HomeMy WebLinkAboutUntitled (2) and all of its covenants, undertakings, stipulations and
provisions contained in the Loan Agreement and this Mortgage
and the Collateral Security Documents.
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ARTICLE THREE
THE MORTGAGED PROPERTY
Section 3-1 . Maintenance. The Mortgagor will at its
own expense keep the Mortgaged Property and all parts thereof,
in good repair and good operating condition and in as safe
condition as its operations will reasonably permit, making all
repairs thereto and renewals and replacements thereof which may
be necessary for this purpose in the reasonable judgment of the
Mortgagor, so that the Mortgaged Property will remain suitable
and efficient for use as a revenue producing enterprise in the
operation of the Mortgagor' s business.
Section 3-2. Modifications. The Mortgagor will not,
without the prior consent of the 'Mortgagee, cause any additions
or improvements or other modifications to the Mortgaged
Property to be made unless (1) the Mortgagor first determines
that such modifications are desirable for its business
purposes, and will not materially impair the structural
integrity or operating unity of the Mortgaged Property, or its
qualification under the Act, and (2) if the estimated cost of
the modifications exceeds $25 ,000, such determination is first
certified in writing by the Mortgagor' s Representative to the
Mortgagee. This Mortgage shall immediately attach to and
constitute a lien or security interest against all additions,
modifications and improvements to the Mortgaged Property made
by the Mortgagor without further act or deed of the Mortgagor.
Section 3-3 . Installation of Mortgagor' s Equipment.
The Mortgagor, or any lessee thereof, may at any time and from
time to time, in their sole discretion and at their own ex-
pense, install items of movable machinery, equipment or other
property in or upon the Mortgaged Property in addition to that
needed for completion of the Project under Section 3 .01 of the
Loan Agreement. All such items shall remain the sole property
of the Mortgagor, or such lessee, in which the Mortgagee shall
have no interest, and may be modified or removed by the Mort-
gagor or lessee at any time while such items are not needed for
the continuance of the operation of the Mortgaged Property,
provided that the Mortgagor or lessee shall repair and restore
any and all damage to the Mortgaged Property resulting from the
installation, modification or removal of any such items.
Nothing in this Mortgage shall prevent the Mortgagor or such
lessee after delivery of the Indenture from purchasing items to
be installed pursuant to this Section 3-3 under a conditional
sale or lease-purchase contract, or subject to a vendor' s lien
or security agreement, as security for the unpaid portion of
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the purchase price thereof oriovided thattnofsuch lien
security interest shall atter y P
aged
Property. The Mortgagor shall notify the Mortgagee of any
installation of equipment or machinery pursuant to this Section
and shall provide the Mortgagee with a description of such
items.
Section 3-4. Removal of Project Equipment. The
Mortgagor will not, without the prior consent of the Mortgagee,
remove or permit the removal or sell or otherwise surrender its
right to possession of any item of Project Equipment unless (1)
the Mortgagor first determines that such item has become inade-
quate, obsolete, worn out, unsuitable, undesirable or unneces-
sary for the operation of the Mortgaged Property and that such
disposition will not otherwise materially impair the operating
unity or structural unity of the Mortgaged Property, and (2) if
the estimated fair market value of such item exceeds $
the Mortgagor (1) either (a) substitutes for such item
machinery or equipment of substantially equivalent utility to
that replaced or (b) pays to the Mortgagee as trustee under the
Indenture for deposit in the Redemption Fund (as defined in the
Indenture) a sum equal to the fair market value of the item to
be replaced and (2) notifies the Mortgagee of the action the
Mortgagor intends to take with respect to such item of Project
Equipment, provided that if any Project Equipment is removed
under the provisions of this Section the Mortgagor or lessee
shall repair and restore any and all damage to the Mortgaged
Property resulting from the removal of such items. This
Mortgage shall immediately attach to and constitute a lien or
security interest against any substituted item without further
act or deed of the Mortgagor.
Section 3-5 . Release of Project Premises.
Intentionally Omitted.
Section 3-6. Tie-Ins: The Mortgagor may, at its own
expense, (A) connect or "tie-in" walls (including use of exist-
ing walls for the support of future adjacent buildings) and
utilities and other facilities located on the Project Premises
to other structures erected on the Project Premises or on real
property adjacent to or near the Project Premises or partly on
such adjacent real property and partly on the Project Premises,
or (B) in connection with the expansion or improvement of any
facility on the Project Premises, tear down any wall of the
facility and build an addition to such facility (either on the
Project Premises or on real property adjacent theretoor partly
on such adjacent real property and partly on the Project Prem-
ises) ; provided, however, that prior to any such expansion,
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addition, improvement, tearing down or connection with the "tie-
in" walls, utilities and other facilities, the Mortgagee shall
have received a written certification and/or opinion of an
Independent Engineer that the same will not materially impair
the operating unity or the efficiency of the Mortgaged Property
or materially and advsely fromaffect
lienthe
ofcharacter
Mortgage any The
Mortgagee shall release
interest in the Mortgaged Property to the extent necessary to
effect the purpose of this Section 3-6. This Mortgage shall
immediately attach to and constitute a lien or security
interest against all additions, modifications and improvements
to the Mortgaged Property made by the Mortgagor under this
Section 3-6 without further act or deed of the Mortgagor.
Section 3-7 . Damage and Destruction.
(1) If the Mortgaged Property is partially destroyed or
is damaged by fire or other casualty, to such extent that the
claim for loss resulting therefrom is not greater than $25,000,
the Mortgagor will promptly repair, rebuild, restore or replace
such property to such condition as existed before such
occurrence, or to any other condition which (with such changes,
alterations and modifications, including the substitution and
addition of other property as may be desired by the Mortgagor)
will not materially impair the operating unity, productive
capacity or value of the Mortgaged Property, and will be
suitable for continued operation of the Mortgaged Property for
the purposes specified in the Loan Agreement, and the Mortgagor
will pay the costs thereof and be entitled to retain all Net
Proceeds of insurance paid in respect of any claim resulting
from any such loss or damage.
(2) If the Mortgaged Property is destroyed in whole or in
part or is damaged by fire or other casualty, to such extent
that the claim for loss resulting therefrom exceeds $25,000,
the Mortgagor shall promptly give written notice thereof to the
Mortgagee and all proceeds of such insurance claim shall be
paid directly to the Mortgagee as trustee under the Indenture.
Unless Section 8.04(1) (B) of the Loan Agreement is applicable
and the Mortgagor exercises its option to terminate the Loan
Agreement and prepay the Loan (in which event the Mortgagee as
trustee under the Indenture shall apply the Net Proceeds re-
sulting from such claim to the payment and redemption of the
Bonds and the interest thereon as provided in the Indenture) ,
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the Mortgagor will proceed promptly to repair, rebuild, restore
or replace the property damaged or destroyed to substantially
the same condition as existed before the event causing the
damage, destruction or loss, or to any other condition which in
the opinion of an Independent Engineer (with such changes,
alterations and modifications, including the substitution and
addition of other property as may be desired by the Mortgagor) ,
will not materially impair the operating unity, productive
capacity or value of the Mortgaged Property, and will be
suitable for continued operation of the Mortgaged Property for
the purposes specified in the Loan Agreement. The Mortgagee as
trustee under the Indenture shall apply so much as may be
necessary of the Net Proceeds to payment of the costs of such
repair, rebuilding, restoration, or replacement, subject,
however, to the same requirements for documentation as are set
forth in Section 3.05 of the Loan Agreement for the payment of
Project Costs out of the Construction Fund (as defined in the
Indenture) , and to such other requirements as are set forth in
Section 5-5 of the Indenture which Section is incorporated
herein by reference.
(3) This Mortgage shall immediately attach to and consti-
tute a lien or security interest against all additions, modifi-
cations, substitutions and improvements to the Mortgaged
Property made by the Mortgagor pursuant to the provisions of
this Section without further act or deed of the Mortgagor.
Section 3-8. Condemnation.
(1) If the Mortgaged Property or any part thereof is
taken by Condemnation, the interests of the Mortgagor in any
award made in such proceedings are assigned to the Mortgagee as
trustee under the Indenture (except as otherwise provided in
Subsection (4) .
(2) If Section 8.04(1) (C) of the Loan Agreement is appli-
cable and the Mortgagor has exercised its option to terminate
the Loan Agreement and prepay the Loan, the Mortgagor as
trustee under the Indenture will apply the Net Proceeds to the
payment and redemption of the Bonds and interest thereon as
provided in the Indenture.
