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HomeMy WebLinkAboutECAT11-001 Bond Reissuance STATE OF COLORADO ] SS. EAGLE COUNTY ] The Board of Directors of the Eagle County Air Terminal Corporation met in special session on June 14, 2011 at /6 [a.m. /p.m.] MDT. There were present at said meeting the following: Present: President: Jon Stavney Vice- President: Peter Runyon Treasurer: John Lewis Secretary: Keith Montag Absent: There were also present: LG " ( A � � I i � ��� ( �ct Corporation Counsel: Bryan Treu, Eagle County Attorney Bond Counsel: Hogan Lovells US LLP [ bum ] introduced the following resolution: \\\DE - 065064/000024 - 493748 v2 -Ell-001 EAGLE COUNTY AIR TERMINAL CORPORATION RESOLUTION ADOPTED JUNE 14, 2011 AUTHORIZING THE ISSUANCE OF UP TO $11,000,000 AGGREGATE PRINCIPAL AMOUNT OF THE CORPORATION'S AIRPORT TERMINAL PROJECT REVENUE REFUNDING BONDS, SERIES 2011, IN ACCORDANCE WITH CERTAIN PARAMETERS SET FORTH HEREIN, TO REFUND THE SERIES 2001 BONDS; THE EXECUTION AND DELIVERY OF A THIRD SUPPLEMENTAL INDENTURE, A REFUNDING AGREEMENT, A BOND PURCHASE AGREEMENT, A THIRD SUPPLEMENTAL PROJECT AGREEMENT, A SECOND AMENDMENT TO PROJECT CONSTRUCTION AND MANAGEMENT AGREEMENT, A FOURTH SUPPLEMENTAL DEED OF TRUST, A FIRST AMENDMENT TO PARKING FACILITIES SUBLEASE, A CONTINUING DISCLOSURE AGREEMENT, A PRELIMINARY OFFICIAL STATEMENT, A FINAL OFFICIAL STATEMENT, AND OTHER RELATED DOCUMENTS; RATIFYING ACTION PREVIOUSLY TAKEN; DELEGATING CERTAIN AUTHORITY AND AUTHORIZING INCIDENTAL .ACTION; AND REPEALING INCONSISTENT ACTIONS. WHEREAS, the Eagle County Air Terminal Corporation (the "Corporation ") was duly organized in 1996 pursuant to the provisions of the Colorado Nonprofit Corporation Act, articles 20 through 29 of title 7, Colorado Revised Statutes, as amended, is validly existing and in good standing under the laws of the State of Colorado, is and shall be operated exclusively on behalf of and for the benefit of Eagle County, Colorado (the "County "), and in furtherance of such purposes has the authority to issue its own bonds; and WHEREAS, the formation of the Corporation has been previously approved by the County, following a public hearing held on June 11, 1996; and WHEREAS, to provide the funds needed for the acquisition, construction and equipping of its commercial passenger terminal (the "Terminal Building Project "), the Corporation (i) previously entered into (a) a Trust Indenture dated as of June 1, 1996 (the "Original Indenture "), between the Corporation and Wells Fargo Bank, National Association as successor trustee to U.S. Bank National Association, as Trustee (the "Trustee "), as amended and supplemented by a First Supplemental Trust Indenture dated as of June 1, 2001 (the "First Supplemental Indenture ") between the Corporation and Trustee, and a Second Supplemental Trust Indenture dated as of June 1, 2006 (the "Second Supplemental Indenture "), between the Corporation and the Trustee, and (ii) issued $10,130,000 aggregate principal amount of its \ \\DE - 065064/000024 - 493748 v2 Airport Terminal Project Revenue Bonds, Series 1996 (the "1996 Bonds "), $10,745,000 aggregate principal amount of its Airport Terminal Project Revenue Bonds, Series 2001A and $5,305,000 aggregate principal amount of its Taxable Airport Terminal Project Revenue Bonds, Series 2001B (collectively, the "2001 Bonds "); and WHEREAS, the Corporation has previously issued its Series 2006 Bonds (the "Series 2006 Bonds ") consisting of $4,150,000 Airport Terminal Project Revenue Refunding Bonds, Series 2006A and $3,980,000 Airport Terminal Project Revenue Improvement Bonds, Series 2006B to refund all of the outstanding 1996 Bonds and fund the costs of acquisition, construction and improvement of a de -icing facility to be used in connection with certain operations at the Airport and to acquire land to be used for expansion of Airport access roads and Airport related projects (the "2006 Project "); and WHEREAS, pursuant to the provisions of Title 11, Article 56 of the Colorado Revised Statutes, as amended (the "Refunding Act "), which shall apply to the Refunding