HomeMy WebLinkAboutResolution - 86-311 - Amending Closing Documents of Preserve Place Apartments Project - RESOLUTION NO_ 86-l" / /
A RESOLUTION RELATING TO THE
$4 , 235, 000 CITY OF EDEN PRAIRIE, MINNESOTA
MULTIFAMILY HOUSING DEVELOPMENT REVENUE BONDS
( PRESERVE PLACE APARTMENTS PROJECT)
BE IT RESOLVED by the City Council of the City of Eden
Prairie , Minnesota , that the changes to the Indenture of Trust,
dated as of December 1, 1985 , relating to the above-described
Bonds contemplated by that certain Supplemental Indenture Number
One , dated as of August 1 , 1986 ( attached hereto as Exhibit A
and incorporated herein by reference ) , shall be and hereby are,
in all respects , adopted and approved , effective as of the date
thereof .
RESOLVED, FURTHER, that the proper officials of the City,
and each of them, shall be , and they each hereby are , authorized
and directed to execute , acknowledge , perform and deliver, in
the name of and on behalf of the City, Supplemental Indenture
Number One in substantially the form of Exhibit A hereto, together
with such changes therein and additions thereto as the official
of officials executing the same , acting upon the advice of the
City Attorney, shall deem advisable or appropriate , and all other
a instruments , documents , certificates , actions or deeds which may
be deemed by said officials , or any of them, to be necessary or
advisable to consummate the transactions contemplated by the
foregoing Resolution, all of which may contain such clauses , terms,
conditions and provisions as the official or officials who execute
the same acting upon the advice of the City Attorney, shall deem
advisable or appropriate; the execution, delivery and performance
of any of the foregoing by such official or officials to be
conclusive evidence of the approval by the City of the terms ,
conditions and performance thereto .
RESOLVED, FURTHER, that all proper actions of the officials
of the City heretofore taken , in the name of and on behalf of
the City, with respect to the transactions contemplated by the
foregoing Resolutions shall be , and they hereby are , in all
respects , adopted , ratified , confirmed and endorsed .
Adopted by the City Council. of the City of Eden Prairie ,
Minnesota this day of December, 1986 .
ary e, ersorr, Mayor
[Seal ]
d , rane , City Clerk
SUPPLEMENTAL INDENTURE NUMBER ONE
TO
INDENTURE OF TRUST
between
THE CITY OF EDEN PRAIRIE , MINNESOTA
and
FIRST TRUST COMPANY, INC. ,
as Trustee,
relating to:
$4 , 235 , 000 City of Eden Prairie, Minnesota
Multifamily Housing Development Revenue Bonds
(PRESERVE PLACE APARTMENTS PROJECT)
Dated as of August 1 , 1986
This instrument drafted by:
Oppenheimer Wolff & Donnelly
W-1700 First Bank Building
Saint Paul , Minnesota 55101
SUPPLEMENTAL INDENTURE NUMBER ONE
TO
INDENTURE OF TRUST
THIS SUPPLEMENTAL INDENTURE NUMBER ONE TO INDENTURE OF TRUST,
dated as of August 1 , 1986, is by and between the CITY OF EDEN
PRAIRIE, MINNESOTA, a political subdivision of the State of
Minnesota (the "Issuer") , and FIRST TRUST COMPANY, INC . , a trust
company duly organized and existing and authorized to accept and
execute trusts of the character herein set forth under and by
virtue of the laws of the State of Minnesota , as trustee ,
together with any successor trustee (the "Trustee" ) , and is
consented to and approved by PRESERVE PLACE APARTMENTS "LIMITED
PARTNERSHIP, a Minnesota limited partnership (the "Company" ) and
by MUNICIPAL CASH RESERVE MANAGEMENT, INC. , as owner and holder
