HomeMy WebLinkAboutNo. 1054 regarding issuance of tax increment revenue refunding bonds'.- - .:A
RESOLUTION NO. 1054.
RESOLUTION OF THE SOUTH BEND
REDEVELOPMENT COMMISSION
REGARDING ISSUANCE OF TAX
INCREMENT REVENUE REFUNDING BONDS
ADOPTED MAY 1, 1992
TABLE OF CONTENTS
Section
1.
The Bonds . . . . . . . . . . . . . . . . .
Section
2.
Form of Bonds . . . . . . . . . . . . . . .
Section
3.
Legal Notices and Other Authorizations . . .
Section
4.
Flow of Funds . . . . . . . . . . . . . . .
Section
5.
Sale of Bonds . . . . . . . . . . . . . . .
Section
6.
Execution of Bonds . . . . . . . . . . . .
Section
7.
Additional Bonds . . . . . . . . . . . . .
Section
8.
Tax Matters . . . . . . . . . . . . . . . .
Section
9.
Defeasance of Bonds . . . . . . . . . . . .
Section
10.
Holidays, Weekends, Etc. . . . . . . . . .
Section
11.
Supplemental Resolutions . . . . . . . . .
Section
12.
Temporary Bonds . . . . . . . . . . . . . .
Section
13.
Appropriation of Bond Proceeds . . . . . . .
Section
14.
Appointment of Registrar, Paying Agent
and Escrow Agent . . . . . . . . . . . . . .
Section
15.
Severability . . . . . . . . . . . . . . .
Section
16.
No Conflicts . . . . . . . . . . . . . . .
Section
17.
Limitation on Amendments . . . . . . . . .
EXHIBIT
A
Legal Description of the Area . . . . . . .
EXHIBIT
B
Description of Refunded Bonds . . . . . . .
EXHIBIT
C
Bond Maturity Schedule . . . . . . . . . .
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RESOLUTION NO. 1054
RESOLUTION OF THE SOUTH BEND REDEVELOPMENT
COMMISSION REGARDING ISSUANCE OF TAX
INCREMENT REVENUE REFUNDING BONDS
WHEREAS, this Commission has adopted various resolutions
declaring certain real estate in the South Bend Redevelopment
District, known as the "South Bend Central Allocation Area (South
Bend Allocation Area No. 1A)" as more particularly described on
Exhibit A attached hereto and incorporated herein (the "Area ") to
be an allocation area within the meaning of IC 36 -7 -14 (the "Act ");
and
WHEREAS, this Commission deems it advisable to issue
bonds of the Redevelopment District, in accord with the provisions
of the Act and IC 5 -1 -5, in an aggregate principal amount not to
exceed Six Million Five Hundred Thousand Dollars ($6,500,000.00),
for the purpose of procuring funds to refinance certain maturities
of the bonds heretofore issued and designated as "City of South
Bend Redevelopment District Tax Increment Revenue Bonds of 1985"
(the 111985 Bonds ") and "City of South Bend Redevelopment District
Tax Increment Revenue Bonds of 1986" (the 111986 Bonds ") all as more
fully described on Exhibit B attached hereto and incorporated
herein (the 1985 Bonds and 1986 Bonds are together referred to as
the "Refunded Bonds "), together with all expenses necessarily
incurred in connection with the foregoing; and
WHEREAS, IC 5 -1 -5 authorizes the advance refunding of the
Refunded Bonds prior to the time such Refunded Bonds are subject to
redemption, in order to effect a savings or modify such restrictive
covenants as may impede additional financing, by providing for
payment of and defeasing the Refunded Bonds from proceeds of other
bonds; and
WHEREAS, such refunding is not prohibited by Resolution
No. 747, as amended or Resolution No. 775, as amended (the "Prior
Resolutions ") which authorized the Refunded Bonds or by the
agreements executed in connection therewith, nor will the refunding
adversely effect owners of the Refunded Bonds; and
WHEREAS, the Commission deems it advisable to issue the
advance refunding bonds authorized by this Resolution as "City of
South Bend Redevelopment District Tax Increment Revenue Refunding
Bonds of 1992" in original principal amount not to exceed Six
Million Five Hundred Thousand Dollars ($6,500,000) (the "Bonds ")
for the purpose of providing, to the extent necessary to accomplish
the advance refunding of the Refunded Bonds, together with certain
funds relating to the Refunded Bonds, for the payment of (i) the
principal amount the Refunded Bonds outstanding and redemption
premiums thereon, if any, (ii) the interest payable on the Refunded
Bonds, (iii) the costs of the refunding, and (iv) the costs of
issuance of the Bonds and the funding of a reserve therefor; and
WHEREAS, the Commission deems it advisable to escrow
certain proceeds of and investment income of the Bonds pursuant to
the terms of a customary advance refunding escrow agreement (the
"Escrow Agreement ") to be entered into with Bank One, Indianapolis,
National Association, as escrow agent (the "Escrow Agent ").