Project, defined below, the Board of Directors of the Corporation (the "Board") has determined and hereby determines that in order to reduce the net effective interest rate on the 2001 Bonds and reduce the total principal and interest payable on the 2001 Bonds, it is in the best interest of the County and the Corporation to refund the 2001 Bonds (the "Refunding Project" and, together with the Terminal Building Project and the 2006 Project, the "Project "); and WHEREAS, the Board has determined and hereby determines that RBC Capital Markets, LLC (the "Underwriter ") has submitted all information to the Board relating to the Refunding Project as required by Section 11 -56 -104.5 of the Refunding Act; and WHEREAS, in connection with the Terminal Building Project and the 2006 Project and the issuance of the 1996 Bonds, the 2001 Bonds, and the 2006 Bonds, the Corporation has previously entered into the Original Indenture, the First Supplemental Indenture, the Second Supplemental Indenture, and the other agreements and documents relating to such projects that are set forth on Schedule B hereto (the "Prior Project Documents "); and WHEREAS, the Corporation has no taxing power, has not received and does not expect to receive more than 10% of its annual revenues in grants or other forms of subsidy from all State and local governments combined, and expects to operate as .a self - supporting business without reliance on grants from the County; and WHEREAS, the Corporation intends to enter into a Third Supplemental Trust Indenture dated as of June 1, 2011 (the "Third Supplemental Indenture" and, together with the Original Indenture, the First Supplemental Indenture, and the Second Supplemental Indenture, the "Indenture ") to supplement the Original Indenture in connection with the issuance of the Airport Terminal Project Revenue Refunding Bonds, Series 2011A (the "Series 2011A Bonds ") and the Taxable Airport Terminal Project Revenue Refunding Bonds, Series 2011B (the "Series 2011B Bonds" and, together with the Series 2011A Bonds, the "Series 2011 Bonds ") to provide funds needed for the financing of the Refunding Project and to pay the costs of issuing the Series 2011 Bonds; and -2- \ \\DE - 065064/000024 - 493748 v2 WHEREAS, for purposes of providing for the defeasance of the 2001 Bonds pursuant to the Indenture, the Corporation intends to enter into a Refunding Agreement dated as of June 1, 2011 (the "Refunding Agreement ") with the Trustee; and WHEREAS, the Corporation intends to sell the Series 2011 Bonds to the Underwriter pursuant to a Bond Purchase Agreement between the Corporation and the Underwriter (the "Bond Purchase Agreement "); and WHEREAS, the Corporation and the County intend to enter into a Third Supplemental Project Agreement (the "Third Supplemental Project Agreement "), amending and supplementing the Project Agreement recorded July 9, 1996, as amended and supplemented by the Supplemental Project Agreement recorded June 14, 2001 and the Second Supplemental Project Agreement recorded June 30, 2006; and WHEREAS, the Corporation and the County intend to enter into a Second Amendment to Project Construction and Management Agreement dated as of June 1, 2011, nunc pro tunc January 1, 2011 (the "Second Amendment to Project Construction and Management Agreement "), which amends the Project Construction and Management Agreement dated as of June 1, 2001, as amended by the Project Construction and Management Agreement Amendment made and entered into on June 27, 2006, nunc pro tunc January 1, 2006; WHEREAS, in order to create a lien on the Project for the benefit of the owners of the Series 2011 Bonds and any Additional Bonds issued pursuant to the Indenture (the "Bonds "), the Corporation intends to execute and deliver a Fourth Supplemental Leasehold Deed of Trust, Security Agreement and Financing Statement (the "Fourth Supplemental Deed of Trust "), amending and supplementing a Leasehold Deed of Trust, Security Agreement and Financing Statement recorded on July 9, 1996, to the Public Trustee of the County, as amended and supplemented by a First Supplemental