HomeMy WebLinkAboutAuthorizing the city Amend Documents Relating to its economic development refunding revenue bond series 1983 • t i ♦
ORDINANCE No. 8312-92
Passed by the Common Council of the City of South Bend, Indiana.
November 9, 92
Attest: City Clerk
IRENE K. GAMMON
Attest: /41746.—)d President of Common Council
Presented by me to the Mayor of the City of South Bend, Indiana_
November 10, 92
i9
City Clerk
IRENE K. GAMMON
Approved and signed by me Li&VI'KY1-6-1() 1 Ig 9c= ,
°`�'" Mayor
ORDINANCE NO. $34°2- 9A
ORDINANCE AUTHORIZING THE CITY OF SOUTH BEND TO
AMEND DOCUMENTS RELATING TO ITS ECONOMIC DEVELOPMENT
REFUNDING REVENUE BOND, SERIES 1983 (COLUMBIA PLACE ASSOCIATES
PROJECT) AND APPROVING AND AUTHORIZING OTHER ACTION IN RESPECT
THERETO"
WHEREAS, the City of South Bend ("Issuer") has heretofore issued its $1,700,000
Economic Development Refunding Revenue Bond (Columbia Place Associates Project) (the
"Bond") dated as of August 1, 1983 (the "1983 Bond") to refund the City of South Bend,
Indiana, Economic Development Revenue Bonds (Columbia Place Associates Project), Series
1981 dated as of May 1, 1981 and to finance certain costs of the Columbia Place Associates
Project (the "Project") as described in the Loan Agreement and Bond Purchase Agreement dated
August 1, 1983 (the "Loan Agreement and Bond Purchase Agreement");
WHEREAS, Columbia Place Associates (the "Company") and UNUM Life Insurance
Company of America (the "Bondholder") have requested the Issuer to amend the Loan
Agreement and Bond Purchase Agreement so as to change the interest rate on the remaining
outstanding principal amount on the Bond, to change the remaining principal repayment
schedule, to provide additional remedies against the Company to the Bondholder upon the
occurrence of an Event of Default, to provide for certain waivers of rights by the Company in
the event of bankruptcy, and to recognize the existence of an interest bearing escrow account
(the "Capital Expense Escrow");
WHEREAS, Section 9.4 of the Loan Agreement and Bond Purchase Agreement permits
the same to be amended upon the written consent of the Bondholder, such consent being
heretofore granted;
BE IT ORDAINED BY THE COMMON COUNCIL OF THE CITY OF SOUTH BEND,
INDIANA THAT:
Section 1. The First Amendment to Loan Agreement and Bond Purchase Agreement
is hereby approved and shall be incorporated herein by reference and shall be inserted in the
minutes of the Common Council and kept on file with the Clerk.
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Section 3. This Ordinance shall be in full force and effect from and after its passage
and signing by the Mayor.
Passed and adopted this f 'day of /OV , 1992.
Memb of th€'Common Council
1 R z .r..,f
and C L:z2c•_3.l, °,':::R...',✓ � '?M.. ..... 3 y1J?.'t':.
BUTLER, SIMERI, KONOPA AND LADERER, P.C.
ATTORNEYS AT LAW JOSEPH V.SIMERI
ONE MICHIANA SQUARE KEVIN J.BUTLER
ROBERT J.KONOPA
100 EAST WAYNE STREET,SUITE 300 LEWIS C.LADERER.JR.
Posr OFFICE Box 1438 MICHAEL C.MURPHY
SOUTH BEND, INDIANA 46624 REBECCA HOYT FISCHER
ROBERT G.DEPETSKI
TELEPHONE(219)233-3303 MARGOT F.REAGAN
PATRICK J.O'CONNELL
FACSIMILE(219)284-2397 ANN-CAROL SIMONS
MICHAEL J.STEPANEK,JR.
OF COUNSEL
October 21, 1992
South Bend Common Council
South Bend City Clerk
4th Floor, County-City Building
South Bend, Indiana 46601
Ladies and Gentlemen:
Enclosed is a proposed Ordinance which, if approved, will
authorize the first amendment to the Loan Agreement and Bond
Purchase Agreement for the City of South Bend Economic Development
Refunding Revenue Bond (Columbia Place Associates Project) dated as
of August 1, 1993. We ask that this Ordinance be placed on the
Council Agenda for its meeting on Monday, October 26, 1992.
The Bonds referenced above financed the construction of
Columbia Place office building located in the River Glenn Office
Park in downtown South Bend. The interest rate which was fixed at
10.33 percent per annum will, by the amendments authorized by this
Ordinance, be adjusted to current market rates, thereby making this
project economically viable.
We will ask the Common Council at its meeting on Monday,
October 26, 1992, to suspend its rules and take final action on
this Ordinance so that the interest rate adjustments can be
effected immediately after enactment.
Thank you for consideration of this matter.
