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HomeMy WebLinkAbout130 - 11/05/1985 - ISSUANCE OF INDUSTRIAL DEVELOPMENT REVENUE BONDS, SERIES 1985, (ALPINE MANUFACTURING, INC. PROJECT) ORDINANCE NO. 130, 1985 AN ORDINANCE RELATING TO THE ISSUANCE OF INDUSTRIAL DEVELOPMENT REVENUE BONDS UNDER THE PROVISIONS OF THE COLORADO COUNTY AND MUNICIPALITY DEVELOPMENT REVENUE BOND ACT; PROVIDING FOR THE ISSUANCE AND SALE OF CITY OF FORT COLLINS , COLORADO, INDUSTRIAL DEVELOPMENT REVENUE BONDS, SERIES 1985 (THE ALPINE MANUFACTURING, INC. PROJECT) IN THE PRINCIPAL AMOUNT OF $1 , 350 , 000 FOR THE PURPOSE OF LOANING FUNDS TO J & E ENTERPRISES TO FINANCE IMPROVEMENTS RELATING TO ACQUIRING, DEVELOPING, CONSTRUCTING AND EQUIPPING OF AN OFFICE AND MANUFACTURING BUILDING IN FORT COLLINS , LARIMER COUNTY, COLORADO; APPROVING AND AUTHORIZING THE EXECUTION AND ASSIGNMENT OF A LOAN AGREEMENT AND NOTE BETWEEN J & E ENTERPRISES AND THE CITY; AND AUTHORIZING THE PREPARATION AND EXECUTION OF CERTAIN RELATED DOCUMENTS AND INSTRUMENTS . Be it ordained by the Council of the City of Fort Collins , Colorado : ARTICLE I DEFINITIONS , LEGAL AUTHORIZATION AND FINDINGS 1 . 1 . Definitions The terms used herein , unless the context hereof shall require otherwise , shall have the following meanings , and any other terms defined in the Loan Agreement shall have the same meanings when used herein as assigned to them in the Loan Agreement unless the context or use thereof indicates another or different meaning or intent. 1 . Act. The County and Municipality Development Revenue Bond Act , Article 3 , Title 29 , Colorado Revised Statutes , as amended . 2. Assignment of the Loan Agreement . The assignment to be executed by the City and the Lender assigning the City' s interest in the Loan Agreement to the Lender . 3. Bonds . The $ 1 , 350 , 000 Industrial Development Revenue Bonds , Series 1985 (The Alpine Manufacturing , Inc . Project ) to be issued by the City pursuant to this Ordinance . 4. Bond Counsel . The firm of Fischer , Brown , Huddleson , and Gunn, Fort Collins , Colorado . 5 . Bond Register . The records kept by the City of Fort Collins , Colorado to provide for the registration and transfer of ownership of the Bonds . 6 . City. City of Fort Collins , Colorado , its successors and assigns . 7 . Collateral Assignments of Rents . The assignment to be executed by the Company assigning to the Lender as security for the Bonds the rents due the Company under a lease dated December 1 , 1985 with Alpine Manufacturing , Inc . , and all other leases , rents and other income from the Project . 8 . Company. J & E Enterprises , a Colorado general partnership , its successors and assigns , and any surviving , resulting or transferee business entity which may assume its obligations under the Loan Agreement . 9. Company Note. Means the note of the Company delivered to the Issuer and endorsed to the Lender which evidences the obligation of the Company to repay the loan of the Issuer in accordance with Section 4 . 1 of Loan Agreement and which is in the form attached to the Loan Agreement as Exhibit C. 10. Deed of Trust . The Deed of Trust to be executed by the Company in favor of the Lender securing payment of the Bonds and interest thereon . 11 . Guaranty . The Guaranty Agreement to be executed by the Company, John E. Laudick , Jr . , Jeanne M. Laudick , and Alpine Manufacturing , Inc . as security for the Bonds . 12. Improvements . The structures and other improvements , including any tangible personal property, to be constructed or installed on the Land to be owned by the Company in accordance with the Plans and Specifications . 13 . Inducement Letter. The letter agreement from the Company to the City and the Lender dated December 6 , 1985 . 14. Land . The real property and any other easements and rights described in Exhibit A attached to the Loan Agreement . 15 . Lender. United Bank of Fort Collins , National Association , Fort Collins , Colorado , its successors and assigns . The Lender is the initial purchaser of the Bonds . 16 . Loan Agreement . The agreement to be executed by the City and the Company , providing for the issuance of the Bonds and the loan of the proceeds thereof to the Company, including any amendments or supplements thereto made in accordance with its provisions . 17 . Margin Rate Factor means the product of ( a) one ( 1 ) minus the Maximum Federal Corporate Tax Rate times ( b ) 1 . 85185 . The Margin Rate Factor shall be 1 . 0 so long as the Maximum Federal Corporate Tax Rate shall be 46% , and thereafter shall change from time to time effective as of the effective date of any change in the Maximum Federal Corporate Tax Rate . 2 - 18 . Maximum Federal Corporate Tax Rate means the maximum statutory rate of Federal income taxation imposed on the taxable income of corporations pursuant to Section 11 (b) of the Code , as in effect from time to time (or , if as a result of a change in the Code the rate of income taxation imposed on corporations shall not he applicable to a bondholder, the maximum statutory rate of Federal income taxation which could apply to a bondholder) . 19 . Offer to Purchase . The letter agreement from the Lender to the City , dated December 6 , 1985. 