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NOW, THEREFORE, BE IT RESOLVED by the South Bend
Redevelopment Commission, governing body of the City of South Bend,
Department of Redevelopment, as follows:
Section 1. The Bonds. For the purpose of providing
funds to be used as provided above, the City of South Bend (the
"City "), acting for and on behalf of the South Bend Redevelopment
District, shall borrow money in an aggregate principal amount not
to exceed Six Million Five Hundred Thousand Dollars
($6,500,000.00). In order to procure said loan, the City
Controller is hereby authorized and directed to have prepared and
to issue and sell the negotiable Bonds of the City payable solely
from incremental taxes on real property located in the Area
allocated and deposited in the Allocation Fund (hereinafter
described), proceeds from the sale or leasing of property in the
Area pursuant to IC §36- 7 -14 -22 deposited in the Allocation Fund
pursuant to IC §36- 7 -14 -26 (together, the "Tax Increment ") and
earnings thereon, which Bonds shall be issued in denominations of
Five Thousand Dollars ($5,000.00) or any integral multiple thereof,
shall be numbered consecutively beginning with the number 1, shall
be dated the first day of the month in which the Bonds are to be
delivered, the date of delivery, or any other date as the City
Controller deems advisable, and shall bear interest at a rate not
exceeding ten per cent (10 %) per annum, the exact rate or rates to
be determined by bidding, shall be issued in registered form, and
shall be redeemable and transferable as set forth in the form of
Bond herein. The Bonds shall rank on a parity with the 1985 Bonds
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and 1986 Bonds which are not advance refunded with proceeds from
the sale of the Bonds. The principal of and premium on Bonds shall
be payable in lawful money of the United States of America at the
office of the Paying Agent serving under Section 14 of this
Resolution, or of any alternate paying agent named in any Bond or
subsequently appointed.
The Bonds shall mature as set forth on Exhibit C attached
hereto and incorporated herein.
The Bonds are not general obligations of the City or the
Redevelopment District but are limited and special obligations
payable solely as set forth therein. The Bonds shall be
authenticated with the manual signature of an authorized
representative of the Registrar serving under Section 14 of this
Resolution, and no Bond shall be valid or obligatory for any
purpose or be entitled to any benefit under this Resolution until
the certificate of authentication on such Bond shall have been so
executed.
The Commission hereby directs that there be transferred
to the Escrow Agreement and to the funds and accounts referred to
herein such moneys held in accordance with the Prior Resolutions as
is directed by the Department with the advice of bond counsel.
Funds deposited under the Escrow Agreement to carry out the
refunding of the Refunded Bonds shall be and hereby are irrevocably
set aside for and pledged to the payment of the Refunded Bonds.
The Refunded Bonds shall be called for redemption on the date which
will generate the greatest savings, unless another date is required
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by law or funds deposited under the Escrow Agreement are used to
pay the Refunded Bonds at their stated maturity dates, all
determined with the advice of bond counsel and the financial
advisor retained by the Commission in connection with the issuance
of the Bonds.
Section 2. Form of Bonds. The form and tenor of the
Bonds shall be substantially as follows, all blanks to be filled in
properly prior to delivery thereof:
UNITED STATES OF AMERICA
State of Indiana
County of St. Joseph
Reaistered
No. R $
CITY OF SOUTH BEND, INDIANA
REDEVELOPMENT DISTRICT TAX INCREMENT
REVENUE REFUNDING BOND OF 1992
Interest Maturity Original Authentication
Rate Date Date Date CUSIP
REGISTERED OWNER:
PRINCIPAL SUM:
The City of South Bend, in St. Joseph County, State of
Indiana, acting for and on behalf of the South Bend
Redevelopment District (which District includes all of the
territory within the corporation boundaries of the City of
South Bend, Indiana) (the "Issuer ") for value received,
hereby promises to pay to the Registered Owner hereof, upon
surrender hereof, solely from allocated incremental taxes
on real property and proceeds from the sale or leasing of
property located in the South Bend Central Allocation Area
of the District (the "Area ") and earnings thereon, the
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Principal Sum set forth above on the Maturity Date shown
above, unless earlier redeemed, and to pay interest
thereon, solely from such sources, until the principal is
paid, at the per annum rate shown above (calculated on the
basis of a 360 -day year of twelve 30 -day months) from the
interest payment date to which interest has been paid next
preceding the authentication date of this bond, unless this
bond is authenticated after the fifteenth day of the month
preceding an interest payment date and on or before such
interest payment date in which case it shall bear interest
from such interest payment date, or unless this bond is
authenticated on or before , in which
case it shall bear interest from the Original Date, which
interest is payable on the first day of each February and
August, commencing until payment in
full of this bond.
Principal and premium, if any, of this bond are payable in
lawful money of the United States of America at the
principal office of Bank One, Indianapolis, National
Association (the "Paying Agent "). Interest is payable by
check or draft mailed one business day prior to the
interest payment date to the registered owner hereof at his
address as it appears on the registration books maintained
for the Issuer by Bank One, Indianapolis, National
Association (the "Registrar ") as of the 15th day of the
month immediately preceding the interest payment date (the
"Record Date ") , or at such other address as is furnished in
writing by the registered owner to the Registrar prior to
the Record Date for any interest payment.