Ver ly yours,
Kevin . Butler
KJB:ks
Enclosure
SENT BY; 1 CE MILL Elt ;111-2b-02 a: rrM , Luny r LtA i tit Z l�2u4" 11 r„* n
• s : v IAl • •A. . REEM zs s t • s P t ��
AGREEMENT
This First Amendment to Loan Agreement and Bond Purchase Agreement
("Amendment") dated as of October 1, 1992, by and among the CITY OF SOUTH BEND, a
municipal corporation organized under the laws of the State of Indiana("Issuer"), COLUMBIA
PLACE ASSOCIATES, a limited partnership organized and existing under the laws of the State
of Indiana("Company"), and UNUM LIFE INSURANCE COMPANY OF AMERICA, a Maine
corporation formerly known as Unionmutual Stock Life Insurance Co. of America
("Bondholder")
WITNESSETH:
WHEREAS, the Issuer, the Company, and the Bondholder have entered into the Loan
Agreement and Bond Purchase Agreement dated as of August 1, 1983 ("Loan Agreement and
Bond Purchase Agreement") in order to provide for the issuance of and security for the Issuer's
Economic Development Refunding Revenue Bond, Series 1983 (Columbia Place Associates
Project), dated as of August 1, 1983 in the principal amount of$1,700,000 ("Bond"); and
WHEREAS, the Company and the Bondholder requested that this Amendment be entered
into in order to amend the Loan Agreement and Bond Purchase Agreement so as to change the
interest rate on the remaining outstanding principal amount of the Bond, to change the remaining
principal repayment schedule, to provide additional remedies to the Bondholder upon the
occurrence of an Event of Default, to provide for certain waivers of rights by the Company in
the event of bankruptcy, and to recognize the existence of an interest bearing escrow account
to be funded by Company in the manner set forth therein; and
WHEREAS, this Amendment is being entered into pursuant to Article 1X, Section 9.4
of the Loan Agreement and Bond Purchase Agreement;
NOW THEREFORE, the parties hereto agree as follows:
Section 1. =intim and reference. All capitalized terms not otherwise defined herein
shall have the meanings assigned to them in the Loan Agreement and Bond Purchase Agreement.
All references to the Loan Agreement and Bond Purchase Agreement shall mean the Loan
Agreement and Bond Purchase Agreement as amended by this Amendment.
Section 2. : „ 'ALA i • i- : . :,. , ' tft _t L. The Loan
Agreement and Bond Purchase Agreement 1s hereby amended as follows:
(a) Section 7.2 of the Loan Agreement and Bond Purchase Agreement is amended to
add the following as an additional remedy upon the occurrence of an Event of Default:
(c) Company, at the election of Bondholder, shall immediately provide
Bondholder with either a deed in lieu of foreclosure in form and substance
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acceptable to Bondholder, which transaction shall be completed no later than three
months after the occurrence of the Event of Default, or a stipulated or
uncontested foreclosure.
(b) A Section 7.6 shall be added to the Loan Agreement and Bond Purchase
Agreement, and shall be stated as follows:
In the event Company should file a voluntary petition for relief under the United
States Bankruptcy Code, 11 U.S.C. section 101 et seq. ("Bankruptcy Code"), or
an order for relief is otherwise entered in a bankruptcy case filed by Company
or initiated against Company, Company waives any and all objections to and
otherwise agrees not to oppose any motion filed by Bondholder for relief from the
automatic stay pursuant to section 362(e) or (d) of the Bankruptcy Code. This
provision shall be binding upon Company as a debtor-in-possession and upon any
trustee appointed by a Bankruptcy Court of competent jurisdiction.
(c) The form of Note referred to in Exhibit B to the Loan Agreement and Bond
Purchase Agreement shall be deleted and replaced with the form of Note attached hereto in
Exhibit A.
(d) The form of Bond referred to in Exhibit C to the Loan Agreement and Bond
Purchase Agreement shall be deleted and replaced with the form of Bond attached hereto in
Exhibit B.
(e) The Mayor and Clerk of the City of South Bend, Indiana are hereby authorized
to act on behalf of the City of South Bend, Indiana with respect to all actions contemplated in
paragraphs(c)and (d)of this section, including the endorsement of the Note, the form of which
is attached hereto as Exhibit A, and the execution of the Bond, the form of which is attached
hereto as exhibit B, and to execute all documents related to this First Amendment of Loan
Agreement and Bond Purchase Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by their respective officers thereunto duly authorized as of the date first above written.
CITY OF SOUTH BEND
osep , yor
Irene K. Gammon, Clerk
COLUMBIA PLACE ASSOCIATES
By:
,Managing GeneralPa trier
UNUM LIFE INSURANCE COMPANY OF
AMERICA
By:
1DD04430.WPg
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SEN1 137: 1C;E. MILL& 'r1U•-2G-U2 •,4orJi ; Lori Lt'sFtrc—' L1JGtf4GOW;r 2
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This First Amendment to Mortgage and Security Agreement ("Mortgage Amendment")
is made as of October 1, 1992, by and between COLUMBIA PLACE ASSOCIATES, an Indiana
limited partnership having offices at 404 S• Columbia Street, South Bend, Indiana 46624
("Mortgagor") and UNUM LIFE INSURANCE COMPANY OF AMERICA, a Maine
corporation formerly known as Unionmutual Stock Life Insurance Co. of America having offices
at 2211 Congress Street, Portland Maine 04122("Mortgagee")
WITNESSETH:
WHEREAS, the Mortgagor and Mortgagee have for good and valuable consideration
entered into a Mortgage and Security Agreement dated as of August 1, 1983 ("Mortgage")
whereby the Mortgagor did grant, bargain, sell, remise, release, convey, mortgage and warrant,
to Mortgagee, its successors and assigns, among other rights, interests, and collateral, the real
estate described on Exhibit A attached hereto, to secure the payment of a Note of even date
therewith in the principal amount of One Million Seven Hundred Thousand and no/100 Dollars
($1,700,000), as it has been renewed, extended or amended from time to time thereafter and
may be renewed, extended or amended from time to time hereafter ("Note"); and
WHEREAS, the parties requested that this Mortgage Amendment be entered into in order
to recognize the existence of an interest bearing escrow account ("Capital Expense Escrow"),
to effect a pledge, by the Mortgagor to the Mortgagee and in return for good and valuable
consideration, of the funds in the Capital Expense Escrow as additional security for the payment
of the Note, to provide additional remedies to the Bondholder upon the occurrence of an Event
of Default and to provide for certain waivers of rights by the Mortgagor in the event of
bankruptcy; and
WHEREAS, this Mortgage Amendment is being entered into pursuant to Article III,
Section 3.14 of the Mortgage;
NOW THEREFORE, the parties hereto agree as follows:
Section 1. pefmitions and references. All capitalized terms not otherwise defined herein
shall have the meanings assigned to them in the Mortgage. All references to the Mortgage shall
mean the Mortgage as amended by this Mortgage Amendment.