20 . Plans and Specifications . The plans and specifications for the construction and installation of the Improvements on the Land , which are approved by the Lender , together with such modifications thereof and additions thereto as are reasonably determined by the Company to be necessary or desirable for the completion of the Improvements and are approved by the Lender. 21 . Principal Balance . So much of the principal sum on the Bonds as from time to time remains unpaid . 22 . Project . The Improvements and the Land . 23. Project Costs . All costs of the Project ( i ) which are capitalized expenditures under generally accepted accounting principles and which must be or with a proper election may he capitalized for Federal income tax purposes and ( ii ) for which the Bond proceeds may be spent under the Act , including the following : ( a ) Payment for the preparation of plans and specifications for the Project ( including any preliminary study or planning of the Project ) , and for the acquisition , development , construction and installation of the Project ( including architectural , engineering and supervisory services with respect to any of the foregoing ) . ( b) To the extent that they shall not be paid by a contractor , payment of the premiums on all insurance required to be maintained prior to the date the Project is completed . ( c ) Payment of any fees and expenses for recording or filing such documents , instruments and financing statements which the Company , the Lender or the City may deem desirable to perfect or protect the rights of the City and the Lender under the Loan Agreement , the Company Note and the Assignment of the Loan Agreement . (d) Payment of any commitment or acceptance fee of the Lender and the legal , accounting and financial advisory fees and expenses , and all other fees and expenses incurred in the preparation of related documents . 3 - ( e ) Interest accrued on the Bonds prior to completion of the Project . 24 . Ordinance . This Ordinance of the City, adopted November 5 , 19 55 , together with any supplement or amendment hereto. 1 . 2. Legal Authorization The City is a political subdivision of the State of Colorado and is authorized under the Act to finance the Project herein referred to , and to issue and sell_ the Bonds for the purpose , in the manner and upon the terms and conditions set forth in the Act and in this Ordinance . 1 . 3 . Findings The City Council , based on the representations of the Company, has heretofore determined and found , and does hereby determine and find , as follows : ( a ) Tn authorizing the Project the City ' s purpose is , and in its judgment the effect thereof will be , the promotion and development of trade and other economic activities within the City by inducing the Company to acquire and construct facilities in the City and to secure and maintain a balanced and stable economy within the City ; ( b) The amount estimated to be necessary to finance the Project Costs , including the costs and estimated costs permitted by the Act , will require the issuance of the Bonds in the principal amount of $ 1 , 350 , 000 , as hereinafter provided ; ( c ) It is desirable , feasible and consistent with the objects and purposes of the Act to issue the Bonds , for the purpose of financing the construction of the Project ; (d ) The Bonds and the interest accruing thereon shall never constitute the debt or indebtedness of the City within the meaning of any provision or limitation of the constitution or statutes of the State of Colorado or the Home Rule Charter of the City of Fort Collins , Colorado and shall not constitute nor give rise to a pecuniary liability of the City or a charge against its general credit or taxing powers ; ( e) Pursuant to Sections 11 " and 114 of the Act the City hereby determines ( i ) the amount necessary in each year to pay the principal of and the interest on the Bonds is as set forth in the Loan Agreement which requires such payments by the Company, ( ii ) the establishment by this Ordinance of a Bond reserve fund for the retirement of the Bonds is not deemed advisable , and ( iii ) since the Loan Agreement provides - 4 - that the Company shall maintain the Project and carry all proper insurance with respect thereto, no determination of the estimated cost of maintaining the Project need be made ; and ( f ) Pursuant to Section 120 of the Act , the City hereby determines that the revenues of the Company will be sufficient to , and that the Loan Agreement provides that the Company shall , pay all taxes which may be due and owing with respect to the Project . 1 . 4 . Authorization and Ratification of Project The City hereby authorizes the Company to provide for the construction and installation of the Improvements to be included in the Project pursuant to the Plans and Specifications by such means as shall be available to the Company and in the manner determined by the Company, and the City hereby ratifies , affirms and approves all actions heretofore taken by the Company . ARTICLE II BONDS 2. 