This bond ranks on a parity with the bonds issued under the
hereinafter described Resolution, issued in original
principal amount of $ and designated as
"City of South Bend, Indiana Redevelopment District Tax
Increment Revenue Refunding Bonds of 199211, and with the
bonds designated "City of South Bend, Indiana Redevelopment
District Tax Increment Revenue Bonds of 1985" which mature
between February 1, and February 1, in principal
amount of $ , and with the bonds
designated as "City of South Bend Redevelopment District
Tax Increment Revenue Bonds of 1986" which mature between
February 1, and February 1, in principal amount
of $ , and with the bonds designated as "City
of South Bend Redevelopment District Tax Increment Revenue
Bonds of 1988" outstanding in principal amount of
This bond does not constitute a general obligation or
indebtedness of the City of South Bend but the same is a
limited and special obligation of the South Bend
Redevelopment District and is payable only out of allocated
incremental taxes on real property and proceeds from the
sale or leasing of property located in the Area and
deposited in the Allocation Fund established by said
District for the Area, and earnings thereon.
It is hereby certified and recited that all acts,
conditions and things required by law and the constitution
of the State of Indiana to be done precedent to and in the
issuance, sale and delivery of this bond have been properly
done, happened and performed in regular and due form as
prescribed by law, and that the total indebtedness of the
South Bend Redevelopment District, including the bonds of
this issue, does not exceed any constitutional or statutory
limitation of indebtedness.
This bond shall not be valid or become obligatory for any
purpose or be entitled to any benefit under the Resolution
until the certificate of authentication hereon shall have
been duly endorsed. This bond is negotiable pursuant to
the laws of the State of Indiana.
Reference is hereby made to the further provisions of this
Bond set forth below or on the reverse side hereof and such
further provisions shall be all purposes have the same
effect as if set forth at this place.
Cl IN WITNESS WHEREOF, the Redevelopment Commission of the
City of South Bend, State of Indiana, has caused this bond
to be executed in the name of the City of South Bend, for
and on behalf of the Redevelopment District of said City,
by the facsimile signature of the Mayor of said City, and
attested by facsimile signature by the City Controller of
said City, and the seal of said City or a facsimile thereof
to be affixed, engraved, imprinted or otherwise reproduced
hereon.
CITY OF SOUTH BEND, INDIANA
By:
Mayor
(SEAL OF CITY)
ATTEST:
IL City Controller
(Form of Certificate of Authentication)
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This bond is one of the bonds described in the
within - mentioned Resolution.
BANK ONE, INDIANAPOLIS, NATIONAL
ASSOCIATION, as Registrar
By
Authorized Representative
(To Be Printed on Reverse Side)
This bond is one of an authorized issue of bonds of
like original date and tenor, except as to authentication
date, numbering, denomination, date of maturity, interest
rate, and redemption terms, in the aggregate principal
amount of Dollars ($ ).
Said bonds are issued by the South Bend Redevelopment
District pursuant to a resolution entitled "Resolution of
the South Bend Redevelopment Commission Regarding Issuance
of Tax Increment Revenue Refunding Bonds" (Resolution No.
) (the "Resolution ") adopted by the South Bend
Redevelopment Commission (the "Commission ") on May 1, 1992,
as amended on , 1992, in
strict compliance with I.C. 36 -7 -14. The certain Bonds
were issued to advance refund certain prior bonds issued in
1985 and 1986, all as more particularly described in the
Resolution.
The Bonds maturing on or after February 1, ,
shall be redeemable at the option of the Commission, in
whole or in part (only in authorized denominations), on
February 1, , or at any time thereafter. Redemption
shall occur at a redemption price expressed as a percentage
of the principal amount of each bond to be redeemed in
accordance with the following schedule, plus accrued
interest to the redemption date:
Redemption Period
(Both Dates Inclusive) Redemption Price
February 1,
through January 31, 10_%
February 1, and
thereafter prior to maturity 10_%
In the case of redemption of any bonds, written notice
of the call for any such redemption identifying the bonds
to be redeemed shall be given by mailing a copy of the
redemption notice by registered or certified mail not less
than thirty (30) days nor more than sixty (60) days prior
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to the date fixed for redemption to the registered owner of
each bond to be redeemed at the address shown on the
registration books, provided, however, that failure to give
such notice by mailing, or any defect therein, with respect
to any such registered bond shall not affect the validity
of any proceedings for the redemption of other bonds.
On and after the redemption date specified in the
aforesaid notice, such bonds, or portions thereof, thus
called (provided funds for their redemption are on deposit
at the place of payment) shall not bear interest, shall no
longer be protected by the Resolution and shall not be
deemed to be outstanding under the provisions of the
Resolution, and the holders thereof shall have the right
only to receive the redemption price thereof.
All bonds which have been redeemed shall be cancelled
and shall not be reissued; provided, however, that one or
more new registered bonds shall be issued for the
unredeemed portion of any bond without charge to the holder
thereof.
Prior to the date fixed for redemption, funds shall be
deposited with the Paying Agent to pay, and the Paying
Agent is hereby authorized and directed to apply such funds
to the payment of, the bonds or portions thereof called,
including accrued interest thereon to the redemption date
and any required premium. No payment shall be made by the
Paying Agent upon any bond or portion thereof called for
redemption until such bond shall have been delivered for
payment or cancellation or the Registrar shall have
received the items required by the Resolution with respect
to any mutilated, lost, stolen or destroyed bond.
In the Resolution, the Issuer reserves the right to
authorize and issue additional bonds payable solely from
incremental taxes on real property and proceeds from the
sale or leasing of property locating in the Area and
earnings thereon, which bonds may rank on a parity with the
bonds of this issue, all subject to the conditions set
forth in the Resolution.