Section 2. Amendments to the pprtgage, The Mortgage is hereby amended as follows:
(a) A paragraph (g) shall be added to the items pledged as security for the Note, as
listed on pages 1 through 3 of the Mortgage. This paragraph shall be stated as follows:
(g) All funds on account in the Capital Expense Escrow dated as of
October 1, 1992, by and between the Mortgagor and Mortgagee.
)CAI 01 . ILL .11I LLCIC D,4_4-J1 r LVr l LLA i alt.'' G 1 UG(.0 d-u}j r e r ci
(b) A paragraph (g) shall be added to Section 2.02 of the Mortgage, Mortgagee's
remedies upon the occurrence of an Event of Default, and shall be stated as follows:
(g) Mortgagor, at the election of Mortgagee, shall immediately provide
Mortgagor with either a deed in lieu of foreclosure in form and substance
acceptable to Mortgagee, which transaction shall be completed no later
than three months after the occurrence of the Event of Default, or a
stipulated or uncontested foreclosure.
(c) A Section 3.16 shall be added to the Mortgage, and shall be stated as follows:
In the event Mortgagor should file a petition for relief under the United
States Bankruptcy Code, 11 U.S.C. 101 et seq, or relief is otherwise
entered in a bankruptcy case filed by Mortgagor or initiated against
Mortgagor, Mortgagor waives any and all objections to and otherwise
agrees not to oppose any motion filed by Mortgagee for relief from the
automatic stay pursuant to Section 362(c) or (d) of the Bankruptcy Code.
This provision shall be binding upon Mortgagor as a debtor-in-possession
and upon any trustee appointed by a Bankruptcy Court of competent
jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by their respective officers thereunto duly authorized as of the date first above written.
COLUMBIA PLACE ASSOCIATES
By:
,Managing General Partner
TJNUM LIFE INSURANCE COMPANY OF
AMERICA
By:
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Parcel I
A parcel in the Southeast Quarter and the Southwest Quarter of Section 12, Township 37 North,
Range 2 East, also being a part of Block 8 of the Recorded Plat of River Bend Addition, City
of South Bend, St. Joseph County, Indiana, described as follows: Commencing at the
intersection of the East right-of-way line of Columbia Street and the North right-of-way line of
Monroe Street; thence North 89°38'42" East along said North right-of-way of Monroe Street
250.00 feet; thence North 0'21'18" West 55.00 feet; thence North 39'35'12" West 67.66 feet
to the point of beginning; thence continuing North 39'35'12" West 167.06 feet; thence North
52'00'00" East 344.29 feet; thence South 70°06'30" East 2.50 feet; thence South 38'42'21"
East 164.89 feet; thence South 52°00'00" West 343.08 feet to the point of beginning.
Parcel II
A non-exclusive access easement for Parcel I to and from Columbia Street, in the City of South
Bend, Indiana as set out in Declaration and Grant of Easement for Pedestrian and Vehicular
Egress, dated November 3, 1982, between St. Joseph River Bend Development Corporation (as
grantor of the easement) and Crowe, Chizek& Company, American land Trust, First Bank and
Trust Company of South Bend (now 1st Source Bank), West Bank Properties, Columbia Place
Associates, River Glen Office Plaza Associates and St. Joseph Bank and Trust Company(owners
of the various "dominant parcels" described therein), recorded November 3, 1982 as Document
No. 8216847 in the Office of the Recorder of St. Joseph County, Indiana, and being, in
particular the easement described as "access Parcel No. 2" on Exhibit H thereto.
A non-exclusive access easement for Parcel I to and from Monroe Street in the City of South
Bend, Indiana, as set out in Declaration and Grant of Easement, dated October 22, 1980,
between River Glen Office Plaza Associates (as grantor of the easement) and St. Joseph River
Bend Development Corporation, St. Joseph Bank and Trust Company and Crowe, Chizek &
Company (owners of the various "dominant parcels" described therein) recorded October 22,
1980 as Document No. 8018357 in the Office of the Recorder of St. Joseph County, Indiana,
and being, in particular, the easement described as "Access Easement" in Exhibit E thereto.
WDOS44A.WP3
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REPLACEMENT NOTE
US $1,577,719 South Bend, Indiana
September 1, 1992
1. FOR VALUE RECEIVED, the undersigned, Columbia Place Associates, an
Indiana partnership, (hereinafter called "Maker"), promises to pay to the order of the City of
South Bend, Indiana, or its assigns (hereinafter called "Holder"), at South Bend, Indiana, or at
such other place as Holder may designate in writing, the principal sum of One Million Five
Hundred Seventy-Seven Thousand Seven Hundred Nineteen and 00/100 Dollars (US
$1,577,719), together with interest on the unpaid principal balance from September 1, 1992 as
hereinafter specified.
From and after September 1, 1992, interest, computed on the basis of a 360-day year
composed of twelve 30-day months, shall be payable through August 31, 1993 at the rate of
2.75% per annum. Interest due from September 1, 1993, through August 31, 1995, shall be
payable at the rate of 7.5% per annum. Interest due from September 1, 1995 through August
31, 1998, shall be payable at the rate of 8.5% per annum. Interest due from September 1, 1998
until maturity shall be at a rate of 10.33%. Interest only shall be payable on October 1, 1992
and the first day of each subsequent month through and including September 1, 1993. Principal
and interest shall be payable October 1, 1993, and the first day of each subsequent month until
the principal sum is repaid, in the amount of Fifteen Thousand Three Hundred Thirty-Four and
92/100 Dollars (US $15,334,92) per month. Such monthly payments shall continue until all
obligations of Maker hereunder have been paid in full; except that, in any event, all obligations
of Maker hereunder shall be fully paid, and all remaining principal and interest shall be due and
payable no later than July 1, 2013.
