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HomeMy WebLinkAbout92- 19 - ADMIN Resolution - City Council - 1992/02/18RESOLUTION NO. 92- 19 RESOLUTION RELATING TO THE FIRST SUPPLEMENT TO LOAN AGREEMENT AND THE FIRST SUPPLEMENTAL INDENTURE OF TRUST IN CONNECTION WITH THE CITY'S $2,100,000 AGGREGATE PRINCIPAL AMOUNT CITY OF ST. LOUIS PARK, MINNESOTA COMMERCIAL DEVELOPMENT REVENUE BONDS (G & N LIMITED PARTNERSHIP), DATED AS OF AUGUST 1, 1983. WHEREAS, the City of St. Louis Park, Minnesota (the "City") has previously entered into an Indenture of Trust dated as of August 1, 1983 by and between the City and American National Bank and Trust Company, St. Paul, Minnesota, as Trustee, and has also entered into a Loan Agreement dated as of August 1, 1983 by and between the City and G & N Limited Partnership, both of which documents relate to the City's $2,100,000 aggregate principal amount City of St. Louis Park, Minnesota Commercial Development Revenue Bonds (G & N Limited Partnership Project), dated as of August 1, 1983 (the "Bonds"); and WHEREAS, G & N Limited Partnership has requested certain amendments to the above -referenced Indenture of Trust and Loan Agreement; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of St. Louis Park: 1. That the Mayor and City Manager are hereby authorized and directed to execute and deliver the First Supplement to Loan Agreement and First Supplemental Indenture of Trust relating to the Bonds in substantially the forms set forth as Exhibit A hereto, together with any and all changes, modifications or amendments to such forms necessary or desirable to accomplish the purposes of such amendments. 2. That the Mayor and City Manager are hereby authorized and directed to execute and deliver such other documents, and to take such actions, with respect to the First Supplement to Loan Agreement and First Supplemental Indenture of Trust as are required or desirable in connection with accomplishing the proposed amendments. 3. That this Resolution shall become effective immediately upon its passage and without publication. Adopted this 18 day of February, 1992. REVIEWED FOR ADMINISTRATION: e- 4i X01-. City Manager APPROVED AS TO FORM AND EXECUTION: s71144-11 #9ae-,ftalfW141 City Attorney 837:DBND Mayor Pro Tem Keith Meland -2- 1 4 r F THIS FIRST SUPPLEMENT TO THE LOAN AGREEMENT, dated as of , 1992 (the "First Supplement"), by and between the City of St. Louis Park, Minnesota, a municipal corporation and political subdivision of the State of Minnesota (the "Issuer"), duly organized and existing under its Charter and the laws of the State of Minnesota, and G&N Limited Partnership, a limited partnership duly formed and existing under the laws of the State of Minnesota (the "Company"); W I T H E S S E I WHEREAS, the Issuer and the Company have previously entered into a Loan Agreement dated as of August 1, 1983 (the "Loan Agreement"), relating to the issuance by the Issuer of its $2,100,000 aggregate principal amount City of St. Louis Park, Minnesota, Commercial Development Revenue Bonds (G&N Limited Partnership Project), Series 1983 (the "Bonds"), with the proceeds of such Bonds being used to make a loan from the Issuer to the Company for the construction of the project within the limits of the Issuer, all as provided for under the Municipal Industrial Development Act, Minnesota Statutes, Chapter 474; and WHEREAS, an Indenture of Trust, dated as of August 1, 1983, was entered into between the Issuer and American National Bank, N.A. (the "Trustee") (the Indenture"), pursuant to which the Issuer assigned all of its rights under the Loan Agreement to the Trustee for the benefit of bondholders of the Bonds; and WHEREAS, the Issuer has entered into a First Supplemental Indenture of Trust dated as of , 1992 (the "First Supplemental Indenture") pursuant to which certain amendments were made to the Indenture; and WHEREAS, the Issuer and the Company wish to amend the Loan Agreement to conform with the Indenture as amended; NOW, THEREFORE, the Loan Agreement is amended as follows: 1. The last paragraph Section 5.2 of the Loan Agreement is amended by deleting such paragraph in its entirety and replacing it as follows: Notwithstanding the foregoing provisions of this ;Agreement or the provisions of the Indenture, the option of the Company to redeem the Bonds prior to maturity as provided in the Indenture shall be exercisable only upon the payment by the Company to the Trustee for the account of the Issuer of an amount sufficient to pay the applicable Redemption Price on said Redemption Date and the interest on the Bond or the portion thereof called for redemption either (i) at least ninety-one (91) days, during which no Act of Bankruptcy shall have occurred, prior to the date of which notice of such redemption shall be given by the Trustee in a manner specified in Section 303 of the Indenture, or (ii) at least on or prior to the date on which notice of such redemption shall be given by the trustee in the manner specified in Section 303 hereof if at the time of such deposit the Company also delivers to the Trustee an opinion of counsel, satisfactory to the Trustee, addressed to the Issuer and the Trustee, to the effect that payments of the principal of, and redemption premium, if any, and interest on, the Bonds to be redeemed from such amounts shall not constitute voidable preferences under Sections 544 and 547 of the Federal Bankruptcy Code, subject to recovery under Section 550 of the Federal Bankruptcy Code, in a case commenced thereunder by or against the Company or the Issuer. 