Leasehold Deed of Trust, Security Agreement and Financing Statement recorded on June 14, 2001, a Second Supplemental Leasehold Deed of Trust, Security Agreement and Financing Statement recorded on June 30, 2006, and a Third Supplemental Leasehold Deed of Trust, Security Agreement and Financing Statement recorded on May 3, 2007; and WHEREAS, the Corporation and the County intend to enter into a First Amendment to Parking Facilities Sublease (the "First Amendment to Parking Facilities Sublease ") which amends the Parking Facilities Sublease dated as of June 1, 2001; and WHEREAS, the Corporation and the Trustee intend to enter into a Continuing Disclosure Agreement (the "Continuing Disclosure Agreement ") for the benefit of the owners of the Series 2011 Bonds and the Underwriter; and WHEREAS, there has been presented to the Board the proposed forms of the (1) Third Supplemental Indenture; (2) Refunding Agreement; (3) Bond Purchase Agreement; (4) Third Supplemental Project Agreement; (5) Second Amendment to Project Construction and Management Agreement; (6) Fourth Supplemental Deed of Trust; (7) First Amendment to Parking Facilities Sublease; (8) Continuing Disclosure Agreement; (9) Preliminary Official -3- %ADE - 065064/000024 - 493748 v2 Statement dated June 9, 2011 (the "Preliminary Official Statement "); (10), Instrument of Resignation, Appointment and Acceptance dated as of June 1, 2011 by and among the Corporation, U.S. Bank National Association, and the Trustee (the "Instrument of Resignation "); and (11) the other documents listed on Schedule A hereto (collectively, the "Refunding Project Documents ") relating to the Series 2011 Bonds. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF EAGLE COUNTY AIR TERMINAL CORPORATION, AS FOLLOWS: Section 1. RATIFICATION. All actions (not inconsistent with the provisions of this Resolution) heretofore taken by the Board or officers of the Corporation in connection with the Project, including, but not limited to (i) the execution and delivery on June 1, 2011 of the Instrument of Resignation and the actions taken by the officers of the Corporation pursuant thereto or in connection therewith and (ii) the distribution on June 8, 2011 and the use of the Preliminary Official Statement as described in Section 3 below, are hereby ratified, approved, and confirmed. The Prior Project Documents set forth on Schedule B hereto, in the forms previously approved by the Corporation, are hereby ratified, approved, and adopted as the agreements of the Corporation, in the same manner as if each such agreement was entered into by and with the specific authorization of the Corporation. Section 2. ELECTION TO APPLY SUPPLEMENTAL PUBLIC SECURITIES ACT. The Corporation hereby elects to apply Title 11, Article 57, Part Two, of the Colorado Revised Statutes, as amended, constituting the Supplemental Public Securities Act (the "Supplemental Act "), to the issuance of the Series 2011 Bonds; provided, however, that such election shall not operate to modify or limit the rights conferred on the Corporation, the members of the Board and the officers of the Corporation by any other provisions of Colorado Law. Section 3. APPROVAL OF REFUNDING PROJECT DOCUMENTS. The forms of the Refunding Project Documents presented to the Board at this meeting (with respect to those documents not previously executed and, otherwise, in their final executed form) are hereby in all respects ratified, confirmed, and approved, and the President of the Corporation (the "President ") and any Vice President of the Corporation (a "Vice President ") are hereby authorized to execute and deliver, and the Secretary of the Corporation (the "Secretary ") or the Assistant Secretary of the Corporation (the "Assistant Secretary ") are hereby authorized to affix the seal of the Corporation where appropriate, and to attest such documents in substantially such form and upon the terms and conditions set forth herein and therein, with such changes therein as such officers shall approve (including changes in dates and amounts necessary to conform such documents to the final terms as approved