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HomeMy WebLinkAbout2001-OR-33ORDiNANCE NO. c:,2t9"~ / ~ ~/~::~ -,~3 AN ORDINANCE AUTHORIZING THE ISSUANCE OF NOT TO EXCEED $8,500,000 AGGREGATE PRINCIPAL AMOUNT OF VARIABLE RATE DEMAND ECONOMIC DEVELOPMENT REVENUE BONDS, SERIES 2001 (EAGLE STEEL PRODUCTS~ iNC. PROJECT) OF THE CITY OF JEFFERSONVILLE, INDIANA, THE PROCEEDS OF WHICH SHALL BE LOANED TO EAGLE STEEL PRODUCTS, INC., AN INDIANA CORPORATION, TO FINANCE THE ACQUISITION, CONSTRUCTION, INSTALLATION AND EQUIPPING OF AN ECONOMIC DEVELOPMENT FACILITY LOCATED 'WITHiN THE CITY OF JEFFERSONVILLE, INDIANA; PROVIDING FOR THE PLEDGE AND ASSIGNMENT OF REVENUES FOR THE PAYMENT OF SAID BONDS; AUTHORIZING A TRUST INDENTURE, LOAN AGREEMENT AND PLACEMENT AGREEMENT, AUTHORIZING THE USE AND DISTRIBUTION OF A PRELIMINARY PRIVATE PLACEMENT MEMORANDUM AND A PRIVATE PLACEMENT MEMORANDUM WITH RESPECT TO THE BONDS; AUTHORIZiNG AGREEMENTS TO SECURE FURTHER THE PAYMENT OF SAID BONDS; AND AUTHORIZING OTHER ACTIONS IN CONNECTION WITH THE ISSUANCE OF SUCH BONDS. WHEREAS, the City of Jeffersonville, Indiana (the "Issuer"), is a municipal corporation aa political subdivision of the State of Indiana, and by virtue of the constitution and laws of the State including Indiana Code, Title 36, Article 7, Chapters 11.9 and 12, as supplemented and amended (ti "Act"), is authorized and empowered, among other things, to (a) provide funds for the acquisitlo construction, installation and equipping of economic development facilities; (b) issue its reven~ bonds for the purpose set forth herein; (c) secure such revenue bonds by a pledge and assignment ~ revenues and other documents as provided for herein; and (d) enact this Ordinance (the "B0nl Ordinance"), execute the Indenture, the Loan Agreement and the Placement Agreement (al hereinafter identified) and all other documents to be executed by it, upon the terms and conditioh provided therein; and I WHEREAS, the Common Council of the Issuer (the "Common Council") has found m determined and does hereby confirm that the property to be acquired with the proceeds of th Bonds herein authorized (the "Project") will increase business opportunities within the City Jeffersonville, Indiana, and will be to the benefit of the health and general welfare of the citizen~ ~ the City of Jeffersonville, Indiana, and that the Issuer, by assisting with the financing of the Proje through the issuance of revenue bonds in the aggregate principal amount not to exceed $8,500,013 will be acting in a manner consistent with and in furtherance of the provisions of the Act; and WHEREAS, pursuant to a Trust Indenture (the "Indenture"), dated as of October 1, 20C between Fifth Third Bank, as trustee (the "Trustee") and the Issuer, the Issuer proposes to issue. amount not to exceed $8,500,000 of its Variable Rate Demand Economic Development Reven Bonds, Series 2001 (Eagle Steel Products, Inc. Project) to provide funds for the acquisitic JCB/BOND/362642,1 WHEREAS, the Bonds will be secured by a direct-pay letter of credit (the "Letter of Credilt") issued by Fifth Third Bank, an Ohio banking corporatmn (the Bank ) to the Trustee for the be.pe~fit of the holders of the Bonds and for the account of the Borrower, which Letter of Credit has b~en issued pursuant to a certain Reimbursement and Pledge Agreement (the "Reimbursement Agreement") between the Borrower and the Bank; and WHEREAS, it is determined by the Issuer that the amount necessary to finance the costs o[or related to the acquisition, construction, installation and equipping Sfthe Project, will require ~he issuance, sale and delivery of not to exceed $8,500,000 aggregate principal amount of Variable Rate Demand Economic Development Revenue Bonds, Series 2001 (Eagle Steel Products, Inc. Project) (the '~Bonds"); NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL THAT: " Section 1 Definitions In addition to the words and terms defined in this Bond Ordinance the ~vords and terms used in this Bond Ordinance shall have the meanings set forth m the Loan Ac, reement, the Promissory Note, the Indenture, the