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HomeMy WebLinkAboutNo. 1270 approving modifications to the lease for the College Football Hall of Fame/Century Center project and approving the execution of an addendum to the leaseRESOLUTION NO. 1270 RESOLUTION OF THE SOUTH BEND REDEVELOPMENT COMMISSION APPROVING MODIFICATIONS TO THE LEASE FOR THE COLLEGE FOOTBALL HALL OF FAME/ CENTURY CENTER PROJECT AND APPROVING THE EXECUTION OF AN ADDENDUM TO THE LEASE WHEREAS, the South Bend Redevelopment Commission (the "Commission ") previously entered into a Lease between the Commission and the South Bend Redevelopment Authority (the i "Authority ") dated as of November 1, 1993 (the "Lease "), pursuant to which the Authority will lease certain improvements including I the existing Century Center facility and the College Football Hall of Fame to be constructed by the Authority (the "Project ") to the Commission; and WHEREAS, the Commission entered into an addendum to lease between the Commission and the Authority dated as of 3rd day of June, 1994 (the "Addendum "), amending certain terms and provisions of said Lease (the Lease and Addendum are collectively referred to as the "Amended Lease ") WHEREAS, the Authority, at a meeting on June 21, 1994, has adopted on resolution determining to issue its "South Bend Redevelopment Authority Variable Rate Demand Lease Rental Revenue Bonds of 1994 (College Football Hall of Fame Project)" (the "Bonds ") and further determining to enter into a purchase contract with First Chicago Capital Markets, Inc., acting on behalf of itself and one (1) other underwriter, providing for the sale the Bonds; and i WHEREAS, the Commission desires to make certain modifications and amendments to the Amended Lease amending certain of the terms and provisions contained therein; and WHEREAS, the Commission desires to approve and execute a second addendum to the Amended Lease (the "Addendum ") , a copy of which is hereby attached as Exhibit A; NOW, THEREFORE, BE IT RESOLVED BY THE SOUTH BEND REDEVELOPMENT COMMISSION, AS FOLLOWS: 1. The Commission hereby approves the amendments to the Amended Lease as more fully set forth in Exhibit A attached hereto. The President and Secretary of the Commission are hereby authorized ' and directed to execute and attest, respectively, the Addendum substantially in the form attached hereto, together with such changes as may be approved by the President and Secretary, said officers' execution and attestation to be conclusive evidence of their approval of such changes. 2. All remaining terms, covenants and conditions as set forth in the Lease shall remain in full force and effect. 3. This resolution shall be in full force and effect after its adoption by the Commission. 2 cADOPTED at a meeting of the South Bend Redevelopment Commission held on June 24, 1994, at 1308 County -City Building, 227 West Jefferson Boulevard, South Bend, Indiana 46601. ATTEST: Theo F. ait, Secuftary rrrompola\ sthbend\ hallofam \luaddecc.rc;drf;6 -24 -94 SOUTHIEND REDEVELOPMENT COMMISSION By: i / lu Paula N. Auburn, President 3 G I�..� EXHIBIT A Second Addendum to Lease Between the South Bend Redevelopment Authority, as Lessor, and the South Bend Redevelopment Commission, as Lessee (College Football Hall of Fame /Century Center Project) THIS ADDENDUM, made and entered into as of this day of June, 1994, by and between the South Bend Redevelopment Authority, a body corporate and politic organized and existing under Indiana Code 36 -7 -14.5 (hereinafter with its successors and assigns referred to as the "Authority "), and the South Bend Redevelopment Commission, the governing body of the South Bend Department of Redevelopment and the Redevelopment District of South Bend, Indiana (hereinafter called the "Lessee "), WITNESSETH: In consideration of the mutual covenants herein contained, it is agreed that the lease previously entered into between said parties as of the first day of November, 1993, and the Addendum to Lease between the said parties as of the 3rd day of June, 1994 (collectively referred to as the "Lease "), shall be amended as follows: 1. The following definitions in Section 1 of the Lease are amended to read as follows: "Century Center Bonds" means the bonds issued to finance the Century Center Portion of the Project. "Credit Facility" means that credit facility as defined in the Trust Indenture. "Credit Facility Agreement" means that credit facility agreement as defined in the Trust Indenture. "Credit Facility Issuer" means The Fuji Bank, Limited, New York Branch, and its successors or assigns. "Hall of Fame Bonds" means those bonds issued to finance the Hall of Fame Portion. "Trust Indenture" means that indenture between the Authority and the Trustee, dated as of June 1, 1994. 