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Home My WebLink About10142-11 Amend Ord. No. 9722-06 Economic Development Revenue Bonds PEI GenesisORDINANCE No. 10142-11 Passed by the Common Council of the City of South Bend, Indiana Attest: Attest: December 12, 20 11 Presented by me to the Mayor of the City of South Bend, Indiana December 13, 20 11 City Clerk President of Common Council Approved and signed by mew 1 Q -'mss ��✓ 20 City Clerk Mayo' ORDINANCE NO. �O L't Z AN ORDINANCE SUPPLEMENTING AND AMENDING ORDINANCE NO. 9722 -06 AND ORDINANCE NO. 9968 -09 PERTAINING TO THE CITY OF SOUTH BEND, INDIANA VARIABLE RATE ECONOMIC DEVELOPMENT REVENUE BONDS, SERIES 2007 (PEI/GENESIS PROJECT) (THE "BONDS "), APPROVING THE FORM OF, AND AUTHORIZING THE EXECUTION AND DELIVERY OF, A SECOND AMENDED AND RESTATED TRUST INDENTURE, A SECOND AMENDED AND RESTATED LOAN AGREEMENT AND OTHER DOCUMENTS RELATED TO 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 "City ") 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 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 (PEI/Genesis Project) in an aggregate principal amount of $8,105,000 (the "Bonds "), and loaned the proceeds thereof to PEI /Genesis, 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. In 2009, the Original Ordinance was supplemented and amended by Ordinance No. 9968- 09, adopted by the Council on or about October 12, 2009 (the "Amended Ordinance ", and together with the Original Ordinance, the "Earlier Ordinances "). The Bonds are currently secured by a letter of credit issued by Citizens Bank of Pennsylvania, and a confirmation of the Letter of Credit issued by Federal Home Loan Bank of Pittsburgh. The Borrower has requested that that the City and U.S. Bank National Association, as trustee (the "Trustee "), enter into (i) a Second Amended and Restated Trust Indenture (the "Second Amended and Restated Indenture ") pertaining to the Bonds, which Amended and Restated Indenture, among other things, would add a London interbank offered rate (LIBOR) based interest mode for the Bonds (the "LIBOR Rate "), it being understood that while the Bonds bear interest at the LIBOR Rate, they will not be secured by a letter of credit or confirming letter of credit; and a Second Amended and Restated Loan Agreement (the "Second Amended and Restated Agreement ") between the City and the Borrower. The Common Council conducted a public hearing on December 12, 2011 on the proposed execution and delivery of the Second Amended and Restated Indenture and the Second Amended and Restated Agreement, 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 Common Council wishes to amend, supplement and restate (i) that certain Amended and Restated Trust Indenture, dated October 1, 2009, between the City and the Trustee (the "First Amended and Restated Indenture "), as set forth in the Second Amended and Restated Indenture, and (ii) that certain Amended and Restated Loan Agreement, dated October 1, 2009, between the City and the Trustee (the "First Amended and Restated Agreement "), as set forth in the Second Amended and Restated Agreement. NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA AS FOLLOWS: SECTION 1. Incomoration of Recitals. The recitals contained in this Ordinance and in the Earlier Ordinances are true and correct and are incorporated in this Ordinance by this reference. SECTION 2. Incomoration of Previous Findings. Each of the findings which are contained in the Earlier Ordinances 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 Second Amended and Restated Indenture and the Second Amended and Restated Agreement (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 Second Amended and Restated Indenture and the Second Amended and Restated Agreement. SECTION 5. Approval of the Second Amended and Restated Indenture and the Second Amended and Restated Agreement. The Second Amended and Restated Indenture and the Second 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 "Clerk "). 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 Second Amended and Restated Indenture and the Second 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 ation. 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 SECOND 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 Liabilitv. No stipulation, obligation or agreement herein contained or contained in the Second Amended and Restated Indenture and the Second 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 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 , 2011. COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA By: Member of the Common Council Att t: City lerk Presented by me to the Mayor of the City of South Bend, Indiana on the day of `Qst 1,�,�. , 2011, at( M o'clock -e—. M. Approved and signed � � /r o'clock f—m. SBDS02 ABF 426443v3 1 s'r READING GL`q ` I I PUBLIC HEARING tZ.IZ• l) 3 rd READING iOT APPROVED ;;EFERRED PASSED t - lL- Deputy( ity Clerk by me on the day of Z-2 Gv,�011, at 2 May o< City o uth Bend, Indiana Filed i fi NOV 2 2 2011 9 CITY C L E F a, . L 15 E , m BARNES &THORNBURG LLP Alan B. Feldbaum (574) 237 -1114 alan.feldbaum @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 600 1st Source Bank Center 100 North Michigan South Bend, IN 46601.1632 U.S.A. (574) 233 -1171 Fax (574) 237 -1125 www.btlaw.com November 22, 2011 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 Second Amended and Restated Trust Indenture (as described in the Supplemental Bond Ordinance); and (ii) the Second 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 an additional interest rate mode for the Bonds. We hereby request that such Supplemental Bond Ordinance be scheduled for first reading before the South Bend Common Council on November 28, 2011 and that it be considered for passage on December 12, 2011, 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. Phil Faccenda or I will be attending the meeting on December 12, 2011 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. Sincerely, BARNES & THORNBURG C-1 Alan B. Feldbaum Enclosures ... SBDS02 4266660 Atlanta Chicago Delaware Indiana Michigan Minneapolis Ohio Washington, D.C. TO THE COMMON COUNCIL OF THE CITY OF SOUTH BEND: Your Committee of the Whole, to whom was referred: BILL NO. 75 -11 A BILL SUPPLEMENTING AND AMENDING ORDINANCE NO. 9722 -06 AND ORDINANCE NO. 9968 -09 PERTAINING TO THE CITY OF SOUTH BEND, INDIANA VARIABLE RATE ECONOMIC DEVELOPMENT REVENUE BONDS, SERIES 2007 (PEI /GENESIS PROJECT) (THE "BONDS "), APPROVING THE FORM OF, AND AUTHORIZING THE EXECUTION AND DELIVERY OF, A SECOND AMENDED AND RESTATED TRUST INDENTURE, A SECOND AMENDED AND RESTATED LOAN AGREEMENT AND OTHER DOCUMENTS RELATED TO 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. This bill was heard by the Community & Economic Development Committee. Timothy Rouse Chairperson, Committee of the Whole