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HomeMy WebLinkAbout1982-364-08.09.1982 Resolution No . 1982 - 364 RESOLUTION AUTHORIZING THE ISSUANCE AND SALE OF $125,000 INDUSTRIAL DEVELOPMENT REVENUE BOND, SERIES 1982 (HERSHBERGER DEVELOPMENT PROJECT) WHEREAS, Waterloo, Iowa , a political subdivision in the State of Iowa (the "Issuer") , is authorized by Chapter 419 of the Code of Iowa, 1981 , as amended (the "Act" ) to issue revenue bonds and loan the proceeds to one or more parties to be used to acquire lands and to acquire by construction or purchase, buildings and improvements thereon and equipment; and WHEREAS, the Issuer has made the necessary arrangements with David J. Hershberger, doing business as Hershberger Development (the "Company"), for its acquisition of land, buildings, improvements and equipment (the "Project") 'within the corporate boundaries of the Issuer; and WHEREAS, the Issuer is willing to issue its Industrial Development Revenue Bond, Series 1982 (Hershberger Development Project) in the principal amount of $125,000 (the "Bond") to finance the cost of the Project in an amount not to exceed $125,000, and the Issuer will loan the proceeds of the Bond to the Company pursuant to the provisions of a Loan Agreement, dated as of August 1 , 1982, between the Issuer and the Company (the "Agreement"), the obligations of which will be sufficient to pay the principal of and interest and prepayment premium, if any, on the Bond, as and when the same shall be due; and WHEREAS, notice of intention to issue the Bond has, as directed by the Council , been duly given in compliance with the Act; and WHEREAS, a public hearing has been held on the proposal to issue the Bond at the time and place specified in said notice and all objections or other comments relating to the issuance of the Bond have been heard; and WHEREAS, the Issuer proposes to sell the Bond upon a negotiated basis to Iowa Securities Investment Corporation, Waterloo, Iowa; and NOW, THEREFORE, be it resolved by the City of Waterloo, Iowa, as follows : DEFINITIONS SECTION 1 . All words and phrases defined in Article I of the Agreement (hereinafter defined) shall have the same meaning in this Resolution unless otherwise expressly provided in this Section 1 . The following words and terms as used in this Resolution shall have the following meanings unless the context or use indicates another or different meaning or intent: "Act" means Chapter 419 of the Code of Iowa, 1981 , as amended. "Agreement" means the Loan Agreement, dated as of August 1, 1982, by and between the Issuer and the Company, as from time to time amended and supplemented. "Assignment" means the Assignment dated as of August 1 , 1982, by and between the Issuer and the Trustee. "Bond" or "Bonds" means the Bond authorized to be issued hereunder. -2- "Bond Fund" means the Waterloo, Iowa, Industrial Development Revenue Bond (Hershberger Development Project) Bond Fund, created in Section 6 hereof. "Bond Purchase Agreement" means the Bond Purchase Agreement dated as of the date hereof between the Issuer and the Paying Agent. "Company" means David 1. Hershberger, doing business as Hershberger De- velopment, and its successors and assigns and any surviving, resulting or transferee corporation. "Construction Fund" means the Waterloo, Iowa, Industrial Development Revenue Bond (Hershberger Development Project) Construction Fund, created by Section 4 hereof. The term "default" means those defaults, exclusive of any period of grace, specified in and defined in Section 10 hereof. The term "event of default" means those events specified in and defined in Section 10 hereof. The words "hereof", "herein", "hereunder" and other words of similar import refer to this Resolution as a whole. "Indenture" means the indenture of trust between the Issuer and Trus- tee. "Internal Revenue Code" means the Internal Revenue Code of 1954, as amended. "Issuer" means Waterloo, Iowa, and its successors and assigns. "Paying Agent" means Iowa Securities Investment Corporation as appoin- ted under Article IV of the Indenture "Resolution" means this Resolution. "Revenues" means all amounts payable pursuant to Section 4.2(a) of the Agreement and other amounts payable under the Agreement and the Mortgage which may be applied to the payments of principal or interest on the Bond. "Trustee" means the First National Bank of Mason City, Mason City, Iowa , and its successors and assigns. AUTHORIZATION AND PREPAYMENT OF BOND SECTION 2. That for the purpose of financing the cost of the Project, there shall be and there is hereby authorized to be issued by the Issuer its Industrial Revenue Bond, Series 1982 (Hershberger Development Project) in the principal sum of $125,000, dated as of August 1, 1982. The Bond shall be signed by the Mayor and attested by the City Clerk of the Issuer and the official seal of the Issuer shall be affixed thereto, and each page thereof shall be initialled by the aforementioned officials. In case any official of the Issuer whose signature shall appear on the Bond shall -3- cease to be an official before the delivery of such Bond, such signature shall nevertheless be valid and sufficient for all purposes, the same as if he had remained in office until delivery. The Bond shall be payable, shall bear interest, shall be subject to obligations and options for prepayment and shall contain other terms and conditions , and be in the fo'rm, substantially