2. Section 2 of the Lease is amended to read as follows: Section 2. Lease of Project. In consideration of the rentals and other terms and conditions herein specified the Authority does hereby lease, demise and let to the Lessee the Project: TO HAVE AND TO HOLD the same with all rights, privileges, easements and appurtenances thereunto belonging, unto the Lessee. The term of this Lease shall not exceed twenty -four (24) years, beginning with respect to the Century Center Portion on the date the Century Center Portion is complete and ready for use, and ending on the day prior to such date twenty -four (24) years thereafter, and beginning with respect to the Hall of Fame Portion on the date that the Hall of Fame Portion is complete and ready for use, and ending on the day prior to such date twenty -four (24) years thereafter. However, the term of this Lease shall terminate as to either or both of the Hall of Fame Portion or the Century Center Portion of the Project at the earlier of (a) the exercise of the option to purchase by Lessee and payment of the option price provided for in Section 14, or (b) the payment or defeasance of all obligations of Lessor incurred (i) to finance the cost of the leased property and the Project, (ii) to refund such obligations, (iii) to refund such refunding obligations, including without limitation all amounts owed in connection with the Hall of Fame Bonds and all amounts owed to the Credit Facility Issuer following termination of the Credit Facility. The dates that each of the Century Center Portion and the Hall of Fame Portion are complete and ready for use shall be endorsed on this Lease at the end hereof by the parties hereto as soon as the same can be done after such completion dates and such endorsements shall be recorded as addenda to this Lease. The Authority hereby represents that it is possessed of, or will acquire, a good and indefeasible estate in fee simple or an insurable right -of -way easement subject only to Permitted Encumbrances, to the above - described real estate, and the Authority warrants and will defend the 2 same against all claims whatsoever not suffered or caused by the acts or omissions of the Lessee. 3. Section 3 of the Lease is amended to read as follows: Section 3. Rental Payments. (a) During the term of this Lease, the Lessee agrees to pay rental for said premises as set forth in Section 4 hereof. Such rental shall be paid from the Century Center Principal and Interest Account (in the case of the Century Center Portion) and from the Hall of Fame Principal and Interest Account (in the case of the Hall of Fame Portion) of the Redevelopment District Bond Fund, which Accounts shall be kept segregated at all times. All rentals payable under the terms of this Lease shall be paid to the Trustee or to such other bank or trust company as may from time to time succeed the Trustee under the Trust Agreements. All payments so made shall be considered as payments to the Authority of the rentals payable hereunder. The Lessee shall receive credit for any Bond maturing within seven (7) days of the date of the lease rental payment, at the face value thereof, which the Lessee acquires and delivers to the Trustee as a part of its lease rental payment; (b) as additional rental the Lessee agrees to pay all fees, charges and reimbursement of expenses of the Trustee under the Trust Agreements and all prudent charges and expenses of the Authority incurred in the performance of its obligations hereunder. follows: 4. Section 4 of the Lease is amended to read as Section 4. Rental Payment Dates and Amounts. (a) Century Center Portion. The first semiannual rental installment for the Century Center Portion in the amount of Three Hundred Seventy -Three Thousand Five Hundred and 00 /100 Dollars ($373,500.00) shall be due on the day that the Century Center Portion is completed and ready for use or January 28, 1996, whichever is later. If completion is later than January 28, 1996, the first installment shall be in an amount which provides for rental at the rate specified in Exhibit C for the semiannual period in which the Century Center Portion is completed and ready for use, prorated from the date of completion until the first January 28 or July 28 following such date of completion. Thereafter such rentals for the Century Center Portion shall be payable in advance in semiannual installments on January 28 and July 28 of 3 each year as provided for in the lease payment schedule attached hereto as Exhibit C. (b) Hall of Fame Portion. The first semiannual rental installment for the Hall of Fame Portion in the amount of