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HomeMy WebLinkAbout9968-09 Amending 9722-09 which authorized the issuance and sale of variable reateORDINANCE No. Passed by the Common Council of the City of South Bend, Indiana October 12, 2009 Attest: Attest: Presented by me to the Mayor of the City of South Bend, Indiana October 13, 09 20 City Clerk ~esident of Common Council Ciry Clerk Approved and signed by me October 14 , Z0 ~ y ~~"-`~ Mayer ORDINANCE NO. ~ ~~-~ AN ORDINANCE SUPPLEMENTING AND AMENDING ORDINANCE NO. 9722-06 WHICH AUTHORIZED THE ISSUANCE AND SALE OF THE CITY OF SOUTH BEND, INDIANA VARIABLE RATE ECONOMIC DEVELOPMENT REVENUE BONDS, SERIES 2007 (PEUGENESIS PROJECT), ISSUED ON JANUARY 30, 2007 IN THE PRINCIPAL AMOUNT OF $8,105,000 (THE "BONDS"), APPROVING THE FORM OF, AND AUTHORIZING THE EXECUTION AND DELIVERY OF, AN AMENDED AND RESTATED TRUST INDENTURE, AN AMENDED AN RESTATED LOAN AGREEMENT AND OTHER DOCUMENTS RELATED TO THE BONDS; AUTHORIZING THE DELIVERY OF A CONFIRMING LETTER OF CREDIT AND THE EXTENSION OF THE MATURITY DATE OF THE BONDS; AND AUTHORIZING PROPER OFFICERS TO DO ALL OTHER THINGS DEEMED NECESSARY OR ADVISABLE IN CONNECTION THEREWITH AND APPROVING AND AUTHORIZING OTHER ACTIONS IN RESPECT THERETO. STATEMENT OF PURPOSE AND INTENT The City of South Bend, Indiana (the "C~") is a political subdivision of the State of Indiana, and by virtue of Title 36, Article 7, Chapters 11.9 and 12, of the Indiana Code, as amended (the "Act"), is authorized and empowered to adopt this Ordinance and to carry out its provisions. Pursuant to Ordinance No. 9722-06, adopted by to this Common Council (the "Council") of the City on or about November 27, 2006 (the "Original Ordinance"), the City on or about January 30, 2006 issued, sold and delivered those certain City of South Bend, Indiana Variable Rate Economic Development Revenue Bonds, Series 2007 (PEUGenesis Project) in an aggregate principal amount of $8,105,000 (the "Bonds"), and loaned the proceeds thereof to PEUGenesis, Inc., a Pennsylvania corporation ("PEI") and Tuliptree Associates, LLC, a Pennsylvania limited liability company ("Tuliptree") (PEI and Tuliptree, collectively, the "Borrower") to finance and refinance certain economic development facilities as described in the Original Ordinance. The Bonds are currently secured by a letter of credit (the "Letter of Credit") issued by Citizens Bank of Pennsylvania (the "Banl~'), and in order to provide additional security and liquidity for the Bonds and enhance the marketability of the Bonds, the Bank has requested to Federal Home Loan Bank of Pittsburgh (the "Confirming Banl~'), and the Confirming Bank has agreed, to issue a confirmation of the Letter of Credit in the form of an Advice of Confirmation with respect to the Bonds (the "Con arming Letter of Credit"). Moreover, the Borrower has requested that the maturity date of the Bonds be extended from April 1, 2027 to April 1, 2033. There have been submitted to this Council proposed forms of: (i) the Amended and Restated Trust Indenture (the "Amended and Restated Indenture") between the City and U.S. Bank National Association, as trustee (the "Trustee"), pertaining to the Bonds, which Amended and Restated Indenture, among other things, permits the addition of the Confirming Letter of Credit and the extension of the maturity date of the Bonds to April 1, 2033; and (ii) the Amended and Restated Loan Agreement (the "Amended and Restated Agreement")between the City and the Borrower. The Common Council conducted a public hearing on October 12, 2009 on the proposed execution and delivery of the Amended and Restated Indenture and the Amended and Restated Agreement, the delivery of the Confirming Letter of Credit, and the extension of the maturity date of the Bonds until April 1, 2033, and, believes that such proposed matters will be of benefit to the health or general welfare of the citizens of South Bend, Indiana and complies with the purposes and provisions of the Act. The City, in connection with the delivery of the Confirming Letter of Credit and the extension of the maturity date of the Bonds, wishes to amend, supplement and restate (i) that certain Trust Indenture, dated January 1, 2007, between the City and the Trustee (the "Original Indenture"), as set forth in the Amended and Restated Indenture, and (ii) that certain Loan Agreement, dated January 1, 2007, between the City and the Trustee (the "Original Agreement"), as set forth in the Amended and Restated Agreement. NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA AS FOLLOWS: SECTION 1. Incorporation of Recitals. The recitals contained in this Ordinance and in the Original Ordinance are true and correct and are incorporated in this Ordinance by this reference. SECTION 2. Incorporation of Previous Findings. Each of the