Placement Agreement as hereinafter defir~ed) an~d in the form of the Bonds unless the context or use indicates another or different meanir~ or intent, which forms are before this meeting, are hereby incorporated by reference in this' BOnd Ordinance and the Clerk-Treasurer of the Issuer is hereby directed to insert them into the minul ~ of the Issuer and to keep them on file as specified in Section 14 hereof. Any reference herein to the Issuer, or to any officers thereof, shall include those which suc to their functions, duties or responsibilities pursuant to or by operation of law or who are law performing their functions. Unless the context shall otherwise indicate, words importing the singular number shall in the plural number, and vice versa, and the terms "hereof," "hereby," "hereto." '2hereunder,' similar terms, mean this Bond Ordinance. 2. Determination of Issuer. At a meeting open to the public held on August 31,2001, t Jeffersonville Economic Development Commission (the "Commission"), the Commission ad. certain Resolutions which incorporate a Report and Findings of Fact, finding, among other ti that the proposed financing will be of benefit to the health and general welfare of the citizens. JCB/BOND/362642.1 2 ~ed lly ~de and the ~ted ~gs, !the construction, installation and equipping of the Project, by lending such funds to Eagle S Products, Inc. (the "Borrower") pursuant to a Loan Agreement (the "Loan Agreement"), dated a )f October 1, 2001, between the Issuer and the Borrower, which prescribes the terms and conditlc ts under which the Borrower shall repay such loan and pursuant to which the Borrower will exec~ ce and deliver to ;the Issuer its promissory note (the "Promissory Note") in the principal amount equal~ to the aggregate principal amount of the Bonds; and / WHEREAS, the Borrower will use the Project as an economic development famhty w~thln the meaning of the Act; and City of Jeffersonville, Indiana and complies with the provisions of the Act. The Cit, acknowledges the Commission's Report. At a public hearing held on October 12,2001 by the Commission pursuant to the Indiana Code 36-7-12-24(a) and Section 147(0 of the Internal Revenue Code of 1986, (the "Code"), notice of publication of which was published in the Evening Ne~'s on September 2001, being a newspaper of general circulation in the City of Jeffersonville, Indiana, the public ~ given an opportunity to express their views for or against the Project, and no persons appeared were written statements received either for or against the Project. The Common Council her,~. ackno;vledges the public hearing. The Issuer has received from the Commission the Resolution dated October 12,2001 ;vhb] the Commission has found that the proposed financing will be of benefit to the health and geh, welfare of the citizens of the City of Jeffersonville, Indiana and that the proposed financing comp with the provisions of the Act, and further recommending this form of Ordinance for approval by Common Council. Based upon the Resolutions of the Corrm~ission, the Issuer hereby finds and determines thal financing approved by the Commission in its Resolution dated October 12,2001 will be ofbenef the health and general welfare of the citizens of the City of Jeffersonville, Indiana and complies the provisions of the Act. Section 3. Small Issue Election of Issuer. The Issuer hereby elects to have the provisions the .$10,000,000 limitation contained in Section 144(a)(4)(A) of the Code apply to the Bonds. l / Section 4. Authorization of the Bonds. It is hereby determined to be necessary to, anc~ Issuer shall, issue, sell and deliver, as provided and authorized herein and pursuant to the the Act, Bonds in the maximum aggregate principal amount of not to exceed $8,500,000, desi as "City of Jeffersonville, Indiana Variable Rate Demand Economic Development Revenue Series 2001 (Eagle Steel Products, Inc. Project)," the proceeds of which will be held b~ under the Indenture and used to make a loan to the Borrower to pay the cost of the act construction, installation and equipping of the Project, which Project