Each bond shall be transferable or exchangeable only
upon the bond register maintained by the Registrar by the
registered owner thereof in person, or by his attorney duly
authorized in writing, upon surrender of such bond at the
principal office of the Registrar, accompanied by a written
instrument or instruments of transfer or exchange in form
satisfactory to the Registrar and duly executed by the
registered owner or his attorney duly authorized in
writing, and thereupon a new fully registered bond or bonds
in the same aggregate principal amount and of the same
MM
maturity shall be executed and delivered in the name of the
transferee or transferees or the registered owner, as the
case may be, in exchange therefor. Bonds may be
transferred or exchanged without cost to the registered
owner, except for any tax or governmental charge required
to be paid with respect to the exchange. The Registrar
shall not be required to transfer or exchange any bond
called for redemption or during the period from the
fifteenth day of any calendar month immediately preceding
an interest payment date to such interest payment date.
The City, the Commission, the Registrar and the Paying
Agent may treat and consider the person in whose name any
such bond is registered as the absolute owner thereof for
all purposes including for the purpose of receiving payment
of, or on account of, the principal thereof and interest
due thereon, and the premium, if any. All such payments
shall be valid and effectual to satisfy and discharge the
liability upon such bonds to the extent of the sums so
paid.
In the event any bond is mutilated, lost, stolen or
destroyed, the City may execute and the Registrar may
authenticate a new bond of like date, maturity and
denomination as that mutilated, lost, stolen or destroyed,
which new bond shall be marked in a manner to distinguish
it from the bond for which it was issued, provided that, in
the case of any mutilated bond, such mutilated bond shall
first be surrendered to the Registrar, and in the case of
any lost, stolen or destroyed bond there shall be f irst
furnished to the Registrar evidence of such loss, theft or
destruction satisfactory to the City and the Registrar,
together with indemnity satisfactory to them. In the event
any such bond shall have matured, instead of issuing a
duplicate bond, the City and the Registrar may, upon
receiving indemnity satisfactory to them, pay the same
without surrender thereof. The City and the Registrar may
charge the owner of such bond with their reasonable fees
and expenses in this connection. Any bond issued pursuant
to this paragraph shall be deemed an original, substitute
contractual obligation of the City, acting for and on
behalf of the Redevelopment District, whether or not the
lost, stolen or destroyed bond shall be found at any time,
and shall be entitled to all the benefits of the
Resolution, equally and proportionately with any and all
other bonds duly issued thereunder.
The bonds of this issue are issuable only in fully
registered form in the denomination of $5,000 or any
integral multiple thereof.
This bond may be defeased as set forth in the
Resolution.
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ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells,
assigns and transfers unto
(Please Print or Typewrite Name and Address) $
(must be a multiple of $5,000) in principal amount of the
within bond and all rights and title thereto, and hereby
irrevocably constitutes and appoints
attorney to transfer the within bond on the books kept for
registration thereof, with full power of substitution in
the premises.
Dated:
NOTICE: The signature to this assignment must correspond
with the name as it appears on the face of the within bond
in every particular.
Signature Guaranteed:
NOTICE: Signature(s) must be guaranteed by a member firm
of the New York Stock Exchange or a commercial bank or
trust company.
Section 3. Legal Notices and Other Authorizations. As
soon as may be done after the adoption of this resolution, the
appropriate officer of the Department of Redevelopment shall
certify a copy of this resolution to the City Controller.
The appropriate officers shall also publish such notices
and do such other acts and things as are required by law to issue
and sell the Bonds.
The appropriate officers of the Department and the City
are further authorized to take such action, including the execution
of documents, to carry out the refunding of the Refunded Bonds, and
the underwriter for the bonds is hereby authorized to make
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subscription as may be necessary to acquire appropriate securities
to be held under the Escrow Agreement.
Section 4. Flow of Funds. There shall be continued,
and the City Controller, the Commission and the Department covenant
and agree to cause to be kept and maintained, those accounts in the
Allocation Fund contained in the Prior Resolution which authorized
the 1985 Bonds, those accounts being the Tax Increment Revenue
Account, the Bond Principal and Interest Account, the Reserve
Account and the General Account. On each January 15, all monies in
the Tax Increment Revenue Account shall be set aside in the
respective special accounts within the Allocation Fund, in the
following order of priority: First, Bond Principal and Interest
Account, and second, Reserve Account.
All money available in each of the accounts in the
Allocation Fund shall be held in trust for the benefit of the
holders of the Bonds and any Parity Bonds (as defined in Section 7)
(together, the "Tax Increment Bonds "), and shall be applied, used
and withdrawn only for the purposes authorized in this Section 4
and in the following order of priority. The proceeds of the
Allocation Fund shall be deposited with a legally qualified
depository or depositories for funds of the City as now provided by
law and shall be segregated and kept separate and apart from all
other funds of the City and may be invested in accordance with
applicable provisions of Indiana law and the Prior Resolutions.
