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HomeMy WebLinkAbout1989-OR-52ORDINANCE 89-0R-~ AN ORDINANCE AUTHORIZING THE ISSUANCE AND SALE OF CITY OF JEFFERSONVILLE', INDIANA, $2,200,000 VARIABLE RATE DEMAND ECONOMIC DEVELOPMENT REVENUE BONDS (WYANDOT, INC. PROJECT) FOR THE PURPOSE OF MAKING A LOAN TO ASSIST WYANDOT, INC. IN THE FINANCING OF COSTS OF "ECONOMIC DEVELOPMENT FACILITIES" WITHIN THE MEANING OF TITLE 36, ARTICLE 7, CHAPTERS 11.9 AND 12 OF THE INDIANA CODE; AUTHORIZING THE EXECUTION AND DELIVERY OF A LOAN AGREEMENT PERTAINING TO THE PROJECT, OF A TRUST INDENTURE SECURING THE PAYMENT OF THE BONDS AND OF A BOND PURCHASE AGREEMENT FOR THE SALE OF THE PROJECT BONDS; AND AUTHORIZING AND APPROVING RELATED MATTERS. WHEREAS, the City of Jeffersonville, Indiana, a unit and municipality constituting a city of the third class, duly organized and validly existing under the laws of the State ~f Indiana, is authorized and empowered, by virtue of the laws of the State of Indiana, including without limitation, Title 36, Article 7, Chapters 11.9 and 12 of the Indiana Code, (a) to issue its revenue bonds for the purpose of making a loan to assist in the financing of costs of acquiring, constructing or installing "economic development facilities", as defined in Section 37-7-11.9-3, comprising a manufacturing facility, located within the boundaries of the City of Jeffersonville, Indiana at the intersection of Peacely and Green Streets, (b) to enter into a loan agreement and to provide for revenues, sufficient to pay the principal of and interest and any premium on those revenue bonds, (c) to secure those revenue bonds by a trust indenture, as provided herein, and (d) to enact this Bond Legislation and to enter into the Indenture, the Purchase Agreement and the Agreement, all as defined herein, upon the terms and conditions provided herein and therein; WHEREAS, the Jeffersonville Economic Development Commission adopted a resolution on August 28, 1989, following a public hearing held on behalf of itself and the Issuer on the financing of the Project (as hereinafter defined) after giving notice by publication in accordance with IC 5-3-1 in the City of 3effersonville, Indiana, (a) determining that the proposed financing of the Project with the Project Bonds ( as hereinafter defined) pursuant to the terms of the Agreement and the Indenture will be of benefit to the health and general welfare of the City and complies with the provisions of the Act and (b) approving the proposed financing, including the form and terms of the Indenture, the Project Bonds and the Agreement. NOW THEREFORE, BE IT ORDAINED by the Common Council of the City of 3effersonville, Clark County, Indiana: Section 1. Definitions. In addition to the words and terms defined elsewhere in this Bond Legislation, unless the context or use clearly indicates another meaning or intent: "Act" means Title 36, Article 7, Chapters 11.9 and 12 of the Indiana Code, as enacted and amended from time to time. "Additional Bonds" means bonds which may be issued under Section 2.04 of the Indenture. "Additional Notes" means any nonnegotiable promissory note or notes, in addition to the Project Note, delivered by the Company to the Trustee in connection with the issuance of Additional Bonds~ as provided in the Agreement. "Agreement" means the Loan Agreement, dated as of the same date as the Indenture, between the Issuer and the Company, as amended or supplemented from time to time. "Applicable Rate" means, initially, that rate of interest~ expressed as a percentage of the Base Lending Rate which is the lowest rate of interest necessary to enable the Remarketing Agent to sell the Project Bonds at a price equal to the principal amount thereof on the date of delivery to the Original Purchaser, as set forth in a certificate delivered by the Remarketing Agent on that date. Thereafter, on the Business Day immediately preceding Wednesday of each week, the Remarketing Agent shall adjust the percentage of the Base Lending Rate so that the resulting Applicable Rate would be the lowest interest rate necessary to enable the Remarketing Agent to sell Project Bonds at the Purchase Price on that Wednesday regardless of whether any Project Bonds have in fact been tendered to the Remarketing Agent for purchase. In addition, if the Remarketing Agent is unable to remarket any Project Bond tendered for purchase pursuant to Section 4.07 of the Indenture at the Purchase Price at the then existing Applicable Rate, the Remarketing Agent shall adjust the percentage of the Base Lending Rate pursuant to Section 4.08 of the Indenture. The Remarketing Agent's determination of the Applicable Rate, either initially, on a weekly adjustment date or in connection with the tender of the Project