2. As more fully provided in the Mortgage and Security Agreement hereinafter
referred to, Holder may also condition its consent to any sale, assignment, encumbrance or other
disposition of title to the mortgaged property, or to certain transfers of ownership interests in
Maker, upon an increase in the interest rate on this Note to the Index Rate (as hereinafter
defined). Upon and after any such change in interest rate, the amount of each monthly payment
hereunder shall be increased to an amount sufficient to amortize the then unpaid principal
balance of this Note at such increased interest rate in equal monthly payments over the
remainder of the Amortization Period. Index Rate shall mean one hundred twenty percent
(120%) of the average Bond Buyer 30-Year Revenue Bond Index of 25 Revenue Bonds (or, if
that index is discontinued, then one hundred fifteen percent (115%) of the Bond Buyer Index of
20 Municipal Bonds) for the three (3) full calendar months prior to the date of the giving of
notice of such interest rate adjustment, or any successor index acceptable to Holder and
Company. During the four (4)-month period following such notice of any such increase in the
interest rate, Maker shall have the right, by giving at least sixty (60) days written notice to
Holder, to elect to prepay this Note in full without prepayment premium.
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3. At the option of the Holder exercisable at any time during the term of this Note,
payments due under this Note may be required to be paid by wire transfer or other immediately
available funds satisfactory to Holder.
4. If any payment under this Note is not paid within five calendar days after the date
payment is due, then Maker shall pay to Holder a late charge of five percent (5%) of such
payment. If any payment under this Note is not paid within fifteen (15) days after the date
payment is due, then the entire principal balance of this Note shall bear interest from the due
date of such late payment until such late payment is paid at a rate of five percent (5%) per
annum in excess of the interest rate then applicable hereunder. The late charge and excess
interest shall be due and payable immediately without demand. The receipt or acceptance by
Holder of the late charge or excess interest shall be without prejudice to its rights to declare a
default hereunder and shall not constitute a waiver of Holder's right to either require prompt
payment when due of all sums payable hereunder or to declare a default for failure to make
prompt payment.
5. From and after the date hereof, Maker shall not have any right except as
otherwise specifically provided, to prepay all or a portion of the principal balance of this Note
until September 1, 1993. Commencing with September 1, 1993, on any payment date thereafter
and with at least sixty(60)days' prior written notice to Holder thereof, additional payments may
be made by Maker which will be credited to installments of principal in the inverse order of
maturity and shall be noted on Exhibit A hereto. Any prepaid amounts specified in such prior
written notice together with the applicable prepayment premium shall become due and payable
at the time provided in said notice. In the event of such prepayment either in full or in part a
premium of 5% of the amount so prepaid shall be charged during the loan year commencing
September 1, 1993 and ending August 31, 1994. Such premium shall decrease by one-half
percent ('h%) per year thereafter until a premium of one percent (1%) is reached, which
premium shall continue until maturity. To the extent permitted by law, such prepayment
premium shall also be payable if the loan is prepaid following an acceleration after default,
provided that if the principal sum is so prepaid prior to September 1, 1993, the premium payable
in respect thereof shall be an amount equal to ten percent (10%) of the principal sum prepaid.
There shall be no prepayment premium payable if the principal sum is prepaid with casualty
insurance proceeds or condemnation awards.
6. Notwithstanding the foregoing, upon at least six (6) months written notice to °
Maker, Holder shall, at its sole option, have the right to call for payment in full of the principal
balance of this Note plus accrued interest, with no prepayment premium, on August 31, 1993,
August 31, 1999, August 31, 2003, and August 31, 2008. Under no circumstances shall this
paragraph be construed to make this Note one which is payable on demand except after such
demand has been made and such six (6) months' notice period expired.
7. If holder receives notice of a Determination of Taxability(as hereinafter defined),
then the rate of interest then payable under this Note shall automatically be increased by two and
one-half percent (2l %)per annum, effective as of the date of receipt by Holder of such notice,
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and the monthly payments required hereunder shall be increased, effective as of the first day of
the calendar month following such date of receipt, to an amount sufficient to amortize the then
unpaid principal balance of this Note, together with interest as increased in accordance with the
provisions of this paragraph, in equal monthly payments over the remainder of the Amortization
Period. As soon as practicable after its receipt of notice of a Determination of Taxability,
Holder shall. notify Maker in writing of its receipt thereof and of the consequent increase in
interest rate and monthly payments required hereunder. In addition to the other amounts set
forth in this paragraph and within thirty (30) days of receipt of a notice setting forth such
amounts, Maker shall pay to the current and any previous Holder of this Note the amounts of
additional federal and state income taxes, including penalties and interest thereon, which such
Holder or Holders estimate they have incurred or will incur by reason of such Determination
of Taxability with respect to their current and past tax years, plus a "gross up" amount equal
to all federal, state and local taxes required to be paid by virtue of the receipt of payments under
this sentence (calculated at an assumed federal tax rate of 46% and at the maximum state and
local statutory rates applicable to the payments received) and the provision of this sentence shall
survive the payment of this Note. Notwithstanding the provisions of paragraph 16 hereof, in
the event a Determination of Taxability occurs as a result(in the reasonable judgment of Holder)
of the act or omission of Maker, obligation to pay the amounts set forth in the preceding
sentence shall be the personal obligation of Maker but not of its general partners. In addition,
Holder may, at its option, at any time after receipt of notice of a Determination of Taxability,
declare the unpaid principal balance of this Note, together with accrued interest thereon and any
other indebtedness due hereunder, due and payable in full, upon at least six (6) months' prior
written notice to Maker, and Maker shall pay the same to Holder on the date specified in said
notice,plus a prepayment premium equal to eight percent(8%) of such unpaid principal balance,
if such payment occurs prior to September 1, 1993.