of all of. the Outstanding Bonds (as hereinafter defined )
("Owner") :
W I T N E S S E T H
WHEREAS, the Issuer issued its $4 , 235 , 000 City of Eden Prairie,
Minnesota Multifamily Housing Development Revenue Bonds (Preserve
Place Apartments Project) (the "Bonds") pursuant to the terms of
an Indenture of Trust, dated as of December 1, 1985 , between the
Issuer and the Trustee (the "Indenture") to provide funds to
finance a multifamily rental housing development within the
meaning of Minnesota Statutes , Chapter 462C, as amended (the
"Project") , to be owned by the Company; and
WHEREAS, the Owner of the Bonds has required that a rating be
obtained for the Bonds from Standard & Poor ' s Corporation
("S & P") ; and
WHEREAS, S & P will not issue a rating for the Bonds unless and
until certain amendments, modifications and supplements are made
to the Indenture; and
WHEREAS , the Company has requested that certain clarifying
modifications be made to the Indenture; and
WHEREAS , the Trustee has determined that the amendments ,
modifications and supplements required by S & P and requested by
the Company will not adversely affect the rights, duties or
immunities of the Issuer and will not prejudice •the rights of the
Owners of the Bonds in any material respect; and
WHEREAS, the Trustee has obtained an opinion of Bond Counsel to
the effect that the foregoing amendments , modifications and
supplements will not adversely affect the tax-exempt nature of
the Bonds ; and
WHEREAS, although Section 1001 permits the Trustee to make the
amendments, modifications and supplements to the Indenture that
S & P has required and that the Company has requested without the
{ prior written consent of the Owners (see Section 1002 of the
t Indenture) and without the consent of the Funk (because no Credit
is outstanding) (see Section 1001 of the Indenture) , because the
Trustee is required to obtain the prior written consent of the
Issuer (see Section 1005 of the Indenture) and the prior written
consent of the Company (see Sections 1002 and 1003 of the
Indenture) , the Trustee has also chosen to obtain the written
consent of the Owner_ , in addition to the written consent of the
Issuer and the Company, prior to making said amendments ,
modifications and supplements ;
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual covenants hereinafter set forth, the parties hereto
agree that the Indenture shall be amended , modified and
supplemented as follows:
Section 1 . The definitions of "Eligible Funds" and "*Mandatory
Tender Date" in Section 101 of the Indenture are amended ,
modified and supplemented to read in their entirety as follows :
"Eligible Funds" shall mean any amounts deposited by
any Person (other than the Bank, if the Bank is not the
Company or its partners) with the Trustee which have
been on deposit with the Trustee for a period of at
least ninety-one (91) days during and prior to which
time no Act of Bankruptcy has occurred with respect to
such Person , and with respect to which the Trustee
shall have received a written certificate from such
Person that no Act of Bankruptcy has occurred with
respect to such Person during such ninety-one (91) day
period.
"Mandatory Tender Date" shall mean: (i) the expiration
of the Investment Agreement; ( ii) the date when a
Substitute Credit is delivered to the Trustee, as
provided in Section 512 hereof; or ( iii) the expiration
of a Credit without replacement therefor with a
Substitute Credit.