Five Hundred Ninety -Two Thousand Fifty and 00 /100 Dollars ($592,050.00), or such lesser amount as determined by the Commission pursuant to Section 413 of the Trust Indenture, shall be due on the day that the Hall of Fame Portion is completed and ready for use or January 28, 1996, whichever is later. If completion is later than January 28, 1996, the first installment shall be in an amount which provides for rental at the rate specified in Exhibit C (or such lesser amount as determined by the Commission as permitted pursuant to Section 413 of the Trust Indenture) for the semiannual period in which the Hall of Fame Portion is completed and ready for use, prorated from the date of completion until the first January 28 or July 28 following such date of completion. Thereafter such rentals for the Hall of Fame Portion shall be payable in advance in semiannual installments on January 28 and July 28 of each year as provided for in the lease payment schedule attached hereto as Exhibit C (or such lesser amount as determined by the Commission as permitted pursuant to Section 413 of the Trust Indenture. C. General Payments Relating to Lease Payments. The rental to be paid in semiannual installments by the Lessee for the Century Center Portion and the Hall of Fame Portion and the combined rental to be paid in semiannual installments for the Project are set forth on Exhibit C attached hereto. The last semiannual rental payments due before the expiration of this Lease shall be adjusted to provide for rental at the amount specified for the Project set forth on Exhibit C for the applicable semiannual period prorated from the date such installment is due to the date of the expiration of this Lease (without taking into account any subsequent early termination of this Lease pursuant to Section 2 hereof). After the sale of the Century Center Bonds issued by the Authority to pay the cost of the completion of the Century Center portion of the Project and other expenses incidental thereto, the first semiannual lease payment and the sum of the second and third semiannual rental installments and the sum of the fourth and fifth semiannual rental installments, and so on, for the Century Center Portion shall be reduced to an amount equal to the multiple of One Thousand and 4 00 /100 Dollars ($1,000.00) next highest to the highest co sum of principal and interest due in any year ending on a Bond maturity date on such Bonds plus Three Thousand and 00 /100 Dollars ($3,000.00), payable in equal semiannual installments. Such amount of reduced annual rental shall be endorsed on this Lease at the end hereof by the parties hereto as soon as the same can be done after the sale of said Bonds, and such endorsement shall be recorded as an addendum to this Lease. The Lessee will not take any action or fail to take any action that would result in the loss of the exclusion from gross income for federal tax purposes of interest on the Bonds pursuant to Section 103(a) of the Internal Revenue Code of 1986, as amended (the "Code "), as in effect on the date of delivery of the Bonds, nor will the Lessee act in any manner which would adversely affect such exclusion. The Lessee further covenants that it will not make any investment or do any other act or thing during the period that any Bond is outstanding hereunder which would cause any Bond to be an "arbitrage bond" within the meaning of Section 148 of the Code and the regulations thereunder as in effect on the date of delivery of the Bonds. All officers, members, employees and agents of the Lessee are authorized and directed to provide certifications of facts and estimates that are material to the reasonable expectations of the Lessee as of the date the Bonds are issued and to enter into covenants on behalf of the Lessee evidencing the Lessee's commitments made herein. 5. Section 9 of the Lease is amended to read as follows: Section 9. Insurance. In addition to the requirements under the Credit Facility Agreement (with respect to the Hall of Fame Bonds, the Lessee, at its own expense, will, during the full term of the Lease, keep the Century Center Portion and the Hall of Fame Portion of the Project insured against physical loss or damage, however caused, with such exceptions as are ordinarily required by insurers of properties of a similar type, in good and responsible insurance companies acceptable to the Authority. Such insurance shall be in an amount at least equal to the greater of (i) the option to purchase price or (ii) one hundred percent (100 %) of the full replacement cost of each of the Century Center Portion and the Hall of Fame Portion of such Project as certified by a registered architect, a registered