8. A "Determination of Taxability" shall mean (i) the occurrence of a determination
by the Internal Revenue Service that the interest payable on the Bond (as described in the Loan
Agreement hereinafter described) is includable for federal income tax purposes in the gross
income of Holder (other than during such time as Holder was a substantial user of the Project
or a related person, within the meaning of Section 147(a) of the Internal Revenue Code), or (ii)
the receipt by the Holder of an opinion of nationally recognized bond counsel selected by Holder
that the interest payable on the Bond(as described in the Loan Agreement hereinafter described)
is includable for federal income tax purposes in the gross income of Holder (other than during
such time as Holder`was a substantial user of the Project or a related person, within the meaning
of Section 147(a) of the Internal Revenue Code), or (iii) a statement of nationally recognized
bond counsel that it is unable to give an opinion that the interest payable on the Bond continues
to be excludable for federal income tax purposes from the gross income of Holder (other than
during such time as Holder was a substantial user of the Project or a related person, within the
meaning of Section 147(a) of the Internal Revenue Code).
9. This Note replaces and supercedes a Note dated August 1, 1983 and is secured
by a Mortgage and Security Agreement, as amended by the First Amendment to Mortgage and
Security Agreement, and an Assignment of Rents and Leases, each dated as of August 1, 1983,
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encumbering certain real and personal property located in the City of South Bend, State of
Indiana, and by any other instruments, now or hereafter executed by Maker in favor of Holder,
which in any manner constitute additional security for this Note and are issued pursuant to a
Loan Agreement and Bond Purchase Agreement, dated as of August 1, 1983, as amended by the
First Amendment to Loan Agreement and Bond Purchase Agreement dated as of September 1,
1992 (all of which are hereinafter called the "Security Documents"). This Note is secured by
a Capital Expense Escrow of even date herewith. Holder shall have the right, to apply all or
a portion of the proceeds of said Capital Expense Escrow to the outstanding principal balance
hereunder.
10. It is agreed that time is of the essence in the performance of all obligations
hereunder and under the Security Documents. If Maker shall fail to make any payment
hereunder within fifteen (15) days after the same shall be due, or if the Maker should default
in the performance or observance of any of the terms, agreements, covenants or conditions
contained in the Security Documents, then, following any applicable cure period, or at any time
thereafter, the entire principal balance of this Note, irrespective of the maturity date specified
herein, together with the then accrued interest thereon, and to the extent permitted by law the
prepayment premium, shall, at the election of the Holder hereof, and without notice of such
election, become immediately due and payable and the entire principal balance with accrued
interest thereon shall thereafter until paid bear interest at a rate of five percent (5%) in excess
of the interest rate then applicable hereunder.
11. All makers, endorsers, guarantors and sureties hereof jointly and severally waive
presentment, protest and notice of dishonor; and they also jointly ad severally hereby consent
to any and all renewals, extensions or modifications of the terms hereof, including the terms or
times for payment; and further agree that any such renewal, extension or modification of the
terms hereof or times for payment or of the terms of any of the Security Documents or the
release or substitution of any security for the indebtedness evidenced hereby or any other
indulgences shall not otherwise affect the liability of any of said parties for the indebtedness
evidenced by this Note. Any such renewals, extensions or modifications may be made without
notice to any of said parties.
12. This Note shall be the joint and several obligation of all makers,endorsers (except
the City of South Bend, Indiana), guarantors, and sureties, and shall be binding upon them and
their'successors and assigns. All makers, endorsers (except the City of South Bend, Indiana),
guarantors, and sureties hereof agree jointly and severally to pay all costs of collection and of
suit and foreclosure, including reasonable attorneys' fees. This paragraph 12 is subject to the
terms and provisions of paragraph 16 hereof.
13. Any forbearance of Holder in exercising any right or remedy hereunder or under
the Security Documents, or otherwise afforded by applicable law, shall not be a waiver of or
preclude the exercise of any right or remedy. The acceptance by Holder of payment of any such
amount payable hereunder after the due date of such payment shall not be a waiver of Holder's
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right either to require prompt payment when due of all other sums payable hereunder or to
declare a default for failure to make prompt payment.
14. This Note shall be governed by the laws of the State of Indiana, except to the
extent that federal usury laws may be applicable.
15. All agreements between Maker and Holder are expressly limited so that in no
event whatsoever shall the amount paid or agreed to be paid to Holder for the use, forbearance
or detention of the money to be advanced hereunder in accordance with the Security Documents
exceed the highest lawful rate permissible under applicable law, it being the intent of Holder and
Maker in the execution hereof and of the Security Documents to contract in strict accordance
with applicable usury laws. If any obligation under this Note or under any Security Document
shall involve transcending the usury limit prescribed by applicable law, then IRAQ Aga the
obligation to be fulfilled shall be reduced to such limit, and if from any circumstance Holder
shall receive as interest an amount which would exceed the highest lawful rate allowable under
applicable law, such amount which would be excessive interest shall be applied to the reduction
of the unpaid principal balance due hereunder and not to the payment of interest, or if such
excessive interest exceeds the unpaid principal balance, the excess shall be refunded to
Borrower. This provision shall control every other provision of all agreements between Maker
and Holder.
16. Notwithstanding anything to the contrary contained herein or in any instrument
securing this Note, except as set forth in paragraph 7 hereof and this paragraph, neither Maher
nor the partners of Maker shall have any personal liability for the payments of principal, interest
and prepayment premium (if any) on this Note and Holder agrees not to seek any damages or
personal money or deficiency judgment against Maker or the partners of Maker and will look
solely to the security granted by the Security Documents and any guaranty given in connection
herewith. Nothing herein contained shall limit or be construed to limit the personal liability and
obligations of Maker or the partners of Maker to the extent that, after the occurrence of an event
of default or an event which with the giving of notice or passage of time or both would be a
default, Maker or its partners collect any rents, issues or profits of the Project(as defined in the
Loan Agreement), and do not apply the same to normal operating expenses of the Project
(including rental payments under any ground lease) or to any payments due under this Note.
