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HomeMy WebLinkAbout1991-11-13 Resolution 45 1tESOLIITION NO. 45 • RESOLIITION OF THE SOIITH BEND REDEVELOPMENT AIITHORITY APPROVING AN ESCROW AGREEMENT AND AIITHORIZING PIIBLICATION OF NOTICE OF EgECIITION AND DELIVERY OF A CONTRACT FOR T88 PIIRCHASE OF THE SOIITH BEND REDEVELOPMENT AIITHORITY TABABLE LEASE RENTAL REVENIIE BONDS (COVELESRI STADIIIM REFIINDING WHEREAS, the South Bend Redevelopment Authority (the "Authority") at a meeting on November 1, 1991 adopted Resolution No. 44 (the "Taxable Bond Resolution") authorizing the issuance and sale of bonds to be known as the "South Bend Redevelopment Authority Taxable Lease Rental Revenue Bonds (Coveleski Stadium Refunding)" (the "Taxable Bonds") pursuant to IC 36-7-14.5 et secy., in the aggregate principal amount not to exceed Four Million Three Hundred Fifty Thousand Dollars ($4,350,000), the proceeds of which are to be used to refund the South Bend Redevelopment Authority Taxable Lease Rental Revenue Bonds (Coveleski Stadium Project) (the "Refunded Bonds") issued in 1988 to refinance the stadium facility known as the "Stanley Coveleski Regional Stadium" (the "Facility") and to pay the costs of issuance of the Bonds; and WHEREAS, there has been prepared and submitted to the Authority a form of Irrevocable Escrow Deposit Agreement to be dated as of December 1, 1991, between the Authority and Norwest Bank Indiana, N.A., as Escrow Trustee (the "Escrow Agreement"), a copy of which is hereby attached as "Exhibit A" hereto and incorporated herein, which Escrow Agreement provides for, among other things, the deposit of Bond proceeds with the Escrow .r ^c Trustee in an amount sufficient to pay all principal of and interest on the Refunded Bonds; and WHEREAS, the Authority intends to send written notice of redemption (the "Notice of Redemption") to Norwest Bank Indiana, N.A., trustee (the "Trustee") of the Refunded Bonds as required by Section 4.02 to that certain Trust Agreement between the Authority and the Trustee, such Agreement dated as of June 1, 1988 (the "Trust Agreement"); and WHEREAS, the Authority desires to publish notice of the execution and delivery of the Contract for the sale of the Bonds. NOW, THEREFORE, BE IT RESOLVED, by this South Bend Redevelopment Authority as follows: Section 1. The Authority shall enter into the Escrow Agreement substantially in the form attached hereto as Exhibit A, in order to effect the refunding of the Refunded Bonds in accordance with their terms. The Authority hereby authorizes the President to execute and deliver the Escrow Agreement substantially in the form attached hereto as together with such changes and modifications in form or substance as may be approved by the President with any such approval to be conclusively evidenced by such authorized execution of the Escrow Agreement. Section 2. The Authority hereby authorizes and directs the President of the Authority to execute and deliver the Notice of Redemption to the Trustee on November 21, 1991. Section 3. The Secretary of the Authority is authorized and directed to publish notice of the execution and -2- ,~ •r delivery of the Contract for the sale of bonds as provided for by • Indiana Code 36-7-14.5-24, in the Tri-County News and the South Bend Tribune on November 15, 1991. Adopted at a meeting of the Authority held on November 13, 1991 in the offices of the Authority, 1200 County-City Building, 227 West Jefferson Boulevard, South Bend, Indiana 46601. CITY OF SOUTH BEND REDEVELOPMENT AUTHORITY By: Jo ph W. Wroblewski, President AT- EST : ~--~---~ Donald K. Fewell, Secretary- Treasurer \rrrompol\sthbend\covelesk\luappesc.row;tmg;ll/12/91 -3- IRREVOCABLE ESCROW DEPOSIT AGREEMENT Between SOUTH BEND REDEVELOPMENT AUTHORITY and NORWEST BANK INDIANA, N.A. South Bend, Indiana, as Escrow Trustee Dated December 1, 1991 -~ (Coveleski Stadium Taxable Refunding) . IRREVOCABLE ESCROW DEPOSIT AGREEMENT This Irrevocable Escrow Deposit Agreement, is dated as of December 1, 1991, by and between the South Bend Redevelopment Authority (the "Authority"), and Norwest Bank Indiana, N.A., South Bend, Indiana, a national banking association organized under the laws of the United States of America, as escrow trustee (the "Escrow Trustee"). RECITAI,B 1. Pursuant to Resolution No. 8, adopted by the Authority on June 17, 1988 (the "1988 Resolution"), the Authority has heretofore issued its South Bend Redevelopment Authority Taxable Lease Rental Revenue Bonds (Coveleski Stadium Project) • dated September 1, 1988 (the "1988 Bonds"), in the amount of Five Million Six Hundred Eighty-Five Thousand Dollars ($5,685,000.00), now outstanding in the principal amount of Four Million One Hundred Fifty-Five Thousand Dollars ($4,155,000), maturing semi-annually on March 1 and September 1 in the years 1992 to 1997 inclusive, and subject to redemption prior to maturity at the option of the Authority on the terms and conditions set forth in the 1988 Resolution and by a Trust Agreement incorporated therein, entered into and dated as of June 1, 1988 between the Authority and First Interstate Bank which subsequently became Norwest Bank Indiana, N.A. through acquisition (the "1988 Trust Agreement"). 