Section 2 . Section 208 of the Indenture is amended, modified and
supplemented as follows:
(a) Redesignating Sections 11208 ( f) " and "208 ( g) " as
Sections "208 (g) " and "208 (h) , " respectively; and
(b) Inserting a new Section 208 (f) to read in its entirety
as follows :
" (f) If such Additional Bonds are issued prior to
the Conversion Date, a letter from the rating
agency ( if a rating is then outstanding with
respect to the Bonds) acknowledging that the
rating will not be adversely affected by the
issuance of such Additional Bonds ;"
Section 3 . Section 301 (a) of the Indenture is amended, modified
and supplemented as follows :
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(a) By amending Section 301 (a) ( i) to read in its entirety
as follows :
" (i) Thirty (30) days following receipt of notice
by the Trustee of a Determination of Taxability
with respect to •the Bonds ; provided, however, that
the Bonds will not be subject to redemption in the
event such Bonds are secured, in whole or in part,
by a Credit in the form of insurance provided by
the United States Department of Housing and Urban
Development , acting through the Federal Housing
Administration, or any successor agency; "
(b) Deleting the word "or" at the end of Section
301 (a) (ii) ;
(c) Deleting the period ( " . " ) at the end of Section
301 (a) ( iii) and inserting in its place a semicolon
(" ; ") followed by the word "or" ; and
(d) Adding a new Section 301 (a) ( iv) to read in its entirety
as follows:
" ( iv) On the scheduled Conversion Date as set
forth in the notice required under Section 303
hereof, if the Credit to which the notice relates
shall for any reason not become effective to
secure the Bonds on or before the scheduled
t
Conversion Date . "
(e) Adding two new sentences at the end of Section 301 (a)
to read in their entirety as follows :
"The thirty (30) day period (s) referred to in
Section 301 ( a) ( ii ) may be shortened to such
period ( s ) as the Owners of the Bonds may
unanimously agree in a written instrument provided
to the Trustee on or before the commencement of
any such period; provided, however, that in no
event shall such period ( s) be less than the
period (s) that the Trustee determines may be
necessary to liquidate any investments in order to
timely satisfy a redemption obligation under
Section 301 (a) ( ii ) of the Indenture . To the
extent that the Owners of the Bonds agree to
receive less than twenty (20) days' notice of a
redemption under Section 30.1 (a) (ii) hereof, the
notice requirements of Section 301 (d) hereof shall
be modified accordingly for such a redemption. "
Section 4 . Section 301 (d) of the Indenture is amended, modified
and supplemented by adding the following two sentences at the end
thereof:
"Notwithstanding anything in this Section 301 (d) to the
contrary, the Trustee shall not be required to give,
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and to e registered Owner of each Bond shall not be
entitled to receive, any prior notice with respect to a
mandatory redemption under Section 301 (a) (iv) hereof .
In all cases, the Trustee shall make a determination of
the occurrence of a mandatory redemption date under
Section 301 (a) hereof at the earliest possible date
that such a determination can be made. Upon such
determination, the Trustee shall make immediate request
for withdrawal of the appropriate Bond proceeds held
under the Investment Agreement (if any) in the manner
provided therein as may be necessary to pay the
redemption amount of the Bonds. "
Section 5 . The first sentence of the third paragraph of Section
302 of the Indenture is amended, modified and supplemented to
read in its entirety as follows:
"If the Trustee has not received from the Remarketing
Agent amounts sufficient to pay the Purchase Price due
on the Bonds tendered under this Section 302 , by or
before 10 : 00 a .m. (St. Paul, Minnesota time) on the
Business Day next preceding the Optional Tender Date,
the Trustee shall apply funds withdrawn under the
Investment Agreement as needed to pay said Purchase
Price. "
Section 6 . Section 303 of the Indenture is amended, modified and
supplemented as follows:
(a) Amending the second sentence of the first paragraph
thereof to read in its entirety as follows :
"Upon a determination that a Conversion Date will
occur, as provided in Section 202 , the Trustee
shall : (a) at least thirty (30) days prior to the
Conversion Date make a request for withdrawal of
the appropriate Bond proceeds held under the
Investment Agreement ( if any) in the manner
provided therein as may be necessary to pay the
Purchase Price for the Bonds; and (b) cause to be
mailed by certified or registered mail a notice at
least twenty ( 20) days prior to the Conversion
Date to the Owner of each Bond at the address
shown on the registration books. "
(b) Adding the following new paragraph to the end of said
Section 303 :
"Each Owner of a Bond who tendered or was deemed
to have tendered such Owner's Bonds for purchase
pursuant to Section 303 hereof must deliver such
Bonds to the Trustee not later than the Conversion
Date. The Trustee will only pay the Owner the
Purchase Price for such Bonds against receipt of
the Owner's Bonds . "
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Section 7 . The first sentence of Section 305 of the Indenture is
amended., modified and supplemented to read in its entirety as
follows :