(a) Bond Principal and Interest Account. There shall
be deposited in the Bond Principal and Interest Account
from the Tax Increment Revenue Account an amount of money
which, together with any money contained in the Bond
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Principal and Interest Account, is equal to the aggregate
amount of the interest becoming due that calendar year
payable on all outstanding Tax Increment Bonds and the
aggregate principal amount of outstanding Tax Increment
Bonds becoming due and payable on the next principal
payment date. No deposit need be made into the Bond
Principal and Interest Account if the amount contained
therein is at least equal to the aggregate amount of
interest becoming due and payable on all outstanding Tax
Increment Bonds during that calendar year and the aggregate
principal amount of the outstanding Tax Increment Bonds
maturing by their terms on the next succeeding principal
payment date. All money in the Bond Principal and Interest
Account shall be used and withdrawn solely for the purpose
of paying the interest on and the principal of the Tax
Increment Bonds as it shall become due and payable to the
extent it is required therefor, including accrued interest
on any such obligations purchased or redeemed prior to
maturity.
(b) Reserve Account. There shall be set aside on the
date the Bonds are sold, from the proceeds of the sale of
the Bonds, and deposited in the Reserve Account, an amount
of money equal to the lesser of (i) ten percent (10 %) of
the proceeds of the Bonds, (ii) the maximum annual debt
service on the Bonds, and (iii) 125% of the average annual
debt service on the Bonds, subject to reduction for amounts
deposited in the Reserve Account on such date from other
sources; provided, the amount of such deposit shall be
reduced to the extent that the balance in the Reserve
Account would after such deposit exceed the Reserve
Requirement described below. On each January 15, there
shall be set aside from the Allocation Fund in the Reserve
Account from the Tax Increment Revenue Account an amount of
money that shall be required to maintain the Reserve
Account in the full amount of the Debt Service Reserve
Requirement (as defined below) . No deposit need be made in
the Reserve Account so long as there shall be on deposit
therein a sum equal to the lesser of fifteen percent (15 %)
of the original issuance price of the Tax Increment Bonds
or the average annual principal and interest payments
(which shall be calculated as payments due on August 1 and
the following February 1) on the outstanding Tax Increment
Bonds (the "Debt Service Reserve Requirement ") . All money
in the Reserve Account shall be used and withdrawn solely
for the purpose of making deposits into the Bond Principal
and Interest Account, in the event of any deficiency at any
time in such account, or for the purpose of paying the
interest on or principal of or redemption premiums, if any,
on the Tax Increment Bonds in the event that no other money
is lawfully available therefor, except that so long as
there is no default hereunder any amount in the Reserve
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Account in excess of the Debt Service Reserve Requirement
shall be withdrawn from the Reserve Account and deposited
in the General Account. Money in the Reserve Account shall
also be available to make the final payments of interest
and principal on the Tax Increment Bonds. The
Redevelopment Commission determines that the reserves
hereunder are reasonably required.
(c) The remaining amounts in the Tax Increment
Revenue Account shall be deposited into the General Account
of the Allocation Fund and be available for the purposes
authorized by Section 39(b)(2) of the Act as of the date of
original issuance of the Bonds or by any amendments
thereof.
(d) Subject to the requirements of the Act, when the
money in the Allocation Fund is sufficient to pay when due
all principal and interest on Tax Increment Bonds as
permitted in subsection (c) , and is not needed for the
other purposes as permitted in subsection (c) , money in the
Allocation Fund in excess of that amount (the "Excess
Funds") shall be deposited into the funds of the respective
taxing units entitled thereto, or during the time a part of
the Allocation Area is located in an enterprise zone
created under IC 4- 4 -6.1, such Excess Funds shall be
deposited in a special fund created for the enterprise zone
in accord with IC 36- 7- 14- 39(g).
The Tax Increment and earnings thereon, other than the Excess
Funds, shall be and hereby is irrevocably pledged for the purposes
set forth in this Section 4.
Proceeds received from the sale of the Bonds shall be
deposited as follows:
(w) All accrued interest to the date of issuance of
the Bonds, unused discount and any premium shall be
deposited in the Bond Principal and Interest Account.
(x) From the proceeds of the Bonds, the amount
required to fund the Escrow Agreement, less the amount
provided for such purposes from other sources, shall be
irrevocably deposited with the Escrow Agent to be held and
used in accord with the terms of the Escrow Agreement.
(y) The amounts described in subsection (b) above
shall be deposited in the Reserve Account.
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(z) The remaining proceeds from the sale of the Bonds
shall be deposited in the special fund hereby created and
established and designated as the "South Bend Redevelopment
District 1992 Bond Cost of Issuance Fund ", which Fund shall
be expended only for the purpose of paying costs of
issuance of the Bonds.
Section 5. Sale of Bonds. The Bonds shall be sold in
a competitive sale. All bids for the Bonds shall be sealed and
shall be presented to the Controller in accord with the terms set
forth in the bond sale notice. Bidders for said Bonds shall be
required to name the rate or rates of interest which Bonds are to
bear, which shall be the same for all Bonds maturing on the same
date and the interest rate bid on any maturity of bonds shall be no
less than the interest rate bid on any and all prior maturities of
Bonds, not exceeding ten percent (10 %) per annum, and such interest
rate or rates shall be in multiples of one - eighth (1/8) or
one - twentieth (1/20) of one percent (1 %) . The Controller shall
award the Bonds to the bidder who offers the lowest interest cost,
to be determined by computing the total interest on all the Bonds
to their maturities and deducting therefrom the premium bid, if
any, or adding thereto the amount of the discount, if any. No bid
for less than ninety -nine percent (99 %) of the par value of the
Bonds and accrued interest shall be considered. The Controller may
require that all bids shall be accompanied by certified or
cashier's checks payable to the order of the Department of
Redevelopment in the amount of not to exceed one percent of the
principal amount of the Bonds as a guaranty of the performance of
said bid, should it be accepted. In the event no satisfactory bids
are received on the day named in the sale notice, the sale may be
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VWlltinued from day to day thereafter for a period of thirty (30)
days without readvertisement; provided, however, that if said sale
be continued, no bid shall be accepted which offers an interest
cost which is equal to or higher than the best bid received at the
time fixed for sale in the bond sale notice. The Controller shall
have full right to reject any and all bids.