(3) Unless the Mortgagor has exercised its option to ter-
minate the Loan Agreement pursuant to Section 8.04(1) (C) of the
Loan Agreement, the Mortgagor will promptly, so far as possi-
ble, repair, rebuild, restore or replace the Mortgaged Property
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and all parts thereof to substantially the same condition as
existed before the taking, or to any other condition which in
the opinion of an Independent Engineer (with such changes,
alterations and modifications including the substitution and
addition of other property as may be desired by the Mortgagor)
will not materially impair the operating unity, productive
capacity or value of the Mortgaged Property, and will be suit-
able for continued operation of the Mortgaged Property for the
purposes specified in the Loan Agreement. The Mortgagor may
acquire such land in lieu of that taken only as may be needed
for such restoration. Upon receipt of an opinion of
Independent Counsel that this Mortgage constitutes a first and
prior lien upon said realty, the Mortgagee as trustee under the
Indenture shall, upon compliance with all terms of the
Indenture, apply so much as may be necessary of the Net
Proceeds to the payment of the cost of acquisition of the land.
The Mortgagee as trustee under the Indenture shall be
authorized to apply so much as may be necessary of the Net
Proceeds to the payment of the costs of such restoration,
subject, however, to the same requirements for documentation as
are set forth in Section 3 .05 of the Loan Agreement for the
payment of Project Costs out of the Construction Fund (as
defined in the Indenture) , and to such other requirements as
are set forth in Section 5-5 of the Indenture which Section is
incorporated herein by reference. If the Net Proceeds are not
sufficient to pay such costs in full including the cost of any
additional land acquired by the Mortgagor, the Mortgagor will
nevertheless complete the same and will pay that portion of the
cost in excess of the amount of the Net Proceeds.
(4) The Net Proceeds of any Condemnation award or portion
thereof separately awarded for damages on account of the taking
of or interference with the Mortgagor' s rights to possession,
use or occupancy of the Project shall be and remain at all
times the property of the Mortgagor.
(5) This Mortgage shall immediately attach to and consti-
tute a lien or security interest against all additions, modifi-
cations, substitutions and improvements to the Project made by
the Mortgagor under this Section 3-8 without further act or
deed of the Mortgagor.
Section 3-9. Mortgagor' s Right to Contest. Nothing
in this Mortgage or the Indenture shal be construed as
preventing the Mortgagor from contesting in good faith the
adequacy of any proposed insurance payment or Condemnation
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award, provided that the Mortgagor shall first notify the
Mortgagee of its intentions so to do. The Mortgagee will
cooperate fully with the Mortgagor in filing any proof of loss
with respect to any insurance claim, in the handling and
conduct of any litigation arising with respect thereto and in
the handling and conduct of any prospective or pending
Condemnation proceedings affecting the Mortgaged Property, and
will, to the extent it may lawfully do so, permit the Mortgagor
to litigate in any such litigation or proceeding in the name
and on behalf of the Mortgagee. In no event will the Mortgagee
voluntarily settle or consent to the settlement of any
prospective or pending Condemnation proceeding affecting the
Mortgaged Property without the consent of the Mortgagor.
Section 3-10. Restoration of Net Proceeds. If after
a reasonable period of time the Mortgaged Property has not been
restored as provided in Section 3-7 or 3-8 of this Mortgage,
any Net Proceeds paid to the Mortgagee shall continue to be
held by the Mortgagee for the purposes set forth in Section 3-7
or 3-8 of this Mortgage, provided that such Net Proceeds may
then also be used by the Mortgagee to make advances to the
Mortgagor as provided in Section 5-2 of this Mortgage, in which
event, in accordance with the provisions of Section 5-3, the
Mortgagor shall be obligated to prepay all such advances on
demand.
Section 3-11. Taxes and Other Governmental and
Utility Charges. The Mortgagor will, subject to the provisions
of Section 3-14 relating to permitted contests, make promptly
all payments due for taxes and special assessments, if any,
lawfully levied upon or with respect to the Mortgaged Property
or any part thereof, pay any other charges lawfully made by any
governmental body for public improvements that may be or become
secured by a lien on the Mortgaged Property, or any part
thereof, and utility and other charges incurred in the
operation, maintenance, use, occupancy, and upkeep of the
Mortgaged Property, including but not limited to, taxes or
governmental charges on any property of the Mortgagor brought
in or upon the Mortgaged Property, sales and other excise taxes
and any taxes levied upon or with respect to rentals, income or
profits from the Mortgaged Property, which, if not paid, would
become a lien thereon. With respect to any special assessments
or other governmental charges that may lawfully be paid in
installments over a period of years, with interest, the
Mortgagor shall be obligated to pay only such installments and
interest as are required to be paid during the period this
Mortgage remains in force.
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Section 3-12. Insurance. The Mortgagor shall
provide for or purchase and maintain such insurance as will
protect the Mortgagor and the Mortgagee against risk of loss or
damage to the Mortgaged Property and against claims which may
arise or result from the maintenance and use of the Mortgaged
Property including operations conducted in connection with
construction of improvements thereupon and from any other
operations of the Mortgagor conducted during the course of its
business. Such coverage shall include, but shall not
necessarily be limited to the following:
(1 ) Insurance During Construction. The Mortgagor shall
cause to be procured and maintained at not less than the limits
of coverage or liability indicated:
(A) Property Insurance. "All Risk" or "Named Peril"
builder' s risk insurance policy under a completed value form
covering all work on the Project including foundations,
permanent fixtures and attachments, machinery and equipment
included in or installed under any construction contract,
debris removal, architects and engineers fees, temporary
structures, materials, equipment and supplies of all kinds
located on the Project, to the full replacement value thereof.
"Named Peril" insurance shall provide coverage for the
following perils: fire, windstorm, lightning, riot or civil
commotion, aircraft or vehicle damage, earthquake, smoke,
explosion, vandlism, malicious mischief, and falling trees .
Said insurance shall be maintained in effect until permanent
property coverage as provided for hereinafter is in force.
Such insurance shall be written in the names of Mortgagee and
Mortgagor, as their interests may appear. Such policy may
provide for a deductible amount not to exceed $5,000 per
occurrence.
(B) Liability Insurance. Public Liability Insurance
written in the name of each contractor on an "occurrence
basis" , under a "Comprehensive General Liability Form" with
"Broad Form" property damage liability coverage and with XCU
exclusion removed. Limits shall be not less than $1,000,000
per occurrence for personal injury, bodily injury and death,
and not less than $100,000 for property damage liability. If
per person limits are specified they shall be for not less than
$500,000 per person and be for the same coverages. Liability
coverages shall include:
(i) Contractors' public liability-premises
and operations;
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(ii) Independent contractors' protective
contingent liability;
( iii) Personal injury;
(iv) Owned, nonowned and hired vehicles;
(v) Contractual liability coverage;
(vi) Products liability and completed
operations coverage which shall be required to be
kept in force for the duration of any contract
guarantee periods;. and
(vii) Workers' compensation insurance (with
• an "all states" endorsement) in the amount of
required statutory limits unless qualified as a
self-insurer under Minnesota law and evidence of
such qualification is provided to the Mortgagee
and, in addition, employers liability coverage
shall be maintained in limits of $100,000 per
occurrence either through a basic policy or
umbrella coverage.
Notwithstanding the foregoing, the Mortgagor may allow such
variations from policy limits and coverages for liability as
are deemed reasonable by the Mortgagor; provided that the
Mortgagor remains fully protected from liability in accordance
with the provisions of clause (B) , subsection (2) below.
(2) Permanent Insurance. The Mortgagor shall cause to be
procured and continuously maintained insurance, carried in the
names of the Mortgagor and the Mortgagee as their respective
interests may appear, as follows:
(A) Property Insurance. Except and to the extent
that the Mortgaged Property remains covered by the builders'
risk coverage specified above, the Mortgaged Property shall be
insured to 100% of full replacement value thereof against all
risks of direct physical loss, or, in the alternative, under a
fire and extended coverage policy insuring against loss arising
from or otherwise connected with at minimum the following
perils: fire and lightning, windstorm, hail, explosion, riot,
strike, civil commotion, smoke, aircraft and vehicles,
vandlism, malicious mischief and falling trees. Such insurance
may provide for a deductible amount not to exceed $5,000 per
occurrence.
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(B) Liability Insurance. Public Liability Insurance
written on an "occurrence" basis under a "Comprehensive General
Liability Form". in limits of not less than $1,000,000 per
occurrence for personal and bodily injury and death and limits
of not less than $100,000 for property damage liability. If
per person limits are specified, they shall be for not less
than $500,000 per person and be for the same coverages.
Insurance shall cover:
(i) Public Liability including premises and
operations coverage;
(ii) Independent Contractors - protective
contingent liability;
(iii) Personal injury;
(iv) Owned, nonowned and hired vehicles;
(v) Contractual liability covering the
indemnity obligations set forth in Section 7 .04(1)
of the Loan Agreement;
(vi) Products - completed operations;
(vii) Workers' compensation insurance (with an
"all states" endorsement) in the amount of
required statutory limits, unless qualified as a
self-insurer under Minnesota law and evidence of
such qualification is furnished to the Mortgagee;
and, in addition, employers liability insurance
shall be carried in limits of $100,000 per
occurrence either under a basic policy or umbrella
coverage.
