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HomeMy WebLinkAbout1994-06-28 Resolution 95. RESOLUTION NO. 95 RESOLUTION OF THE SOUTH BEND REDEVELOPMENT. AUTHORITY APPROVING THE ERECUTION OF AN ADDENDUM TO THE LEASE BETWEEN THE AUTHORITY AND THE SOUTH BEND REDEVELOPMENT COMMISSION AND AUTHORIZING THE ISSUANCE AND SALE OF A BOND ANTICIPATION NOTE WHEREAS, the South Bend Redevelopment Authority (the "Authority") at a meeting on June 21, 1994, adopted Resolution No. 94 (the "Bond Resolution") authorizing the issuance and sale of bonds to be known as the "South Bend Redevelopment Authority Variable Rate Demand Lease Rental Revenue Bonds of 1994 (College Football Hall of Fame Project)" (the "Bonds") pursuant to I.C. 36- 7-14.5 et se ., in the aggregate principal amount not to exceed Nineteen Million and 00/100 Dollars ($19,000,000.00), the proceeds of which are to be used to construct and equip a college football • hall of fame and to pay the cost of issuance of the Bonds (the "Project") ; and WHEREAS, the Authority previously entered into a lease between the Authority and the South Bend Redevelopment Commission (the "Commission") dated as of November 1, 1993 (the "Original Lease"), pursuant to which the Authority will lease the Project to the Commission; and WHEREAS, the Authority previously entered into an addendum to lease between the Authority and the Commission dated as of June 3, 1994 (the "Addendum to Lease"), which Addendum to Lease reduced the semiannual lease rentals for the Century Center Portion as defined in the Original Lease and amended certain other terms and provisions of the Original Lease (the Original Lease and the Addendum to Lease are collectively referred to herein as the "Lease"); and WHEREAS, the Authority desires to approve and execute a second addendum to the Lease (the "Addendum"), a copy of which is attached hereto as "Exhibit A" and incorporated herein, making certain additional modifications to the Lease; and WHEREAS, the Authority desires to authorize the issuance and sale of a bond anticipation note to provide interim financing for costs relating to the completion of the Project; NOW, THEREFORE, BE IT RESOLVED, by this South Bend Redevelopment Authority as follows: Section 1. The Addendum to Lease attached hereto as Exhibit A is hereby approved. The President and Secretary- Treasurer of the Authority 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-Treasurer, said officers' execution and attestation to be conclusive evidence of their approval of such changes. Section 2. All remaining terms, covenants and conditions as set forth in the Lease shall remain in full force and effect. Section 3. The Authority hereby authorizes the President of the Authority to negotiate and enter into a purchase agreement for the sale of a bond anticipation note to be issued by the Authority (the "Purchase Agreement") in anticipation of the issuance of the Bonds in an aggregate principal amount not to • 2 I• exceed Two Million Dollars ($2,000,000.00) to be designated "South Bend Redevelopment Authority Lease Rental Revenue Bond Anticipation Note of 1994 (College Football Hall of Fame Project)" (the "BAN"). The BAN shall be issued in fully registered form, shall be issued in denominations of One Hundred Thousand and 00/100 Dollars (100,000.00) or intergral multiples thereof, shall be dated as of the date of issuance of the BAN and shall bear interest at a rate not to exceed ten (10~) per annum (the exact rate of interest to be determined under the terms of the Purchase Agreement) and shall finally mature not later than ninety (90) days following the date of issuance of the BAN. The BAN shall be issued pursuant to the provisions of Indiana Code 5-1-14-5 and 36-7-14.5 (collectively, the "Act") and the principal of and interest on the BAN shall be payable out of the proceeds derived from the issuance and sale of the Bonds pursuant to and in the manner prescribed by the Act . The BAN shall be prepayable at the option of the Authority, in whole or in part, at any time upon seven (7) days' notice to the owner of the BAN without any premimum. In the case of prepayment, the principal of and accrued interest due on the BAN shall be paid only from proceeds of the Bonds. The City Controller (the "Controller") of the City of South Bend, Indiana (the "City"), is hereby designated to serve as the Registrar and Paying Agent with respect to the BAN. Principal of and interest on the BAN shall be payable at the office of the Controller. The proceeds derived from the sale of the BAN shall be and are hereby set aside for the application to a portion of the costs of the Project. 3 i• Notwithstanding the Bond Resolution, if a BAN is issued, that portion of the proceeds of the Bonds required to be used for the Project shall be used to refund the BAN and are hereby pledged for such purpose. The President, Vice-President and Secretary- Treasurer may take such actions or deliver such certificates as are necessary or desirable in connection with the issuance of the BAN as they deem necessary or desireable in connection therewith, including, but not limited to obtaining a legal opinion as to the validity of the BAN from Baker & Daniels. Section 4. This Resolution shall be in full force and effect after its adoption by the Authority. Adopted at a meeting of the Authority held on June 28, 1994, at 1308 County-City Building, 227 West Jefferson Boulevard, South Bend, Indiana 46601. CITY OF SOUTH BEND REDEVELOPMENT AUTHORITY `~Vi w By: sep W. Wroblewski, esi ent ATTEST: .~.,- . Mary., O. Fer ic, Secretary- reasurer rrrompola~slhbend~hallo/am~vadeb/e.hal~lu~acc. add;dfie-28-94 • 4 ~~~.~ .~~ ~~-- ~ ~ ~~ a°~= .... ~~~-~.. ~ - - 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. CJ • "Credit Facility Isst~~r" 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, « 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 t~thatsoever 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. 4. Section 4 of the Lease is amended to read as follows: 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 clue 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 Ha11 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 Pavments. 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 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 • 5 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 proportion relating tb 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 cif 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 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 aright 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. SOUTH BEND REDEVELOPMENT AUTHORITY . ATTEST: Mary O. Ferlic, Secretary-Treasurer ATTEST: Theo F. Sharp, Secretary By: Joseph W. Wroblewski, President SOUTH BEND REDEVELOPMENT COMMISSION By: Paula N. Auburn, President 9 STATE OF INDIANA ) SSt COUNTY OF ST. JOSEPH ) Before me, the undersigned, a Notary Public in and for said State, personally appeared Joseph W. Wroblewski and Mary O. 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. (Written Signature) (SEAL) (Printed Signature) My commission expires: I am a resident of County, Indiana. STATE OF INDIANA ) • ) SS: COUNTY OF ST. JOSEPH ) 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. (Written Signature) (SEAL) My commission expires: 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 \rrcompol\sthbend\hallofam\addenlea.cc;06/24/94 (Printed Signature) 10