The City Controller is hereby authorized and directed to
obtain a legal opinion as to the validity of said Bonds from Barnes
& Thornburg, and to furnish such opinion to the purchasers of the
Bonds. The Controller is further authorized to cause a copy of
said legal opinion to be printed on each Bond. The cost of such
opinion shall be considered a part of the cost of the purpose for
which the Bonds are issued and shall be paid out of the proceeds of
the Bonds.
Section 6. Execution of Bonds. The Bonds shall be
executed in the name of the City of South Bend, acting for and on
behalf of the South Bend Redevelopment District, by the facsimile
or manual signature of the Mayor of the City and attested by the
Controller by facsimile or manual signature, who shall affix the
seal of said City to each of said Bonds or cause the same to be
reproduced thereon. The Controller is hereby authorized and
directed to have the Bonds prepared. After said Bonds shall have
been properly executed and upon the consummation of the sale of
said Bonds, the City shall be authorized to receive from the
purchaser payment for the Bonds and to provide for delivery of the
Bonds to the purchaser in the manner required by law. In any case
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any officer whose signature appears on the Bonds shall cease to
hold that office before delivery of the Bonds, the signature shall
nevertheless be valid and sufficient for all purposes as if such
officer had remained in office until delivery of the Bonds.
Section 7. Additional Bonds. The Redevelopment District
reserves the right to authorize and issue additional bonds ( "Parity
Bonds ") , payable out of the Tax Increment, ranking on a parity with
the Bonds for the purpose of raising money for future property
acquisition or redevelopment in the Area. The authorization and
issuance of Parity Bonds shall be subject to the following
conditions precedent:
(a) All interest and principal payments with respect
to all Tax Increment Bonds shall be current to date in
accordance with the terms thereof with no payment in
arrears.
(b) The balance in the Reserve Account shall equal
the Debt Service Reserve Requirement.
(c) The Commission shall have received a certificate
prepared by an independent certified public accountant or
an independent financial consultant (the "Certifier ")
certifying that the Tax Increment estimated to be received
in each succeeding year, adjusted as provided below, is at
least equal to % of the principal and interest
requirements for each respective year during the term of
the bonds with respect to the Bonds and the Parity Bonds.
In estimating the Tax Increment to be received in any
future year, the Certifier shall base his calculation on
assessed valuation actually assessed or to be assessed as
of the assessment date immediately preceding the issuance
of the Parity Bonds, provided, however, the Certifier shall
adjust such assessed values for the current and future
reductions of real property tax abatements granted to
property owners in the Area. No increase in the Tax
Increment to be received in any future year shall be
assumed which results from projected inflation in property
values.
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The Commission shall approve and confirm the findings and
estimates set forth in the above - described certificate in any
resolution authorizing the issuance of the Parity Bonds.
Section 8. Tax Matters. In order to preserve the
exclusion of interest on the Bonds from gross income for federal
income tax purposes and as an inducement to purchasers of the
Bonds, the Commission represents, covenants and agrees that, unless
the Commission receives an opinion of nationally recognized bond
counsel that compliance with any one or more of the following (as
specified in such opinion) is not needed to preserve the exclusion
from gross income for federal income tax purposes of the interest
on the Bonds:
(a) The Commission will make no use of the proceeds
of the Bonds at any time during the term thereof which
would cause the Bonds to be federally guaranteed within the
meaning of Section 149(b) of the Internal Revenue Code of
Refunded, as amended (the "Code "), and applicable
regulations thereunder.
(b) No action shall be taken which would cause the
Bonds to be "private activity bonds" within the meaning of
the Code.
(c) No Bond proceeds will be loaned to any entity or
person. No Bond proceeds will be transferred, directly or
indirectly, or deemed transferred to a nongovernmental
person in any manner that would in substance constitute a
loan of the Bond proceeds.
(d) The Commission will, to the extent necessary to
preserve the exclusion of interest on the Bonds from gross
income for federal income tax purposes, rebate or cause to
be rebated all required arbitrage profits on Bond proceeds
or other monies to the federal government as provided in
Section 148 of the Code, or will pay applicable penalties
in lieu of rebate as provided in Section 148 of the Code,
and will set aside such monies in trust for such purpose.
CIM
4 1. %
(e) The Commission will file an information report
Form 8038 -G with the Internal Revenue Service as required
by Section 149 of the Code.
} ( f ) The Commission will not make any investment or do
any other act or thing during the period that any Bond is
outstanding hereunder which would cause any Bond to be an
"arbitrage bond" within the meaning of Section 148 of the
Code and the regulations applicable thereto as in effect on
the date of delivery of the Bonds.
The Commission will not take any action or fail to take any action
with respect to, the Bonds that would result in the loss of the
exclusion from gross income for federal tax purposes of interest on
the Bonds pursuant to Section 103(a) of the Code, and the
Commission will not act in any manner which would adversely affect
such exclusion.