2. Section 10.2 of the Loan Agreement is amended by deleting in full the last paragraph of said Section 10.2 and replacing it as follows: Notwithstanding any provision of this Agreement or the provisions of the Indenture, the option of the Company to redeem the Bonds prior to maturity as provided herein and in the Indenture shall be exercisable only upon payment by the Company of an amount sufficient to pay the applicable Redemption Price on said Redemption Date and the interest on the Bonds or the portion thereof called for redemption either (i) at least ninety-one (91) days prior to the date on which notice of such redemption shall be given by the Trustee in the manner specified in Section 303 of the Indenture, during which no Act of Bankruptcy shall have occurred, or (ii) at least on or prior to the date on which notice of such redemption shall be given by the trustee in the manner specified in Section 303 hereof if at the time of such deposit the Company also delivers to the Trustee an opinion of counsel, satisfactory to the Trustee, addressed to the Issuer and the Trustee, to the effect that payments of the principal of, and redemption premium, if any, and interest on, the Bonds to be redeemed from such amounts shall not constitute voidable preferences under Sections 544 and 547 of the Federal Bankruptcy Code, subject to recovery under Section 550 of the Federal Bankruptcy Code, in a case commenced thereunder by or against the Company or the Issuer. Such ninety-one (91) day requirement prior to the giving of the Notice of Redemption shall not apply when the Company has deposited the proceeds of Current Refunding Bonds issued specifically by the Issuer for the purpose of refunding or of optionally redeeming the Bonds. A draw under the Letter of Credit will not be available for optional prepayment by the Company pursuant to this Section 10.2. C, 3. Section 10.3 of the Loan Agreement shall be deleted in its entirety and shall be replaced as follows: At the closing of any option to terminate the Term under Section 10.1 or to prepay the Loan pursuant to Section 10.2, the Issuer and the Trustee shall either (i) ninety-one (91) days after receipt of the balance of the Loan Repayments, during which no Act of Bankruptcy shall have occurred, or (ii) immediately if at the time of the deposit of such amount, the Trustee received an opinion of counsel acceptable to the Trustee, addressed to the Issuer and, the Trustee, to the effect that payments of the principal of, redemption premium, if any, and interest on the Bonds to be redeemed from such proceeds shall not constitute voidable preferences under Sections 544 and 547 of the Federal Bankruptcy Code, sub]ect to recovery under Section 550 of the Federal Bankruptcy Code, in a case commenced thereunder by or against the Company or the Issuer, and in any event if there are no amounts owed by the Company under the Mortgage, the Assignment, the Security Agreement and this Agreement, deliver to the Company documents releasing and satisfying the Mortgage, the Assignment and terminating all security interests. and financing statements as to ;.such property and the Trustee shall deliver to the Bank a letter terminating the Letter of Credit. 4. Section 10.4 of the Loan Agreement is deleted in its entirety and shall be replaced as follows: Notwithstanding any provision of this Agreement or the provisions of the Indenture, the option of the Company to redeem the Bonds prior to maturity as provided herein and in the Indenture shall be exercisable only upon payment by the Company of an amount sufficient to pay the applicable Redemption Price on said Redemption Date and the interest on the Bonds or the portion thereof called for redemption (i) at least ninety-one (91) days prior to the date on which notice of such redemption shall be given by the Trustee in the manner specified in Section 303 of the Indenture, during which no Act of Bankruptcy shall have occurred, cr (ii) at least on or prior to the date on which notice of such redemption shall be given by the trustee in the manner specified in Section 303 hereof if at the time of such deposit the Company also delivers to the Trustee an opinion of counsel, satisfactory to the Trustee, addressed to the Issuer and the Trustee, to the effect that payments of the principal of, and redemption premium, if any, and interest on, the Bonds to be redeemed from such amounts shall not constitute voidable preferences under Sections 544 and 547 of the Federal Bankruptcy Code, subject to recovery under Section 550 of _1_ the Federal Bankruptcy Code, in a case commenced thereunder by or against the Company or the Issuer. IN WITNESS WHEREOF, the Issuer and the Company have caused their respective signatures to be signed by their respective officers thereunto duly authorized on this First Supplement to the Loan Agreement to be dated as of the day and year first above written. ATTEST: CITY OF ST. LOUIS PARK, MINNESOTA By Mayor By City Manager City Clerk e38 D8No 0 IMITED PARTNERSHIP By THIS FIRST SUPPLEMENTAL INDENTURE OF TRUST, dated as of , 1992 (the "First Supplement"), by and between