Bonds, shall be based on (i) its knowledge of actual sales during the prior 30 days of securities which in the judgment of the Remarketing Agent are comparable to the Project Bonds and prevailing financial market conditions or (ii) its marketing efforts with, or solicitation of proposals from, not less than three institutional or money fund investors or other similar entities who customarily purchase industrial development bonds or other securities in denominations of $50,000 or more, the interest on which is excluded from the gross income of the owners thereof for federal income tax purposes. The Applicable Rate shall not be less than 50% of the Base Lending Rate, nor more than 100% of the Base Lending Rate plus one percentage point, and the resulting interest rate shall not be greater than sixteen percent (16%) per annum. "Base Lending Rate" means, as of any date of determination, that rate of interest per annu~n which Ameritrust Company National Association announces from time to time as its "base lending rate"; Ameritrust Company National Asso- ciation charges interest at rates at, above or below the Base Lending Rate. "Bond Fund" means the Bond Fund created in Section 5.04 of the Inden- ture. "Bond Legislation" means ~a) when used with reference to the Project Bonds, this Ordinance providing for their issuance and approving the Agreement, the Indenture and related matters; (b) when used with reference to an issue of - 2 - Additional Bonds, this Ordinance, to the extent applicable, and the legislation providing for the issuance of the Additional Bonds and approving any amendment or supplement to the Agreement, any Supplemental Indenture and related matters; and (c) when used with reference to Bonds when Additional Bonds are outstanding, this Ordinance and the legislation providing for the issuance of the then outstanding and then to be issued Additional Bonds; in each case as amended or supplemented from time to time. "Bonds" means the Project Bonds and any Additional Bonds. "Clerk" means the Clerk-Treasurer of the Legislative Authority. "Code" means the Internal Revenue Code of 1986, as amended from time to time. References to the Code and Sections thereof include relevant appli- cable regulations (including temporary regulations) and proposed regulations thereunder and under the Internal Revenue Code of 1954, as amended, and any successor provisions to those Sections, regulations or proposed regulations. "Company" means Wyandot, Inc., a corporation for profit duly organized and validly existing under the laws of the State of Ohio and qualified to transact business in the State, and its lawful successors and assigns, to the extent permitted by the Agreement. "EDC" means the Jeffersonville Economic Development Commission. "Executive" means the Mayor of the Issuer. "Holder" or "Holder of a Bon~" means the person in whose name a Bond is registered on the Bond Register for which provision is made in Section 3.06 of the Indenture. "Indenture" means the Trust Indenture, dated as of September 1, 1989, between the Issuer and the Trustee~ as amended or supplemented from time to time. "Interest Payment Date" means, as to the Project Bonds, each date set forth as such in the form of Project ~ond attached as Exhibit A to the Inden- ture. "Issuer" means the City of Jeffersonville, Indiana. "Legislative Authority" means the Common Council of the Issuer. "Letter of Credit" means the irrevocable letter of credit issued by the Letter of Credit Bank and delivered to the Trustee on the same date as the delivery of the Project Bonds, substantially in the form attached as Exhibit A to the Reimbursement Agreement. "Letter of Credit Bank" means Ameritrust Company National Association, in its capacity as issuer of the Letter of Credit. - 3 - "Loan" means the loan by the Issuer to the Company of the proceeds received from the sale of the Bonds. "Loan P~yments" means the amounts required t~ be paid by the Company in repayment of the Loan pursuant to the provisions of the Notes and Section 4.1 of the Agreement. "Notes" means the Project Note and any Additional Notes. "Original Purchaser" means~ as to the Project Bonds, the Person or Persons identified as the purchaser or purchasers in the Purchase Agreement. "Person" or words importing persons mean firms, associations~ part- nerships (including without limitation, general and limited partnerships), joint ventures, societies, estates, trusts, corporations, public or governmen- tal bodies, other legal entities and natural persons. "Project" means the real and personal property described in Exhibit B to the Loan Agreement together with any additions, modifications and substitutions to those facilities, comprising a facility to be used in food manufacturing, or any