( 3) Requirements for all Insurance. All insurance
required in this Section shall be taken out and maintained in
responsible insurance companies licensed to do business in
Minnesota. Said companies shall be selected by the Mortgagor.
The Mortgagor will deposit with the Mortgagee policies
evidencing all such insurance, or a certificate or certificates
of the respective insurers stating that such insurance is in
force and effect. Each policy and each certificate shall
contain a provision that the insurer shall not cancel coverage
or refuse to renew the policy or reduce or limit the scope or
limits of coverage thereunder without giving notice to the
Mortgagee at least ten (10) days before the cancellation,
nonrenewal or change becomes effective. Before the expiration
of any policy, the Mortgagor shall furnish the Mortgagee
evidence satisfactory to the Mortgagee that the policy has been
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renewed or replaced by another policy conforming to the
provisions of this Section 3-12, or that there is no necessity
therefor under the terms hereof. In lieu of separate policies,
the Mortgagor may maintain blanket policies having the coverage
required herein, in which event it shall deposit with the
Mortgagee a certificate or certificates of the respective
insurers as to the amount of covrage in force upon the
Mortgaged Property. The Mortgagor' s obligations to procure and
maintain insurance hereunder shall be in addition to and shall
not limit any other obligation assumed by the Mortgagor under
the terms of this Mortgage or the Loan Agreement. The
Mortgagee does not in any way represent that the insurance
specified herein, whether in scope of coverage or limits, is
adequate or sufficient to protect the Mortgagor' s business or
interests. Where special or unusual hazards peculiar to the
Mortgaged Property are foreseeable, the Mortgagor shall take
such steps to insure itself and the Mortgagee against such
hazards and shall be responsible for any damage which results
from the occurrence of such hazard. On or before the first day
of the twelfth month following the Completion Date (as defined
in the Indenture) , and on the first day of each such month
through the period this Mortgage remains in full force and
effect, the Mortgagor will file with the Mortgagee a
certificate stating that the Mortgagor has reviewed the
provisions of subsection (2) ; that the Mortgagor has insurance
in force in full compliance with said provisions and that the
Mortgagee has been furnished current copies of said insurance
policies or certificates evidencing proper coverage. Policies
required by clause (A) of subsections (1) and (2) shall provide
that the proceeds of such insurance shall be payable to the
Mortgagee pursuant to a standard mortgagee clause to be
attached to such policy, and such proceeds shall be applied as
provided in Section 3-7.
Section 3-13 . Liens. The Mortgagor represents and
warrants that, as of the date of execution of this Mortgage,
there exists no lien, charge or encumbrance, other than
Permitted Encumbrances, on the Mortgaged Property, prior to or
on a parity with this Mortgage. Except as otherwise permitted
by the provisions of this Mortgage, the Mortgagor will not
create or suffer to be created any lien, encumbrance or charge
upon the Mortgaged Property other than Permitted Encumbrances
and, subject to the provisions of Section 3-14 relating to
permitted contests, will satisfy or cause to be discharged, or
will make adequate provision to satisfy and discharge, all
lawful claims and demands for labor, materials, supplies or
other items which, if not satisfied, might by law become a lien
upon the Mortgaged Property. If any such lien shall be filed
or asserted against the Mortgaged Property by reason of work,
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0.
labor, services or materials supplied or claimed to have been
supplied, the Mortgagor shall, subject to the provisions of
Section 3-14 relating to permitted contests, forthwith cause
the same to be discharged of record.
Section 3-14. Permitted Contests.
(1) The Mortgagor shall not be required to pay any tax,
charge, assessment or imposition referred to in Section 3-11,
nor to remove any lien, charge or encumbrance required to be
removed under Section 3-13, so long as the Mortgagor shall
contest, in good faith and at its own cost and expense, the
amount or validity thereof, in an appropriate manner or by
appropriate proceedings which shall operate during the pendency
thereof to prevent the collection of or other realization upon
the tax, assessment, levy, fee, rent, charge, lien or
encumbrance so contested and to further prevent the sale,
forfeiture or loss of the Mortgaged Property or any part
thereof, to satisfy the same; provided that no such contest
shall subject the Mortgagee to the risk of any liability. Each
such contest shall be promptly prosecuted to final conclusion
(subject to the right of the Mortgagor to settle any such
contest) , and in any event the Mortgagor will save the
Mortgagee harmless against all losses, judgments, decrees and
costs (including attorneys' fees and expenses in connection
therewith) and will, promptly after the final determination of
such contest or settlement thereof, pay and discharge the
amounts which shall be levied, assessed or imposed or
determined to be payable therein, together with all penalties,
fines, interest, costs and expenses thereon or in connection
therewith. The Mortgagor shall give the Mortgagee prompt
written notice of any such contest.
(2) If the Mortgagee shall notify the Mortgagor
any inthe opinion of Independent Counsel, by nonpayment the
foregoing items the lien of this Mortgage as to any substantial
part of the Mortgaged Property will be materially endangered or
any substantial part thereof will be subject to imminent loss
or forfeiture or the obligations of the Mortgagor under this
Mortgage shall be materially impaired, then the Mortgagor shall
promptly pay all such unpaid items and cause them to be
satisfied and discharged, unless arrangements are made to the
satisfaction of the Trustee for provision of sufficient
security in the form of cash, securities or a letter of credit
to assure that timely payment will be made so as to prevent any
such adverse consequences from occurring.
Section 3-15. Easements. The Mortgagor may at any
time or times grant to itself or others easements, licenses,
rights-of-way and other rights or privileges in the nature of
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easements with respect to the Project Premises, free from the
lien of this Mortgage, or the Mortgagor may release existing
easements, licenses or rights-of-way for other easements,
licenses or rights-of-way, and the Mortgagee will execute and
deliver any instrument necessary or appropriate to confirm and
grant or release or exchange any such easement, license, right-
of-way or privilege; provided, however, that prior to any such
grant or release or exchange there shall have been supplied to
the Mortgagee a certificate signed by the Mortgagor and a
licensed architect, engineer or surveyor reasonably acceptable
to the Mortgagee to the effect (a) that such grant or release
or exchange is not detrimental to the proper operation of the
Mortgaged Property and access thereto and (b) that such grant
or release or exchange will not materially impair the operating
efficiency of the Mortgaged Property or materially and adversly
affect the value thereof. The Mortgagor will also furnish to
the Mortgagee a survey showing the Project Premises, all
improvements thereon, and the location of all easements,
licenses, rights-of-way or privileges to be granted, released
or exchanged.
Section 3-16. Rules, Laws and Regulations. The
Mortgagor agrees to comply with all applicable governmental
laws, regulations, requirements and rules with respect to the
use, maintenance and operation of the Mortgaged Property and
each item of equipment used or installed on the Project
Premises subject, however, to the right of the Mortgagor to
continue any such use or operation otherwise consistent with
the provisions of this Mortgage and the Loan Agreement during
the continuance of any lawsuit or other legal proceeding in
which the legality of such use or operation is in dispute and
is defended by the Mortgagor in good faith. In case any
equipment or appliance or any item of equipment shall be
required to be installed on such item of equipment in order to
comply with such laws, regulations, requirements and rules, and
such requirement is not duly contested as provided above, the
Mortgagor agrees to promptly make such changes, additions and
replacements at the Mortgagor' s sole expense.
Section 3-17 . Management of Project. The Mortgagor
shall retain the services of, and shall at all times cause the
Mortgaged Property to be managed by The Ebenezer Society or
another locally recognized professional management company
which then has at least 1500 rental housing units under
management contracts.
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ARTICLE FOUR
DEFAULT; REMEDIES OF MORTGAGEE
Section 4-1 . Events of Default. An Event of Default
as defined in the Loan Agreement shall constitute an Event of
Default hereunder:
Section 4-2. Remedies of Mortgagee. Upon the occur-
rence and continuance of an Event of Default, (1) the Mortgagee
shall be entitled to exercise any or all of the remedies set
forth or provided in the Loan Agreement or the Indenture,
including, but not limited to, petitioning a court of competent
jurisdiction for the appointment of a receiver to take
possession of and manage and operate the assets of the
Mortgagor for the benefit of the Holders of the Bonds then
Outstanding, and including, but not limited to, declaring all
outstanding indebtedness under the Loan Agreement immediately
due and payable without notice.
(2) without limitation as to the foregoing, the Mortgagee
may (a) proceed to protect and enforce its rights by a suit or
suits in equity or at law, either for the specific performance
of any covenant or agreement contained herein or in the Loan
Agreement, Indenture or Assignment of Leases and Rents, or in
aid of the execution of any power herein or therein granted, or
for the foreclosure of this Mortgage, or for the enforcement of
any other appropriate legal or equitable remedy, or (b) sell
the Mortgaged Property at public auction and convey the same to
the purchaser in fee simple in the manner provided by law.