engineer, or professional appraisal engineer, selected by the Authority with the approval of the Trustee, on the effective date of this Lease and 9 on or before the first day of April of each year thereafter; provided that such certification shall not be required so long as the amount of such insurance shall be in an amount at least equal to the option to purchase price. Such appraisal may be based upon a recognized index of conversion factors. In no event shall the insurance be in an amount which causes the Lessee to be a co- insurer for the Project. Such insurance may contain a provision for a deductible in an amount not exceeding $25,000. Lessee agrees to pay the deductible amount of any loss to the Authority. A blanket public institutional property insurance form may be used if: (a) the insurance on the Project is not less than the amount required by this Section, (b) the Lessee subordinates its claim for damage or destruction to other buildings or improvements to claims for damage or destruction of the Project, and (c) the insurance proceeds related to damage to or destruction of the Project are payable to the Trustee. During the full term of this Lease, the Lessee will also, at its own expense, maintain rental or rental value insurance in an amount at least equal to the full rental specified in Section 4 for the Century Center Portion and the Hall of Fame Portion for a period of two (2) years against physical loss or damage of the type insured against pursuant to the preceding requirements of this Section. Such policies shall be for the benefit of and shall be made payable to the Trustee. 6. Section 10 of the Lease is amended to read as follows: Section 10. Use of Insurance and Condemnation Proceeds. Subject to the requirements of the Credit Facility Agreement (with respect to the Hall of Fame Bonds), proceeds of insurance against damage to or destruction of the Project or any portion thereof or proceeds of any condemnation of the Project or any portion thereof shall be paid to and held by the Trustee and used to pay for reconstruction or replacement of the Project in accordance with plans approved by the Authority and the Lessee, unless the Lessee elects to exercise its option to purchase. Any such proceeds of insurance shall be segregated and held by the Trustee in separate accounts for the Hall of Fame Bonds and Century Center Bonds in the same L proportion relating to the damage or destruction of such Hall of Fame Portion or Century Center Portion. 7. Section 14 of the Lease is amended to read as follows: Section 14. Option to Purchase. The Authority hereby grants Lessee the right and option, on any rental payment date, upon thirty days' written notice to the Authority, to purchase either or both of the Century Center Portion or the Hall of Fame Portion of the Project in whole or in part at a price equal to the amount required to enable the Authority to provide for the redemption of in whole or in part the outstanding Century Center Bonds or for the redemption of in whole the outstanding Hall of Fame Bonds, as the case may be, all premiums payable on the redemption thereof, and accrued and unpaid interest, and to pay the cost of redeeming the Bonds and liquidating the Authority if it is to be liquidated, and, in the case of the Hall of Fame Bonds, all amounts owed to the Credit Facility Issuer following termination of the Credit Facility. Upon request of the Lessee, the Authority agrees to furnish an itemized statement setting forth the amounts required to be paid by the Lessee on the next rental payment date in order to purchase either or both portions of the Project in accordance with the preceding paragraph. If the Lessee exercises its option to purchase, the Lessee shall pay to the Trustee that portion of the purchase price which is required to provide for the payment of a part of or all of the Century Center Bonds or all of the Hall of Fame Bonds, including all premiums payable on the redemption thereof, accrued and unpaid interest thereon and the costs of redemption thereof. Such payment shall not be made until the Trustee gives to the Lessee a written statement that such amount will be sufficient to retire all or a part of the Century Center Bonds or all of the Hall of Bonds including all premiums payable on the redemption thereof and accrued and unpaid interest and all amounts owed the Credit Facility Issuer. The remainder of such purchase price, if any, shall be paid by the Lessee to the Authority. Nothing herein contained shall be construed to provide that the Lessee shall be under any obligation to purchase the Project or any portion thereof, or under any obligation with respect to any creditors or bondholders of the Authority. 