other use which may be permitted under the Act. "Project Bonds" means the Variable Rate Demand Economic Development Revenue Bonds (Wyandot, Inc. Project) of the Issuer authorized in Section 3 hereof and Section 2.02 of the Indenture, in an aggregate principal amount of $2,~00,000. "Project Fund" means the Project Fund created in Section 5.01 of the Indenture. "Project Note" means the nonnegotiable promissory note of the Company, dated as of the same date as the Project Bonds initially issued, in the form attached to the Agreement as Exhibit A and in the principal amount of $2,200,000, evidencing the obligations of the Company to make Loan Payments. "Project Purposes" means the acquisition, construction or installation of real and personal property comprising a portion of a manufacturing facility to be used for food manufacturing, or any other use which may be permitted under the Agreement and the Act. "Purchase Agreement" means as to the Project Bonds the Bond Purchase Agreement dated the date of its execution by and among the Issuer~ the Company and the Original Purchaser. "Revenues" means (a) the Loan Payments, (b) all other moneys received or to be received by the Issuer or the Trustee in respect of repayment of the Loan, including without limitation, moneys and investments in the Bond Fund; provided, however, that any moneys in the Letter of Credit Account within the Bond Fund drawn under the Letter of Credit and any investment earnings thereon shall only be used to pay the principal of and interest and any premium on the - 4 - Project Bonds, (c) any moneys and investments in the Project Fund, and (d) all income and profit from the investment of the foregoing moneys. The term "Revenues" does not include any moneys or investments in the Rebate Fund. "State" means the State of Indiana. "Supplemental Indenture" means any indenture supplemental to the In- denture entered into between the Issuer and the Trustee in accordance with Article VIII of the Indenture. "Trustee" means Ameritrust National Bank, Elkhart, Indiana, until a successor Trustee shall have become such pursuant to the applicable provisions of the Indenture, and thereafter "Trustee" shall mean the successor Trustee. The captions and headings in this Bond Legislation are solely for convenience of reference and do not define, limit or describe the scope or intent of any provisions or Sections of this Bond Legislation. Section 2. Determinations by Le$islative Authority. This Legislative Authority determines that: <i) the Project constitutes "ecunomic development facilities", as defined in the Act; (ii) the financing of the Project complies with the Act, and will serve a public purpose and be of benefit to the health and general welfare of the Issuer and its citizens by creating opportunities for gainful employment within the boundaries of the Issuer; and (iii) provision of the loan to finance costs of the Project, including without limitation, the financing thereof, will require the issuance, sale and delivery of the Project Bonds in the principal amount of $2,200,000 and hereafter may require the Issuer's best efforts to issue, sell and deliver Additional Bonds as provided in the Indenture. This Legislative Authority also determines that, following notice by publication in accordance with IC 5-3-1 in the Issuer, and prior to the adoption by the EDC on August 28, 1989 of the resolution approving t~e proposed financing of the Project, a public hearing was held with respect to the issuance of the Project Bonds, as required by the Act and Section 147(f) of the Code. Section 3. Authorization of Project Bonds; Additional Bonds. This Legislative Authority determines it to be necessary to, and the Issuer shall, issue, sell and deliver, as provided and authorized herein and in the Indenture and pursuant to the authority of the Act, economic development revenue bonds in an aggregate principal amount of $2,200,000 for the purpose of making a loan to assist the Company in the financing of costs of the Project for the Project Purposes. The Project Bonds shall be designated "Variable Rate Demand Economic Development Revenue Bonds (Wyandot, Inc. Project)". The Issuer may issue, sell and deliver Additional Bonds for any purpose authorized by the Act, upon satisfaction of the conditions and in the manner provided in Section 2.04 of the Indenture. - 5 - Section 4. Terms and Provisions of Pro3ect Bonds. (a) Generally. The ~roject Bonds (i) shall be issued, unless a Sup- plemental Indenture shall have been executed and delivered pursuant to Section 8.02(h) of the Indenture, only in fully registered form, substantially as set forth in Exhibit A to the Indenture; (ii) shall be exchangeable for Project Bonds of authorized denominations, as provided in the