Loading...
HomeMy WebLinkAboutOrdinance-1988-0780ORDINANCE NO. 780 INTRODUCED BY: COUNCILMEMBER MERKL AN ORDINANCE PROVIDING FOR THE FINANCING BY THE CITY OF WHEAT RIDGE, STATE OF COLORADO OF A MANUFACTURING FACILITY; AUTHORIZING THE ISSUANCE, SALE AND DELIVERY OF MULTI-MODAL INTERCHANGEABLE RATE INDUSTRIAL DEVELOPMENT REVENUE BONDS (LEAF, INC. PROJECT) SERIES 1988; AND AUTHORIZING THE EXECUTION AND DELIVERY OF A LOAN AGREEMENT, A TRUST INDENTURE, A PLACEMENT AGREEMENT, AND A REMARKETING AND INTEREST SERVICES AGREEMENT AND RELATED DOCUMENTS. WHEREAS, the City of Wheat Ridge, State of Colorado (the "Issuer") is a body politic and corporate and a political subdivision of the State of Colorado (the "State"); WHEREAS, the Issuer, pursuant to the County and Municipality Development Revenue Bond Act, Title 29, Article 3, Part 1, C.R.S. 1973, as amended (the "Act"), is authorized and empowered to issue its revenue bonds for the purpose of providing funds to promote industry and develop trade or other economic activity by inducing profit or nonprofit corporations, federal governmental offices, hospitals, and agricultural, manufacturing, industrial, commercial, or business enterprises to locate, expand or remain in the State, to secure and maintain a balanced and stable economy in all parts of the State, or to further the use of its agricultural products or natural resources; WHEREAS, the Issuer adopted an ordinance on August 8, 1988 to induce Leaf, Inc., a Delaware corporation (the "Company"), to effect and undertake the installing and equipping of a one story building of cement block construction having approximately 97,000 square feet, located in the City of Wheat Ridge, Colorado, to be used by the Company for the manufacture of candy and confectionary products, and all fixtures, equipment and appurtences necessary thereto, including without limitation APV Baker Pre-Cooker Model 143/PHC 30, APV Baker Microfilm Cooker Model 146/27, Special Deposit Plant Model 156CDRG/1300/4430-13, Three Rows Theegarten Wrapping Plants Model U1-DCF/F1-1, and Five Flavor Feeding Systems (the "Project"); WHEREAS, it is proposed that the Issuer shall enter into a Loan Agreement with the Company pursuant to which the Issuer shall lend the Company the proceeds received from the sale of its Bonds, which proceeds, together with other moneys of the Company, is intended to be a sum sufficient to accomplish the installing and equipping of the Project, and the Issuer is willing to issue and sell its revenue bonds to finance the cost of the installing 11/21/88 LEAF-RES JTL-35E and equipping of the Project, all as set forth in the details and provisions of said Loan Agreement and the Trust Indenture hereinafter identified; WHEREAS, the Company, in connection with the issuance and sale of the Issuer's bonds, has secured an irrevocable, direct pay letter of credit (the "Letter of Credit") to be issued by Wachovia Bank and Trust Company, N.A. (the "Bank"), to provide for the payment of the principal of and interest on, and the par purchase price of tendered bonds; WHEREAS, Huhtamaki, Inc., a Delaware corporation and parent to the Company, in connection with the issuance of the Letter of Credit, has agreed to unconditionally guarantee the Company's obligations under a Reimbursement Agreement as identified herein with the Bank; WHEREAS, the Issuer proposes to sell the revenue bonds hereinafter authorized and designated "City of Wheat Ridge, State of Colorado Multi-Modal Interchangeable Rate Industrial Development Revenue Bonds (Leaf, Inc. Project) Series 1988" (the "Bonds") in an aggregate principal amount not to exceed $7,000,000 on a negotiated basis to purchasers arranged by Wachovia Bank and Trust Company, N.A. and J.P. Morgan Securities Inc., in their capacity as placement agent and co-placement agent, respectively, for the Bonds (collectively the "Placement Agents"), and the Bonds will be issued pursuant to the Trust Indenture hereinafter identified; WHEREAS, initially the Bonds will bear interest at a variable interest rate and may be tendered by the holders thereof for purchase, at which time Wachovia Bank and Trust Company, N.A., as remarketing agent (the "Remarketing Agent"), shall remarket such tendered Bonds; WHEREAS, on December 12, 1988 upon reasonable notice a public hearing (the "Public Hearing") was held as required by Section 147(f) of the Internal Revenue Code of 1986, as amended (the "Code") relating to the issuance and sale of the Bonds hereinafter authorized; WHEREAS, there have been presented to the Issuer on this date, the following: 1. The form of the Loan Agreement (the "Company Agreement") dated as of December 1, 1988 between the Issuer and the Company; 2. The form of the Trust Indenture dated as of December 1, 1988 between the Issuer and Wachovia -2- Bank and Trust Company, N.A., as trustee (the "Trustee"), setting forth the terms, conditions and security requirements for the proposed Bonds, which incorporates by reference the provisions set forth in the Multi-Modal Interchangeable Rate Securities Standard Terms and Conditions of Trust for Small Issues dated as of December 1, 1988, (collectively, the "Trust Indenture"); 