will be used as development facility within the meaning of the Act. :0 ~o le Section 5. Terms and Execution of the Bonds. The Bonds shall be issued as fully regi Bonds, without coupons, in the denominations set forth in the Indenture ! as set forth in the Indenture, and shall be payable at the office of the Trustee and mature as in the Indenture. The Bonds shall have such terms, bear such interest rates (but in nc of 10% per annum), and be subject to mandatory and optional redemption or tender as provided i~ Indenture and Placement Agreement heretofore presented to the Issuer. The Be on behalf of the Issuer by the manual or facsimile signatures of the Mayor of the Issuer and Clerk-Treasurer of the Issuer, and the seal of the Issuer shall be impressed thereon o of such seal placed thereon. In case any officer whose signature or a facsimile thereof shall ~ on the Bonds shall cease to be such officer before the issuance or delivery of the Bonds JCB/BONDf362642.1 3 or facsimile thereof shall nevertheless be valid and sufficient for all purposes, the same as if h~ remained in office until after that time. The form of the Bonds submitted to this meeting, subject to appropriate insertions revisions in order to comply with the provisions of the Indenture, be and the same is approved, and when the same shall be executed on behalf of the Issuer by the appropriate thereof in the manner contemplated by the Indenture in an aggregate principal amount $8,500,000 shall represent the approved form of Bonds of the Issuer. The Bonds are special, limited obligations of the Issuer payable solely from principal of, premium, if any, and interest on the Bonds made by the Bank under ti or by the Borrower under the Promissory Note and the Loan Agreement except to the principal of, premium, if any, and interest on the Bonds may be paid out of money attributabl Bond proceeds or from temporary investments thereof. Section 6. Sale of the Bonds. The Bonds will be privately placed by Fifth Third Securi Inc. (the "Placement Agent"), at the purchase price set forth, and on the terms and cond!t, described in the Placement Agreement (the "Placement Agreement") among the Issuer, the Borrc and the Placement Agent. te :o 1s er JCB/BOND/362642.1 4 Section7. Arbitrage Provisions. SubjecttotheobligationsoftheBorrowerandtheLesse .et forth in the Loan Agreement and the Tax Compliance Certificate, the Issuer will use its best ~ -ts to restrict the use of the proceeds of the Bonds in such a manner and to expectations at the tim~ Bonds are delivered to the purchasers thereof, so that they will not constitute arbitrage bonds u er Se'ciion 148 of the Code and the regulations prescribed under that Section. The Mayor of the Is .er and the Clerk-Treasurer of the Issuer, or any other officer having responsibility ~vith respect t~ he issuance of the Bonds, are authorized and directed, alone or in conjunction with any °fthe f°reg~ tg, or with any other officer, employee, consultant or agent of the Issuer, to deliver a certificat 'or inclusion in the transcript of proceedings for the Bonds, setting forth the facts, estimates nd circumstances and reasonable expectations pertaining to said Section 148 and regulations thereuhder. Section 8. Loan Agreement, Promissory Note, Indenture, Preliminary Private Place dent Memorandum, Private Placement Memorandum, Placement Agreement, and all other Docum. i be Executed or Accepted by the Issuer. In order to better secure the payment of the princtp; 'ol, premium, if any, and interest on the Bonds as the same shall become due and payable, the Ma5 ~ of the Issuer and the Clerk-Treasurer of the Issuer are authorized and directed to execute, ack, ow lge and deliver, in the name and on behalf of the Issuer, the Indenture, the Loan Agreement, Promi >ry Note and the Placement Agreement, and all other material documents and ass~=nments executed or accepted by it in substantially the forms submitted to the Issuer or its counsel, whirl, are hereby approved, with such changes therein not inconsistent with this Bond Ordinance ~d !not substantially adverse to the Issuer as