the CITY OF ST. LOUIS PARK, MINNESOTA, a municipal corporation and political subdivision of the State of Minnesota (the "Issuer"), duly organized and existing under its Charter and the laws of the State of Minnesota, and American National Bank & Trust Company, a national banking association organized, existing and authorized under and by virtue of the laws of the United States of America, with its principal office in the City of St. Paul, Minnesota, (the "Trustee"), WITNESSETII WHEREAS, the Issuer and the Trustee have previously entered into an Indenture of Trust dated as of August 1, 1983 (the "Indenture"), relating to the issuance by the Issuer of its $2,100,000 aggregate principal amount City of St. Louis Park, Minnesota Commercial Development Revenue Bonds (G&N Limited Partnership Project), Series 1983 (the "Bonds"), which bonds proceeds were used to make a loan from the Issuer to G&N Limited Partnership (the "Company") to construct a project within the city limits of the Issuer, all as providedunder the Municipal Industrial Development Act, Minnesota Statutes, Chapter 474; and WHEREAS, the Company has requested the Issuer to issue revenue refunding bonds to currently refund the Bonds in full; and WHEREAS, Section 149(d)(1) and (2) of the Internal Revenue Code of 1986, as amended (the "Code") states that no provision of law shall be construed to provide an exemption from federal income tax for interest on any bond issued as part of an issue to advance refund a private activity bond other than a qualified 501(c)(3) bond; and WHEREAS, Bonds constitute private activity bonds as defined in Section 141 of the Code; and WHEREAS, Section 149(d)(5) of the Code states that a bond shall be treated as an issue to advance refund another bond issued more than 90 days before the redemption of the refunded bond; and WHEREAS, Article 3 of the Original Indenture relating to the Bonds requires that any funds deposited by the Corporation in order to optionally redeem the Bonds must be on deposit with the Trustee at least ninety-one (91) days prior to the Trustee giving notice of redemption of said bonds, which notice must be given thirty (30) days prior to redemption of the bonds, thus requiring one hundred twenty-one (121) days for funds to be on deposit with the Trustee prior to the date of redemption; and WHEREAS, the above-mentioned provisions of the Code were enacted after the issuance of the Bonds; and WHEREAS, at the time of the issuance of the Bonds, the provisions of the Internal Revenue Code of 1954, as amended, allowed the refunding of the Bonds through the issuance of revenue refunding bonds if the bond issue were issued not more than 180 days before the redemption of the refunded bonds; and WHEREAS, the Company now desires to refund the Bonds in the same manner it was permitted to do so at the time of the issuance of the Bonds; NOW, THEREFORE, the Indenture is amended as follows: 1. Section 301 is amended by deleting the second paragraph thereof and replacing it with the following paragraph: Notwithstanding any provision of this Indenture or the Agreement, the option of the Company to redeem the Bonds prior to maturity as provided in this Section 301 shall be exercisable only upon the payment by the Company to the Trustee for the account of the Issuer of an amount sufficient to pay the principal, accrued interest and applicable redemption premium on the Bonds or the portion thereof called for redemption either (i)- at least ninety-one (91) days, during which no Act of Bankruptcy shall have occurred, prior to the date on which notice of such redemption shall be given by the Trustee in the manner specified in Section 303 hereof, or (ii) at least on or prior to the date on which notice of such redemption shall be given by the trustee in the manner specified in Section 303 hereof if at the time of such deposit the Company also delivers to the Trustee an opinion of counsel, satisfactory to the Trustee, addressed to the Issuer and the Trustee, to the effect that payments of the principal of, and redemption premium, if any, and interest on, the Bonds to be redeemed from such amounts shall not constitute voidable preferences under Sections 544 and 547 of the Federal Bankruptcy Code, subject to recovery under Section 550 of the Federal Bankruptcy Code, in a case commenced thereunder by or against the Company or the Issuer. 2. Section 303 of the Indenture is deleted in full and replaced by the following Section 303. NQt_ice 9f Redemption. In the case of the redemption of any Bonds, the Trustee shall, in accordance with the terms and provisions of the Bonds and of this Indenture, select the Bonds to be redeemed and shall give notice of the redemption of bonds (however, if such payment is made by the Corporation, such notice shall be given (a) only if (i) such amount has been on deposit with the Trustee at least ninety-one (91) days prior to the date on which notice shall be given, during which no Act of Bankruptcy as to the party making the payment shall have occurred or (ii) at the time of the deposit of such amount, the Trustee received an opinion of counsel acceptable to the Trustee, addressed to the Issuer and the Trustee, to the effect that payments of the principal of, and redemption premium, if any, and interest on, the Bonds to be redeemed from such amounts shall not