1 . Authorized Amount and Form of Bonds The Bonds issued pursuant to this Ordinance shall be in substantially the form set forth herein, with such appropriate variations , omissions and insertions as are permitted or required by this Ordinance , and in accordance with the further provisions hereof ; and the total principal amount of the Bonds that may be outstanding hereunder is expressly limited to $ 1 , 1150 , 000. Tha Bonds shall be in substantially the following form: - 5 - UNITED STATES OF AMERICA STATE OF COLORADO CITY OF FORT COLLINS , COLORADO INDUSTRIAL DEVELOPMENT REVENUE BOND ( THE ALPINE MANUFACTURING , INC. PROJECT) SERIES 1985 DECEMBER 1 , 1985 R-1 $ 1 , 350 , 000 FOR VALUE RECEIVED, CITY OF FORT COLLINS , COLORADO ( the "City" ) hereby promises to pay to the order of UNITED BANK OF FORT COLLINS , NATIONAL ASSOCIATION, Fort Collins , Colorado ( the "Lender" ) , its successors or registered assigns , from the source and in the manner hereinafter provided , the principal sum of ONE MILLION THREE HUNDRED FIFTY THOUSAND DOLLARS ( $1 , 350 , 000) ( the " Principal Balance" ) , and to pay interest thereon from the date hereof in consecutive installments beginning January 1 , 1986 , and on the first day of each succeeding month during the term hereof through and including December 1 , 2000 , at a per annum rate equal to 750, of the rate of interest publicly announced by United Bank of Denver from time to time at its principal office in Denver, Colorado , as its "Prime Rate" ( computed on the basis of a 360 day year) ( the "Prime Rate" ) multiplied by the "Margin Rate Factor" ( hereinafter defined ) ; provided that the rate of interest on this Bond shall not be less than 7% per annum or more than 15% per annum ; and provided however , the payment due on this Bond each month shall not be less than the amount of interest accrued to the interest payment date , in any coin or currency which at the time or times of payment is legal tender for the payment of public or private debt in the United States of America , in accordance with the terms hereinafter set forth. "Margin Rate Factor" means the product of ( a ) one ( 1 ) minus the "Maximum Federal Corporate Tax Rate" ( hereinafter defined) times ( b) 1 . 85185 . The Margin Rate Factor shall be 1 . 0 so long as the Maximum Federal Corporate Tax Rate shall be 46% , and thereafter shall change from time to time effective as of the effective date of any change in the Maximum Federal Corporate Tax Rate . "Maximum Federal Corporate Tax Rate" means the maximum statutory rate of Federal income taxation imposed on the taxable income of corporations pursuant to Section 11 (b) of the Internal Revenue Code of 1954 , as amended ( the " Code" ) , as in effect from time to time (or , if as a result of a change in the Code the rate of income taxation imposed on corporations shall not be applicable to a bondholder , the maximum statutory rate of Federal income taxation which could apply to the holder of this bond ) . 1 . ( a ) On the first day of Each month , commencing January 1 , 1986 , the City shall pay installments of principal and interest in the amount of $ 13 , 293 . 98 , such amount being the amount of principal and interest necessary to amortize the Principal Balance at an interest rate of 8 . 59 over a period of one hundred eighty ( 180 ) equal consecutive monthly payments ; provide however , the amount of the monthly payment due hereunder each month shall not be less than the amount of interest accrued to the interest payment date . The initial interest rate on the Series 1985 Bonds is 8 . 5% per annum, but shall be adjusted from time to time as hereinbefore provided. Each monthly installment of $ 13 , 293 . 98 shall be first applied in payment of interest hereunder at the then applicable rate and the balance of each such installment , if any, shall be applied to reduce the Principal Balance ; provided however , the entire Principal Balance and any accrued interest remaining unpaid on December 1 , 2000 , shall then mature and be due and pavable in full. . (b ) This Bond must be redeemed in whole within six ( 6 ) months after the date of a "Determination of Taxability" (defined in the Loan Agreement ) at a redemption price equal to ( i ) the principal amount of the Bond to be redeemed , plus ( ii ) an additional amount equal to the difference between ( A) the interest on the Bond during the "Taxable Period" (detined in the Loan Agreement ) if the Bond had borne interest during such Taxable Period at an interest rate equal to the Prime Rate plus 2° per annum and ( B) the interest actually paid on the Bond during such Taxable Period plus ( iii ) an amount equal to any interest , penalties on overdue interest and additions to tax as referred to in Subchapter A of Chapter 68 of the Internal Revenue Code of 1954 , as amended , owed by the Lender. In the event of a Determination of Taxability the net effective interest rate on this Bond shalt not exceed thirty ( 301. ) percent per annum. ( c ) This Bond is also subject to redemption and payment , without premiums prior to maturity at the option of the City, upon instructions from the Company, as a whole at anytime , or in part in S5 , 000 multiples of principal on any interest payment date in inverse order of maturity, plus accrued interest thereon to the date fixed for redemption and payment_ . ( d ) This Bond is also subject to purchase by the Company, in whole but not in part , on any interest payment