in the form of Exhibit A. The Bonds shall be executed on behalf of Issuer with the manual or facsimile signature of its Mayor, and shall have impressed thereon the official seal of Issuer or a facsimile thereof and attestedimprinted with the manual or facsimile signature of the City Clerk of the Issuer, provided that at least one such official signature on each Bond shall be a manual signature. All authorized facsimile signatures shall have the same force and ,effect as if manually signed. BOND A LIMITED OBLIGATION SECTION 3. The Bond, together with interest thereon, is not a general obligation of the issuer, but is a limited obligation payable solely from the Revenues and other amounts derived from the Mortgaged Property (except to the extent paid out of moneys attributable to the proceeds derived from the sale of the Bond or to income from the temporary investment thereof) , including revenues derived from the Agreement and the Mortgage and shall be a valid claim of the respective holders thereof only against the Bond Fund and other moneys held by the Trustee and the Revenues and other amounts derived from the Mortgaged Property, which Revenues and other amounts are hereby pledged, assigned and otherwise secured for the equal and ratable payment of the Bond and shall be used for no other purpose than to pay the principal of, premium, if any, and interest on the Bond, except as may be otherwise expressly author- ized in this Resolution. The Bond and interest and premium, if any, thereon shall not constitute an indebtedness of the Issuer within the meaning of any constitutional or statutory provision and does not constitute nor give rise to a pecuniary liability of the Issuer or a charge against its general credit or taxing powers. CUSTODY AND APPLICATION OF PROCEEDS OF BOND: CONSTRUCTION FUND SECTION 4. There is hereby created and established with the Trustee, which is hereby constituted and appointed as depository for the Issuer, a spe- cial fund in the name of the Issuer to be designated "Waterloo, Iowa, Indus- trial Development Revenue Bond, Series 1982 (Hershberger Development Project) Construction Fund". The proceeds received by the Issuer upon the sale of the Bond shall be deposited in the Construction Fund which shall be held in a sep- arate account by the depository. Moneys in the Construction Fund shall be expended in accordance with the provisions of the Agreement, and particularly Section 3.3 thereof. The Trustee, as depository, shall keep and maintain adequate records pertaining to the Construction Fund and all disbursements therefrom, and after the Project has been completed and a certificate of payment of all costs filed as provided in Section 3.4 of the Agreement, the Trustee shall , upon written request by the Company, deliver a summary of its disbursements to the Company. -4- Any money remaining in the Construction Fund after completion of the Project shall be applied in accordance with Section 3.4 of the Agreement. CONSTRUCTION OF PROJECT AND PAYMENT OF AMOUNTS UNDER THE AGREEMENT SECTION 5. It is the declared intention of the Issuer to authorize the Paying Agent to disburse the proceeds of the Bond in order to enable the Company to construct the Project under and pursuant to the Agreement in substantially the form which has been presented to and is hereby approved by the governing body of the Issuer and which is now on file in the official records of the Issuer. The Mayor is hereby authorized to execute and acknowledge said Agree- ment for and on behalf of the Issuer, and the City Clerk is hereby authorized to attest same and to affix thereto the official seal of the Issuer. The Agreement and the revenues and receipts thereof, including all moneys received under its terms and conditions, are sufficient to pay the principal installments of and interest on the Bond hereby authorized and are hereby pledged and ordered paid into the Bond Fund. The Agreement provides that the Company shall remit the required loan repayment installments there- under directly to the Trustee for the account of the Issuer for deposit in said Bond Fund and such provision is hereby expressly approved. REVENUES: BOND FUND SECTION 6. There is hereby created by the Issuer and ordered esta- blished with the Trustee, as depository, a special fund to be designated "Waterloo, Iowa , Industrial Development Revenue Bond, Series 1982 (Hershberger Development Project) Bond Fund" , which is pledged and shall be used to pay the principal installments of, premium, if any, and interest on the Bond. There shall be deposited into the Bond Fund, as and when received, (a) all Revenues; and .(b) all other moneys received by the Trustee under and pursuant to any of the provisions of the Agreement, which are to be applied to the payment of principal , premium, if any, and interest on the Bond. The Paying Agent is authorized and directed to apply amounts available therefor in the Bond Fund to the payment when due of the principal of and interest on the Bond. Any amounts remaining in the Bond Fund, after payment in full of the principal installments of, premium, if any, and interest on the Bond (or provision for payment thereof as provided in this Resolution or any other bond resolution pursuant to which bonds are issued) and the charges and expenses of the Issuer and the Trustee, shall be paid to the Company upon the expiration or sooner termination of the term of the Agreement as provided herein and in Section 8.5 of the Agreement. ASSIGNMENT SECTION 7. As security for the due and punctual payment of the princi- pal installments of and interest on the Bond hereby authorized the Issuer hereby assigns and pledges to the Trustee all revenues and receipts derived by the Issuer pursuant to the Agreement and all rights and remedies of the Issuer under the Agreement (except the right to receive payments, if any, under -5- Sections 4.2, 5. 