"In addition to the notices required in Sections 303 or
304 hereof, the Company shall provide any national
rating agency from whom a rating on the Bonds was
requested with at least ten (10) days' prior written
notice of the Conversion pursuant to Section 303 hereof
or of the Mandatory Tender Date pursuant to Section 304
hereof. "
Section 8 . Section 306 (a) of the Indenture is amended, modified
and supplemental to read in its entirety as follows :
" (a) First , the proceeds which are derived from the sale of
the Bonds which have been remarketed by the Remarketing
Agent to any entity other than the Company or the
Issuer or an affiliate of either of them and which are
delivered to the Trustee by 10 : 00 a .m. (St. Paul ,
Minnesota time) on an Optional Tender Purchase Date,
Conversion Date or Mandatory Tender Date; "
Section 9 . Section 307 (c) of the Indenture is amended, modified
and supplemented to read in its entirety as follows :
" (c) The Bonds purchased or deemed purchased with moneys
described in Section 306 (c) hereof shall be delivered
to the Trustee for cancellation. "
Section 10 . Section 309 of the Indenture is amended, modified
and supplemented by adding the following two sentences to the end
of said Section 309 :
"If a long-term rating is to be requested for the
Bonds , the parties shall take all steps reasonably
necessary to submit the request to the rating agency at
least sixty (60) days prior to the Conversion Date . if
the Bonds are rated by a national rating agency during
the period prior to the Conversion Date, the rating
agency may withdraw its rating if : ( 1) a post-
Conversion Date rating is not requested from that
rating agency; or (2) the Credit upon which such a
post•-Conversion Date rating would be based would not
satisfy the rating agency's criteria."
Section 11 . Section 505 (b) ( i) of the Indenture is amended ,
modified and supplemented to read in its entirety as follows :
" ( i) Prior to the Conversion Date, no disbursements
may be made from the Construction Fund at any time or
for any amount, except that any earnings received by
the Trustee from the investment of amounts in the
Construction Fund and the Reserve Fund which are in
excess of the interest which accrued on the Bonds
t during the term in which such earnings accrued may be
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disbursed in accordance with Section 505 (a) hereof
without regard to Section 505 (b) ; provided, however,
that such excess earnings may only be used to pay for,
or reimburse the Company for payment of, the reasonable
Bond issuance costs (set forth .in paragraph (v) of the
definition of "Cost of Construction" in Section 1 . 1 of
the Agreement) in the following manner: ( 1) first, to
the Trustee for its initial fee and first annual
administrative fee totaling $7 , 117 . 50 ; (2.) second, to
the Company for up to an additional $35 , 950 . 00 of such
costs; (3 ) third, fifty percent (50%) to the Company
and fifty percent (50%) to the Remarketing Agent for
payment of "Purchaser's Initial Fee, " as provided in
the Remarketing Agreement; and (4) thereafter, to the
Company . "
Section 12 . Section 601 of the Indenture is amended, modified
and supplemented to read in its entirety as follows:
Section 601 . Investment of Bond Fund Moneys. Any
moneys held in the Bond Fund, Construction Fund, or
Reserve Fund may be separately invested and .reinvested
by the Trustee, at the request of and as directed by
the Company, in the following investments:
(a) Direct general obligations of the United
States of America ;
(b) Obligations the payment of the principal of
and interest on which is unconditionally guaranteed by
the full faith and credit of the United States of
America ;
(c) ( i) Certificates of deposit or time deposits
with original fixed maturities of less than 365 days
with any financial institution the unsecured short-term
debt obligations of which are rated A-1+ or better by
Standard & Poor' s Corporation and Aa or better by
Moody ' s Investors Service , or ( ii ) repurchase
agreements with any financial institution the unsecured
long-term debt oblitgations of which are rated AA or
better by Standard & Poor's Corporation and Aa or
better by Moody's Investors Service;
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(d) The Investment Agreement or any replacement
or substitute Investment Agreement from any financial
institution rated AA or better by Standard & Poor's
Corporation and Aa or better by Moody' s Investors
Service, as of the date of purchase of such Investment
Agreement; provided, that any replacement or substitute
Investment Agreement in no event can bear an interest
rate less than the interest rate payable with respect
to the Bonds, and in all events must receive written
confirmation from the rating agency to the effect that
such replacement or substitute Investment Agreement
will not adversely affect the rating thereafter of the
Bonds, if any;
(e) Shares in an investment company registered
under the Federal Investment Company Act of 1940 whose
shares are registered under -the Federal Securities Act
of 1933 and whose shares are rated AA or better by
Standard & Poor' s Corporation and Aa or better by
Moody' s Investors Service ; and
( f) Any other investment directed by the Company
which is rated AA, AAm or AAm-G or better by Standard &
Poor ' s Corporation and AA or better by Moody ' s
Investors Service.