Such obligations or payments shall include but are not limited to the payment of taxes and
insurance premiums, the payment to Holder of any rents, income and profits collected by Maker
and becoming due after the default of Maker, security deposits, condemnation proceeds or
insurance proceeds which Maker receives and to which Holder is entitled pursuant to the terms
of the Security Documents, and any and all advances made by Holder for the account of Maker
for the satisfaction of Maker's obligations under the Security Documents. Holder shall not be
limited in any way in enforcing such personal liability and obligation of Maker and the partners
of Maker. Nothing herein contained shall be construed to prevent Holder from exercising and
enforcing any other remedy allowed at law or equity or allowed by any statute or by the Security
Documents except to the extent such remedy would require the payment of sums by Maker or
the partners of Maker the liability for which has been exculpated above, including without
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limitation any rights which Holder may have due to misrepresentations of Maker or the partners
of Maker, and nothing herein shall in any way affect any guaranty given in connection herewith.
17. Pursuant to the terms of said Loan Agreement, Holder will endorse this Note and
its interest as Holder hereunder to the Bondholder under said Loan Agreement. Maker hereby
consents to such assignment and authorizes any subsequent holder hereof to exercise the rights
and remedies of the Holder hereunder upon such assignment.
IN WITNESS WHEREOF, Maker has caused this Note to be executed by its duly
authorized general partner as of the date first hereinabove written.
COLUMBIA PLACE ASSOCIATES
By: �..
, General Partner
"MAKER"
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SENT By; ICE MILLER • ;10-26-92 ; 6:06PM ; COPY CENTER- 2192842397;#22
ENDORSEMENT
Pay, without recourse, to the order of UNUM Stock Life Insurance Company of
America.
CITY OF SOUTH BEND
By: ..
Joseph Kernan, Mayor
ATTEST:
Irene K. Gammon, Clerk
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1 I U9 L :11SL�Ll\ lr yvv Vr • v uva
•
•
EXHIBIT A
Anr °f irf t date of PrcuavINd t
•
mnoa49.WP5
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Stink tW ILt :Vi1LLLtt G•GUr.11 • Luri LL:\LL' 4.10401cvO+ ,m 0
United States of America
State of Indiana
County of St. Joseph
Economic Development Refunding Revenue Bond
(Columbia Place Associates Project)
US $1,577,719 South Bend, Indiana
September 1, 1992
1. FOR VALUE RECEIVED, the undersigned, City of South Bend, a municipal
corporation duly organized and validly existing under the laws of the State of Indiana
(hereinafter called "Issuer"), promises to pay to the order of the UNUM Life Insurance
Company of America (hereinafter called "Holder"), at South Bend, Indiana, or at such other
place as Holder may designate in writing, the principal sum of One Million Five Hundred
Seventy-Seven Thousand Seven Hundred Nineteen and 00/100 Dollars(US$1,577,719),together
with interest on the unpaid principal balance from September 1, 1992 as hereinafter specified.
From and after September 1, 1992, interest, computed on the basis of a 360-day year
composed of twelve 30-day months, shall be payable through August 31, 1993 at the rate of
2.75% per annum. Interest due from September 1, 1993, through August 31, 1995, shall be
payable at the rate of 7.5% per annum. Interest due from September 1, 1995 through
August 31, 1998, shall be payable at the rate of 8.5% per annum. Interest due from October
1, 1998 until maturity shall be at a rate of 10.33%. Interest only shall be payable on October
1, 1992 and the first day of the month of each subsequent month through and including
September 1, 1993. Principal and interest shall be payable October 1, 1993, and the first day
of each subsequent month until the principal sum is fully repaid in the amount of Fifteen
Thousand Three Hundred Thirty-Four and 92/100 Dollars (US $15,334.92) per month. Such
monthly payments shall continue until all obligations of Issuer hereunder have been paid in full;
except that, in any event, all obligations of Issuer hereunder shall be fully paid, and all
remaining Principal and Interest shall be due and payable no later than July 1, 2013.
2. As more fully provided in the Mortgage and Security Agreement hereinafter
referred to,Holder may also condition its consent to any sale, assignment, encumbrance or other
disposition of title to the mortgaged property, or to certain transfers of ownership interests in
Issuer, upon an increase in the interest rate on this Bond to the Index Rate (as hereinafter
defined). Upon and after any such change in interest rate, the amount of each monthly payment
hereunder shall be increased to an amount sufficient to amortize the then unpaid principal
balance of this Bond at such increased interest rate in equal monthly payments over the
remainder of the Amortization Period. Index Rate shall mean one hundred twenty percent
•.'+.L\l L)! • 1L-L .w:ILLLI\ 1'U GD-04. LVi i v.i.vi .n _sucuscvuE +rev
(120%) of the average Bond Buyer 30-Year Revenue Bond Index of 25 Revenue Bonds (or, if
that index is discontinued, then one hundred fifteen percent (115%) of the Bond Buyer Index of
20 Municipal Bonds) for the three (3) full calendar months prior to the date of the giving of
notice of such interest rate adjustment, or any successor index acceptable to Holder and
Company. During the four (4)-month period following such notice of any such increase in the
interest rate, Issuer shall have the right, by giving at least sixty (60) days written notice to
Holder, to elect to prepay this Bond in full without prepayment premium.
3. At the option of the Holder exercisable at any time during the term of this Bond,
payments due under this Bond may be required to be paid by wire transfer or other immediately
available funds satisfactory to Holder.