Further, the Mortgagee, in exercising its rights hereunder,
shall also have, without limitation, all of the rights and
remedies provided by the Minnesota Uniform Commercial Code,
including the right to proceed under the Uniform Commercial
Code provisions governing default as to any Project Equipment
which may be included in the Mortgaged Property separately from
the real estate included therein, or to proceed as to all of
the Mortgaged Property in accordance with its rights and
remedies in respect of said real estate. If the Mortgagee
should elect to proceed separately as to such Project
Equipment, the Mortgagor agrees to make such Project Equipment
available to Mortgagee at a place or places acceptable to the
Mortgagee, and if any notification of intended disposition of
any of such Project Equipment is required by law, such
notification shall be deemed reasonably and properly given if
mailed at least ten (10) days before such disposition in the
manner below provided.
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(3) In the event of a sale under this Mortgage, whether
by virtue of judicial proceedings, advertisement or otherwise,
the Mortgaged Property may, at the option of the Mortgagee, be
sold as one parcel and as an entirety or in such parcels,
manner and order as the Mortgagee in its sole discretion may
elect.
(4) In case of any sale of the Mortgaged Property
pursuant to any judgment or decree of any court or otherwise in
connection with the enforcement of any of the terms of this
Mortgage, the Mortgagee or the Holder of any of the Bonds then
Outstanding (whether or not then in default) may become the
purchaser and, for the purpose of making settlement for or
payment of the purchase price, shall be entitled to turn in and
use such Bonds or claims for interest matured and unpaid
thereon, together with additions to the mortgage debt, if any,
accrued in order that there may be credited thereon the sums
payable out of the net proceeds of such sale to the Holder of
such Bonds and claims for interest and additions to the
mortgaged debt, if any, as his ratable share of such net
proceeds; and thereupon such purchaser shall be credited on
account of such purchase price with the portion of such net
proceeds that shall be applicable to the payment of, and shall
have been credited upon, such Bonds and claims for interest and
additions to the mortgage debt so used.
( 5) Each and every power or remedy herein specifically
given shall be in addition to every other power or remedy,
existing or implied, given or now or hereafter existing at law
or in equity, and each and every power and remedy herein
specifically given or otherwise so existing may be exercised
from time to time and as often and in such order as may be
deemed expedient by Mortgagee and the exercise or the beginning
of the exercise of one power or remedy shall not be deemed a
waiver of the right to exercise at the same time or thereafter
any other power or remedy. No delay or omission of the
Mortgagee in the exercise of any right or power accruing
hereunder shall impair any such right or power or be construed
to be a waiver of any default or acquiescence therein.
Section 4-3 . Right of Entry. If the Mortgagee
exercises one of the remedies provided for in Section 4-2 pur-
suant to a foreclosure of this Mortgage, the Mortgagee may then
or at any time thereafter take complete and peaceful possession
of the Mortgaged Property or any portion thereof, with or with-
out process of law, and may remove all persons therefrom, and
the Mortgagor covenants in any such event peacefully and
quietly to yield up and surrender the Mortgaged Property or
such portion thereof to the Mortgagee.
26
Section 4-4. Application of Money. The purchase
money proceeds and avails of any sale of the Mortgaged Property
or any part thereof, and the proceeds and avails of any other
remedy hereunder, shall be paid to the Mortgagee as Trustee
under the Indenture and applied as provided in Section 8-6 of
the Indenture.
Section 4-5 . Termination of Proceedings. In case
the Mortgagee shall have proceeded to enforce any right under
this Mortgage by foreclosure, sale, entry or otherwise, and
such proceedings shall have been discontinued or abandoned for
any reason or shall have been determined adversely, then and in
every such case the Mortgagor and the Mortgagee shall be restor-
ed to their former positions and rights hereunder with respect
to the property subject to the lien hereof.
Section 4-6. Rights of Bondholders. If an Event of
Default has occurred and is continuing, the Holders of
Outstanding Bonds shall have, with regard to all rights, powers
and remedies granted to the Mortgagee by, and any and all
proceedings instituted under, this Article Four, all of the
rights granted to such Holders under Sections 8-3 and 8-4 of
the Indenture.
Section 4-7 . Waiver. The Mortgagor waives, to the
extent it lawfully may, all right to have the Mortgaged
Property marshalled upon any foreclosure hereof and agrees that
any court having jurisdiction to foreclose this Mortgage may
order the sale of the Mortgaged Property or any portion thereof
as an entirety.
27
ARTICLE FIVE
THE MORTGAGEE
Section 5-1 . Right of Inspection. At any and all
reasonable times, the Mortgagee, and its duly authorized
agents, attorneys, experts, engineers, accountants and repre-
sentatives, shall have the right fully to inspect any and all
of the Mortgaged Property and all books, papers and records of
the Mortgagor pertaining to the Mortgaged Property, and to take
such memoranda and make such copies from and in regard thereto
as may be desired.
Section 5-2 . Right of Mortgagee to Pay Taxes and
Other Charges. In case any tax, assessment or governmental or
other charge upon any part of the Mortgaged Property or any
insurance premium with respect thereto is not paid, to the
extent, if any, that the same is legally payable, the Mortgagee
may pay such tax, assessment, governmental charge or premium,
without prejudice, however, to any rights of the Mortgagee
hereunder arising in consequence of such failure. Any amount
at any time so paid under this Section, with interest thereon
from the date of payment at an annual rate equal to the
Reference Rate publicly announced by The First National Bank of
Saint Paul as its Reference Rate, or such other annual rate as
may have been agreed upon by the Mortgagor and the Mortgagee,
shall be repaid to the Mortgagee upon demand, and shall become
so much additional indebtedness secured by this Mortgage, and
the same shall be given a preference in payment over principal
of or interest on the Bonds, but the Mortgagee shall be under
no obligation to make any such payment.
Section 5-3 . Reimbursement of Mortgagee. If any
action or proceeding be commenced (except an action to fore-
close this Mortgage) , to which action or proceeding the Mort-
gagee is made a party, or in which it becomes necessary, in the
Mortgagee' s reasonable opinion, to defend or uphold the lien of
this Mortgage or to protect the Mortgaged Property or any part
thereof, all reasonable sums paid by the Mortgagee to establish
or defend the rights and lien of this Mortgage or to protect
the Mortgaged Property or any part thereof (including reason-
able attorneys' fees, and costs and allowances) , and whether
suit be brought or not, shall be paid, upon demand, to Mort-
gagee by the Mortgagor, together with interest at an annual
rate equal to the Reference Rate publicly announced by The
First National Bank of Saint Paul as its Reference Rate, or
such other annual rate as may have been agreed upon by the
Mortgagor and the Mortgagee, and any such sum or sums and the
interest thereon shall be secured hereby prior to the Bonds.
28
EL
ARTICLE SIX
MISCELLANEOUS
Section 6-1 . Supplements or Amendments to this Mort-
gage. Any amendment or supplement provided for herein may be
made without the consent of or notice to any Bondholders. This
Mortgage may otherwise be supplemented or amended only in
accordance with Article Eleven of the Indenture.
Section 6-2 . Severability. If any provision of this
Mortgage shall be held or deemed to be or shall, in fact, be
inoperative or unenforceable as applied in any particular case
in any jurisdiction or jurisdictions or in all jurisdictions or
in all cases because it conflicts with any provisions of any
constitution or statute or rule of public policy, or for any
other reason, such circumstances shall not have the effect of
rendering the provision in question inoperative or unenforce-
able in any other case or circumstance, or of rendering any
other provision or provisions herein contained invalid, inopera-
tive, or unenforceable to any extent whatever.
The invalidity of any one or more phrases, sentences,
clauses or paragraphs in this Mortgage contained shall not
affect the remaining portions of this Mortgage or part thereof.
Section 6-3 . Successors and Assigns. All terms,
covenants, conditions and agreements of the Mortgagee contained
herein or set forth in the Loan Agreement shall be binding upon
the Mortgagee, its successors and assigns, and every covenant,
condition and agreement herein contained or set forth in the
Loan Agreement and Indenture in favor of the Issuer and the
Mortgagee as trustee under the Indenture shall apply to and
inure to the benefit of the Mortgagee, its successors or
assigns. This Mortgage is expressly made subject to all terms,
conditions, covenants and agreements set forth in the Loan
Agreement.
Section 6-4. Notices. All notices, certificates or
other communications hereunder shall be sufficiently given and
shall be deemed given when mailed by registered mail, postage
prepaid, with proper address as indicated below. The Mortgagor
and the Mortgagee may, by written notice given by each to the
other, designate any other address or addresses to which
notices, certificates or other communications to them shall be
sent when required as contemplated by this Mortgage. Until
otherwise provided by the respective parties, all notices, cer-
tificates and communications to each of them shall be addressed
as follows :
29
To the Mortgagor: Oak Ridge Place Limited
Partnership, a Minnesota
Limited Partnership
300 Prairie Center Drive
Eden Prairie, Minnesota 55344
To the Mortgagee: First Trust Company, Inc.