by the Corporation), such approval to be evidenced by the execution thereof. The Preliminary Official Statement, the furnishing of information for inclusion in the Preliminary Official Statement, and the distribution and use of the Preliminary Official Statement, are hereby authorized, approved, affirmed, and ratified. The Board hereby confirms that such Preliminary Official Statement has been deemed final as of its date within the meaning of Securities and Exchange Rule 15c2 -12, as amended, subject to permitted omissions. The -4- %DE - 065064/000024 - 493748 v2 President and the Vice President are each hereby authorized to execute and deliver to the Underwriter the final Official Statement relating to the Series 2011 Bonds (the "Final Official Statement ") substantially in the form of the Preliminary Official Statement presented to the Board at this meeting, with such changes as are approved by any such authorized representative of the Corporation. The execution of the Final Official Statement by the President or the Vice President shall be conclusive evidence of approval by the Corporation of such document in accordance with the terms hereof. Section 4. ISSUANCE OF SERIES 2011 BONDS. The issuance of the Series 2011 Bonds is hereby authorized and approved. The form of the Series 2011 Bonds set forth in the Indenture is hereby approved; the Series 2011 Bonds shall be executed with the manual or facsimile signatures of the President or any Vice President and the Secretary or the Assistant Secretary on the face of the Series 2011 Bonds in substantially such forms with appropriate insertions and variations, and the seal of the Corporation or a facsimile thereof is hereby adopted and authorized to be affixed or imprinted thereon; and the President, any Vice President, the Secretary or the Assistant Secretary is authorized and directed to deliver the Series 2011 Bonds to the Trustee for authentication under the Indenture and, when they have been authenticated, to deliver them or cause them to be delivered against receipt of the purchase price as specified therein and to deposit the amount so received with the Trustee as provided in the Indenture. Section 5. TERMS OF BONDS; DELEGATION OF PRICING; APPOINTMENT OF TRUSTEE. The Series 2011 Bonds shall be issued, bear interest and mature as shall be set forth in the Pricing Certificate approved by the President or Vice President of the Corporation within the parameters as described below (the "Pricing Certificate "). • The Series 2011 Bonds shall be dated as of their date of delivery and shall be issued as fully registered bonds in minimum denominations of $5,000 and integral multiples in excess thereof. The provisions for redemption of the Series 2011 Bonds prior to maturity, the registration and exchangeability privileges, and the medium of payment shall be as set forth (a) in the aforesaid form of such Series 2011 Bonds, and (b) in the form of the Indenture, which shall be in conformity with the provisions of the Pricing Certificate. Pursuant to Section 11 -57 -205 of the Supplemental Act, as amended, the President or the Vice President of the Corporation are each hereby authorized, without further action by the Board, to determine in conformity with the parameters and standards set forth in this Resolution and after the Series 2011 Bonds have been priced: (i) the aggregate principal amount of the Series 2011 Bonds, which amount shall not exceed $11,000,000; (ii) the maturities of each series of the Series 2011 Bonds, provided that the ' maturity date of any Series 2011 Bond shall be no later than May 1, 2031; (iii) the interest rate or rates on the Series 2011 Bonds, provided that the maximum net effective interest rate on the Series 2011 Bonds shall not exceed 7.00% per annum; -5- \\\DE - 065064/000024 - 493748 v2 - (iv) the price or prices at which each series of the Series 2011 Bonds shall be sold, provided that the refunding of the 2001 Bonds shall result in a net present value savings of not less than 3.00% of the principal amount of the 2001 Bonds; (v) the amount of the Underwriter's discount, which amount