2. Pursuant to Resolution No. adopted by the Authority on November 1, 1991 (the "Refunding Bond Resolution"), the Authority has authorized the issuance and sale of its refunding revenue bonds designated the "South Bend Redevelopment Authority Taxable Lease Rental Revenue Bonds (Coveleski Stadium Refunding)" in the aggregate principal amount not to exceed Four Million Three Hundred Fifty Thousand Dollars ($4,350,000) (the "1991 Bonds") for the purpose of providing funds, a portion of which shall be used to effect the refunding of the 1988 Bonds, together with the authorized expenses relating thereto. 3. The Escrow Trustee has received written notice of redemption and irrevocable instructions to redeem the 1988 Bonds as required by Section 4.02 of the 1988 Trust Agreement from the Authority. 4. The Refunding Bond Resolution provides that the proceeds from the sale of the 1991 Bonds will be delivered to and applied by the Trustee in accordance with a Trust Agreement entered into and dated as of November 1, 1991 (the "Trust Agreement") between the Authority and the Escrow Trustee. 5. Section 2.10 of the Trust Agreement provides that the sum of Dollars ($ ) received from the sale of the 1991 Bonds will be applied on behalf of the Authority to pay the principal and interest on the 1988 Bonds. 6. The Authority is authorized and empowered by Indiana Code 36-7-14.5-19, as amended, to issue, sell and deliver bonds for the purpose of refunding outstanding bonds previously issued by the Authority. • -3- AGREEMENTS NOW, THEREFORE, in consideration of the premises set forth in the Recitals above and the mutual covenants and agreements herein contained, the Authority and the Trustee agree as follows: Section 1. Definitions. In addition to the terms hereinafter defined, the following terms mean: (a) "Agreement" means this irrevocable Escrow Deposit Agreement. (b) "South Bend Redevelopment Authority Stadium Facility Sinking Fund" means the sinking fund established by Section 3.01 of the Trust Agreement and the Refunding Bond Resolution for the payment of principal of and interest on the 1991 Bonds and any and all bonds hereafter issued and payable from the rental revenues of the stadium facility and for the payment of any fiscal agency charges in connection with such payments. (c) "Escrow Fund" means the fund established and held by the Escrow Trustee pursuant to this Agreement, in which a portion of the proceeds derived from the sale of the 1991 Bonds will be deposited for payment of the 1988 Bonds. (d) "Stadium Facility" means the real estate and stadium facility thereon known as the "Stanley Coveleski Regional Stadium." (e) "Governmental Obligations" means investments in: (i) direct obligations of, or obligations the principal and interest on which are unconditionally guaranteed by, the United States of America; or (ii) time certificates of deposit fully -4- ^ secured as to both principal and interest by obligations of the kind described in (i) above of a bank or banks. Section 2. Appointment and Acceptance of Escrow Trustee. The Authority hereby confirms the appointment by Resolution No. adopted by the Authority on November , 1991, of the Escrow Trustee and the Escrow Trustee hereby confirms its acceptance of its appointment as Escrow Trustee. The Escrow Trustee hereby agrees to perform the duties set forth herein with respect to the refunding of the 1988 Bonds and the duties imposed upon the Escrow Trustee as Trustee under the Trust Agreement. The Escrow Trustee further represents that it has all requisite power, and has taken all corporate actions necessary, to execute and deliver this Agreement and to perform its duties hereunder and that this Agreement in no way limits or alters its duties as Trustee • under the Trust Agreement. Section 3. Creation of Escrow Fund and Deposit of Funds for Payment of 1988 Bonds. (a) There is hereby created and established with the Escrow Trustee a special and irrevocable trust