7 If the Lessee has not exercised its option to purchase the Project or any portion thereof at the expiration of the term of the Lease and upon the full discharge and performance by the Lessee of its obligations under this Lease, the Authority shall execute a deed of the Project to the Lessee conveying good and merchantable title thereto, subject only to Permitted Encumbrances. 8. Section 15 of the Lease is amended as follows: Section 15. Defaults. If the Lessee shall (a) default in the payment of any rentals or other sums payable to the Authority hereunder, or in the payment of any other sum herein required to be paid for the Authority, (b) fail to comply with the terms set forth in the Lease Resolution, or (c) default in the observance of any other covenant, agreement or condition hereof, and such default under (c) shall continue for ninety (90) days after written notice to correct the same, then, in any of such events, the Authority may proceed to protect and enforce its rights, either at law or in equity, by suit, action, mandamus or other proceedings, whether for specific performance of any covenant or agreement contained herein or for the enforcement of any other appropriate legal or equitable remedy; provided that in no event shall the Lessee be relieved of its obligation to make the Lease Payments hereunder as a result hereof. 9. Section 16 of the Lease is amended as follows: Section 16. Notices. Whenever either party shall be required to give notice to the other under this Lease, it shall be sufficient service of such notice to deposit the same in the United States mail, in an envelope duly stamped, registered and addressed to the other party at its last known place of business. A copy of any notice shall be mailed by first -class mail to the Trustee at its last known place of business; with a copy to the Credit Facility Issuer at the address provided for the Credit Facility Issuer in the Credit Facility Agreement. 10. The following is added as Section 19 of the Lease as follows: Section 19. Rights of Credit Facility Issuer. The Lessee acknowledges that the Authority's rights hereunder have been assigned to the Trustee for the 8 benefit of the bondholders and, subject to the prior rights of bondholders, for the benefit of the Credit Facility Issuer and that such Trustee has a right to enforce the provisions of the Lease to the extent provided in the Trust Indenture. In addition, the parties hereto agree that this Lease shall not be amended, modified, waived or terminated (except as expressly required by law in the event the Project is not useable) unless the Credit Facility Issuer shall have consented thereto in writing or all amounts owed the Credit Facility Issuer have been paid in full following termination of the Credit Facility. 11. The parties hereto acknowledge that all remaining terms, covenants and conditions as set forth in the Lease between the parties hereto and executed as of the first day of November, 1993, shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have caused this Addendum to Lease to be executed for and on their behalf on the day and year first hereinabove written. ATTEST: Mary O. Ferlic, Secretary- Treasurer ATTEST: Theo F. Sharp, Secretary SOUTH BEND REDEVELOPMENT AUTHORITY By: Joseph W. Wroblewski, President SOUTH BEND REDEVELOPMENT COMMISSION By: Paula N. Auburn, President 01 0 IN STATE OF INDIANA ) ) SS: COUNTY OF ST. JOSEPH ) Before me, the undersigned, a Notary Public in and for said State, personally appeared Joseph W. Wroblewski and Mary 0. Ferlic, personally known by me to be the President and Secretary - Treasurer, respectively, of the South Bend Redevelopment Authority, and acknowledged the execution of the foregoing Addendum to Lease for and on behalf of said Authority. WITNESS my hand and Notarial Seal this day of June, 1994. ( SEAL) My commission expires: I am a resident of STATE OF INDIANA ) ) SS: COUNTY OF ST. JOSEPH ) (Written Signature) (Printed Signature) County, Indiana. Before me, the undersigned, a Notary Public in and for said State, personally appeared Paula N. Auburn and Theo F. Sharp, personally known by me to be the President and Secretary, respectively, of the South Bend Redevelopment Commission, and acknowledged the execution of the foregoing Addendum to Lease for and on behalf of said Commission. WITNESS my hand and Notarial Seal this day of June, 1994. (SEAL) My commission expires: (Written Signature) (Printed Signature) I am a resident of County, Indiana. This instrument prepared by Randolph R. Rompola, Esq., Baker & Daniels, 205 West Jefferson Boulevard, South Bend, Indiana 46601 \ nrompol \sthbend\ ha) Ww \addenlea.ec;06 /24/94 10