date , solely at the option of the Company, in an amount equal to the Principal Balance then outstandinq plus accrued interest to the purchase date and without premium. Written notice of such purchase by the Company shall be given to the Bondholder at least sixty ( 60 ) days before such interest payment date . ( e ) This Bond is also subject to mandatory redemption and payment in whole or in part , without premium, in the event and to the extent proceeds of this Bond are not disbursed in accordance with the Loan Agreement on or before June 1 , 1987. - 7 - ( f ) In the event this Bond is to be redeemed in whole or in part pursuant to the provisions of the Loan Agreement , the Company shall give notice of the redemption to the Issuer and the Lender by first class mail , postage prepaid , "mailed not less than thirty ( 30 ) days prior to the redemption date . No prior notice of redemption shall be required in connection with a partial redemption of this Bond from moneys remaining in the Construction Fund ( defined in the Loan Agreement ) after the Completion Date . (g ) On the first day following twenty ( 20 ) years after the date hereof ( such date to be the " Final Maturity Date" ) , the entire remaining Principal Balance and any interest accrued to the Final Maturity Date shall he due and payable . 2. Interest shall be computed on the basis of a 360 day year, but charged for the actual number of days principal is unpaid . Anything in this Bond to the contrary notwithstanding , the obligations of the City under this Bond shall be subject to the limitation that payments of interest hereunder shall not be required to the extent that receipt of any such payment by the Lender would be contrary to provisions of law applicable to the Lender which limit the maximum rate of interest which may be charged or collected by the Lender . 3 . Principal and interest due hereunder shall be payable at the principal office of the Lender , or at such other place as the Lender may designate in writing . 4 . This Bond is issued by the City to provide funds for a project , as defined in Section 103 of Article 3 , Title 29 , Colorado Revised Statutes , as amended ( the "Act" ) , consisting of the acquisition and construction of a building on real estate located in the City, pursuant to a Loan Agreement dated as of December 1 , 1985 , between the City and J & E Enterprises ( the "Company" ) ( the "Loan Agreement" ) , and , further , this Bond is issued pursuant to and in full compliance with the Constitution and laws of the State of Colorado , particularly the Act and an ordinance of the Council of the City duly adopted on November 5 , 1985 ( the "Ordinance" ) . 5. This Bond is secured by ( i ) an assignment of the Loan Agreement and the Company Note by the City to the Lender , ( ii ) a Deed of Trust from the Company as grantor , in favor of the Lender , ( iii ) a Security Agreement under the Uniform Commercial Code , ( iv ) a Guaranty Agreement between the Company, John E . Laudick , Jr . , Jeanne M. Laudick , and :alpine Manufacturinq , Inc . , as guarantors , and the Lender , and (v ) the Collateral Assignment of Rents dated as of the date hereof . This Bond is subject to all the terms , conditions and provisions of said Loan Agreement and Company Note , Deed of Trust , Security Agreement and Guaranty Agreement . 8 - 6 . The Lender may waive an event of default hereunder caused by the nonpayment of interest and/or principal due on this Bond without notice to or consent of any party liable hereon and without releasing any such party. However, in no event shall the Final Maturity Date be beyond forty ( 40 ) years from the date hereof . 7 . The City may prepay, without a premium, all or a portion of the Principal Balance at any time upon ten ( 10) days ' written notice to the Lender , but only from funds available therefor under the Loan Agreement. No partial prepayment shall change the amount or extend the time of payment of any installment payable hereunder. 8 . This Bond is further subject to prepayment , without a premium, in whole , upon the occurrence of certain events of damage to , or destruction or condemnation of the Project as specified in the Loan Agreement , the Deed of Trust and the Ordinance . 9 . The monthly payments due under the first paragraph hereof shall continue to be due and payable in full until the entire Principal Balance and accrued interest due on the Bond have been paid , regardless of any partial prepayment made hereunder . 10 . As provided in the Ordinance and subject to certain limitations set forth therein , this Bond is transferable upon the books of the City at the office of the City Clerk, by the Lender in person or by its agent duly authorized in writing , at the Lender ' s expense , upon surrender hereof together with a written instrument of transfer satisfactory to the City Clerk , duly executed by the Lender or its duly authorized agent . Upon such transfer the City Clerk will note the date of registration and the name and address of the new registered Lender in the registration blank appearing below. The City may deem and treat the person in whose name the Bond is last registered upon the books of the City as the absolute owner hereof , whether or not overdue , for the purpose of receiving payment of or on the account of the Principal Balance , prepayment price or interest and for all other purposes , and all such payments so made to the Lender or upon its order shall be valid and effective to satisfy and discharge the liability upon the Bond to the extent of the sum or sums so paid , and the City shall not be affected by any notice to the contrary. 