findings which are contained in the Original Ordinance is true and correct and is incorporated in this Ordinance by this reference. SECTION 3. Findings; Public Benefits. This Council finds that the execution and delivery of the Amended and Restated Indenture and the Amended and Restated Agreement, the delivery of the Confirming Letter of Credit, and the extension of the maturity date of the Bonds until April 1, 2033 (i) will be of benefit to the health and general welfare of the City and its citizens, and (ii) complies with the purposes and provisions of the Act. SECTION 4. Authorizations. The Council hereby authorizes the execution and delivery of the Amended and Restated Indenture and the Amended and Restated Agreement, the delivery of the Confirming Letter of Credit, and the extension of the maturity date of the Bonds until 2 April 1, 2033. The amendments which are contained in the Amended and Restated Indenture and the Amended and Restated Agreement and in the terms of the Bonds will result in the Bonds being deemed to have been reissued for purposes of the Internal Revenue Code of 1986, as amended. SECTION 5. Approval of the Amended and Restated Indenture and the Amended and Restated Agreement. The Amended and Restated Indenture and the Amended and Restated Agreement are hereby approved in the forms submitted to this meeting, and a copy of each such document shall be kept on file by the City Clerk (the "Clerl~'). The Mayor (the "Executive") and the Clerk are hereby authorized and directed to execute and deliver such documents without further approval of the Council in substantially the forms herein approved with such additions, deletions and modifications thereto as may be approved by the Executive and the Clerk, as permitted under the Act, the execution thereof being conclusive evidence of such approval and of the approval of the Council; and the Clerk, or any authorized representative of the City, is hereby authorized and directed to affix the seal of the City to such documents and to attest the same. Two copies of the Amended and Restated Indenture and the Amended and Restated Agreement, hereby incorporated into this Ordinance, were duly filed in the Office of the Clerk and are available for public inspection in accordance with Section 36-1-5-4 of the Indiana Code. SECTION 6. Limited Obli ag tion. THE BONDS AND THE INTEREST THEREON DO NOT AND SHALL NEVER CONSTITUTE AN INDEBTEDNESS OF, OR A CHARGE AGAINST THE GENERAL CREDIT OR TAXING POWER OF, THE CITY, BUT ARE LIMITED OBLIGATIONS OF THE CITY PAYABLE SOLELY FROM REVENUES AND OTHER AMOUNTS DERIVED FROM THE AMENDED AND RESTATED AGREEMENT. SECTION 7. Other Action. The Executive and the Clerk are hereby authorized and directed to execute and deliver, in the name and on behalf of the City, any and all additional documents and instruments necessary or proper and to do and cause to be done any and all acts and things necessary or proper for carrying out the transactions contemplated by this Ordinance (including the recitals hereto and the documents mentioned herein). The Executive and Clerk may, by their execution of the documents requiring their signatures or imprinting of their facsimile signatures thereon, approve changes therein and also in those documents which do not require the signature of the Executive and/or Clerk without further approval of this Council if such changes do not affect terms set forth in Indiana Code Title 36, Article 7, Chapter 12, Section 27(a)(1) through (a)(10). SECTION 8. No Personal Liability. No stipulation, obligation or agreement herein contained or contained in the Amended and Restated Indenture and the Amended and Restated Agreement, the Bonds or in any other agreement or document executed on behalf of the City shall be deemed to be a stipulation, obligation or agreement of any member of the Council, or any officer, agent or employee of the City in his or her individual capacity, and no such member of the Council, officer, agent or employee shall be personally liable on the Bonds or be subject to personal liability or accountability by reason of the issuance thereof. SECTION 9. Action Approved and Confirmed. All acts of the officers of the City which are in conformity with the purpose and intent of this Ordinance and in the furtherance of 3 the execution, delivery and performance of the documents and agreements authorized hereby are in all respects ratified, approved and confirmed. SECTION 10. Severability. If any provision of this Ordinance shall be held or deemed to be illegal, inoperative or unenforceable, the same shall not affect any other provision or cause any other provision to be invalid, inoperative or unenforceable to any extent whatsoever. SECTION 11. No Conflict. Any ordinances, resolutions or orders or parts thereof in conflict with this Ordinance are to the extent of such conflict hereby repealed. SECTION 12. Effective Date. This Ordinance shall be in full force and effect from and after its passage and compliance with Indiana law. PASSED AND ADOPTED by the Common Council of the City of South Bend, Indiana, this _ day of , 2009. COMMON COUNCIL OF THE CITY OF SOUTH BE D, INDI A By: M tuber of the Common Council Atte Cit Clerk Presented by me to the Mayor of the City of South Bend, Indiana on the 3 day of ~ c.