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HomeMy WebLinkAbout095 - 07/19/1988 - PROVIDING FOR THE ISSUANCE AND SALE OF INDUSTRIAL DEVELOPMENT REVENUE BONDS, SERIES 1988, FOR VIPONT ORDINANCE NO. 95 , 1988 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 1988 (THE VIPONT PHARMACEUTICAL, INC. PROJECT) IN THE PRINCIPAL AMOUNT OF $2, 900000 FOR THE PURPOSE OF LOANING FUNDS TO VIPONT VENTURES TO FINANCE IMPROVEMENTS RELATING TO ACQUIRING, IMPROVING, CONSTRUCTING, INSTALLING AND EQUIPPING OF A MANUFACTURING FACILITY IN FORT COLLINS , COLORADO; APPROVING AND AUTHORIZING THE EXECUTION AND ASSIGNMENT OF A LOAN AGREEMENT AND NOTE BETWEEN VIPONT VENTURES AND THE CITY; AND AUTHORIZING THE PREPARATION AND EXECUTION OF CERTAIN RELATED DOCUMENTS AND INSTRUMENTS . WHEREAS, The City of Fort Collins , Colorado ( the "City" ) , is authorized by part 1 of article 3 of title 29 , Colorado Revised Statutes , as amended ( the "Act" ) , to issue revenue bonds for the purpose of financing projects to the end that business enterprises will locate in the City of Fort Collins, to enter into financing agreements with others for the purpose of providing revenues to pay such bonds , and further to secure the payment of such bonds ; and WHEREAS , pursuant to a Resolution duly adopted on May 24 , 1988, as amended on June 7 , 1988 ( the "Inducement Resolution" ) , the City will take all necessary and advisable steps to issue such bonds in accordance with the provisions of the Act for the purpose of financing a Project ( the "Project" ) to be owned by Vipont Ventures, a general partnership ( the "Company" ) and leased to Vipont Pharmaceutical , Inc . , a Delaware corporation ( the "Lessee" ) , and to be located within the City of Fort Collins ; and WHEREAS , the following documents have been submitted to the Council of the City ( the "Council" ) and filed in the office of the City Clerk of the City of Fort Collins ( the "Clerk" ) and are there available for public inspection: (a) an Indenture of Trust , to be dated as of August 1 , 1988 ( the "Indenture" ) from the City, as grantor, and the United Bank of Denver, National Association, as trustee ( the "Trustee" ) ; and ( b) a Loan Agreement , to be dated as of August 1 , 1988 ( the "Loan Agreement" ) , between the City and Company including a form of Company' s Note to the City; and (c) a Deed of Trust and a Security Agreement , both to be dated as of August 1 , 1988 ( the "Deed of Trust" and the -1- "Security Agreement" ) , between the Company, as grantor and debtor, and the Trustee, as beneficiary and secured party ; and (d) a Guaranty Agreement , to be dated as of August 1 , 1988 ( the "Guaranty" ) between Vipont Pharmaceutical , Inc. ( in the capacity of Guarantor) and the Trustee ; and (e) a Collateral Assignment of Rents to be dated as of August 1 , 1988 (the "Collateral Assignment of Rents" ) from the Company to the Trustee ; and ( f ) a Bond Purchase Agreement to be dated as of the date of its delivery ( the "Bond Purchase Agreement" ) among Hanifen, Imhoff Inc. , as underwriter ( the "Underwriter" ) , the City and the Company. WHEREAS , the Council desires to issue at this time the City of Fort Collins, Colorado Industrial Development Revenue Bonds , Series 1988 (The Vipont Pharmaceutical , Inc . Project ) in a principal amount not to exceed $2, 900, 000 ( the "Bonds" ) to be dated as of August 1 , 1988 ; and WHEREAS , it is necessary to authorize the issuance of the Bonds by ordinance and to approve the form and authorize the execution of the aforementioned documents thereby. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS , COLORADO, THAT: ARTICLE I DEFINITIONS, LEGAL AUTHORIZATION AND FINDINGS 1 . 1 . Definitions The terms used herein , unless the context hereof shall require otherwise, shall have the same meanings when used herein as assigned to therm in the Loan Agreement unless the context or use thereof indicates another or different meaning or intent. 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 . -2- 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 ) In 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 $2, 900, 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 113 and 114 of the Act the City hereby determines : ( i ) the total amount necessary in each year to pay the principal of and interest on the Bonds is as more particularly set forth in the Indenture , ( ii ) the establishment by this Ordinance of a Bond reserve fund for the retirement of the Bonds is deemed advisable and shall be initially funded in the amount of $290 , 000 and thereafter maintained in an amount equal to ten percent ( 10% ) of the principal balance of Outstanding Bonds , and ( iii ) since the Loan Agreement provides 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 . -3- 1 . 4 . Authorization of Project The City hereby authorizes the Company to provide for the acquisition, construction and installation of the Project by such means as shall be available to the Company and in the manner determined by the Company. ARTICLE II BONDS 2. 1. Issuance and Sale of Bonds ; Interest Rates The Issuer shall issue its Industrial Development Revenue Bonds, Series 1988 (The Vipont Pharmaceutical , Inc. Project) to be dated August 1 , 1988 , in a principal amount not to exceed $2, 900 , 000, for the purpose , in the form and upon the terms set forth in the Bonds and the Indenture . The Bonds shall be subject to redemption as set forth in the Indenture. The Bonds shall be sold to the Underwriter pursuant to the terms of the Bond Purchase Agreement. The Bonds shall be numbered consecutively from "R-l" upward, shall be issued in denomination of $5, 000 or any integral multiple thereof and shall be dated as of August 1, 1988 . Interest on the Series 1988 Bonds shall be payable commencing on February 1 , 1989 , and semiannually thereafter on August 1 and February 1 of each year until maturity. Each Series 1988 Bond shall bear interest until the principal sum thereof has been paid; provided, however, that if Series 1988 Bonds have been called for redemption and funds are available for the payment on the redemption date thereof in full accordance with the terms of this Ordinance , the Series 1988 Bonds shall then cease to bear interest. The Bonds shall mature on the 1st day of August in the principal amounts and years, and shall bear per annum interest at the rates shown in the following schedule : Maturity Dates Principal Interest (August 1 ) Amounts Rates 1989 $ 40, 000 6. 