First Trust Center
180 East Fifth Street
St. Paul, Minnesota 55101
Attention: Corporate Trust
Department
Section 6-5. Execution Counterparts. This Mortgage
may be simultaneously executed in several counterparts, each of
• which shall be an original and all of which shall constitute
but one and the same instrument.
Section 6-6. WAIVER. THE MORTGAGOR UNDERSTANDS AND
AGREES THAT IF AN "EVENT OF DEFAULT" (AS DEFINED IN SECTION 4-1
OF THIS MORTGAGE) SHALL OCCUR, THE MORTGAGEE HAS THE RIGHT,
INTER ALIA, TO FORECLOSE THIS MORTGAGE BY ADVERTISEMENT PUR-
SUANT TO MINNESOTA STATUTES, CHAPTER 580 AS HEREAFTER AMENDED
OR PURSUANT TO ANY SIMILAR OR SUBSTITUTE STATUTE HEREAFTER
ENACTED: THAT IF THE MORTGAGEE ELECTS TO FORECLOSE BY ADVERTISE-
MENT, MORTGAGEE MAY CAUSE THE MORTGAGED PROPERTY, OR ANY PART
THEREOF, TO BE SOLD AT PUBLIC AUCTION: THAT NOTICE OF SUCH SALE
MUST BE PUBLISHED FOR SIX WEEKS AND SERVED UPON THE PERSON IN
POSSESSION OF THE MORTGAGED PROPERTY, AT LEAST FOUR WEEKS
BEFORE THE SALE.
THE MORTGAGOR FURTHER UNDERSTANDS THAT IN THE EVENT
OF SUCH DEFAULT THE MORTGAGEE MAY TAKE POSSESSION OF THE PERSON-
AL PROPERTY WHICH IS PART OF THE MORTGAGED PROPERTY AND MAY
DISPOSE OF THE SAME BY SALE OR OTHERWISE IN ONE OR MORE PARCELS
PROVIDED THAT AT LEAST TEN (10) DAYS' PRIOR NOTICE OF SUCH
DISPOSITION MUST BE GIVEN TO THE MORTGAGOR, ALL AS PROVIDED FOR
BY THE MINNESOTA UNIFORM COMMERCIAL CODE, AS HEREAFTER AMENDED
OR BY ANY SIMILAR OR SUBSTITUTE STATUTE HEREAFTER ENACTED.
THE MORTGAGOR FURTHER UNDERSTANDS THAT UNDER THE
CONSTITUTION OF THE UNITED STATES MORTGAGOR MAY HAVE THE RIGHT
TO NOTICE AND HEARING BEFORE THE MORTGAGED PROPERTY MAY BE SOLD
AND THAT THE PROCEDURE FOR FORECLOSURE BY ADVERTISEMENT
DESCRIBED ABOVE DOES NOT INSURE THAT NOTICE WILL BE GIVEN TO
THE MORTGAGOR AND THE PROCEDURE FOR FORECLOSURE BY
ADVERTISEMENT AND FOR DISPOSAL OF PERSONAL PROPERTY DESCRIBED
ABOVE DOES NOT REQUIRE ANY HEARING OR OTHER JUDICIAL
PROCEEDING.
30
THE MORTGAGOR HEREBY RELINQUISHES, WAIVES AND GIVES
UP MORTGAGOR' S CONSTITUTIONAL RIGHTS, IF ANY, TO NOTICE AND
HEARING BEFORE SALE OF THE MORTGAGED PROPERTY AND EXPRESSLY
CONSENTS AND AGREES THAT THE MORTGAGED PROPERTY MAY BE FORE-
CLOSED BY ADVERTISEMENT AND THAT SAID PERSONAL PROPERTY MAY BE
DISPOSED OF BY SALE OR OTHERWISE, ALL AS DESCRIBED ABOVE.
THE MORTGAGOR ACKNOWLEDGES THAT IT IS REPRESENTED BY
LEGAL COUNSEL: THAT BEFORE SIGNING THIS DOCUMENT ITS
CONSTITUTIONAL RIGHTS WERE FULLY EXPLAINED BY SUCH COUNSEL AND
THAT MORTGAGOR UNDERSTANDS THE NATURE AND EXTENT OF THE RIGHTS
WAIVED HEREBY AND THE EFFECT OF SUCH WAIVER.
Section 6-7 . Fixture Filing. This instrument also
shall be deemed to be a Fixture Financing Statement within the
meaning of the Minnesota Uniform Commercial Code, Minnesota
Statutes, Section 336.9-313:
(1) Name and Address Oak Ridge Place Limited
of Debtor and Owner Partnership, a Minnesota
of Real Estate: Limited Partnership
300 Prairie Center Drive
Eden Prairie, Minnesota 55344
(2) Name and Address First Trust Company, Inc.
of Secured Party: 180 East Fifth Street
St. Paul, Minnesota 55101
(3) Description of the Project Equipment as defined
types (or items of and described on page 8
property covered by above, and Exhibit B hereto.
this Financing
Statement:
(4) Description of real See Exhibit A hereto.
estate to which
collateral is
attached or upon
which it is located:
Some of the above described collateral is or is to become fix-
tures upon the above described real estate, and this Financing
Statement is to be filed for record in the real estate records
of Washington County, Minnesota.
Section 6-8. Construction Mortgage. This Mortgage
secures an obligation incurred for the construction of an
improvement on land and is a construction mortgage.
31
IN WITNESS WHEREOF, Oak Ridge Place Limited
Partnership, a Minnesota Limited Partnership, as Mortgagor, has
caused these presents to be signed in its name and on its
behalf by its general partner, and to evidence its acceptance
of the mortgage, lien and security interests created hereby and
the other terms set forth herein, First Trust Company, Inc. , as
Mortgagee, has caused these presents to be signed in its name
and behalf all as of the day and year first written above.
OAK RIDGE PLACE LIMITED
PARTNERSHIP
gy (A4'4(11 /41"`
Its General partner
STATE OF MINNESOTA )
ss.
COUNTY OF RAMSEY )
The foregoing instrument was acknowledged before me
this a 0 day of March, 1986, by Lawrence O. Hauge, the general
partner of Oak Ridge Place Limited Partnership, a Minnesota
Limited Partnership, on behalf of said partnership.
HEATHER T.DUSTRUD
NOTARY PUBLIC—MINNESOTA ,, `a � \j
HENNEPIN COUNTY C ��11
ti My commission expires Feb.27,1991 Notary Public
FIRST TRUST COMPANY, INC.
By ;�`"�
Its
33
STATE OF MINNESOTA )
) ss.
COUNTY OF RAMSEY )
The foregoing instrument was acknowledged before
me this 20th day of March, 1986 , by James A. Ehrenberg
the Vice President of First Trust Company, Inc. , on
behalf of said corporation.
G.vAlt
'
Notary Public
17.71!!!!!!!!!:::1
35
Exhibit A
Legal description for property in Washington County,
Minnesota:
Lot 1, Block 1, Oak Park Heights Garden
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2/26/8(0
571D
DECLARATION OF RESTRICTIVE COVENANTS
STATE OF MINNESOTA ) SS
COUNTY OF WASHINGTON)
KNOW ALL PERSONS BY THESE PRESENTS:
This Declaration is made on the date hereinafter set
forth by Oak Ridge Place Limited Partnership, a Minnesota
Limited Partnership, executing this Declaration as the
"Declarant. "
WITNESSETH
J � �
WHEREAS, the Declarant is the owner of certain real
property described on Exhibit A attached hereto and made a part
hereof for all purposes (the "Land") ;
WHEREAS, Declarant desires to adopt a uniform plan
for the orderly development of the Land and improvements now
and hereafter located on the Land (such Land and improvements
thereon being hereafter collectively referred to as the
"Development") on the basis hereinafter stated;
WHEREAS, the City of Oak Park Heights, Minnesota (the
"Issuer") has heretofore issued its Multi-Family Housing
Development Revenue Bonds, Series 1985 (Oak Ridge Place
Project) in the original principal amount of $3,400,000 (the
"Bonds") to provide financing for the Development, which is a
rental housing development located within the Issuer to be
occupied primarily or in part by persons of low and moderate
income, and to be acquired, constructed or rehabilitated and
equipped, and occupied in conformance with the requirements of
Minnesota Statutes, Chapter 462C (the "Housing Act") , and in
conformance with Section 103(b) (4) (A) of the
hInternal Revenue
Code of 1954, as amended (the "Code") , purpose
ions
proposed or promulgated thereunder, all for the public
of assisting persons attrentals theyIssuer
canoobtaiaffordn anddecent, safe
and sanitary housing
WHEREAS, the Bonds are issued pursuant to an
Indenture of Trust dated as of December 1,
1985 (the
"Indenture") by and between the Issuer and First Trust Company,
Inc. , a Minnesota corporation (the "Trustee" ) pursuant to which
the Issuer has covenanted, among other things, to take such
acts, or cause such acts to be taken, as will cause the
interest on the Bonds to be and remain exempt from federal
income taxation under the Code;
WHEREAS, in order to satisfy the requirements of the
Housing Act and-the Code, the Issuer, the Trustee, and the
Declarant have entered into that certain Regulatory Agreement,
as hereafter defined (the "Regulatory Agreement") to set forth
certain terms and conditions relating to the acquisition and
construction and operation of the Development and, in order to
satisfy the requirements of the Regulatory Agreement, the
Declarant does hereby make this Declaration of Restrictive
Covenants;
NOW THEREFORE, the Declarant does hereby impose upon
the Land the following covenants, restrictions, charges and
easements which shall be covenants running with the land and/
shall be binding upon and inure to the benefit of and be a
burden on any purchaser, grantee, owner or lessee of any
portion of the Land and any other person or entity having any
right, title or interest therein and upon the respective heirs,
executors, administrators, devisees, successors and assigns of
any purchaser, grantee, owner or lessee of any portion of the
Land and any other person or entity having any right, title or
interest therein.