4. If any payment under this Bond is not paid within five calendar days after the date
payment is due, then Issuer shall pay to Holder a late charge of five percent (5%) of such
payment. If any payment under this Bond is not paid within fifteen (15) days after the date
payment is due, then the entire principal balance of this Bond shall bear interest from the due
date of such late payment until such late payment is paid at a rate of five percent (5%) per
annum in excess of the interest rate then applicable hereunder. The late charge and excess
interest shall be due and payable immediately without demand. The receipt or acceptance by
Holder of the late charge or excess interest shall be without prejudice to its rights to declare a
default hereunder and shall not constitute a waiver of Holder's right to either require prompt
payment when due of all sums payable hereunder or to declare a default for failure to make
prompt payment.
5. From and after the date hereof, Issuer shall not have any right except as otherwise
specifically provided, to prepay all or a portion of'the principal balance of this Bond until
September 1, 1993. Commencing with September 1, 1993, on any payment date thereafter and
with at least sixty(60) days' prior written notice to Holder thereof, additional payments may be
made by Issuer which will be credited to installments of principal in the inverse order of
maturity and shall be noted on Exhibit A hereto. Any prepaid amounts specified in such prior
written notice together with the applicable prepayment premium shall become due and payable
at the time provided in said notice. In the event of such prepayment either in full or in part a
premium of 5% of the amount so prepaid shall be charged during the loan year commencing
September 1, 1993 and ending August 31, 1994. Such premium shall decrease by one-half
percent (i %) per year thereafter until a premium of one percent (1%) is reached, which
premium shall continue until maturity. To the extent permitted by law, such prepayment
premium shall also be payable if the loan is prepaid following an acceleration after default,
provided that if the principal sum is so prepaid prior to September 1, 1993, the premium payable
in respect thereof shall be an amount equal to ten percent (10%) of the principal sum prepaid.
There shall be no prepayment premium payable if the principal sum is prepaid with casualty
insurance proceeds or condemnation awards.
6. Notwithstanding the foregoing, upon at least six (6) months written notice to
Issuer, Holder shall, at its sole option, have the right to call for payment in full of the principal
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balance of this Bond plus accrued interest, with no prepayment premium, on August 31, 1993,
August 31, 1998, August 31, 2003, and August 31, 2008. Under no circumstances shall this
paragraph be construed to make this Bond one which is payable on demand except after such
demand has been made and such six (6) months' notice period expired.
7. If holder receives notice of a Determination of Taxability (as hereinafter defined),
then the rate of interest then payable under this Bond shall automatically be increased by two
and one-half percent (21%) per annum, effective as of the date of receipt by Holder of such
notice, and the monthly payments required hereunder shall be increased, effective as of the first
day of the calendar month following such date of receipt, to an amount sufficient to amortize
the then unpaid principal balance of this Bond, together with interest as increased in accordance
with the provisions of this paragraph, in equal monthly payments over the remainder of the
Amortization Period. As soon as practicable after its receipt of notice of a Determination of
Taxability, Holder shall notify Issuer in writing of its receipt thereof and of the consequent
increase in interest rate and monthly payments required hereunder. In addition to the other
amounts set forth in this paragraph and within thirty (30) days of receipt of a notice setting forth
such amounts, Issuer shall pay to the current and any previous Holder of this Bond the amounts
of additional federal and state income taxes, including penalties and interest thereon, which such
Holder or Holders estimate they have incurred or will incur by reason of such Determination
of Taxability with respect to their current and past tax years, plus a "gross up" amount equal
to all federal, state and local taxes required to be paid by virtue of the receipt of payments under
this sentence (calculated at an assumed federal tax rate of 46% and at the maximum state and
local statutory rates applicable to the payments received) and the provision of this sentence shall
survive the payment of this Bond. Notwithstanding the provisions of paragraph 16 hereof, in
the event a Determination of Taxability occurs as a result(in the reasonable judgment of Holder)
of the act or omission of Issuer, obligation to pay the amounts set forth in the preceding sentence
shall be the personal obligation of Issuer but not of its general partners. In addition, Holder
may, at its option, at any time after receipt of notice of a Determination of Taxability, declare
the unpaid principal balance of this Bond, together with accrued interest thereon and any other
indebtedness due hereunder, due and payable in full, upon at least six (6) months' prior written
notice to Issuer, and Issuer shall pay the same to Holder on the date specified in said notice,plus
a prepayment premium equal to eight percent (8%) of such unpaid principal balance, if such
payment occurs prior to September 1, 1993,
8. A "Determination of Taxability" shall mean (i)the occurrence of a determination
by the Internal Revenue Service that the interest payable on the Bond (as described in the Loan
Agreement hereinafter described) is includable for federal income tax purposes in the gross
income of Holder (other than during such time as Holder was a substantial user of the Project
or a related person, within the meaning of Section 147(a) of the Internal Revenue Code), or(i)
the receipt by the Holder of an opinion of nationally recognized bond counsel selected by Holder
that the interest payable on the Bond (as described in the Loan Agreement hereinafter described)
is includable for federal income tax purposes in the gross income of Holder (other than dining
such time as Holder was a substantial user of the Project or a related person, within the meaning
of Section 147(a) of the Internal Revenue Code), or (iii) a statement of nationally recognized
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SENT BY: ICE MILLER ;10-26-92 ; 3:54PM ; COPY CENTER-, 2192842397412
bond counsel that it is unable to give an opinion that the interest payable on the Bond continues
to be excludable for federal income tax purposes from the gross income of Holder (other than
during such time as Holder was a substantial user of the Project or a related person, within the
meaning of Section 147(a) of the Internal Revenue Code).