25% 1990 45 ,000 6. 50% 1991 45 , 000 6 . 75% 1992 50 , 000 7. 00% 1993 50, 000 7 . 25% 1994 55 , 000 7. 50; 1995 60 , 000 7. 75% 1996 65 , 000 8.00% 1997 70, 000 8. 20% 1998 75 , 000 8. 40% -4- 1999 80, 000 8. 50% 2000 85, 000 8. 60% 2008 1 , 050 , 000 9. 125% 2013 1 , 130, 000 9 . 25% The maximum net effective interest rate authorized for the Series 1988 Bonds is twelve percent ( 12% ) per annum. The actual net effective interest rate on the Series 1988 Bonds is 9. 089% per annum. The Preliminary Official Statement , in substantially the form presented to the Council, is in all respects ratified, approved and authorized for use by the Underwriter in connection with the pricing, sale and marketing of the Series 1988 Bonds . The Mayor is hereby authorized and directed to affix his signature to the Final Official Statement , for and on behalf of the City, in substantially the form presented at this meeting, but with such changes therein as the administrative staff may deem necessary or appropriate , as evidenced by his execution thereof . The distribution by the City and use by the prospective purchasers of the Series 1988 Bonds , including the Underwriter and its associates , of the Final Official Statement, to contain appropriate amendments and supplements , is hereby further authorized. ARTICLE III GENERAL COVENANTS 3 . 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 Indenture, the Loan Agreement , the Company Note , the Guaranty, the Collateral Assignment of Rents, the Security Agreement 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. 3. 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 Indenture , 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 -5- 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 Indenture , 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 . 3 . 3 . Nature of Security Notwithstanding anything contained in the Bond, the Deed of Trust, the Indenture, 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. ARTICLE IV MISCELLANEOUS 4 . 1 . Facsimile Signatures . Pursuant to the Uniform Facsimile Signature of Public Officials Act of the State of Colorado, Section 11-55-101 et seq. , C.R.S . , as amended, the Mayor, the City Clerk and the Finance Director of the City shall forthwith, but in any event prior to the time the Bonds are delivered to the purchasers thereof, file with the Colorado Secretary of State their manual signatures , certified by them under oath , using a suitable Facsimile Signature Certificate for such purpose. 4 . 2. CUSIP Numbers . CUSIP identification numbers may be imprinted on the Bonds, but such numbers shall not constitute a part of the contract evidenced by the Bonds, and no liability shall hereafter attach to the City or any of the officers or agents thereof because of or on account of said numbers . Any error or omission with respect to said numbers shall not constitute cause for refusal by any person to accept delivery of and pay for the Bonds nor shall it affect the validity of such Bonds . -6- 4 . 3. Severability If any provision of this Ordinance , except Section 3. 3 of Article III , 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 other 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 invalidity of any one or more phrases, sentences, clauses or paragraphs in this Ordinance , except Section 3. 3 of Article III hereof , shall not affect the remaining portions of this Ordinance or any part hereof . 4. 4. Authorization to Execute Agreements The forms of the proposed Indenture, the Loan Agreement , the Assignment of Loan Agreement , the Company Note and the Bond Purchase Agreement are hereby approved in substantially the form presented to the City Council ; and the Mayor and the City Clerk are authorized to endorse the Company Note and execute the Loan Agreement, the Assignment of Loan Agreement and the Bond Purchase Agreement 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 of 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 to be done or executed by such absent or disabled officers . 4 . 5. Authority to Correct Errors , Etc . The Mayor and the City Clerk are hereby authorized and directed to make or agree to any alterations, changes or additions in the instruments hereby approved as the Mayor and the City Attorney deem necessary or proper 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 City or a charge against its general credit or taxing powers with respect to the Bonds. -7- 4. 6. Further Authority 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. 4 . 7. Repealer All ordinances or parts thereof in conflict with this Ordinance are hereby repealed. 4 . 8. Ordinance Irre ealable 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 . 4 . 9. Recording and Authentication This Ordinance , as adopted by the City Council , shall be numbered and recorded, and the adoption and publication shall be authenticated by the signatures of the Mayor and City Clerk and by the certificate of the publisher, respectively. Introduced, considered favorably on first reading and ordered published this 5th day of July, 1988, and to be presented for final passage on the 19th day of July, 1988 . (SEAL) ATTEST: City Clerk Mayor Passed and adopted on final reading on this 19th day of July, 1988. (SEAL) ATTEST: City Mayor -8-