fund designated the "South Bend Redevelopment Authority Refunding Taxable Lease Rental Revenue Bond Escrow Fund" (the "Escrow Fund"). The Escrow Fund will contain the proceeds of the 1991 Bonds deposited pursuant to this Section 3, which together with interest earnings thereon will be sufficient to pay all principal of and interest on the 1988 Bonds to and including January 7, 1991. -5- (b) The Authority will deposit, or cause to be deposited • $ of proceeds derived from the sale of the 1991 Bonds with the Escrow Trustee, to be held in irrevocable escrow in the Escrow Fund by the Escrow Trustee and applied solely as provided in this Agreement for the payment of the 1988 Bonds. (c) The Authority represents that the funds deposited pursuant to Section 3(b) are derived from the proceeds of the 1991 Bonds. Section 4. Use and Investment of Funds. (a) The Escrow Trustee and agrees to hold the funds described in Section 3(b) in irrevocable escrow in the Escrow Fund during the term of this Agreement; (b) The deposit, pursuant to this Section 4, of a portion of the proceeds of the 1991 Bonds in the Escrow Fund shall • constitute an irrevocable deposit of such moneys, and the interest earned thereon and any increment thereto, first for the benefit of the holders of the 1988 Bonds and then as provided in Section 8 hereof, and such moneys, together with any increment thereto and interest earned thereon, shall be held in trust and shall be applied solely to the payment of the principal of and interest on the 1988 Bonds, and then as provided in Section 8 hereof. (c) The Escrow Trustee shall, at the direction of the Authority, invest all or so much of the funds as is practicable in Governmental Obligations, to the extent and in the manner permitted by law. Investment earnings shall be credited to the Escrow Fund. The Escrow Trustee is authorized to sell any securities so acquired • -6- t from time to time in order to make the payments authorized in this • Agreement. Investment of the Escrow Fund shall mature prior to the time the funds invested will be needed for payment of principal of and interest on the 1988 Bonds. Section 5. Release of Security. Simultaneously with the issuance of the 1991 Bonds and the creation of the Escrow Fund and in accordance with the. provisions of the Refunding Bond Resolution, the Authority shall release and terminate the pledge of any and all moneys held in any fund or account established by the 1988 Resolution or the 1988 Trust Agreement, including any pledge of or liens on the Stadium Facility as security for the payment of principal of and interest on the 1988 Bonds. In addition the Authority shall do any and all further acts as may be necessary to release and terminate any and all rights granted under • the 1988 Resolution or the 1988 Trust Agreement in and to property, funds or future revenues of the Authority or its Stadium Facility. Section 6. Payment of 1988 Bonds. (a) The Escrow Trustee shall serve as the Registrar and Paying Agent for the 1988 Bonds. (b) Except as provided in Section 8 hereof, this Escrow Agreement has been entered into solely for the benefit of the holders or owners of the 1988 Bonds, and the holders of owners of the 1988 Bonds shall have an express first lien on all moneys in the Escrow Fund until such moneys are used and applied as provided in this Agreement. Neither the Escrow Trustee nor the Authority shall cause or permit any other lien or interest whatsoever to be -7- t imposed upon the Escrow Fund and the Escrow Trustee hereby • specifically waives any charging lien or other lien to which it may be entitled pursuant to any law. If the Authority has deposited funds sufficient to pay the principal and interest due on the 1988 Bonds with the Escrow Trustee and if the Authority has provided notice of redemption to the trustee as required by the 1988 Trust Agreement, the Authority shall be released from all liability on the 1988 Bonds. Section 7. Redemption of Refunding Bonds. (a) The Escrow Trustee acknowledges receipt of the 1988 Resolution, the 1988 Trust Agreement, the Refunding Bond Resolution, the Trust Agreement and this Agreement. The Escrow Trustee agrees to perform the duties set forth in such documents and in this Agreement or any amendment thereto. The Escrow Trustee • shall cause to be given the notice or notices of redemption of the 1988 Bonds as required in accordance with the 1988 Trust Agreement and sufficient to redeem the 1988 Bonds on or about January 7, 1992. The Escrow Trustee shall also cause to be given any other notices of redemption with regard to the 