1 and 6.3 thereof) to enforce payment thereof including a security interest therein, and as evidence of such assignment, pledge, and security interest and of the agreement of the Trustee to accept its responsi- bilities with respect to the Bond Fund created pursuant to Section 6 hereof, the Mayor is hereby authorized to execute for and on behalf of the Issuer, and the City Clerk is hereby authorized to attest the same and to affix thereto the official seal of the Issuer, the Assignment, which is to be in the form which has been presented to and is hereby approved by the governing body of the Issuer and which is now on file in the official records of the Issuer. INVESTMENTS SECTION 8. Any moneys held as part of the Construction Fund created pursuant to Section 4 hereof or the Bond Fund created pursuant to Section 6 .hereof may be invested or reinvested by the Paying Agent in investments which yield 13% interest computed annually. Any such investment shall be held by or under control of the Paying Agent and shall be deemed at all times a part of the Construction Fund or Bond Fund, as the case may be, and the interest accruing thereon and any profit realized from such investments shall be cre- dited to such fund, and any loss resulting from such investments shall be charged to such fund, which loss shall be an obligation of the Company as provided in the Agreement. GENERAL COVENANTS SECTION 9. The Issuer covenants that it will promptly cause to be paid solely and only from the source mentioned in the Bond, the principal install- ments of and interest on the Bond hereby authorized at the place, on the dates and in the manner provided herein and in the Bond according to the true intent and meaning thereof. Nothing in the Bond or this Resolution should be con- sidered as assigning or pledging any other funds or assets of the Issuer other than such Revenues and the right, title and interest of the Issuer in the Agreement in the manner and to the extent herein specified. The Issuer covenants that it will faithfully perform at all times any and all covenants, undertakings, stipulations and provisions contained in this Resolution, in the Bond and in all proceedings of its governing body per- taining thereto. The Issuer covenants that it will execute, acknowledge and deliver such instruments, financing statements and other documents as the Trustee may reasonably require for the better assuring, pledging and assigning unto the Trustee the rights of the Issuer in and to the revenues and receipts hereby assigned and pledged to the payment of the principal installment of and interest on the Bond; provided, however, that except for the obligations set forth in the Bond, the Issuer shall not be obligated to take any action or execute any instrument pursuant to any provision hereof or the Agreement until it shall have been requested to do so by the Company or the Trustee, or shall have received the instrument to be executed and, at the Issuer's option, shall have received from the Company or the Trustee assurance satisfactory to the Issuer that the Issuer shall be reimbursed for its reasonable expenses in- curred or to be incurred in connection with the taking of such action or executing such instrument. The Issuer covenants and agrees that, except as herein and in the Agreement provided, it will not sell , convey, mortgage, encumber or otherwise dispose of any part of the revenues and receipts derived from the Agreement, or of its rights under the Agreement. -6- The Issuer covenants and agrees that it shall through the Trustee enforce all of its rights and all of the obligations of the Company under the Agreement for the benefit of the owners of the Bond. The Issuer shall protect the rights .of the Trustee hereunder with respect to the assignment and pledge of the revenues and receipts coming due under the Agreement. The Issuer further covenants and agrees that should there be a default under the Agreement, the Issuer 'shall fully cooperate with the Trustee to the end of fully protecting the rights and security of the Trustee. Nothing here- in shall be construed as requiring the Issuer to operate the Project or to use any funds or revenues from any source other than funds and revenues derived from the Agreement. EVENTS OF DEFAULT AND REMEDIES SECTION 10. If any of the following events occur, it is hereby defined as and declared to be and to constitute an "event of default": (a) Default in the due and punctual payment of interest on the Bond; (b) Default in the due and punctual payment of the principal of, or premium, if any, on the Bond, whether at the stated maturity of any install- ment thereof, upon proceedings for redemption thereof, or upon the maturity thereof by declaration or acceleration; (c) Default in the performance or observance of any other covenant, agreement or condition on the part of the Issuer in this Resolution or in the Bond contained; (d) The occurrence of an "event of default" under