9. This Bond is issued pursuant to and in full compliance with the constitution and
laws of the State of Indiana, including Indiana Code 36-7-12, and is issued by Issuer for the
purpose of refunding the City of South Bend, Indiana Economic Development Refunding
Revenue Bond, Series 1983 (Columbia Place Associates Project). As security for this Bond,
Issuer has conveyed to Holder its rights under the Loan Agreement, and endorsed to Holder the
Note of the Borrower dated of even date herewith in the principal amount of$1,577,719 and has
directed that Borrower execute and deliver to Holder the Mortgage and Security Agreement, as
amended by the First Amendment to Mortgage and Security Agreement, and an Assignment of
Rents and Leases, each dated as of August 1, 1983 (all of which are hereinafter called the
"Security Documents"). This Bond is secured by a Capital Expense Escrow of even date
herewith. Holder shall have the right to apply all or a portion of the proceeds of said Capital
Expense Escrow to the outstanding principal balance hereunder.
10. Notwithstanding any other agreements between Issuer, Borrower and Holder, this
Bond and all payments hereunder, however designated, are limited obligations of Issuer payable
solely from payments owed to Issuer pursuant to the Loan Agreement, Note, and other Security
Documents, and from disposition of the security given heretofore. This Bond and all payments
hereunder, however designated, do not and shall never constitute a debt of Issuer within the
meaning of any constitutional or statutory limitation and do not and shall never constitute a
charge against Issuer's general credit or taxing powers. The provisions of this paragraph shall,
for all purposes of this Bond, be controlling and be given full force and effect, anything else to
the contrary in this Bond or any other documents notwithstanding.
11. It is agreed that time is of the essence in the performance of all obligations
hereunder and under the Security Documents. If Issuer shall fail to make any payment
hereunder within fifteen (15) days after the same shall be due, or if the Issuer should default in
the performance or observance of any of the terms, agreements, covenants or conditions
contained in the Security Documents, then, or at any time thereafter, the entire principal balance
of this Bond, irrespective of the maturity date specified herein, together with the then accrued
interest thereon, and to the extent permitted by law the prepayment premium, shall, at the
election of the Holder hereof, and without notice of such election, become immediately due and
payable and the entire principal balance with accrued interest thereon shall thereafter until paid
bear interest at a rate of five percent (5%) in excess of the interest rate then applicable
hereunder.
12. All makers, endorsers, guarantors and sureties hereof jointly and severally waive
presentment, protest and notice of dishonor; and they also jointly ad severally hereby consent
to any and all renewals, extensions or modifications of the terms hereof, including the terms or
times for payment; and further agree that any such renewal, extension or modification of the
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SENT BY: ICE MILLER ;10-26-92 : 5:36PM ; COPY CENTER- ` 2192842397;;;13
terms hereof or times for payment or of the terms of any of the Security Documents or the
release or substitution of any security for the indebtedness evidenced hereby or any other
indulgences shall not otherwise affect the liability of any of said parties for the indebtedness
evidenced by this Bond. Any such renewals, extensions or modifications may be made without
notice to any of said parties.
13. Subject to the provisions of paragraph 10 hereof, this Bond shall be the joint and
several obligation of all makers, endorsers, guarantors, and sureties, and shall be binding upon
them and their successors and assigns. Subject to the provisions of Section 10 hereof, all
makers, endorsers, guarantors, and sureties hereof agree jointly and severally to pay all costs
of collection and of suit and foreclosure, including reasonable attorneys' fees.
14. Any forbearance of Holder in exercising any right or remedy hereunder or under
the Security Documents, or otherwise afforded by applicable law, shall not be a waiver of or
preclude the exercise of any right or remedy. The acceptance by Holder of payment of any such
amount payable hereunder after the due date of such payment shall not be a waiver of Holder's
right either to require prompt payment when due of all other sums payable hereunder or to
declare a default for failure to make prompt payment.
15. This Bond shall be governed by the laws of the State of Indiana, except to the
extent that federal usury laws may be applicable.
16. All agreements between Issuer and Holder are expressly limited so that in no
event whatsoever shall the amount paid or agreed to be paid to Holder for the use, forbearance
or detention of the money to be advanced hereunder in accordance with the Security Documents
exceed the highest lawful rate permissible under applicable law, it being the intent of Holder and
Issuer in the execution hereof and of the Security Documents to contract in strict accordance
with applicable usury laws. If any obligation under this Bond or under any Security Document
shall involve transcending the usury limit prescribed by applicable law, then im lack the
obligation to be fulfilled shall be reduced to such limit, and if from any circumstance Holder
shall receive as interest an amount which would exceed the highest lawful rate allowable under
applicable law, such amount which would be excessive interest shall be applied to the reduction
of the unpaid principal balance due hereunder and not to the payment of interest, or if such
excessive interest exceeds the unpaid principal balance, the excess shall be refunded to
Borrower. This provision shall control every other provision of all agreements between Issuer,
Borrower and Holder.
17. Pursuant to the terms of said Loan Agreement, Holder will endorse this Bond and
its interest as Holder hereunder to the Bondholder under said Loan Agreement. Maker hereby
consents to such assignment and authorizes any subsequent holder hereof to exercise the rights
and remedies of the Holder hereunder upon such assignment.
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SENT BY: ICE MILLER ;10-26-92 ; 5:57PM ; COPY CENTER- 2192842397;#14
IN WITNESS WHEREOF, Issuer has caused this Bond to be duly executed by the Mayor
of the Issuer and its corporate seal to be affixed hereto and attested by the Clerk-Treasurer of
the Issuer, all as of this 1st day of September, 1992.
CITY OF SOUTH BEND
By:
Joseph Kernan, Mayor
ATTEST:
rene ammon, er
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SENT BY: ICE MILLER ;10-26-92 ; 5:57PM : COPY CENTER 2192842397;#15
EXHIBIT A
Date of payment Amount of Prepayment