1988 Bonds as may otherwise be required by law. (b) Right, title and interest of the Escrow Trustee under the 1988 Trust Agreement shall cease upon deposit of the amount in Section 3(b) and investment thereof pursuant to Section 4(c) so that the principal of and the interest on which when due will provide sufficient monies to redeem the 1988 Bonds. The Escrow Trustee agrees to release the 1988 Trust Agreement and • -8- agrees to execute any documents to evidence such release as may be • reasonably required by the Authority. (c) The Escrow Trustee, upon investment in Governmental Obligations pursuant to Section 4(c), shall publish, within thirty (30) days of such deposit, the notice required by Section 8.01 of the 1988 Trust Agreement to be published upon investment in Governmental Obligations. - Section 8. Application of Escrow Fund After Payment of 1988 Bonds. After payment of the principal of and interest on the 1988 Bonds, all remaining moneys in the Escrow Fund together with any ,increment thereto and interest earned thereon, shall be transferred promptly by the Escrow Trustee to the South Bend Redevelopment Authority Stadium Facility Sinking Fund established under the Trust Agreement, except for an amount sufficient to pay, when presented for payment, any 1988 Bonds which have not. been presented for payment, which amount shall be held by the Escrow Trustee pursuant to the requirements of the 1988 Trust Agreement and in accordance with Indiana law. Section 9. Indemnification of Escrow Trustee. The Authority hereby agrees to indemnify the Escrow Trustee and hold it harmless from any and all claims, liabilities, losses, actions, suits or proceedings at law or in equity, by reason of its acting as Escrow Trustee under this Agreement, except in the case of the negligence or willful misconduct of the Escrow Trustee, its employees or its agents; and in connection therewith, the Authority hereby agrees to indemnify the Escrow Trustee against any and all • -9- reasonable expenses, including reasonable attorney's fees and the • cost of defending any action, suit or proceeding or resisting any claim, including appellate proceedings. Section 10. Resignation of Escrow Trustee. The Escrow Trustee may resign, and thereby become discharged from the duties and obligations hereby created, by executing an instrument in writing resigning such duties and specifying the date when such resignation shall take effect, and delivering the same by registered or certified mail to the Authority not less than twenty (20) days before the date specified in such instrument when such resignation shall take effect. Such resignation shall not take effect until the appointment of a successor Escrow Trustee in accordance with Section 12 hereof and acceptance of such appointment by the successor Escrow Trustee. Section 11. Removal of Escrow Trustee. (a) The Escrow Trustee may be removed at any time by an instrument or concurrent instruments in writing, delivered to the Escrow Trustee and the Authority and executed by the holders or owners of not less than fifty-one percent (51%) in aggregate principal amount of the 1988 Bonds then outstanding, but in no event shall the removal be effective prior to the appointment of a successor Escrow Trustee in accordance with Section 13 hereof and acceptance of such appointment by the successor Escrow Trustee. (b) The Escrow Trustee may also be removed at any time for any breach of trust or for acting or proceeding in violation of, or for failing to act or proceed in accordance with, any -10- provisions of this Agreement with respect to the duties and • obligations of the Escrow Trustee by any court of competent jurisdiction upon the application of the Authority or the holders or owners of not less than five percent (5%) in aggregate principal amount of the 1988 Bonds then outstanding. Section 12. Successor Escrow Trustee. (a) If at any time hereafter the Escrow Trustee shall resign, be removed, be dissolved or otherwise become incapable of acting, or shall be taken over by any governmental official, agency, department or board, a successor Escrow Trustee may be appointed by the owners, holders or agents of not less than fifty- one percent (51~) in aggregate principal amount of the 1988 Bonds then outstanding, by an instrument or concurrent instruments in writing, executed by such owners and filed with the Authority. (b) In the case a vacancy arises in the position of Escrow Trustee, the Authority may appoint a temporary Escrow Trustee to fill such vacancy until a successor Escrow Trustee shall be appointed as provided in