Since the investments permitted by this Section have
been included at the request of the Company and the
making of such investments from time to time will be
` subject to the Company 's direction, the Issuer, without
thereby affecting the limitation of its liability set
forth in the Agreement and this Indenture, specifically
disclaims any obligation to the Trustee or the Company
for any loss arising from, or tax consequences of,
investments pursuant to the provisions of this Section.
The Trustee shall not be responsible for any losses on
investments made in accordance with this Section.
Section 13 . Section 801 (b) of the Indenture is amended, modified
and supplemented to read in its entirety as follows:
" (b) Default in the due and punctual payment of the
principal of, and premium, if any, on any Bond (whether
at maturity , by acceleration or redemption or
otherwise) ;"
Section 14 . Section 809 (1 ) ( 1) of the Indenture is amended,
modified and supplemented to read in its entirety as follows :
I' M any default in the payment of the principal of,
and premium, if any, on any Outstanding Bonds when due
(whether at maturity or by mandatory or optional
redemption) ; "
t
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Section 15 . The last sentence of Section 908 of the Indenture is
amended , modified and supplemented by deleting the amount
"$10 , 000 , 000" and replacing it with the amount "$25 , 000 , 000" .
_Section 16 . Section 1002 of 'the Indenture is amended, modified
and supplemented by inserting at the end of the first paragraph
of said Section 1002 a new clause to read in its entirety as
follows :
"or; (e) a reduction in the aggregate principal amount
of Bonds required for consent to any amendment, change
or modification of any term or provision of this
Indenture or any indenture or indentures supplemental
hereto, which term or provision requires the consent or
approval of the Owners of all of the Bonds then
Outstanding. "
Section 17 . The heading and the first sentence of Section 1102
of the Indenture are amended, modified and supplemented to read
in their entirety as follows :
"Section 1102 . Amendments to Agreement , Investment
Agreement and Credit Requiring Consent of Owners .
Except for amendments , changes or modifications as
provided in Section 1101, neither the Issuer nor the
Trustee shall consent to any amendment, change or
modification of the Agreement without the written
approval or consent of the Bank and of the Owners of a
majority in aggregate principal amount of Bonds then
Outstanding given and procured as provided in Section
1002 , or any amendment, change or modification of the
Investment Agreement or Credit without the written
approval or consent of the Bank and all of the Owners
of the Bonds then Outstanding given and procured as
provided in Section 1002 . "
Section 18 . Miscellaneous . Except to the extent expressly
amended, modified or supplemented by this Supplemental Indenture
Number One, the terms and conditions of the Indenture shall
remain in full force and effect. All capitalized terms used
herein but not defined herein shall have the meaning ascribed to
them in the Indenture . This Supplemental Indenture Number One
may be executed in any number of counterparts, each of which
shall be an original and all of which shall constitute but one
and the same instrument.
IN WITNESS WHEREOF, the Issuer and the Trustee have caused this
Supplemental Indenture Number One to be executed in their
respective names and their respective seals to be hereunto
affixed and attested by their duly authorized officers, all as of
the date first above written .