the Agreement. Upon the occurrence of an event of default and so long as such event is continuing, the Trustee by notice in writing delivered to the Issuer and the Company, may declare the principal installments of the Bond and the interest accrued thereon immediately due and payable, and such principal installments and interest shall thereupon become and be immediately due and payable. Upon any such declaration all payments under the Agreement from the Company imme- diately shall become due and payable as provided in Section 6.2 of the Agree- ment. While any principal installments of the Bond or interest are unpaid, the Issuer shall not exercise any of the remedies on default specified in Sec- tion 6.2 of the Agreement without prior written consent of the Trustee. Upon the occurrence of an event of default, the Trustee may pursue any available remedy at law or in equity by suit, action, mandamus or other pro- ceeding to enforce the payment of the principal installments and interest on the Bond and to enforce and compel the performance of the duties and obliga- tions of the Issuer as herein set forth. No remedy by the terms of this Resolution conferred upon or reserved to the Trustee is intended to be exclusive of any other remedy, but each and every such remedy shall be cumulative and shall be in addition to any other remedy given to the Trustee or to the owner hereunder or now or hereafter existing at law or in equity or by statute. -7- No delay or omission to exercise any right, power or remedy accruing upon any event of default shall impair any such right, power or remedy or shall be construed to be a waiver of any such event of default or acquiescence therein; and every such right, power or remedy may be exercised from time to time as often as may be deemed expedient. All moneys received pursuant to any right given or action taken under the provisions of this Section or under the provisions of Article VI of the Agreement (after payments of the costs and expenses of the proceedings result- ing in the collection of such moneys and of the expenses, liabilities and ad- vances incurred or made by the Issuer, or the Trustee) and all moneys in the Construction Fund at the time of the occurrence of an event of default shall be deposited in the Bond Fund and all such moneys in the Bond Fund shall be applied to the payment of the principal installments, premium, if any, and interest then due and unpaid upon the Bond to the person entitled thereto. Whenever moneys are to be applied pursuant to the provisions of this Section, such moneys shall be applied at such times, and from time to time, as the Trustee shall determine, but in any event within one (1 ) business day after deposit of such moneys in the Bond Fund. The Trustee shall give such notice as it may deem appropriate of the deposit with it of any such moneys and of the fixing of any such date, and shall not be required to make payment • to the owner of any participation interest in the Bond until such certificate of participation shall be presented to the Trustee for appropriate endorsement or for cancellation if fully paid. Whenever all principal installments , premium, if any, and interest on the Bond have been paid under the provisions of this Section and all expenses of the Trustee and the Issuer have been paid, any balance remaining in the Bond Fund shall be repaid to the Company. With regard to any default concerning which notice is given to the Com- pany under the provisions of this Section, the Issuer hereby grants the Company full authority for account of the Issuer to perform or observe any covenant or obligation alleged in said notice not to have been performed or observed, in the name and stead of the Issuer with full power to do any and all things and acts to the same extent that the Issuer could do in order to remedy such default. SALE OF THE BOND: EXECUTION OF DOCUMENTS SECTION 11 . The sale of the Bond hereby authorized to Iowa Securities Investment Corporation, Waterloo, Iowa, at a price of $125,000 and payment pursuant to the Bond Purchase Agreement in substantially the form which has been presented to the governing body of the Issuer and which is now on file in the official records of the Issuer, is hereby in all respects authorized, approved and confirmed. The Mayor. is hereby authorized and directed to execute said Bond Purchase Agreement for and on behalf of the Issuer. PERFORMANCE PROVISIONS SECTION 12. The Mayor and the City Clerk, for and on behalf of the Issuer be, and each of them hereby is, authorized and directed to do any and all things necessary to effect the performance of all obligations of the -8- Issuer under and pursuant to this Resolution, the execution and delivery of the Bond and the performance of all other acts of whatever nature necessary to effect and carry out the authority conferred by this Resolution. The Mayor and the City Clerk be, and they are hereby, further authorized and directed for and on behalf of the Issuer, to execute all papers, documents, certifi- cates and other instruments that may be required for the carrying out of the authority conferred by this' Resolution or to evidence said authority and to exercise and otherwise take all necessary action to the full realization of the rights , accomplishments and purposes of the Issuer under the Agreement and to discharge all of the obligations of the Issuer under the Agreement. DETERMINATION OF LOAN