3. The form of the Placement Agreement (the "Placement Agreement") dated as of December 1, 1988 among the Issuer, the Company and the Placement Agents; 4. The form of the Remarketing and Interest Services Agreement (the "Remarketing and Interest Services Agreement") dated as of December 1, 1988 among the Issuer, the Company and the Remarketing Agent; 5. The form of the Guaranty Agreement of Huhtamaki, Inc. (the "Guaranty Agreement") dated December 1, 1988; and 6. The form of the Reimbursement Agreement (the "Reimbursement Agreement") dated as of December 1, 1988 between the Company and the Bank; and WHEREAS, it appears that each of the instruments above referred to, which are now before this meeting, is in appropriate form and is an appropriate instrument for the purposes intended: NOW, THEREFORE, BE IT ORDAINED BY THE CITY OF WHEAT RIDGE, STATE OF COLORADO, AS FOLLOWS: 1. The Issuer has heretofore determined, and does hereby determine, as follows: (a) The Project constitutes an eligible project, specifically a "manufacturing, industrial, commercial, agricultural, or business enterprises", as those terms are used in the Act. (b) The issuance of the Bonds will effectuate the public purposes of the Issuer and carry out the purposes of the Act. (c) The Bonds shall be special limited obligations of the Issuer, payable solely out of the revenues and funds pledged under the Trust Indenture. Neither the faith and credit nor the taxing power of the State or the Issuer is pledged to the payment of principal of or premium, if any, or interest on the Bonds. -3- The Bonds and the interest thereon do not constitute an indebtedness of the Issuer within any provision or limitation of the State Constitution or statutes of the State or a charge against its general credit or taxing powers. It shall be plainly stated on the face of each Bond that it has been issued under the provisions of the Act and that it does not constitute an indebtedness of the Issuer or a loan of credit thereof within the meaning of any constitutional or statutory provisions. (d) The amounts necessary in each year to pay the principal of and interest on the Bonds are set forth in the Trust Indenture. (e) The Project will be located within the corporate limits of the Issuer. (f) The terms of the Company Agreement will require that the Company will cause to be maintained or maintain the Project and will cause to be carried or carry all proper insurance with respect thereto and require the payment of all applicable taxes with respect thereto. 2. That the form, terms and provisions of the Indenture be, and they hereby are, in all respects approved, and that the Mayor and the City Clerk be, and they hereby are, authorized, empowered and directed to execute, attest, seal and deliver the Trust Indenture in the name and on behalf of the Issuer, and thereupon to cause the Trust Indenture to be executed, attested, sealed and delivered by the Trustee, and the Trust Indenture shall constitute an assignment for the security of the Bonds issued thereunder of the loan repayments to be received by the Issuer pursuant to the Company Agreement (subject to the reservation by the Issuer for the amounts payable under Sections 4.2(b), 6.61 7.2 and 8.4 of the rights, the Surplus Fund, and the Initial Fund, including the proceeds of the Bond pending disbursement thereof (each as defined in the Trust Indenture), all other rights and interests granted to the Issuer in connection with the Company Agreement as set forth in the Trust Indenture or granted directly to the Trustee in the Trust Indenture; and all of the proceeds of the foregoing (except the amounts payable to or on behalf of the Issuer on account of its Reserved Rights, as defined in the Trust Indenture), do all such acts and things and to execute and deliver all such documents as may be necessary to carry out and comply with the provisions of the Trust Indenture as executed; that the Trust Indenture is to be in substantially the form now before this meeting and hereby approved, or with such changes therein as shall be approved by officers of the Issuer executing the same, their execution thereof to constitute conclusive evidence of their approval of -4- any and all changes or revisions therein from the form of Trust Indenture, now before this meeting. 3. That the form, terms and provisions of each of the Company Agreement, the Placement Agreement and the Remarketing and Interest Services Agreement be, and they hereby are, in all respects approved, and that the Mayor and the City Clerk be, and they hereby are, authorized, empowered and directed to execute, attest, seal and deliver each of the Company Agreement, the Placement Agreement and the Remarketing and Interest Services Agreement in the name and on behalf of the Issuer, and thereupon to cause each of the Company Agreement, the Placement Agreement, and the Remarketing and Interest Services Agreement to be executed, attested, sealed and delivered by the Company, and the Placement Agents, the Company and the Remarketing Agent, respectively; that each of the Company Agreement, the Placement Agreement and the Remarketing and Interest Services Agreement