constitute voidable preferences under Sections 544 and 547 of the Federal Bankruptcy Code, subject to recovery under Section 550 of the 'ederal Bankruptcy Code, in a case commenced thereunder by or against the Company or the Issuer, and (b) only if such deposit is in an amount sufficient to pay the redemption price of any interest on such Bonds to be redeemed, which notice shall specify the maturities of the Bonds to be redeemed, the Redemption Date and the place or places where amounts due upon such redemption shall be payable and, if less than all of the Bonds of any like maturities are to be redeemed, the letters and numbers or other distinguishing marks of such Bonds to be redeemed, and, in the case of a Bond to be redeemed in part only, such notice shall also specify the portion of the principal amount thereof to be redeemed. -Such notice shall further state that on such Redemption Date, there shall become due and payable upon each such Bond to be redeemed, the Redemption Price thereof or the Redemption Price of the specified portion of the principal thereof in the case of a Bond to be redeemed in part only, together with interest accrued to such Redemption Date, and that from and after such date, interest thereon shall cease to accrue and be payable. The Trustee shall mail a copy of such notice, first-class mail, postage prepaid, not less than thirty (30) days before such Redemption Date, to the registered owner of any Bond all or a portion of which to be redeemed, at said registered owner's last address, if any, appearing upon the Bond Register, but failure to receive such notice or any defect therein or in the mailing thereof shall not affect the validity of any proceedings or other redemption of Bonds. 3. Section 304 of the Indenture is amended so that the third sentence of said Section 304 shall read as follows: If on such Redemption Date (a) payment by the Corporation of monies or Government Obligations for the redemption of all of the Bonds of any like maturity to be redeemed, together with interest thereon accrued and unpaid to such Redemption Date, either (i) shall have been on deposit with the Trustee for at least ninety-one (91) days prior to the date on which notice of redemption shall be given as aforesaid during which no Act of Bankruptcy as to the party making the payment shall have occurred so as to be available therefor on such Redemption Date, at the time of the deposit of such amount, the Trustee received an opinion of counsel acceptable to the Trustee, addressed to the 'Issuer and the Trustee, to the effect that payments of the principal of, and redemption premium, if any, and interest on, the Bonds to be redeemed from such proceeds shall not constitute voidable preferences under Sections 544 and 547 of the Federal Bankruptcy Code, subject to recovery under Section 550 of the Federal Bankruptcy Code, in a case commenced thereunder by or against the Company or the Issuer, and (b) if notice of redemption thereof shall have been given as aforesaid, then from and after such Redemption Date, interest on the Bonds or portions thereof so called for redemption shall cease to accrue and become payable, and said Bonds or portions thereof shall no longer be considered as Outstanding hereunder. 4. Section 405 of the Indenture is amended by deleting the second paragraph of said Section 405 and replacing it with the following paragraph: Notwithstanding any other provision in this Indenture or the Agreement, the Trustee shall pay the principal of, premium, if any, and interest on the Bonds first from the proceeds of the Bonds (and proceeds from the investment thereof), and (in the case of optional redemption prior to maturity) either (i) from amounts deposited by the Corporation with the Trustee and which have been on `deposit with the Trustee for a period of at least ninety-one (91) days prior to the date on which notice of such redemption shall be given, during which no Act of Bankruptcy has occurred, or (ii) from amounts which are deposited by the Corporation with the Trustee pursuant to Section 5.2 (other than amounts paid by the Corporation pursuant to Section 5.2(d) thereof) of the Agreement, then from other monies paid by the Corporation or from other sources. The Trustee shall pay principal, premium and interest on the Bonds, in the case of optional redemption prior to maturity (other than prepayment and redemption pursuant to Section 10.2 upon certain events of casualty or taking) only from amounts deposited by the Corporation which have been on deposit for a period of at least ninety-one (91) days prior to the date on which notice of such redemption shall be given, during which no Act of Bankruptcy has occurred. Amounts received from the bank pursuant to the Letter of Credit may be used to pay the principal of the Bonds and up to two hundred eighty-five (285) days interest thereon. -4- 1 4 1 IN WITNESS, WHEREOF,_ the Issuer and the Trustee have, ..caused ' _their' respective signatures ..,,to be signed -by,- .their:'; respective, officers , thereunto.'. duly authorized on ,this:''First (First' ,Supplemental -Indenture to =be -dated as of the day and year first above' written'. CITY OF ST. LOUIS 'PARK, :MINNE _OTA By Mayor By ,City Manager' ATTEST: City Clerk - ATTEST: AMERICAN NATIONAL,:^BANKS Si ` - TRUST COMPANY-,'>: AS;•`TRUSTEE By Its_ 556iOHNO •