REPAYMENTS SECTION 13. Pursuant to the requirements of the Act, it is hereby • found and determined that the amounts necessary in each year to pay the prin- cipal of and the interest on the Bond is the amount set forth in Section 4.2 of the Agreement, which by this reference is incorporated in this Resolution. No amounts are necessary to be paid into any reserve funds for the retirement of the Bond. The Agreement provides that the Company shall maintain the Mort- gaged Property and carry all proper insurance with respect thereto. It is hereby found and determined that the retirement of the Existing Debt by the Company is necessary in connection with the issuance of the Bond. NOTICES SECTION 14. It shall be sufficient service of any notice or other paper on any party if the same shall be duly mailed to that party by regis- tered or certified mail addressed to that party at the respective addresses set forth in the Mortgage. • RESOLUTION A CONTRACT; PROVISIONS FOR MODIFICATIONS, ALTERATIONS AND AMENDMENTS SECTION 15. The provisions of this Resolution shall constitute a con- tract between the Issuer and the Trustee and after the issuance of the Bond no modification, alteration, or amendment or supplement to the provisions of this Resolution shall be made in any manner except with the written consent of the Trustee until such time as all principal installments of, and interest on the Bond shall have been paid in full . SATISFACTION AND DISCHARGE SECTION 16. All rights and obligations of the Issuer and the Company under the Agreement, the Assignment, the Bond and this Resolution shall terminate and such instruments shall cease to be of further effect, and the Trustee shall cancel the Bond, deliver it to the Issuer, and deliver a copy of the cancelled Bond to the Company, and the Trustee shall execute and deliver all appropriate instruments evidencing and acknowledging the satisfaction of this Resolution, and shall assign and deliver to the Company any moneys in the Bond Fund required to be paid to the Company under Section 6 hereof (except moneys or investments held by the Trustee for the payment of principal of, interest on or premium, if any, on the Bond) when: (a) all expenses of the Issuer and the Trustee shall have been paid; -9- (b) the Issuer and the Company shall have performed all of their cove- nants and promises in the Agreement, the Assignment, the Bond, and in this Resolution; and (c) all principal installments and interest on the Bond have been paid or there shall have been deposited with the Trustee either cash in an amount which shall be sufficient, or investments (but only to the extent that the full faith and credit of the United States of America are pledged to the timely payment thereof) the principal of and interest on which when due will provide moneys which, together with the moneys, if any, deposited with the Trustee, shall be sufficient, to pay when due the principal or redemption price, if applicable, and interest due and to become due on the Bond and prior to the prepayment date or the maturity date thereof, as the case may be. Provided, however, none of the principal of the Bond may be advanced refunded if under any circumstances the interest on the principal to be refunded would be subject to Federal income taxation. In determining the foregoing, the Trustee may rely upon an opinion of a nationally recognized firm of municipal bond attorneys to the effect that interest on the Bond will not be subject to Federal income taxation, notwithstanding the satisfaction and discharge of this Resolution. SEVERABILITY SECTION 17. If any section, paragraph, clause or provision of this Resolution shall be ruled by any court or competent jurisdiction to be in- valid, the invalidity of such section, paragraph, clause or provision shall not affect any of the remaining provisions hereof. CAPTIONS SECTION 18. The captions or headings of this Resolution are for con- venience only and in no way define, limit or describe the scope or intent of any provision of this Resolution. PROVISIONS IN CONFLICT REPEALED SECTION 19. All resolutions, and orders, or parts thereof, in conflict with the provisions of this Resolution are, to the extent of such conflict, hereby repealed, and this Resolution shall be effective immediately upon its adoption. PASSED and APPROVED this 9th day of August, 1982. CITY OF WATERLOO Mayor Leo P . Ro f ATTEST: ity Clerk Larry . B ger (SEAL) -10- STATE OF IOWA ) COUNTY OF BLACK HAWK ) ) ss. I , Larry P. Burger, being first duly sworn, do hereby depose and certify that I am the duly elected, qualified and acting City Clerk of the aforementioned City and that as such I have in my possession, or have access to, the complete corporate records of said City and of its City Council and officials; that I have carefully compared the transcript hereto attached with the aforesaid corporate records; and that said transcript hereto attached is a true, correct and complete copy of all the corporate records in relation to the adoption of the Resolution Authorizing the Issuance of a $125,000 Indus- trial Development Revenue Bond, Series 1982 (Hershberger Development Project). WITNESS my hand and the official seal of said City hereto affixed this lnth day of August, 1982. P. ger (SEAL) Subscribed and sworn to before me this day, the date last above written. Notary Public in and for the State of Iowa My Commission expires: , K,, 3 c (Notarial Seal )