Section 12(a), and any such temporary Escrow Trustee shall immediately and without further action be superseded by the Escrow Trustee so appointed. In the event no successor Escrow Trustee is appointed within ninety (90) days after appointment of a temporary Escrow Trustee by the Authority in accordance with Section 13(a), such temporary Escrow Trustee shall become the successor Escrow Trustee. (c) Every such Escrow Trustee appointed pursuant to the provisions of this Section 12 shall be a corporation with trust -11- powers organized and in good standing under the banking laws of the United States or any state, and shall have at the time of appointment capital and surplus of not less than $5,000,000 or be a member of the bank group or bank holding company with aggregate capital and surplus of not less than $5,000,000. (d) Every successor Escrow Trustee appointed hereunder shall execute, acknowledge and deliver to its predecessor and to the Authority an instrument in writing accepting such appointment hereunder; and thereunder such successor Escrow Trustee, without any further act, deed or conveyance, shall become fully vested with all the estates, properties, rights, immunities, powers, trusts, duties and obligations of such predecessor; and every predecessor Escrow Trustee shall, nevertheless, on the written request of such successor Escrow Trustee or the Authority, execute • and deliver an instrument transferring to such successor Escrow Trustee all the estates, properties, rights, immunities, powers, trusts, duties and obligations of such predecessor hereunder; and every predecessor Escrow Trustee shall deliver all securities and moneys held by it as Escrow Trustee hereunder successor. Should any transfer, assignment or instrument in writing from the Authority be required by any successor Escrow Trustee for more fully and certainly vesting in such successor Escrow Trustee who estates, properties, rights, immunities, powers, trusts, duties and obligations hereby vested or intended to be vested in the predecessor Escrow Trustee, any such transfer, assignment and -12- instruments in writing shall, on request, be executed, acknowledged and delivered by the Authority. (e) Any corporation into which the Escrow Trustee, or any successor to it in the trusts, duties and obligations created by this Agreement, may be merged or converted or with which it or any successor to it may be consolidated,. or any corporation resulting from any merger, conversion, consolidation or reorganization to which the Escrow~Trustee or any successor to it shall be a party shall, if approved in writing by the Authority (which approval shall not be unreasonably withheld), be the successor Escrow Trustee under this Agreement and vested with all of the title to the Trust Estate and all the estates, properties, rights, immunities, powers, trusts, duties and obligations of its predecessor without the execution or filing of any paper or any • further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding. Section 13. Payments to Escrow Trustee. The Escrow Trustee shall be entitled to payment and reimbursement for fees and for its services rendered hereunder and all advances, counsel fees, and other expenses made or incurred by the Escrow Trustee in connection with such services. The Escrow Trustee shall have no lien, security interest or right of set-off whatsoever upon any of the moneys or investments in the Escrow Fund for the payment of fees and expenses for services rendered by the Escrow Trustee under this Agreement. • -13- Section 14. Escrow Trustee to Act as Trustee. The moneys held by the Escrow Trustee in the Escrow Fund under this Agreement are to be held by it as a trustee for the sole and exclusive benefit of the holders from time to time of the 1988 Bonds and are to be used by the Escrow Trustee, as trustee for such bondholders, only as set forth in this Agreement. Section 15. Permitted Acts. The Escrow Trustee and its affiliates may become the owner of or may deal in the 1988 Bonds as fully and with the same rights as if it were not the Escrow Trustee. Section 16. Unclaimed Monevs. Upon termination hereof in accordance with Section 17 hereof, any moneys then held by the Escrow Trustee under the terms hereof shall be transferred and applied in accordance with Section 8 hereof. • Section 17. Term. This Agreement shall commence upon its execution and delivery and shall terminate when the 1988 Bonds have been paid and discharged in accordance with the provisions of the 1988 Resolution and the 1988 Trust Agreement and all duties and obligations of