Section 9. Defeasance of Bonds. If the whole amount
of the principal, redemption premium, if any, and interest due and
payable upon the Bonds then outstanding or a portion thereof shall
be paid, or (i) sufficient moneys, or (ii) direct obligations of,
or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America, the
principal of and the interest on which when due or when called for
redemption by the holder thereof at the option of the holder will
provide sufficient moneys for such purpose, and such obligations
are not subject to call or redemption by the issuer thereof prior
to maturity or for which irrevocable instructions to redeem have
been given and the principal of and the interest on which when due
will provide sufficient moneys for such purpose, or (iii) time
certificates of deposit fully secured as to both principal and
interest by obligations of the type described in (ii) above of a
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bank or banks the principal of and interest on which when due will
provide sufficient moneys for such purpose, or (iv) a combination
of such moneys and obligations, shall be held irrevocably in trust
for such purpose, and such Bonds or portion thereof shall have
become due and payable in accordance with their terms or shall have
been duly called for redemption or irrevocable instructions to call
such Bonds or portion thereof for redemption shall have been given,
and provision shall also have been made for paying all fees and
expenses in connection therewith, then and in that case the Bonds,
or such portion thereof, issued hereunder shall be discharged and
shall no longer be deemed outstanding or an indebtedness of the
District.
Section 10. Holidays, Weekends, Etc. If the date for
making any payment or the last date for performance of any act or
the exercising of any right, as provided in this Resolution, shall
be a legal holiday or a day on which banking institutions in the
City or in the city in which the Paying Agent is located are
typically closed, such payment may be made or act performed or
right exercised on the next succeeding day not a legal holiday or
a day on which such banking institutions are typically closed, with
the same force and effect as if done on the nominal date provided
in this Resolution, and no interest shall accrue for the period
after such nominal date.
Section 11. Supplemental Resolutions. Without notice
to or consent of the owners of the Bonds, the Commission may, from
time to time and at any time, adopt such resolutions supplemental
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hereto as shall not be inconsistent with the terms and provisions
hereof (which supplemental resolutions shall thereafter form a part
hereof) ,
(a) to cure any ambiguity or formal defect or
omission in this Resolution or in any supplemental
resolution;
(b) to grant to or confer upon the owners of the
Bonds any additional rights, remedies, powers, authority or
security that may lawfully be granted to or conferred upon
the owners of the Bonds;
(c) to make any other change which is not in the
judgment of the Commission to the prejudice of the owners
of the Bonds;
(d) to modify, amend or supplement this Resolution to
permit the qualification of the Bonds for sale under the
securities laws of the United States of America or of any
of the states of the United States of America or to obtain
or maintain bond insurance with respect to payments of
principal of and interest on the Bonds;
(e) to provide for the refunding or advance refunding
of the Bonds;
(f) to procure a rating on the Bonds from a
nationally recognized securities rating agency designated
in such supplemental resolution, if such supplemental
resolution will not adversely affect the owners of the
Bonds; and
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(g) any other purpose which in the judgment of the
Commission does not adversely impact the interests of the
owners of the Bonds.
This Resolution, and the rights and obligations of the
Commission and the owners of the Bonds may be modified or amended
at any time by supplemental resolutions adopted by the Commission
with the consent of the owners of the Bonds holding sixty percent
(60 %) in aggregate principal amount of the outstanding Bonds
(exclusive of Bonds, if any, owned by the Commission or the City);
provided, however, that no such modification or amendment shall,
without the express consent of the owners of all Bonds affected,
reduce the principal amount of the Bond, reduce the interest rate
payable thereon, advance the earliest redemption date, extend its
maturity or the times for paying interest thereon, permit a
privilege or priority of any Bond or Bonds over any other Bond or
Bonds, create a lien securing any Bonds other than a lien ratably
securing all of the Bonds outstanding, or change the monetary
medium in which principal, premium and interest is payable, nor
shall any such modification or amendment reduce the percentage of
consent required for amendment or modification.
Any act done pursuant to a modification or amendment so
consented to shall be binding upon all the owners of the Bonds and
shall not be deemed an infringement of any of the provisions of
this Resolution or of the Act, and may be done and performed as
fully and freely as if expressly permitted by the terms of this
Resolution, and after such consent relating to such specified
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matters has been given, no owner shall have any right or interest
to object to any action or in any manner to question the propriety
thereof or to enjoin or restrain the Commission or any officer
thereof from taking any action pursuant thereto.
If the Commission shall desire to obtain any such consent,
it shall cause the Registrar to mail a notice, postage prepaid, to
the addresses appearing on the registration books held by the
Registrar. Such notice shall briefly set forth the nature of the
proposed supplemental resolution and shall state that a copy
thereof is on file at the office of the Registrar for inspection by
all owners of the Bonds. The Registrar shall not, however, be
subject to any liability to any owners of the Bonds by reason of
its failure to mail such notice, and any such failure shall not
affect the validity of such supplemental resolution when consented
to and approved as herein provided.