11 . THIS BOND AND INTEREST THFREO,N AND ANY PENALTY OR PREMIUM DUE HEREUNDER ARE PAYABLE SOLELY FROM THE REVENUES AND PROCEEDS DERIVED FROM THE LOAN AGREEMENT , THE NOTE , THE DEED OF TRUST, THE GUARANTY, THE COLLATERAL ASSIGNMENT OF RENTS AND THE SECURITY AGREEMENT, AND SHALL NEVER CONSTITUTE THE DEBT OR INDEBTEDNESS OF THE CITY WITHIN THE MEANING OF ANY PROVISION OR LIMITATION OF THE STATE CONSTITUTION OR STATUTES OR THE CHARTER OF THE CITY OF FORT COLLINS, COLORADO , AND SHALL NOT CONSTITUTE 9 - NOR GIVE RISE TO A PECUNIARY LIABILITY OF THE CITY OR A CHARGE AGAINST ITS GENERAL CREDIT OR TAXING POWERS . 12 . The remedies of the Lender , as provided herein and in the Loan Agreement , the Deed of Trust , the Security Agreement , the Collateral Assignment of Rents , and the Guaranty, are not exclusive and shall be cumulative and concurrent and may be pursued singly, successively or together , at the sole discretion of the Lender , and may be exercised as often as occasion therefor shall occur; and the failure to exercise any such right or remedy shall in no event be construed as a waiver of release thereof . 13 . The Lender shall not be deemed , by any act of omission or commission, to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by the Lender, and then only to the extent specifically set forth in writing . A waiver with reference to one event shall not be construed as continuing or as a bar to or waiver of any right or remedy as to a subsequent event . 14 . This Bond has been issued without registration under state or federal or other securities laws , pursuant to an exemption for such issuance ; and accordingly the Bond may not be assigned or transferred in whole or part , nor may a participation interest in the Bond be given pursuant to any participation agreement , except in accordance with applicable registration requirements or an applicable exemption from such registration requirements , and the City Clerk may require an opinion of qualified counsel as to the existence of such an exemption before transferring this Bond on the books of the City. Furthermore , this Bond may not be transferred or exchanged except with such disclosure as may be appropriate under the circumstances or facts material to the investment decision of a prudent investor documented to the reasonable satisfaction of the City and its counsel . IT IS HEREBY CERTIFIED AND RECITED that all conditions , acts and things required to exist , happen and be performed precedent to or in the issuance of this Bond do exist , have happened and have been performed in regular and due form as required by law. - 10 - IN WITNESS WHEREOF, the City has caused this Bond to be duly executed in its name by the manual signature of the Mayor of the City , to be sealed with the Seal of the City, to be signed and attested with the manual signature of the City Clerk and to be countersigned with the manual signature of the Finance Director of the City and has caused this Bond to be dated December 1 , 1985 . CITY OF FORT COLLINS , COLORADO By : Mayor ATTEST: City Clerk COUNTERSIGNED: By . Finance Director PROVISIONS AS TO REGISTRATION The ownership of the unpaid Principal Balance of this Bond and the interest accruing thereon is registered on the books of City of Fort Collins , Colorado , in the name of the holder last noted below. Date of Name and Address Signature of City Registration of Registered Owner Clerk or Deputy - 11 - 2 . 2. The Bonds The Bonds shall be payable at the times and in the manner , and shall be subject to such other terms and conditions as are set forth in the form thereof included as Section 2 . 1 of this Ordinance . The net effective interest rate on the Bonds shall not exceed twenty percent ( 206 ) per annum , unless there shall have been a " Determination of Taxability," in which case the net effective interest rate on the Bonds shall not exceed Thirty percent ( 300 ) per annum. Subject to the foregoing , the Bonds shall bear interest at the rate set forth in the form thereof included as Section 2 . 1 of this Ordinance . 2. 3 . Execution The Bonds shall be executed on behalf of the City by the manual signature of the Mayor of the City, shall bear the seal of the City, shall be signed and attested with the manual signature of the City Clerk , and shall be countersigned with the manual signature of the Finance Director of the City. In case any officer whose signature shall appear on the Bonds ceases to be an officer before delivery of the Bonds to the Lender , such signature shall nevertheless be valid and sufficient for all purposes , the same as if he had remained in office until delivery. 2. 