Indenture; (iii) shall be numbered in such manner as to distinguish each Project Bond from any other Project Bond~ (iv) shall be in the denominations of $50,000 and any integral multiple thereof~ (v) shall be subject to optional and mandatory redemption in the amounts, upon the conditions~ and at the times and prices set forth in the Indenture and shall be purchased on the demand of any Holder at the times and prices and upon the terms and conditions set forth in the Indenture; and (vi) shall be dated as of September 1, 1989. Each Project Bond shall bear interest~ in accordance with the Indenture, from the most recent date to which interest has been paid or duly provided for or, if no interest has been paid or duly provided for, from the date of their delivery to the Original Purchaser. (b) Interest Rate and Principal Maturities. The Project Bonds shall bear interest at the Applicable Rate. Interest acczued on the Project Bonds shall be computed on the basis of a 365 or 366 day year, as applicable, determined for the actual number of days elapsed. Interest on the Project Bonds shall be payable on each Interest Pay- ment Date and the Project Bonds shall mature on August 2, 1999. Principal of and interest and any premium on the Project Bonds shall be payable as provided in the Indenture, in each instance, without deduction for the services of any paying agent. (c) Execution. The Project Bonds shall be signed by the Executive and the Clerk in their official capacities (provided that either of those signatures may be facsimiles). Section 5. gale of Project Bonds. The Project Bonds are sold and awarded to the Original Purchaser, in accordance with this Bond Legislation~ the Indenture and the Purchase Agreement, at a purchase price of $2,~00~000. The Executive and the Clerk are authorized and directed to make the necessary arrangements with the Original Purchaser to establish the date, location, procedure and conditions for the delivery of the Project Bonds to the Original Purchaser and to take all steps necessary to effect due execution, authentication and delivery to the Original Purchaser of the Project Bonds under the terms of this Bond Legislation, the Indenture and the Purchase Agreement. It is determined by this Legislative Authority that the price for and the terms of the Project Bonds~ and the sale thereof, all as provided in this Bond Legislation and the Indenture, are in the best interests of the Issuer and are in compliance with all legal requirements. - 6 - Section 6. Allocation of Proceeds of Project Bonds. The proceeds from the sale of the Project Bonds (including without limitation, any accrued interest thereon) shall be allocated, deposited and credited to the Project Fund created by the Indenture. Section 7. Security for the Bonds. To the extent provided in, and except as otherwise p~rmitted under the Indenture, the Bonds shall be equally and ratably payable solely from the Revenues and shall be secured by an as- signment of the Letter of Credit Account within the Bond Fund and the grant of a security interest in the other Revenues and by the Indenture. The Bonds also shall be secured by the Notes given by the Company to the Trustee pursuant to the Agreement, and the Project Bonds shall be secured by the Letter of Credit. Anything in the Bond Legislation, the Bonds or the Indenture to the contrary notwithstanding, the Bonds are not in any respect a general obligation of the Issuer, nor are they payable in any manner from revenues raised by taxation. Nothing herein or in the Indenture, however, shall be deemed to prohibit the Issuer, of its own volition, from using to the extent that it is authorized by law to do so, any other resources for the fulfillment of any of the terms, conditions or obligations of the Indenture, the Bond Legislation or any of the Bonds. Section 8. Federal Tax Election. This Legislative Authority hereb~ elects to have the limitation on capital expenditures specified in Section i44(a)(4) of the Code applied to the Project Bonds. Section 9. Covenants and A~reements of Issuer. In addition to the other covenants and agreements of the Issuer in this Bund Legislation and the Indenture, the Issuer covenants and agrees that: (a) Arbitrase Provisions and Issuer Information Return. The Issuer covenants that it will restrict the use of the proceeds of the I~roject Bonds in such manner and to such extent as may be necessary so that the Project Bonds will not constitute arbitrage bonds under Section 148 of the Code, after taking into account reasonable expectations at the time of the delivery of and payment for the Project Bonds. The Executive and the Clerk or any other officer having responsibility for issuing the Project Bonds alone or in conjunction with the Company or any