Whenever at any time within one year after the date of the
mailing of such notice, the Commission shall receive any instrument
or instruments purporting to be executed by the owners of the Bonds
of not less than sixty per cent (60 %) in aggregate principal amount
of the Bonds then outstanding (exclusive of Bonds, if any, owned by
the Commission or the City), which instrument or instruments shall
refer to the proposed supplemental resolution described in such
notice, and shall specifically consent to and approve the adoption
thereof in substantially the form of the copy thereof referred to
in such notice as on file with the Registrar, thereupon, but not
otherwise, the Commission may adopt such supplemental resolution in
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substantially such form, without liability or responsibility to any
owners of the Bonds, whether or not such owners shall have
consented thereto.
r
Upon the adoption of any such supplemental resolution,
this Resolution shall be, and be deemed to be, modified and amended
in accordance therewith, and the respective rights, duties and
obligations under this Resolution shall thereafter be determined,
exercised and enforced hereunder, subject in all respects to such
modifications and amendments.
The Commission may at any time prior to the issuance of
any Bonds hereunder modify or amend this Resolution without the
consent of any other party.
Section 12. Temporary Bonds. Any Bonds issued under
this Resolution may be initially issued in temporary form
exchangeable for definitive Bonds. The temporary Bonds may be
printed, lithographed or typewritten, shall be of such
denominations as may be determined by the Commission, shall be in
fully registered form and may contain such reference to any of the
provisions of this Resolution as may be appropriate. Every
temporary Bond shall be executed, sealed and attested by the Mayor
and Controller in substantially the same manner as provided herein.
If temporary Bonds are issued, definitive Bonds will be executed
and furnished without delay and thereupon the temporary Bonds may
be surrendered for cancellation at the principal office of the
rw Registrar and the Registrar shall deliver in exchange for such
temporary Bonds an equal aggregate principal amount of definitive
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Bonds of the same interest rates and maturities. Until so
exchanged, the temporary Bonds shall be entitled to the same
benefits under this Resolution as definitive Bonds issued
hereunder.
Section 13. Appropriation of Bond Proceeds. An
appropriation in the amount of not to exceed Six Million Five
Hundred Thousand Dollars ($6,500,000) shall be made to pay for the
purposes described herein. The funds to meet said appropriation
shall be provided out of the proceeds of the Bonds in the original
principal amount of not to exceed $6,500,000 herein authorized.
Said appropriation shall be in addition to all other appropriations
provided for in the existing budget and tax levy.
Section 14. Appointment of Registrar, Paying Agent and
Escrow Agent. Bank One, Indianapolis, National Association is
hereby appointed as Registrar and Paying Agent for the Bonds and is
hereby charged with the duties and responsibilities of the
Registrar and Paying Agent, including maintaining books for the
registration and transfer of Bonds. Bank One, Indianapolis,
National Association is also hereby appointed to serve as the
Escrow Agent. The appropriate officers of the Department of
Redevelopment and the City are hereby authorized to enter into such
agreements or understandings with the Registrar, Paying Agent and
Escrow Agent as will enable it to perform the services required for
a Registrar, Paying Agent and Escrow Agent, and are authorized and
directed to pay said Registrar, Paying Agent and Escrow Agent for
its services out of available funds.
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The Registrar and Paying Agent may at any time resign as
Registrar and Paying Agent by giving thirty (30) days' written
notice to the Commission and by first -class mail to each registered
owner of Bonds then outstanding, and such resignation will take
effect at the end of such thirty (30) days or upon the earlier
appointment of a successor Registrar and Paying Agent, as the case
may be, by the Commission. Such notice to the Commission may be
served personally or be sent by registered mail. The Registrar and
Paying Agent may be removed at any time as Registrar and Paying
Agent by the Commission, in which event the Commission may appoint
a successor Registrar and Paying Agent. The Commission shall
notify each registered owner of Bonds then outstanding by first -
class mail of the removal of the Registrar and Paying Agent.
Notices to registered owners of Bonds shall be deemed to be given
when mailed by first -class mail to the addresses of such registered
owners as they appear on the bond register maintained by the
Registrar. Any predecessor Registrar and Paying Agent shall
deliver all the Bonds in its possession, the bond register and all
the cash in its possession to the successor Registrar and Paying
Agent.
Section 15. Severability. If any provision of this
Resolution shall be held to be invalid or unenforceable for any
reason, the invalidity or unenforceability of such provision shall
not affect any of the remaining provisions of this Resolution.
Section 16. No Conflicts. All resolutions and orders,
or parts thereof, in conflict with the provisions of this
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Resolution, are, to the extent of such conflict, hereby repealed,
and this Resolution shall be in immediate effect from and after its
adoption, provided, that no provision hereof shall amend or repeal
any provisions of the Prior Resolutions. Upon payment in full of
the principal, interest and premium respecting the Bonds or upon
defeasance thereof in accord with the terms hereof, all pledges,
covenants and other rights granted by this Resolution shall cease.
Section 17. Limitation on Amendments. After the
issuance of the Bonds authorized by this Resolution and so long as
any of said Bonds or interest thereon remains unpaid, except as
expressly provided herein, this Resolution shall not be repealed or
amended in any respect which will adversely affect the rights of
the holders of said Bonds, nor shall the Commission or other body
of the City adopt any law, ordinance or resolution which in any way
adversely affects the rights of such holders.
Adopted at a regular meeting of the Commission held on the
1st day of May, 1992.
SOUTH B ND REDEVELOPMENT COMMISSION
B Y:
President
T ST:
Secretary
EXHIBIT LIST:
A - Legal Description of the Area
B - Description of Refunded Bonds
C - Bond Maturity Schedule
MCK01486
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