4 . Delivery of the Bonds Before delivery of the Bonds there shall be delivered to the City Clerk the following items : 1 . Executed copies of the Loan Agreement , Company Note , the Assignment of the Loan Agreement , the Deed of Trust , the Security Agreement , the Collateral Assignment of Rents , the Inducement Letter , the Offer to Purchase and the Guaranty ; 2. An opinion of Counsel for the Company in scope and substance satisfactory to Bond Counsel as to the authority of the Company to enter into the transaction and other related matters ; 3. An opinion of Counsel for. the Issuer in scope and substance satisfactory to Bond Counsel as to the authority of the Issuer to enter into the transaction , issue the Bonds and other related matters ; and 4 . The opinion of Bond Counsel as to the validity and tax exempt status of the Bonds ; and 5. Such other documents and opinions as Bond Counsel may reasonably require for purposes of rendering its opinion required in subsection ( 4 ) above or that the Lender may require for the closing. - 12 - 2 . 5. Issuance of New Bonds Subject to the provisions of Section 2. 9 hereof , the City shall , at the request and expense of the Lender, issue new Bonds , in aggregate outstanding principal amount equal to that of the Bonds surrendered , and of like tenor except as to number , principal amount and the amount of the monthly installments payable thereunder , and registered in the name of the Lender or such transferee as may be designated by the Lender. 2. 6 . Registration of Transfer The City will cause to be kept at the office of the City Clerk a record of the Bond or Bonds outstanding upon and subject to which it will provide for the registration of transfers of ownership of the Bonds . The Bonds shall be transferable by the registered owner in person or by its attorney duly authorized in writing , upon surrender of the Bonds together with a written instrument of transfer , duly executed by the Lender or its duly authorized agent , a legal opinion as to exemption from registration satisfactory to the City Clerk and evidence of compliance with all of the provisions of Section 3 . 2 of the Loan Agreement . Upon such transfer the City Clerk shall note the date of registration and the name and address of the new Lender in such record and in the registration blank appearing on the Bonds . 2. 7 . Mutilated , Lost or Destroyed Bond In case any Bonds issued hereunder shall become mutilated or be destroyed or lost , the City shall , if not then prohibited by law, cause to be executed and delivered , a new Bond of like outstanding principal amount , number and tenor in exchange and substitution for and upon cancellation of such mutilated Bond , or in lieu of and in substitution for such Bond destroyed or lost , upon the Lender ' s paying the reasonable expenses and charges of the City in connection therewith , and in the case of a Bond destroyed or lost , the filing with the City of evidence satisfactory to the City that such Bond was destroyed or lost , and furnishing the City with indemnity satisfactory to it . If the mutilated , destroyed or lost Bond has already matured or been called for redemption in accordance with its terms it shall not be necessary to issue a new Bond prior to payment . 2 . 8 . Ownership of the Bonds The City may deem and treat the person in whose name the Bond is last recorded as the absolute owner of such Bond for the purpose of making payment of or on account of the Principal Balance , prepayment price and interest and for all other purposes whatsoever , and the City shall not be affected by any notice to the contrary. - 13 - 2 . 9 . Limitation of Bond Transfers The Bonds have been issued without registration under state or other securities laws , pursuant to an exemption for such issuance ; and accordingly the Bonds may not be assigned or transferred in whole or part , nor may a participation interest in the Bonds be given pursuant to any participation agreement , except in accordance with applicable registration requirements or an applicable exemption from such registration requirements and on such terms and subject to such conditions as the Issuer and its counsel may require . 2. 10. Additional Bonds So long as the Loan Agreement is in effect and subject to Lender' s prior written consent , which shall not be unreasonably withheld , one or more series of Additional Bonds may be issued , authenticated and delivered for the purpose provided in the Loan Agreement . Such Additional Bonds shall be payable solely from the amounts payable under the Loan Agreement ( except to the extent paid out of moneys attributable to the proceeds derived from the sale of the Additional. Bonds or to income from the temporary investment thereof and , under certain circumstances , to proceeds from insurance and condemnation awards ) . If the City, in its sole discretion , decides to issue such Additional Bonds , the Additional Bonds of each such series shall be delivered to or upon the order of the purchasers thereof , but only upon there being filed with the City: ( a) Original , executed counterparts of a Supplemental Ordinance , an amendment of the Loan Agreement and Note and an amendment of the Deed of Trust expressly providing that , for all purposes of this Ordinance , the Loan Agreement and the Deed of Trust , the Project shall include any facilities being financed by the Additional Bonds . The date or dates of the Additional Bonds , the