the Escrow Trustee pursuant to this Agreement have been fulfilled and satisfied, and any remaining moneys, together with any increment thereto and interest earned thereon in the Escrow Fund have been transferred by the Escrow Trustee to the South Bend Redevelopment Authority Stadium Facility Sinking Fund in accordance with Section 8 hereof. If any 1988 Bonds are not presented for payment, the Escrow Trustee shall retain funds for -14- that purpose in accordance with the provisions therefor contained • in the 1988 Trust Agreement and in accordance with Indiana law. Section 18. Agreement Bindincr. All the covenants, promises and agreements in this Agreement contained by or on behalf of the Authority or by or on behalf of the Escrow Trustee shall bind and inure to the benefit of their respective successors and assigns, whether so expressed or not. Section 19. Amendment. This Agreement is made for the benefit of the Authority and the holders from time to time of the outstanding 1988 Bonds and it shall not be repealed, revoked, altered or amended without the written consent of all such holders the Escrow Trustee and the Authority; provided, however, that the Authority and the Escrow Trustee may, without the consent of, or notice to, such bondholders enter into such agreements supplemental • to this Agreement as shall not adversely affect the rights of such bondholders and shall not be inconsistent with the terms and provisions of this Agreement, for any one or more of the following purposes: (a) to cure any ambiguity or formal defect or omission in the Agreement; (b) to grant to or confer upon the Escrow Trustee for the benefit of the holders of the 1988 Bonds any additional rights, remedies, powers or authority that may lawfully be granted to or conferred upon the Escrow Trustee; and -15- .. (c) to sever any provision deemed illegal. • The Escrow Trustee shall be entitled to rely exclusively upon an opinion of nationally recognized bond counsel with respect to compliance with this Section 19. Section 20. Severability. If any one or more of the covenants or agreements provided in this Agreement on the part of the Authority or the Escrow Trustee to be performed should be determined by a court of competent jurisdiction to be contrary to law, such covenant or agreement shall be deemed and construed to be severable therefrom and shall in no way affect the validity of the remaining provisions of this Agreement. Section 21. Counterparts Headinas. This Agreement may be executed in several counterparts, all or any of which shall be regarded for all purposes as one original and shall constitute and • be but one and the same instrument. The paragraph headings used in this instrument are for convenience of reference only. Section 22. Governina Law. This Agreement shall be construed in accordance with and governed by the laws of the State of Indiana and the Escrow Trustee hereby consents to the jurisdiction of the courts of the State of Indiana. -16- ~,. ., . ~ IN WITNESS WHEREOF, the parties hereto have caused this • Agreement to be executed by their duly authorized officers and their corporate seals to be hereunto affixed and attested as of the date first above written. (SEAL) SOUTH BEND REDEVELOPMENT AUTHORITY ~~ By : ~e Wri ten Signature) Joseph W. Wroblewski (Printed Signature) President, Board of Directors ATTE (Written Signature) Donald K. Fewell (Printed Signature) . Secretary-Treasurer, Board of Directors NORWEST BANK INDIANA, N.A. By (Written Signature (Printed Signature -17- STATE OF INDIANA ) SS: COUNTY OF ) Before me, the undersigned, a Notary Public in and for said County and State, this day of , 1991, personally appeared Joseph W. Wroblewski and Donald K. Fewell, personally known to me to be the President and Secretary- Treasurer, respectively, of the Board of Directors of South Bend Redevelopment Authority, and acknowledged the execution of the foregoing Agreement for and on behalf of said Authority. WITNESS my hand and notarial seal. (Written Signature) (SEAL) (Printed Signature) Notary Public My commission expires My county of residence is STATE OF INDIANA ) SS COUNTY OF ) Before me, the undersigned, a Notary Public in and for said County and State, this day of , 1991, personally appeared and respectively, of Norwest Bank Indiana, N.A., and acknowledged the execution of the foregoing Agreement for and on behalf of said Bank. WITNESS my hand and notarial seal. (Written Signature) (SEAL) (Printed Signature) Notary Public My commission expires My county of residence is \rrrompol\sthbend\covelesk\escrow.agr;tmg;ll/12/91; -18-