to time, all as provided in the Indenture, reference to which is hereby made. The interest rate on the Bonds if (a) a Variable Rate (as defined in the Indenture) shall not exceed twelve percent (12%) per annum unless and to the extent that there shall have been delivered to the Trustee a letter of credit in accordance with the terms of the Indenture, and (b) a Fixed Rate (as defined in the Indenture) shall not exceed twelve percent (12%) per annum; provided that, neither the Variable Rate nor the Fixed Rate shall exceed any maximum rate of interest permitted by law to be paid'on the Bonds or to be charged on the loan pursuant to the terms Of the Loan Agreement. Section 4. Placement Agency Agreement. The Mayor is hereby authorized, empowered and directed to execute and deliver on behalf of the Issuer, the Placement Agreement in connection with the original sale of the Bonds, in substantially the form - 3 - submitted herewith and designated Exhibit C with such changes as the officials executing the same may require or approve, such approval to be conclusively evidenced by the execution and delivery thereof. Section 5. Preliminary Placement Memorandum and Placement Memorandum. It is hereby acknowledged that the Issuer has, in connection with the issuance land sale of the Bonds, caused to be prepared a PPM, a copy of which has been presented to the Issuer. The PM and the use thereof by the Issuer in offering and selling the Bonds in a negotiated sale is hereby expressly approved. The Issuer, through certain of its officials and employees, having reviewed the PPM and the PM and having found factual statements therein (including the Appendix thereof) relating to the Issuer to be accurate and correct, authorizes and empowers the Mayor to execute the same on behalf of the Issuer, with such modifications as may be necessary or desirable and approved by the executing officer of the Issuer, as evidenced by such execution. The PPM shall be supplemented following sale of the Bonds and prior to delivery thereof, and the Mayor is authorized to approve and sign such supplemented or final PM on behalf of the Issuer. The PM is in a form #deemed final" by the Issuer but, as aforesaid, is subject to supplementation and completion following sale of the Bonds but prior to the delivery thereof. Section 6. Miscellaneous Documents. Each of the President of the Common Council, the Mayor, the Clerk/Treasurer, the City Attorney and other appropriate city officials, for and on behalf of the Issuer, is hereby authorized, empowered and directed to do and perform any and all things necessary to effect the execution of the Indenture, its execution and acceptance by the Trustee and the Co-Trustee, the performance of all obligations of the Issuer under and pursuant to the Indenture and related documents, the execution anddelivery of the Bonds and the performance of all other actions of whatever nature necessary to effect and carry out the authority conferred by this Ordinance and by the Indenture. Each of the President of the Common Council, the Mayor, the Clerk/Treasurer, the City Attorney and other appropriate city officials is hereby further authorized, empowered and directed for and on behalf of the Issuer to execute all papers, documents, forms, certificates or other instruments that may be required for the carrying out and effectuation of the authority conferred by and the purposes of this Ordinance and the Indenture, or to evidence said authority and purposes, and to exercise and otherwise take all action necessary to the full realization of the rights ahd purposes of the Issuer under the Loan Agreement and related documents and to perform all of the obligations of the Issuer under the Loan Agreement and related documents, including but not limited to, the Placement Agreement, the PPM, the PM and any and all other related documents. Section 7. Special and Limited Obligations. The Issuer shall never be required to pay from its own funds any obligations - 4 - deriving from the issuance of the Bonds, and the Bonds are declared to be special and limited obligations payable solely from the Receipts and Revenues and other moneys pledged therefor under the Indenture (except to the extent paid out of moneys attributable to proceeds of the Bonds, the income from the temporary investment thereof or payments made pursuant to or derived from any letter of credit). Section 8. Severability. The provisions of this ordinance except Section 7 are hereby declared to be severable and if any section, phrase or provision shall, for any reason, be declared invalid, such declaration of invalidity shall not affect the validity of the remainder of this Ordinance. Section 9. $10,000,000 Election. As set out in the Loan Agreement, the Issuer elects that Section 144(a) (4) of the Internal Revenue Code of 198.6, as amended, shall apply to the Bonds. Section 10. Priority of Ordinance. In the event of any conflict or conflicts between the provisions of this Ordinance and of any prior ordinances or parts thereof, the provisions of this Ordinance shall prevail. Section 11. Effective Date. This Ordinance shall be in full force and effect from and after its adoption as provided by law. It is hereby declared and certified that by the adoption of this Ordinance, the Common Council, as its elected legislative body, and by his approval and execution of this Ordinance, the President of the Common Council and the Mayor of the City (as its elected chief executive officer), approves the Project and the issuance of the Bonds after a duly held public hearing following reasonable public notice, all within the meaning of Section 147(f) of the U.S. Internal Revenue Code of 1986, as amended and in accordance with IC 5-3-1. Passed and adopted by the Common Council of the City of Jeffersonville, Indiana this __ day of September, 1991, at a duly convened meeting of the Common Council of the city of Jeffersonville, Indiana, held on the __ day of September, 1991, with the approval and signature of the Mayor affixed hereto (such approval and signature being that of the Mayor as the city's elected chief executive officer for purposes of compliance with Section 147(f) of the U.S. Internal Revenue/~ode of 1986, as ~ ~ James Carter President, Common Council - 5 - Attest: C. Richard Spe er, Clerk/Treasure,er, Presented by me as Clerk/Treasurer to the Mayor of the City of Jeffersonville, Indiana, this ~ day of Septemb~1991. C. Rlchard Sp~ncer,~J~. Clerk/Treasu~r Approved and signed by me this day of September, 1991. ~ale L. Orem, Mayor - 6 -