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Home My WebLink About10852-22 Amending Bond Ordinance/City of South Bend, Indiana Variable Rate Economic Development Revenue Bonds, Series 2007 (PEI/Genesis Project) ORDINANCE No . 10852-22 Passed by the Common Council of the City of South Bend, Indiana May 09, 20 22 Attest: City Clerk Dawn M. Jones Attest: President of Common Council Presented by me to the Mayor of the City of South Bend, Indiana May 10, 22 20 • City Clerk Dawn M. Jones Approved and signed by me Mky � 20 Z z Mayor BILL NO. 20-22 ORDINANCE NO. 10852-22 AN ORDINANCE SUPPLEMENTING AND AMENDING ORDINANCE NO. 9722-06, ORDINANCE NO. 9968-09, AND ORDINANCE NO. 10142-11 PERTAINING TO THE CITY OF SOUTH BEND, INDIANA VARIABLE RATE ECONOMIC DEVELOPMENT REVENUE BONDS,SERIES 2007 (PEI/GENESIS PROJECT) (THE `BONDS"), APPROVING THE FORM AND AUTHORIZING THE EXECUTION AND DELIVERY OF A THIRD AMENDED AND RESTATED TRUST INDENTURE, A THIRD 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, 2007 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") (presently outstanding in the aggregate principal amount of $5,860,000), and loaned the proceeds thereof to PEI/Genesis, Inc., a Pennsylvania corporation ("PEP') and Tuliptree Associates, LLC, a Pennsylvania limited liability company ("Tuliptree") (PEI and Tuliptree being sometimes collectively referred to herein as 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 October 12,2009(the"2009 Ordinance") and further supplemented and amended by Ordinance No. 10142-11, adopted by the Council on December 11, 2011 (the "2011 Ordinance" and collectively with the Original Ordinance and the 2009 Ordinance, the "Earlier Ordinances"). The Borrower has requested that the City enter into(i)a Third Amended and Restated Trust Indenture (the "Third Amended and Restated Indenture") with U.S. Bank Trust Company, National Association, as trustee (the "Trustee"), pertaining to`the Bonds, which Third Amended and Restated Indenture would make some non-substantive changes, and would substantively replace the London Interbank Offered Rate ("LIBOR") based interest mode for the Bonds, as the use of LIBOR is being discontinued in the financial markets,with an interest rate mode based upon the dollar wholesale funding rate known as "BSBY" (the Bloomberg Short-Term Bank Yield Index), and(ii) with the approval of the holder of the Bonds, a Third Amended and Restated Loan Agreement (the "Third Amended and Restated Agreement") with Tuliptree to provide for the removal of PEI as a borrower thereunder and for Tuliptree to be the sole remaining borrower thereunder. The Common Council conducted a public hearing on May 9, 2022, on the proposed execution and delivery of the Third Amended and Restated Indenture and the Third 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 Second Amended and Restated Trust Indenture, dated January 3, 2012, between the City and the Trustee, as set forth in the Third Amended and Restated Indenture, and (ii) that certain Second Amended and Restated Loan Agreement, dated January 3, 2012, between the City and the Borrower, as set forth in the Third Amended and Restated Agreement. NOW,THEREFORE,BE IT ORDAINED BY THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA AS FOLLOWS: SECTION I. Incorporation 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 II. Incorporation 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 III. Findings;Public Benefits. This Council finds that the execution and delivery of the Third Amended and Restated Indenture and the Third 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 IV. Authorizations. The Council hereby authorizes the execution and delivery of the Third Amended and Restated Indenture and the Third Amended and Restated Agreement. SECTION V. Approval of the Third Amended and Restated Indenture and the Third Amended and Restated Agreement. The Third Amended and Restated Indenture and the Third 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 Third Amended and Restated Indenture and the Third 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 VI. Limited Obligation. 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 THIRD AMENDED AND RESTATED AGREEMENT. SECTION VII. Other Actions. 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 VIII. No Personal Liability. No stipulation, obligation or agreement herein contained or contained in the Third Amended and Restated Indenture and the Third 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 2 be subject to personal liability or accountability by reason of the issuance thereof. SECTION IX. 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 X. 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 XI. 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 XII. Effective Date. This Ordinance shall be in full force and effect from and after its adoption by the Common Council,approval by the Mayor and the execution of any procedures required by applicable law. PASSED AND ADOPTED by the Common Council of the City of South Bend, Indiana, this 9 day of��ht� , 2022. Sharon McBride, Council President South Bend Common Council Attest: Dawn M. Jones, MPA, City Clerk Office of the City Clerk Presented by me, the undersigned Clerk of the City of South Bend, to the Mayor of the City of South Bend, Indiana on the day of 2022, at o'clock M. Dawn M. Jones, MPA, City Clerk Office of the City Clerk Approved and signed by me on the Wtiday of , 2022, at o'clock �.m. James Mueller, Mayor R City of South Bend, Indiana 3