may be permitted by the Act and approved by the offi ~ers executing the same on behalf of the Issuer without further approval of the Common Council Or the Commission if such changes do not affect terms set forth in I.C. 36-7-12-27(a)(1) through (a .0). The approval of such changes by such officers to the extent such are not substantially advers~ I the Issuer, shall be conclusively evidenced by the execution or acceptance of receipt of any of foregoing documents by such officers. The Issuer hereby approves and ratifies the use and distribution of a Preliminary Prix Placement Memorandum and a Private Placement Memorandum, in substantially the form submi~ to the Issuer, in connection with the issuance, sale and delivery of the Bonds, and authorizei ~ directs the Mayor of the Issuer to sign the Private Placement Memorandum if so requested counsel to the Placement Agent. Section 9. Covenants of the Issuer. In addition to other covenants of the Issuer in this B~ Ordinance, the Issuer further covenants and agrees as follo~vs: (a) Payment of Principal, Premium and Interest. The Issuer will, solely from the sou: ~s herein provided, pay or cause to be paid the principal of, premium, if any, and interest on each d all Bonds on the dates, at the places and in the manner provided herein and in the Bonds, and I1 other documents referred to herein. (b) Perfornaance of Covenants, Authority and Actions. The Issuer will at all ti:~ .~s faithfully observe and perform all agreements, covenants, undertakings, stipulations and provlsk contained in the Indenture, the Loan Agreement and the Placement Agreement executed !a d delivered, or received, under this Bond Ordinance, and in all other proceedings of the Iss~,,r pertaining to the Indenture, the Loan Agreement and the Placement Agreement. The Issuer walnuts and covenants that it is, and upon delivery of the Bonds will be, duly authorized by the laws or,he Stat. e of Indiana, including particularly and without limitation, the Act, to issue the Bonds an to ex~cute the Loan Agreement, the Indenture and the Placement Agreement, and all other docum ts to be executed or received by it, to provide the security for payment of the principal of, premiU~ if any, and interest on the Bonds in the manner and to the extent herein set forth; that all actions'ots part for the issuance of the Bonds and execution or acceptance and delivery of the Loan Agreerr the Indenture, the Placement Agreement and all other documents to be executed or accepted ] it have been or will be duly and effectively taken; and that the Bonds will be valid and enforce ,lc special, limited obligations of the Issuer according to the terms thereof. Each provision of this 1: ~d Ordinance, the Indenture, each Bond and all other documents to be executed bY the Issuer is bin ~g upon such officer of the Issuer as may from time to time have the authority under law to take actions as may be necessary to perform all or any part of the duty required by such provision ~nd each duty of the Issuer and of its officers and employees undertaken pursuant to such proceedi~ the Bonds and all other documents to be executed by the Issuer is established as a dut5 and of each such officer and employee having authority to perform such duty. Section 10. No Personal Liability. No recourse under or upon any obligation, acceptance or agreement contained in this Bond Ordinance, or in the Bonds, the Loan A the Indenture, the Placement Agreement, or under any judgment obtained against the enforcement of any assessment or by any legal or equitable proceeding by or statute or other~vise, or under any circumstances, under or independent of the Loan Agreer nt, shall be had against any member, director, or officer or attorney, as such, past, present, or futu:of the Issuer, either directly or through the Issuer, or otherwise, for the payment for or to the Issr' or JCB/BOND/362642. t 5 any receiver thereof, or for or to any holder of the Bonds secured thereby, or other,vise that may be due and unpaid by the Issuer upon any of such Bonds. Any and all every nature, whether at common law or in