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HomeMy WebLinkAboutResolution - 86-312 - Amending Closing Documents of Eden Pointe Apartments Project - RESOLUTION NO. 86- J/ �L A RESOLUTION RELATING TO THE $7,865, 000 CITY OF EDEN PRAIRIE, MINNESOTA MULTIFAMILY HOUSING DEVELOPMENT REVENUE BONDS (EDEN POINTE 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 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 P to s n ,-'Mayor [ Seal ] V� �-- - Jo rane , City Clerk f SUPPLEMENTAL INDENTURE NUMBER ONE TO INDENTURE OF TRUST between THE CITY OF EDEN PRAIRIE, MINNESOTA and FIRST TRUST COMPANY, INC. , as Trustee, relating to: $7 , 865, 000 City of Eden Prairie, Minnesota Multifamily Housing Development Revenue Bonds (EDEN POINTE 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 EDEN POINTE 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 $7 , 865, 000 City of Eden Prairie, Minnesota Multifamily Housing Development Revenue Bonds (Eden Pointe 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 Indenture) and without the consent of the Bank (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 consents 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 ha-,re 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 "208 ( f) " and 11208 (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: 2 (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 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 301 (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, 3 and the 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 U 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. " 4 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: "' (ri) 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 during the term in which such earnings accrued may be 5 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 $8 , 932 . 50 ; (2) second, to the Company for up to an additional $36, 700 .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 zhe 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 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 obligations of which are rated AA or better by Standard & Poor's Corporation and Aa or better by Moody's Investors Service; 6 ` (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 on 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 ( i ) ( 1) of the Indenture is amended, modified and supplemented to read in its entirety as follows : " (1) 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) ; " 7 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 Recruiring 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 THIS SUPPLEMENTAL INDENTURE. ] 8 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 $7 , 865 , 000 Multifamily Housing Development Revenue Bonds (Eden Pointe Apartments Project) . STATE OF MINNESOTA ) ) ss . COUNTY OF RAMSEY ) The foregoing instrument was acknowledged before me on August --- 1986 , 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) 9 CITY OF EDEN PRAIRIE, MINNESOTA By: ary ete - a , Mayor --- By: Carl 3ullie-, City Manager Jahn r z e, City Clerk J/ 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 $7 , 865, 000 Multifamily Housing Development Revenue Bonds (Eden Pointe 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 Public (NOTARIAL SEAL) ZO i CONSENT OF COMPANY The undersigned, on behalf of Eden Pointe Apartments Limited Partnership, hereby consents for all purposes , pursuant to Sections 1002 and 1003 of the Indenture 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 $7 , 865 , 000 Multifamily Housing Development Revenue Bonds ( Eden Pointe 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 . EDEN POINTE APARTMENTS LIMITED PARTNERSHIP, a Minnesota limited partnership By Eden Pointe 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 . 11 ( 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") $7 , 865 , 000 Multifamily Housing Development Revenue Bonds (Eden Pointe 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 . 12 �1��K�.D COPY (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 rate ekne3 pi e—lr b)9"el a 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 on the Bonds , if any ; (e) Shares in are 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 , A.Am or AAm-G or better by Standard & Poor' s Corporation and AA or better by Moody's Investors Service . a 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 ( i ) ( 1) of the Indenture is amended, modified and supplemented to read in its entirety as follows : " (1) 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) ; "