rate or rates of interest on the Additional Bonds , the time or times of payment of the interest thereon and the principal thereof , and the prepayment provisions , if any, with respect thereto , all shall be as provided in the Supplemental Ordinance , rather than as provided in this Ordinance , and may differ from the provisions with respect to the Series 1985 Bonds set forth in this Ordinance . (b) A written opinion by an attorney or firm of attorneys of nationally recognized standing on the subject of municipal bonds , to the effect that the issuance of the Additional Bonds and the execution thereof have been duly authorized , all conditions precedent to the delivery thereof have been fulfilled , and that the exemption from federal income tax of the interest on the Series 1985 Bonds and any Additional Bonds theretofore issued will not be affected by the issuance of the Additional Bonds being issued . - 14 - Each series of Additional Bonds issued pursuant to this Section shall he equally and ratably secured under this Ordinance with the Series 1935 Bonds and all other series of Additional Bonds , if anv, theretofore issued pursuant to this Section , without preference , priority or distinction of any Bonds over any other thereof . Notwithstanding anything herein to the contrary, no Additional Bonds shall be issued unless ( i ) the Loan Agreement and Company Note are in effect , ( ii ) there is no Default at the time of issuance under the Loan Agreement , the Company Note , the Deed of Trust or under this Ordinance , and ( iii ) all current City regulations are complied with. 2. 11 . Establishment of Funds The City hereby establishes with the Lender two funds , to be called the "City of Fort Collins , Colorado The Alpine Manufacturing , Inc . Project Bond Fund" and the "City of Fort Collins , Colorado The Alpine Manufacturing , Inc. Project Construction Fund . " Accrued interest will he paid into the Bond Fund out of the proceeds of the Bonds and the remaining proceeds shall be deposited into the Construction Fund . The City hereby authorizes the Lender ( a ) to make disbursements from the Construction Fund in accordance with Section 3 . 3 of the Loan Agreement , ( b ) to make the payments required by the Bonds to the Bondholders from the Bond Fund and (c ) invest the moneys on deposit in the Funds in accordance with Section 3 . 7 of the Loan Agreement . ARTICLE III PREPAYMENT OF BONDS BEFORE MATURITY 3 . 1 . Prepayment 1 . In the event of damage to or destruction of the Project or condemnation of the Project or any part thereof , the Bonds shall be subject to prepayment to the extent and in the manner set forth in Article V of the Loan Agreement and in the Deed of Trust . 2. The Bonds may be otherwise prepaid in accordance with the provisions of the Bonds . 3. 2. Termination of Interest Upon payment of any prepayment amount to the Lender and the giving of requisite notice , if any , the principal amounts prepaid shall , after such date , cease to bear interest . 15 - ARTICLE IV GENERAL COVENANTS 4 . 1 . Payment of Principal and interest The City covenants that it will promptly pay or cause to be paid the principal of and interest on the Bonds at the place , on the dates , from the source and in the manner provided herein and in said Bonds. The principal and interest are payable solely from and secured by revenues and proceeds derived from the Project and payable pursuant to the Loan Agreement , the Company Note , the Guaranty , the Collateral Assignment of Rents and the Deed of Trust ; and nothing in the Bonds or in this Ordinance shall be considered as assigning , pledging or otherwise encumbering any other funds or assets of the City. 4 . 2. Performance of and Authority for Covenants The City covenants that it will faithfully perform at all times any and all covenants , undertakings , stipulations and provisions contained in this Ordinance , the Loan Agreement , in the Bonds executed , authenticated and delivered hereunder and in all proceedings of the City Council pertaining thereto ; that it is duly authorized under the Constitution and laws of the State of Colorado , including particularly and without limitation the Act , to issue the Bonds authorized hereby , pledge the revenues and assign the Loan Agreement and endorse the Company Note in the manner and to the extent set forth in this Ordinance , the Bonds and the Loan Agreement and Assignment of Loan Agreement ; that all action on its part for the issuance of the Bonds and for the execution and delivery thereof has been duly and effectively taken ; and that the Bonds in the hands of the Lender are and will be a valid and enforceable obligation of the City according to the terms thereof . In making these representations , the City relies upon the opinion of Bond Counsel as to the truth of matters asserted and the efficacy of actions taken . 4 . 3 . Nature of Security Notwithstanding anything contained in the Bond , the Deed of Trust , the Loan Agreement or any other document referred to in Section 2. 