equity, or by statute or by constitution or c any such member, director, or officer or attorney, as such, to respond by reason of any omission on his or her part, or other~vise, for, directly or indirectly, the payment for or to the Is~ or any receiver thereof, or for or to any owner or holder of the Bonds, or otherwise, of any may remain due and unpaid upon the Bonds hereby secured or any of them, shall be expr? waived and released as a condition of and consideration for the execution and delivery of the L Agreement, the Indenture and the Placement Agreement, and the issuance of the Bonds. Section 11. No Debt or Tax Pledge. The Bonds shall not constitute a debt or pledge of faith and credit of the Issuer, the State or any political subdivision thereof, and the holders or ow thereof shall have no right to have taxes levied by the Issuer, the State or of any political subdivis for the payment of the principal thereof or interest thereon. Moneys raised by taxation shz~ll nc obligated or pledged for the payment of principal of or interest on the Bonds, and the Bonds shal payable solely from the revenues and security interests pledged for their payment as authorize* the Indenture. ~ Section 12. Severability. If any section, paragraph or provision of this Bond Ordinance be held to be invalid or unenforceable for any reason, the invalidity or unenforceability of section, paragraph or provision shall not affect any of the remaining provisions of this l~ Ordinance. Section 13. Repeal of Conflicting Ordinances and Resolutions. All ordinances, resolut an~l'orders, or parts thereof, in conflict with the provisions of this Bond Ordinance are, to the e> of such conflict, hereby repealed. Section 14. Public Inspection. A copy of the Loan Agreement, the Indenture, the Plac¢x Agreement, the Preliminary Private Placement Memorandum, the Private Placement Memoran and the form of the City of Jeffersonville, Indiana Variable Rate Demand Economic Develop~ Revenue Bonds, Series 2001 (Eagle Steel Products, Inc. Project) is available for public inspe~ upon request to the Clerk-Treasurer of the Issuer. Section t 5. Compliance with Open Door Law. It is hereby determined that all formal ~ of the Common Council relating to the adoption of this Bond Ordinance were taken in an meeting of the Common Council, that all deliberations of the Common Council and .c committees, if any, which resulted in formal action, were in meetings open to the public, and !I~ such meetings were convened, held and conducted in compliance with applicable legal requirerr including Indiana Code 5-14-1.5, e_t seq., as supplemented and amended. Section 16. Effective Date. This Bond Ordinance shall be in full force and effect compliance with Indiana Code 36-4~6 et se_%q. JCB/BOND/362642.1 6 Y )e )e ly dl tch ils ,ns en its all tts, ~on The foregoing was passed by the Common Coun~l this ~eth dap, of October 2001. T~om~s R. Galliga~n, l:Ire~d~g/Of/fi/cer Common Council City of Jeffersonville, Indiana Presented by me to the Mayor of the City of Jeffersonville, Indiana this 2001, at &',qff (~ .m. ~' Peggy ~t~rfClerk-Treasurer City of Jeffersonville, Indiana __ da/ Approved and signed by me, Thomas Galligan, Mayor of the City of Jeffersonville this (gD ATTEST: T~omhs Galligan', Mayor ( / City of Jeffersonville, Indian'ff Pegg~ T,X~l~, Clerk-Treasurer City of Jeffersonville, Indiana JCB/BOND/362642.1 7 STATE OF INDIANA ) )SS: COUNTY OF CLARK ) I, Peggy Wilder, Clerk-Treasurer of the City of Jeffersonville. Indiana, do hereby certify above and foregoing is a full, true, and complete copy of Ordinance No. goot _c~9_- a~ passed by the Common Council on the 15th day of October, 2001, by a vote of ~ AYES and 0 NA%~SI, which was signed by the President of the Common Council on the ~(3 day of October, 20? { and was approved and signed by the Mayor on the 9:0 day of October, 2001, and now remain on file and on record in my office. WITNESS my hand and the official seal of the City of Jeffersonville, Indiana, this ~O day of October 2001. Peggy WilfI%ff~' Clerk-Treasurer City of Ieffersonville, Indiana JCB/BOND/362642.1 g