Section 1 . Definitions.
Unless otherwise expressly provided herein or unless
the context clearly requires otherwise, the following terms
shall have the respective meanings set forth below for the
purposes hereof:
"Adjusted Family Income" shall mean the adjusted gross
income of all persons who reside in a single residential rental
unit, calculated as set forth on Exhibit G-1 hereto.
"Appropriate Time" shall have the meaning given such term
in Section 11 hereof.
"Bond Counsel" shall mean Briggs and Morgan, Professional
Association, or any other attorney or firm of attorneys,
acceptable to the Issuer, experienced in matters pertaining to
the tax-exempt financing of residential rental property, and
duly admitted to the practice of law before the highest court
of any state of the United States of America or the District of
Columbia.
2
"Bonds" shall mean the Issuer' s Multi-Family Housing
Development Revenue Bonds, Series 1985 (Oak Ridge Place
Project) issued pursuant to the Indenture in the original
principal amount of $3,400,000 .
"Certification Year" shall mean, with respect to any
tenant, the 12-month period which begins on the earlier or (i)
the first date on which such tenant first occupies the
residential unit in the Development on a rental basis
subsequent to the first date upon which such residential unit
shall be available for rental subsequent to the acquisition and
construction financed in whole or in part from proceeds of the
Bonds; or (ii) the date on which such tenant signs a lease with
respect to a residential unit in the Development.
"Code" shall mean the Internal Revenue Code of 1954, as
amended and the final or temporary regulations promulgated
thereunder from time to time.
"Completion Date" shall mean the date of substantial
completion of construction and equipping of the Development as
set forth in a completion certificate provided to the Issuer by
the Declarant pursuant to the Regulatory Agreement.
"Declarant" shall mean the partnership executing this
Declaration in the space provided on the execution page hereto
as the "Declarant" , being Oak Ridge Place Limited Partnership,
a Minnesota Limited Partnership, and its successors and
assigns.
"Declaration" shall mean this Declaration of Restrictive
Covenants.
"Delivery Date" shall mean the date on which the Bonds are
issued and delivered to the original purchaser thereof (i.e.
December 30, 1985) .
"Development" shall mean the rental housing project
located on the real property described on Exhibit A hereto, to
be acquired, constructed and equipped by the Declarant and
which shall be owned and operated as a multi-family rental
housing development under the Housing Act and as a residential
rental project within tromule meaning
d underTreasury
Sectione103(b) (4) (A) of
ulations
Section 1.103-8(b) (4) p gate
the Code.
3
Elderly Tenants" shall mean individuals who are 55 years
of age or older and if a tenant consists of two or more
individuals one of whom is 55 years of age or older.
"Federal Targeted Area" shall mean a Targeted Area of the
kind described in Minnesota Statutes 1984, Section 462C.02,
Subdivision 9(e) or (f) .
"HAP Contract" shall mean any Housing Assistance Payments
Contract executed by and between the Developer and a Public
Agency pursuant to Section 8 of the United States Housing Act
of 1937 (42 U.S.C. §1437f) .
"Housing Act" shall mean Minnesota Statutes, Chapter 462C,
as amended.
"Indenture" shall mean the Indenture of Trust dated as of
December 1, 1985 by and between the Issuer and the Trustee, as
the same may be from time to time supplemented or amended.
"Issuer" shall mean the City of Oak Park Heights,
Minnesota, its successors and assigns.
"Land" shall mean the real property described in Exhibit
"A" attached hereto.
"Loan Agreement" shall mean the Loan Agreement, dated
December 1, 1985, between the Issuer and the Developer
providing for the Mortgage Loan, as such Loan Agreement may be
amended or supplemented from time to time.
"Lower-Income Tenants" shall mean and include individuals
or families with Adjusted Family Income which does not exceed
eighty percent (80 %) of Median Income, adjusted for family
size; provided that Adjusted Family Income shall be determined
in a manner consistent with determinations of median income
made under the leased housing program established under Section
8 of the United States Housing Act of 1937, as amended and the
regulations promulgated thereunder and in the manner prescribed
in Treasury Regulations Section 1.167(k)-3(b) (3) , as said
Section 8 and Treasury Regulations shall be in effect on the
Delivery Date. In no event, however, will the occupants of a
unit be considered to be of low or moderate income if all the
occupants are full-time students, no one of which is entitled
to file a joint federal income tax return.
4
"Median Income" shall mean the median gross income for the
area in which the Development is located as determined from
time to time by the United States Department of Housing and
Urban Development. For the purposes of determining the
Adjusted Family Income of Lower-Income Tenants, Median Income
shall be adjusted for family size.
"Mortgage" snall mean, collectively, that certain Mortgage
and Security Agreement and that certain Assignment of Leases
and Rents, both of even date herewith, granting a mortgage on
and security interest in the land, buildings and equipment
comprising the Development, and leases of units in the
Development, both made by the Declarant and securing the
repayment of the Mortgage Loan.
"Mortgage Loan" shall mean the loan to the Developer made
as provided in the Loan Agreement, evidenced by the Loan
Agreement and secured by the Mortgage.
i
"Public Agency" shall mean a public housing agency,
housing finance agency or other public body or instrumentality
which enters into a HAP Contract, if any, with the Declarant.
"Qualified Number of Days" shall mean 50 percent of the
total number of days comprising the term of the Bonds (assuming
the Bonds are paid on the latest maturity date of any of tnem)
or in the case of a refunding of the Bonds, 50 percent of the
sum of the period the Bonds were outstanding plus the longest
term of any refunding obligations.
"Qualified Project Period" means a period beginning on the
later of (a) the first day on which at least 10 percent of the
residential units in the Development are first occupied or (b)
the Delivery Date, and ending on the later of the date (x)
which is 10 years after the date on which at least 50 percent
of the residential units in the Development are first occupied;
(y) which is a Qualified Number of Days after the date on which
any of the residential units in the Develpoment is first
occupied; or (z) on which any assistance provided with respect
to the Development under Section 8 of the United States Housing
Act of 1937 terminates.
"Regulatory Agreement" means the Regulatory Agreementn
ment
between the Declarant, the Issuer and the Trustee, providing
for, among other things, the Mortgage Loan and for certain
requirements with respect to the Development.
5
"Targeted Area" shall mean a "targeted area" as defined in
Minnesota Statutes, Section 462C.02 , subdivision 9, as amended.
"Trustee" shall mean First Trust Company, Inc. , a
Minnesota corporation, or any successor trustee duly appointed
and acting under the Indenture.
Unless=the context clearly requires otherwise, words
of the masculine gender shall be construed to include
correlative words of the feminine and neuter genders and vice
versa, and words of the singular number shall be construed to
include correlative words of the plural number and vice versa.
This Declaration of Restrictive Covenants and all the terms and
provisions hereof shall be construed to effectuate the purposes
set forth herein and to sustain the validity hereof.
The terms and phrases used in the recitals of this
Declaration of Restrictive Covenants have been included for
convenience of reference only and the meaning, construction and
interpretation of all such terms and phrases for purposes of
this Declaration of Restrictive Covenants shall be determined
by references to this Section. The titles and headings of the
sections of this Declaration of Restrictive Covenants nave been
inserted for convenience or reference only and are not to be
considered a part hereof and shall never be considered or given
any effect in construing this Declaration of Restrictive
Covenants or any provision hereof or in ascertaining intent, if
any questions of intent shall arise.
Section 2. Residential Rental Project;
Federal Income Tax Law.
The Declarant understands, agrees and intends that
the Development is to be owned, managed and operated, for as
long as the Bonds remain outstanding and unpaid but in any
event for the Qualified Project Period, as a "residential
rental project" as such phrase is used in Section 103(b) (4) (A)
of the Code. The Declarant hereby ratifies and confirms each
and all of its representations, warranties and agreements
contained in the Regulatory Agreement. Declarant shall
promptly take whatever action may be required to correct any
failure to comply with this Section and the Regulatory
Agreement, and shall take whatever action may be directed by
the Issuer or Trustee, to verify or confirm compliance with the
Regulatory Agreement. The Declarant further represents and
6
warrants that all information disclosed on Exhibits A, B and C
hereto is true and correct in all respects, and that all
information provided in any other certification or report made
pursuant to this Declaration will be true and correct in all
respects on the date provided.