4 of this Ordinance , the Bonds shall never constitute the debt or indebtedness of the City within the meaning of any provision or limitation of the constitution or statutes of the State of Colorado or Charter of the City of Fort Collins , Colorado and shall not constitute nor give rise to a pecuniary liability of the City or a charge against its general credit or taxing powers ; and the City, its agents , officers and employees shall not be subject to any personal or pecuniary liability thereon . - 16 - ARTICLE V MISCELLANEOUS 5. 1 . Severability If any provision of this Ordinance , except Section 4. 3 of Article IV, hereof , shall be held or deemed to be , or shall , in fact , be , inoperative or unenforceable as applied in any particular case in any jurisdictions or in all cases because it conflicts with any provisions of any constitution or statute or rule or public policy, or for any ether reason , such circumstances shall not have the effect of rendering the provision in question inoperative or unenforceable in any other case or circumstance , or of rendering any other provision or provisions herein contained invalid , inoperative or unenforceable to any extent whatever. The invali;: i_ty of any one or more phrases , sentences , clauses or par,3c;raphs in this ordinance , except Section 4 . 3 of Article IV hey-eof , shall not affect the remaining portions of this Or_din�,nc,� or any part her. eot . 5 . 2. Authorization to Execute Agreements The forms of the proposed Loan Agreement , the Assignment of Loan Agreement , the Company Note , t:he Inducement Letter and the Offer to Purchase are hereby approved in substantially the form presented to the City Council. ; and th,� Mayor and the City Clark are authorized to endorse the Company Note and execute the Loan Agreement , the Assignment of Loan AcIreement , the Inducement Letter and the Offer to Purchase in the name of and on behalf of the City and such other documents as Bond Counsel considers appropriate in connection with the issuance of the Bonds . In the event of the absence or disability -)f the ,Mayor or. the City Clerk , such officers of the City as , in the opinion of the City Attorney , may act in their behalf , shall without further act or authorization of the City Council do all things and execute all instruments and documents required t-o be done or executed by such absent or disabled officers . 5. 3. Authority to Correct Err)r_ s , Etc . The Mavor and the City Clerk are hereby authorized and directed to make or agree to any alr_erations , changes or additions in the instruments hereby approved as the Mayor and the City Attorney deem necessary or pro;)er to accomplish the purposes of this Ordinance , the signatures of the Mayor and the City Clerk on the instruments to be conclusive evidence of such approval ; provided , however , no alteration , change or addition shall be made which shall alter the maximum net effective interest rate , denomination , date , maturities , form, interest rates , registration privileges , manner of execution , places of payment or terms of prepayment of the Bonds or which shall increase the aggregate principal amount of the Bonds authorized by the City Council or in any way give rise to a pecuniary liability of the - 17 - City or a charge against its general credit or taxing powers with respect to the Bonds . 5 . 4 . Further Authoritv The Mayor and the City Clerk and other proper City officials , and each of them, are hereby authorized to execute and deliver for and on behalf of the City any and all additional certificates , documents and other papers and to perform all other acts they may deem necessary or appropriate in order to implement and carry out the matters herein authorized . 5 . 5. Repealer All ordinances or parts thereof in conflict with this Ordinance are hereby repealed . 5. 6. Ordinance Irrepeal.able After said bonds are issued this Ordinance shall be and remain irrepealable until said bonds and the interest thereon shall have been fully paid , satisfied and discharged . 5. 7 . Recording and Authentication This Ordinance , as adopted by the City Council , shall be numbered and recorded , and the adoprion and publication small be authenticated by the signatures of the Playor and City Clerk and by the certificate of the publisher , respecrively . Introduced , considered favorably on first reading and ordered published this 15th day of October , 1985 , and to he presented for final passage on the �)th day of November , 1985 . ayor ( SEAL) ATTEST: I" R _ City Clerk - 18 - Passed and adopted on final reading on this 5th day of November , 1985. M yor ATTEST: IML�L City Clerk Councilmember moved that the foregoing Ordinance heretofore introduced and read by title be approved on first reading . Councilmember seconded the motion . The question being upon the approval on first reading of the Ordinance , the roll was called with the following results : Councilmembers voting "AY " : Councilmembers voting The Mayor thereupon declared that , a majority of the Councilmembers present having vote: in favor thereof , the motion was carried and the Ordinance duly approved on first reading . Thereupon the Mayor ordered said Ordinance published once in full together with a notice giving_, the date when said Ordinance will be presented for final passage in Coloradoan , a newspaper of general circulation published in the City , at least seven ( 7 ) days before presentation for final passage . 19 -