shall not to exceed 2.00% of the aggregate principal amount of the Series 2011 Bonds; (vi) the redemption price of each series of the Series 2011 Bonds, which shall not exceed 102.00% of the principal amount to be redeemed; and (vi) such additional determinations as may be permitted under Section 11-57 - 205 of the Supplemental Public Securities Act. The foregoing determinations shall be evidenced by a Pricing Certificate. The Corporation hereby confirms the appointment of Wells Fargo Bank, National Association under the terms of the Indenture, as the Trustee, Paying Agent and Registrar in connection with the Series 2011 Bonds and with respect to the Series 2006 Bonds. Section 6. AUTHENTICATION OF BONDS. The Trustee is hereby requested to authenticate the Series 2011 Bonds and deliver them to, or upon the order of, the President, any Vice President, the Secretary or the Assistant Secretary. Section 7. INVESTMENT OF FUNDS. The Trustee shall be, by virtue of this Resolution and without further authorization from the Corporation, authorized, directed and requested to invest and reinvest all moneys available therefor held by it pursuant to the Indenture which by the terms of said Indenture may be invested, or to deposit or redeposit such moneys in such accounts as may be permitted by said Indenture, all subject to the terms and limitations contained in the Indenture. Section 8. INCIDENTAL ACTION. The President, any Vice President, the Secretary and the Assistant Secretary of the Corporation are each hereby authorized and directed to execute and deliver such other documents, including without limitation conveyances of real and personal property, and to take such other action as may be necessary or appropriate in order to effectuate the delivery of the Refunding Project Documents and the Prior Project Documents as shall be necessary in connection with the issuance and sale of the Series 2011 Bonds and the performance of the Corporation's obligations thereunder. Notwithstanding any other provisions of this Resolution, the President, any Vice President, the Secretary and the Assistant Secretary are hereby authorized to make or approve such revisions in such documents, including the date thereof, as may be necessary or convenient to carry out or assist in carrying out the purposes of this Resolution and determining the actual principal amount of and rate of interest on the Series 2011 Bonds. Section 9. SERIES 2011 BONDS SHALL NOT CONSTITUTE A FINANCIAL LIABILITY OF EAGLE COUNTY. The Series 2011 Bonds, the Prior Project Documents, and the Refunding Project Documents shall never constitute the debt, indebtedness, or financial obligation of the County within the meaning of any provision or -6- \\\DE - 065064/000024 - 493748 v2 Section 14. EFFECTIVE DATE. This Resolution shall take effect immediately upon its adoption. ADOPTED this 14 day of June, 2011. EAGLE COUNTY AIR T RMINAL CORPORATION ,t / A By: ak t (CORPORATION SEAL) ATTEST: Secretary -8- \ADE - 065064/000024 - 493748 v2 STATE OF COLORADO ] ] SS. EAGLE COUNTY I, Keith Montag, the duly appointed, qualified and acting Secretary of the Eagle County Air Terminal Corporation, do hereby certify that the foregoing pages numbered 1 to 8, inclusive, are a true, perfect, and complete copy of the record of proceedings of the Board of Directors of the Eagle County Air Terminal Corporation, insofar as such proceedings relate to the resolution therein contained, had and taken at a lawful, open and public meeting of the Eagle County Air Terminal Corporation conducted at 500 Broadway, Eagle, Colorado, on June 14, 2011 commencing at the hour of [a.m. /p.m.], as recorded in the regular official book of the proceedings of the Eagle County Air Terminal Corporation kept in my office, said proceedings were duly had and taken as therein shown, the meeting herein shown was duly held, and the persons therein named were present at said meeting as therein shown. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the Eagle County Air Terminal Corporation this 14th day of June, 2011. [SEAL] By eSecretary \\\DE- 065064/000024 - 493748 v2