is to be in substantially the form now before this meeting and hereby approved, or with such changes therein as shall be approved by officers of the Issuer executing the same, their execution thereof to constitute conclusive evidence of their approval of any and all changes or revisions therein from the form of the Company Agreement, the Placement Agreement and the Remarketing and Interest Services Agreement, now before this meeting; and that from and after the execution and delivery of each of the Company Agreement, the Placement Agreement and the Remarketing and Interest Services Agreement, the officer, agents and employees of the Issuer are hereby authorized, empowered and directed to do all such acts and things and to execute and deliver all such documents as may be necessary to carry out and comply with the provisions of each of the Company Agreement, the Placement Agreement and the Remarketing and Interest Services Agreement as executed. 4. That the Mayor, or any other officer of the Issuer be, and they hereby are authorized, empowered and directed to cause to be prepared an issue of the Bonds, in the form, bearing interest at the rate or rates, maturing and having the other terms and provisions specified in the Trust Indenture (as executed and delivered) and in an aggregate principal amount not to exceed $7,000,000 as shall be approved by the officers of the Issuer executing the Bonds, the act of such execution to be evidence of such approval; that the Bonds shall be executed in the name of the Issuer with the manual or facsimile signature of its Mayor and attested by the manual or facsimile signature of its City Clerk and the seal of the Issuer shall be impressed or reproduced thereon, and that the Mayor or any other officer of the Issuer shall cause the Bonds, so executed, attested and sealed, to be delivered to the Trustee for authentication. -5- 5. That the form of Bonds submitted to this meeting, subject to appropriate insertions and revisions in order to comply with the provisions of the Trust Indenture, be, and the same hereby is, approved and when the same shall be executed, attested and sealed on behalf of the Issuer in the manner contemplated by the Trust Indenture and this resolution in an aggregate principal amount not to exceed $7,000,000, shall represent the approved variable rate form of Bonds of the Issuer. The Issuer hereby authorizes and directs the Placement Agent to establish the Weekly Rate, as defined in the Trust Indenture, for the period commencing on the date of issuance and delivery of the Bonds until the commencement of the succeeding Calendar Week, as defined in the Trust Indenture; provided, that during the Weekly Rate such Rate shall not exceed 15% per annum. 6. That from and after the execution and delivery of the aforesaid documents, the officers, agents and employees of the are hereby authorized, empowered and directed to do all such acts and things and to execute and deliver all such documents and certificates as may be necessary to carry out and comply with the provisions of said documents as executed. 7. That all acts and undertakings of the officers of the Issuer which are in conformity with the purposes and intent of this resolution and in furtherance of the issuance and sale of the Bonds and the financing of the installation and equipping of the Project shall be, and the same hereby are, in all respects, approved and confirmed. 8. That any officer or the Mayor of the Issuer is hereby directed to execute, in conjunction with the Company, an appropriate statement with respect to arbitrage and any and all other matters with respect to the use of the proceeds of the Bonds. 9. That the holding of the Public Hearing is hereby ratified, confirmed and approved in all respects. 10. That the Issuer hereby determines that all meetings of the Issuer at which action was taken in connection with the Company Agreement, the Trust Indenture, the Placement Agreement, the Remarketing and Interest Services Agreement and the authorization, sale and issuance of the Bonds were duly and legally called and held proper public meetings, open to the public at all time, and notice of the time and place of each meeting was given and minutes of such meetings have been kept and are or will be made available pursuant to the laws of the State. -6- T!'jis Urdinance shall take effect 1 day after final publication. TNT HUDUCLD, READ, ANb AUUPTEU on first reading by a vote of 6 to 0 on this 28th !iay of November 1966, orlereh published in full in a newspaper of general circulation in the r,ity of Wheat Ridge and Public: Hearing and consideration on final passage set for Monday, + ~ December 12 _ 19&8, at 7:30 p.m., in the Council .hambers, 7500 West 29th Avenue, Wheat Hidge, Colorado. HEAD, ADUPTED, AND UhDLREU PUBLISHED on second and final reading by a vote -)f 8 to this 12th,-___ day rnf December 196 8 . SIGNED by the Mayor or, this 13th day of December 198 8 DAN WILDL, MAYUR 1~~ 1 'WANCA~SAN(, f:M CftitK 1st Publication: December 1, 1988 rnd Publication: December 15, 1988 Wheat Ridge Sentinel Eftective Date: December 16, 1988 APPRUVEU ~S T FURh BY CITY ATTUHNEY JUHN/AYES,~CITY~~ TUeNEY -7-