~~~/ _, 2 0~ , at l (`~~~ o'clock ~. m. Deputy ' 'ty Clerk Approved 2 eLO ~j , at 1 sf RI•ADING ~ '-~~~ PUBLIC HEARING ~ 0 -: ~„~v=; 3 rd READING l o -~ L-O~ NOT APPROVED REFERRED PASSED (6 ~ ~ L _ O 5 and signed by me on the ~~~'~ day of o o'clock m. Filed In C{erlcrs Qfifi a or, City of th Bend, Indiana SEP 2 3 2009 JQHN VOORDE CITY CLERK, 50. BEND, IN.' TO THE COMMON COUNCIL OF THE CITY OF SOUTH BEND: Your Committee of the Whole, to whom was referred: BILL NO. 78-09 A BILL SUPPLEMENTING AND AMENDING ORDINANCE NO. 9722-06 WHICH AUTHORIZED THE ISSUANCE AND SALE OF THE CITY OF SOUTH BEND, INDIANA VARIABLE RATE ECONOMIC DEVELOPMENT REVENUE BONDS, SERIES 2007 (PEI/GENESIS PROJECT), ISSUED ON JANUARY 30, 2007 IN THE PRINCIPAL AMOUNT OF $8,105,000 (THE "BONDS"), APPROVING THE FORM OF, AND AUTHORIZING THE EXECUTION AND DELIVERY OF, AN AMENDED AND RESTATED TRUST INDENTURE, AN AMENDED AND RESTATED LOAN AGREEMENT AND OTHER DOCUMENTS RELATED TO THE BONDS; AUTHORIZING THE DELIVERY OF A CONFIRMING LETTER OF CREDIT AND THE EXTENSION OF THE MATURITY DATE OF THE BONDS; AND AUTHORIZING PROPER OFFICERS TO DO ALL OTHER THINGS DEEMED NECESSARY OR ADVISABLE IN CONNECTION THEREWITH AND APPROVING AND AUTHORIZING OTHER ACTIONS IN RESPECT THERETO Respectfully report that they have examined the matter and that in their opinion, this bill is being recommended to the full Council with a favorable recommendation. Ann Puzzello Chairperson, Committee of the Whole BARNES &THORNBURG LLP Alan B. Feldbaum (574)237-1114 alan.feldbaumC~btlaw.com HAND-DELIVERED Mr. John Voorde Clerk of the City of South Bend 455 County-City Building 227 West Jefferson Boulevard South Bend, Indiana 46601 Re: Ordinance for Consideration by the Common Council Pertaining to Those Certain City of South Bend, Indiana Variable Rate Demand Economic Development Revenue Bonds, Series 2007 (PEI/Genesis Project) Dear John: We are serving as bond counsel with respect to the modification of certain of the terms of the above- referenced bonds (the "Bonds"), and in such capacity we are hereby delivering to the Clerk of the City of South Bend the enclosed copies of the proposed Supplemental Bond Ordinance (the "Supplemental Bond Ordinance") pertaining to the Bonds, together with two copies of substantially final forms of each of the following documents (the "Bond Documents"), which are incorporated by reference into such Supplemental Bond Ordinance: (i) the Amended and Restated Trust Indenture (as described in the Supplemental Bond Ordinance); and (ii) the Amended and Restated Loan Agreement (as described in the Supplemental Bond Ordinance). The purpose of the Supplemental Bond Ordinance is to authorize the execution of the Bond Documents for the purpose of making certain changes in the terms and provisions which are contained in the original Bond documents, including, among other matters, authorizing the delivery of a confirming letter of credit to further secure the Bonds and extending the maturity date of the Bonds from April 1, 2027 to April 1, 2033. We hereby request that such Supplemental Bond Ordinance be scheduled for first reading before the South Bend Common Council on September 28, 2009 and that it be considered for passage on October 12, 2009, and that the Supplemental Bond Ordinance and the Bond Documents be made available for public inspection, in accordance with Section 36-1-5-4 of the Indiana Code. I will be attending the meeting on October 12, 2009 to explain the Supplemental Bond Ordinance and to answer any questions. As you may know, in serving as a conduit in connection with these economic development bonds, the City bears no responsibility, financial or otherwise, with respect to the payment of, principal of and interest on the Bonds. The ordinance specifies that in Section 6. The issuance of the Bonds by the City merely allows the Borrower to obtain tax-exempt financing as provided for under the Internal Revenue Code. If you have any questions, please feel free to call us. 600 1st Source Bank Center 100 North Michigan South Bend, IN 46601 U.S.A. (574)233-1171 Fax (574) 237-1125 www.btlaw.com September 23, 2009 Sincerely, Enclosures /SBDS02 ABF 395085v1 BARNES & THO BURG L P ~i~C€~ ~~ ~!~~~~~~~ ~f#{~0 ~~ ,A~ Alan B. Feld a>rl"m ~----._.. SEP 2 3 2009 JOHIJ VOORDE CITY CLEtZK, S0. BEND, IIV. Chicago Indiana Michigan Washington, D.C. ~~