Section 3 . Lower-Income Tenants; Federal
Income Tax Law.
(1) To the end of satisfying the requirements of Section
103(b) (4) (A) of the Code relating to individuals of low and
moderate income, during the Qualified Project Period, the
Declarant hereby represents, covenants and agrees as follows:
(a) At all times during the Qualified
Project Period, at least 20 percent of the
completed residential units in the Development
shall be occupied (within the meaning of Treasury
Regulation Section 103-8(b) (5) (ii) under Section
103(b) (4) (A) of the Code) by Lower-Income Tenants.
For purposes of satisfying the requirements of the
preceding sentence, the following rules apply:
(i) an individual or family which
qualifies as a Lower-Income Tenant will
continue to qualify as such as long as he,
she or they continues to reside in such unit
even though such Lower-Income Tenant' s income
rises and subsequently ceases to meet the
income or other requirements of a
Lower-Income Tenant;
(ii) when a Lower-Income Tenant leaves
a unit, such unit will be considered'as
occupied by a Lower-Income Tenant if it is
held vacant and available for such occupancy
until it is reoccupied by another tenant,
other than on a temporary period which in no
event shall exceed 31 days, at which time the
status of the new tenant as a Lower-Income
Tenant is to be determined;
7
(iii) for the purpose of determining
whether a Lower-Income Tenant' s Adjusted
Family Income is equal to or less than 80% of
Median Income, Declarant shall use the Median
Income figure for the appropriate family
size;
('iv) promptly after the Declarant
becomes aware of the occurrence of a change
in the status of a Lower-Income Tenant by
marriage or a decrease in family size or by
the addition of an income-earning person
(other than a dependent) to the household,
the status of such tenant as a Lower-Income
Tenant shall be re-verified, or the dwelling
unit occupied by such tenant shall no longer
be counted toward compliance with the require-
ment stated in subsection (a) above;
(v) during initial rent-up of the
Development, at least 20 percent of the
residential units rented up at any time in
each building (upon and after the first date
upon which ten percent (10%) of the
residential units in each respective building
are first occupied) will be occupied by Lower-
Income Tenants; and
(vi) the Declarant will refrain from
renting residential units to persons other
than Lower-Income Tenants as necessary to
satisfy the requirements of this subsection
(a) .
(b) Except as otherwise provided in Section
3(2) hereof, the Declarant shall obtain and
maintain on file a sworn, notarized Income
Computation and Certification in the form attached
hereto as Exhibit G-1 from each Lower-Income
Tenant residing in the Development and each such
Lower-Income Tenant' s Adjusted Family Income shall
be computed in the manner required by Treasury
8
Regulation §1.167 (k)-3(b) , as it shall be in
effect on the date of initial issuance of the
Bonds, or in such other form and manner as may be
required by applicable rules, rulings, procedures,
official statements, regulations or policies now
or hereafter promulgated or proposed by the
Department of the Treasury or the Internal Revenue
Service with respect to obligations issued under
Section 103(b) (4) (A) of the Code;
(c) Except as otherwise provided in Section
3(2) hereof, the Declarant shall obtain and
maintain on file from each Lower-Income Tenant
evidence reasonably sufficient to verify the
Lower-Income Tenant's income and assets, including
as may be necessary (i) a copy of such
Lower-Income Tenant' s most recently filed federal
income tax return, (ii) a verification from the
Lower-Income Tenant' s employer, if any, of the
Lower-Income Tenant' s wages and other
compensation, and (iii) verification of other
sources of income, if any;
(d) Within ten (10) days after the initial
occupancy of any unit in the Development by a
Lower Income Tenant, the Declarant will provide to
the Issuer and the Trustee copies of such Lower
Income Tenant's Income Computation and
Certification in the form attached hereto as
Exhibit G-1, together with the supporting
documentation obtained pursuant to subsection (c) ;
and the Declarant will permit any duly authorized
representative of the Issuer, the Trustee, the
Department of the Treasury or the Internal Revenue
Service to inspect the books and records of ttie
Declarant pertaining to the income of Lower-Income
Tenants residing in the Development; and
(e) Except as otherwise provided in Section
3(2) hereof, the Declarant shall prepare and
submit to the Issuer and the Trustee and on or
before the first day of February, May, August and
November of each year during the Qualified Project
Period a Certificate of Continuing Compliance as
to compliance with this Section 3, executed by the
Declarant in substantially the form attached
hereto as Exhibit F.
9
(2) The Declarant need not fulfill the requirements of
subparagraphs (b) and (c) of Section 3 (1) hereof, nor need the
Declarant fulfill the reporting requirements of subparagraphs
(d) and (e) of Section 3(1) hereof, and shall be deemed to be
in compliance with this Section 3, if:
(a) The= Declarant shall have executed a HAP
Contract with respect to the Development, pursuant
to Section 8 of the United States Housing Act of
1937 (42 U.S.C. 1437f) and shall have provided an
executed copy thereof to the Issuer;
(b) The HAP Contract provides that at least
20 percent of the residential units in the
Development (or 15 percent of such units in a
Federal Targeted Area) shall be leased to
individuals and families qualifying as
Lower-Income Families under Section 8 of the
United States Housing Act of 1937 and the
regulations thereunder, and, for purposes of
making such determination, the percentage of
median gross income which qualifies as low or
moderate income is at least 80 percent;
(c) The Declarant shall at all times be and
remain in full compliance with all provisions and
requirements of the HAP Contract and the Public
Agency which acts as administrator of the HAP
Contract shall agree to report any failure to
comply with the HAP Contract to the Issuer and the
Trustee.
Immediately upon termination of the HAP Contract, for
any reason whatsoever, or upon receipt of notice by the
Declarant that the Declarant is in default under the HAP
Contract or that the Development is not in compliance with the
rental requirements of this Section 3, or upon receipt of
notice by the Issuer or Declarant that the percentage of
Median Income utilized to determine if individuals or families
qualify as Lower-Income Families for purposes of the HAP
Contract exceeds 80 percent, the Declarant shall be required,
and the Declarant agrees, to henceforward fulfill all data and
reporting requirements of subparagraphs (b) through (e) of
Section 3(1) with respect to all new Lower-Income Tenants and
with respect to occupancy of the Development as a whole, and to
promptly obtain, prepare and submit to the Issuer and Trustee
such supplemental information with respect to existing
Lower-Income Tenants as the Issuer shall reasonably require to
establish compliance with this Section 3.
10
Section 4. Multifamily Housing Development;
Certain State Statutory Requirements.
The Declarant hereby declares its understanding,
intent and agreement that the Development is to be owned,
managed and operated as a "multifamily housing development, " as
such term is defined in Minnesota Statutes, Section 462C.02,
Subdivision 5, and that the Development shall be operated in
all respects in conformance with the requirements and
provisions of the Housing Act, for so long as the Mortgage Loan
remains outstanding and unpaid. The Declarant hereby ratifies
and confirms each and all of its representations, warranties
and agreements contained in Section 5 of the Regulatory
Agreement.
Section 5 . State Statutory Requirements; Issuer
Requirements.
(1) Intentionally Omitted.
(2) To the end of satisfying the requirements of Section
462C.05, Subd. 4 of the Housing Act, if applicable, relating to
developments designed for occupancy primarily by Elderly
Tenants, during the period the Bonds remain outstanding, the
Declarant represents, covenants and agrees as follows:
(a) At all times during the period that the Bonds
remain outstanding, at least 75 percent of the completed
residential units in the Development shall be occupied by
Elderly Tenants. For the purposes of satisfying the
requirements of the preceding sentence, the following
rules apply:
(i) An individual qualifies as an
Elderly Tenant and will continue to qualify
as such as long as he or she continues to
reside in such unit, and
(ii) When an Elderly Tenant leaves a
unit, such unit will be considered occupied
by an Elderly Tenant if it is held vacant and
available for such occupancy until it is
reoccupied by another tenant, other than on a
temporary period which in no event shall
exceed 31 days, at which time the status of
the new tenant as an Elderly Tenant is to be
determined.
11
(b) The Declarant agrees that in order to avoid
violating the requirements that at all times during the
period that the Mortgage Loan remains outstanding at least
75 percent of the completed residential units in the
Development will be occupied by Elderly Tenants, the
following rules apply:
(i) during initial rent-up of the Development,
at least 75 percent of the residential units rented
up at any time will be occupied by Elderly Tenants;
and
(ii) the Declarant will refrain from renting
residential units to persons other than Elderly
Tenants as necessary to satisfy these requirements.