[SEPARATE SIGNATURE PAGES FOLLOW THE CONCLUSION OF THE TEXT OF
HIS SUPPLEMENTAL INDENTURE. ]
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FIRST TRUST COMPANY, INC.
as Trustee
By : By:
Its : Its
(SEAL)
This is the signature page for the Trustee with respect to
Supplemental Indenture Number One between the Trustee and the
Issuer, dated as of August 1 , 1986 , relating to the Issuer's
$4 , 235 , 000 Multifamily Housing Development Revenue Bonds (Preserve
Place Apartments Project) .
STATE OF MINNESOTA )
) ss.
COUNTY OF RAMSEY )
The foregoing instrument was acknowledged before me on August
, 19861 by and
respectively the and of
First Trust Company, Inc. , in Saint Paul , Minnesota, a Minnesota
trust company, on behalf of said company.
IN WITNESS WHEREOF I have hereunto set my hand and official seal
on this day of August, 1986.
Notary Public
(NOTARIAL SEAL)
a
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CITY OF EDEN PRAIRIE, MINNESOTA
By*- - "
4%
Gary et nor , Mayor
By: ----_
Card %J� llie,� City Manager
By: _
Johr�'Fta e, City Clerk
This is the signature page for the Issuer with respect to
Supplemental Indenture Number One between the Trustee and the
Issuer, dated as of August 1, 1986, relating to the Issuer 's
$4 , 235 , 000 Multifamily Housing Development Revenue Bonds
(Preserve Place Apartments Project) .
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me on August
____, 1986, by Gary Peterson, Carl Jullie and John Frane , the
Mayor, City Manager and City Clerk, respectively, of the City of
Eden Prairie , a political subdivision of the State of Minnesota,
on behalf of said City.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal
on this — day of August, 1986.
Notary Pub is
(NOTARIAL SEAL)
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{' CONSENT OF COMPANY
The undersigned, on behalf of Preserve Place Apartments Limited
Partnership , hereby consents for all purposes , pursuant to
Sections 1002 and 1003 of the Indentue of. Trust, dated as of
December 1, 1985 , by and between First Trust Company, Inc. (the
"Trustee" ) and the City of Eden Prairie , Minnesota ( the
"Issuer") , relating to the Issuer' s $4 , 235 , 000 Multifamily
Housing Development Revenue Bonds (Preserve Place Apartments
Project) , to the execution and delivery by the Trustee and the
Issuer of the foregoing Supplemental Indenture Number One , dated
as of August 1 , 1986 .
PRESERVE PLACE APARTMENTS
LIMITED PARTNERSHIP, a
Minnesota limited partnership
By Preserve Place Apartments ,
Inc. , a Minnesota
corporation,
its general partner
Dated: August 1986 By
Jeffrey L. Badger,
Vice President
This is the signature page for the Company with respect to
Supplemental Indenture Number One between the Trustee and the
Issuer, dated as of August 1 , 1986.
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( CONSENT OF OWNER OF THE BONDS
The undersigned, on behalf of MUNICIPAL CASH RESERVE MANAGEMENT ,
INC . , as owner of the entire principal amount of the City of Eden
Prairie , Minnesota' s (the "Issuer") $4 , 235 , 000 Multifamily
Housing Development Revenue Bonds (Preserve Place Apartments
Project) , pursuant to Section 1002 of the Indenture of Trust
relating to the Bonds , dated as of December 1, 1985, by and
between the Issuer and First Trust Company, Inc. (the "Trustee") ,
hereby consents for all purposes to the foregoing Supplemental
Indenture Number One, dated as of August 1, 1986 , by and between
the Issuer and the Trustee .
MUNICIPAL CASH RESERVE
MANAGEMENT, INC.
Dated: August , 1986 By _
Its
This is the signature page for the Owner of the Bonds with
respect to Supplemental Indenture Number One between the Trustee
and the Issuer, dated as of August 1, 1986.
�J
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