officer, employee, agent of or consultant to the Company shall give: (i) an appropriate certificate of the Issuer for in- clusion in the transcript of proceedings for the Project Bonds setting forth the reasonable expectations of the Issuer regarding the amount and use of the proceeds of the Project Bonds and the facts, estimates and circumstances on which they are based and other facts and circumstances relevant to the tax treatment of interest on the Project Bonds,~ as pro- vided by the Company, all as of the date of delivery of and payment for the Project Bonds; and - 7 - (ii) the statement setting forth the information required by Section 149(e) of the Code, which shall be based on the relevant information provided by the Company including an appropriate certificate, if required~ setting forth informa- tion regarding the volume cap applicable to the Issuer for use in obtaining the certification required by Section 149(e)(2)(F) of the Code. The Issuer covenants that it (i) will take, or require to be taken, all actions that may be required of it for the interest on the Project Bonds to be and remain excluded from gross income for federal income tax purposes, and (ii) will not take or authorize to be taken any actions that would adversely affect that exclusion under the provisions of the Code. The Executive, the Clerk and other appropriate officers are hereby authorized and directed to take any and all actions and make or give reports and certifications, as may be appropriate to assure such exclusion of that interest. (bP Transcript of Proceedings. The Clerk, or other appropriate offi- cer of the Issuer~ shall furnish to the Original Purchaser a true transcript of proceedings, certified by the Clerk or other officer, of (i) all proceedings had with reference to the issuance of the Project Bonds and (ii) any other information from the records of the Issuer which may be necessary or appropri- ate to determine the regularity and validity of the issuance of the Project Bonds. Section I0. Appointment of Remarketin~ Agent. The Issuer hereby appoints Ameritrust Company National Association, Cleveland, Ohio to act as Remarketing Agent for the Project Bonds and to perform the functions set forth in Section 6.16 of the Indenture. Section 11. Indenture, Agreement and Purchase Agreement. To provide for the issuance and sale of the Project Bonds and the consummation of the transactions contemplated therein the Executive and the Clerk are authorized and directed, for and in the name and on behalf of the Issuer, to execute, acknowledge and deliver, the Indenture, the Purchase Agreement and the Agreement in substantially the forms submitted to this Legislative Authority. Those instruments are approved with changes therein not inconsistent with this Bond Legislation and not substantially adverse to the Issuer and which are permitted by the Act and shall be approved by the officers executing the Purchase Agreement and the Agreement; provided, that the Indenture, the ...... s and their character as not being approval of those changes by those substantially adverse to the Issuer, shall be evidenced conclusively by their execution of those instruments. Section i2. Other Documents. The Executive or the Clerk, as appropriate, are authorized and directed to execute any certifications, financing statements, assignments and instruments which are necessary or appropriate to perfect the assignments set forth in the Indenture and to consummate the transactions contemplated in this Bond Legislation, the Indenture, the Agreement and the Purchase Agreement. - $ - Section 13. Complia~nce with Open Meeting Requir~em~nt~' It is found and determined that all formal actions of t~i~ Legislative Authority concerning and relating to the adoption of this Bond Legislation were adopted in an open meeting of this Legislative Authority, and that all deliberations of this Leg- islative Authority and of any of its committees that resulted in those formal actions, were in meetings open to the public, in compliance with the law. Section 14. Effective Date. This Bond Legislation shall take effect and be in force from and af------~er ~S ~doption by the Common Council and the approval and signing hereof by the Executive. Section 15. No Liability. Nothing in this Bond Legislation shall in any manner create any ii---ability on the part of the Issuer or personal liability for any of its elected officials, appointed officials, employees or agents. Adopted this 5th day of September, 1989. CITY OF JEFFERSONVILLE, INDIANA (SEAL) lerk-Tr surer to the Mayor of the City of Presented by me as C ~7 of Seotember, 1989 at the hour of __ o'clock _.m. hour of ~ler~-Treasurer ~ Approved and signed by me this ._ day of September, 1989 at the o'clock _.m. Mayor - 9 -