(3) The Declarant shall permit any duly authorized
representative of the Issuer and the Trustee or the Minnesota
Housing Finance Agency to inspect the books and records of thae
Declarant pertaining to the status of Elderly Tenants, residing
in the Development; and
(4) The Declarant shall prepare and submit to the Issuer
and the Trustee on or before the first day of February, May,
August and November of each year during the period that the
Bonds remain outstanding, and within thirty (30) days after any
change in occupancy of a residential unit in theiDelopmenitht, a
Certificate of Continuing Compliance as to compliance
Section 5, executed by the Declarant in substantially the form
attached hereto as Exhibit F.
(5) Intentionally Omitted.
(6) The Development shall be maintained and operated at
all times in compliance with the policies, guidelines and
agreements of the Issuer, and to that end the Declarant
specifically agrees:
12
(a) that if Exhibit C specifies that rent
increase limitations shall apply, the Declarant
shall not increase the monthly rents set forth
therein by amounts greater than those permitted
for the period of time specified therein;
(b) Intentionally omitted.
(c) the Developer shall punctually and
faithfully comply with all of the terms and
conditions expressed in the notes, mortgages and •
other agreements and instruments relating to any
subordinated financing provided by the Issuer or
any other public body or agency or non-profit
entity.
Section 6 . Covenants Run with the Land;
Qualified Project Period;
Priority.
The Declarant hereby declares its express intent that
the covenants, reservations and restrictions set forth herein
shall be deemed covenants running with the Land and shall pass
to the Declarant' s successors in title. Each and every
contract, deed or other instrument hereafter executed covering
or conveying the Land or any portion thereof shall conclusively
be held to have been executed, delivered and accepted subject
to such covenants, regardless of whether or not such covenants
are set forth in such contract, deed or other instrument.
Unless sooner terminated in accordance with Section 11 hereof,
such covenants shall continue in full force and effect for as
long as the Bonds remain outstanding or for the Qualified
Project Period, whichever is longer; it is expressly agreed and
understood that the provisions of Sections 2 and 3 hereof are
intended to survive payment of the Bonds and the expiration,
release, termination or discharge of the Mortgage Loan and all
agreements, security interests and instruments relating
thereto.
The commencement, length and termination of the
Qualified Project Period shall be established by a Certificate
As To Qualified Project Period in substantially the form
attached hereto as Exhibit D. Such Certificate As To Qualified
Project Period shall be executed by the Declarant and Issuer,
13
and shall not be effective until duly recorded with respect to
the Land in the appropriate public real estate records in and
for the county in which the Development is located. Until and
unless the Certificate is so filed and recorded, the commence-
ment of the Qualified Project Period shall be October 1 , 1986,
and the termination of the Qualified Project Period shall be
October 1, 2001 .
Declarant requests and warrants that, upon the
recording of this Declaration in the appropriate public land
records office, this Declaration shall not be subordinate or
subject to any liens, encumbrances, easements or other title
matters other than the liens or other items set forth on
Exhibit B hereto.
Section 7 . Uniformity; Common Plan.
The provisions hereof shall apply uniformly to the
entire Development in order to establish and carry out a common
plan for the use, development and improvement of the Land.
Section 8. Burden and Benefit.
The Declarant hereby declares its understanding and
intent that the burden of the covenants set forth herein
concern the Land in that the Declarant' s legal interest in the
Land may be rendered less valuable thereby. The Declarant
hereby further declares its understanding and intent, however,
that the benefit of such covenants concern the Land by
enhancing and increasing the enjoyment and use of the Land and
the Development by or for Lower-Income Tenants or Elderly
Tenants, as applicable, and to benefit the Issuer, the Trustee
and the owners from time to time of the Bonds.
Section 9. Sale or Transfer of Development.
The Declarant hereby covenants and agrees not to
sell, transfer or otherwise dispose of the Development without
obtaining the prior written consent of the Issuer and the
Trustee, which shall be conditioned solely upon receipt of
•
14
evidence satisfactory to the Issuer, and the Trustee that the
purchaser or transferee of the Declarant has assumed in writing
and in full the Declarant' s duties and obligations under this
Declaratiion of Restrictive Covenants and upon an opinion of
Bond Counsel to the effect that such sale, transfer, or
disposition will not adversely affect the exclusion from
federal income taxation of the interest on the Bonds. It is
hereby expressly stipulated and agreed that any sale, transfer
or other disposition of the Development in violation of this
Section shall be null, void and without effect, and shall not
be effective to relieve the Declarant of its obligations under
this Declaration of Restrictive Covenants. Nothing in this
Section 9 shall be construed to limit the right of the
Declarant (if a limited partnership) to sell limited
partnership interests in itself.
Section 10. Notice of Default; Remedies;
Enforceability.
In the event of a violation or attempted violation of
any of the provisions hereof, the Issuer or the Trustee shall
give written notice thereof to the Declarant, and if such
violation or attempted violation has not been cured within
thirty (30) days thereafter, may institute and prosecute any
proceeding at law or in equity to abate, prevent or enjoin any
such violation or attempted violation, or to recover monetary
damages caused by such violation or attempted violation.
Developer agrees that the remedy of an action to recover
monetary damages for violation or attempted violation of the
provisions hereof will be inadequate, and the Issuer or Trustee
shall have the right to institute an action for and seek
specific performance by the Declarant to remedy such violation
or attempted violation. The provisions hereof are imposed upon
and made applicable to the Land and shall run with the Land and
shall be enforceable against the Declarant, each purchaser,
grantee, owner or lessee of the Development, and the respective
heirs, legal representatives, successors and assigns of the
Declarant and each such purchaser, grantee, owner or lessee.
No delay in enforcing the provisions hereof as to any breach or
violation shall impair, damage or waive the right of any party
entitled to enforce the same or to obtain relief against or
recover for the continuation or repetition of such breach or
violation or any similar breach or violation thereof at any
later time or times.
15
The monetary damages recoverable by any beneficiary
of the covenants expressed herein shall be limited in tnat such
beneficiaries shall have recourse solely to the Development and
the assets of the Declarant, and none of the owners,
stockholders or general or limited partners of the Declarant
shall have any personal liability for such monetary damages.
This paragraph shall not apply to any monetary ooligation of
the Declarant under Section 8 of the Regulatory Agreement.
Section 11. Amendment; Termination.
A. The provisions of this Declaration shall not be
amended, terminated or deleted prior to the stated term set
forth in this Declaration except by an instrument in writing
duly executed by the Issuer, Trustee (if any Bonds remain
outstanding) and the Declarant or their respective successors
or assigns, or in accordance with paragraph (D) of this Section
11; provided, that:
(i) the provisions of Sections 4 and 5
hereof shall be terminated automatically upon
payment in full of the Mortgage Loan, and the
recording of a satisfaction of the Mortgage in
connection therewith; and
(ii) the provisions of Section 3 hereof
shall be terminated automatically upon expiration
of the Qualified Project Period,
Unless sooner terminated or amended or deleted from this
Declaration as in this Section provided, each of the covenants
and restrictions set forth in this Declaration above shall
continue in full force and effect during the longer of the
remaining term of the Bonds or the Qualified Project Period,
and shall thereupon terminate and be of no further force and
effect, it being expressly agreed and understood that the
provisions of this Declaration hereof are intended to survive
the expiration and satisfaction of any security instruments
placed of record evidencing and securing financing arrangements
made for the acquisition and construction of the Development,
if such expiration and satisfaction occurs prior to the
expiration of the Qualified Project Period.
16
B. At any "Appropriate Time", as hereinafter
defined, the Declarant, or its successors or assigns, may
request that the Issuer and Trustee (if any Bonds then remain
outstanding) execute and deliver to the then owner of the
Development a Certificate of Amendment or Termination or
Deletion of Covenants in the form attached to this Declaration
as Exhibit "E" , which Certificate shall have been previously
executed by the Declarant, its successor or assign. If the
Declarant' s request is made at an "Appropriate Time", the
Issuer, the Trustee (if any Bonds then remain outstanding) will
execute and deliver to the Declarant the Certificate of
Amendment or Termination or Deletion of Covenants. Any such
certification entered into by the Issuer and the Trustee (if
any Bonds then remain outstanding) shall be (and it shall be so
provided in the certification itself) a conclusive
determination of the amendment or the satisfaction and
termination or deletion of the covenants and restrictions in
this Declaration with respect to the obligations of the
Declarant and its successors and assigns under this
Declaration, it being the intention of the Issuer that upon the
execution and filing of any amendment such covenants and
restrictions shall thereafter and for all purposes be modified
and amended and that upon the granting and filing of any
termination or deletion such covenants and restrictions shall
thereafter for all purposes be forever terminated or deleted
from this Declaration.
C. It shall be an "Appropriate Time" for the
Issuer' s, and Trustee' s (if any Bonds then remain outstanding)
execution and delivery of the Certificate of Amendment or
Termination or Deletion of Covenants with respect to
termination or deletion at the expiration of the stated term of
such covenants and restrictions as set forth in this
Declaration. Prior to such expiration of the stated term, it
shall be an "Appropriate Time" for the execution and delivery
of the Certificate of Amendment or Termination or Deletion of
Covenants only if Declarant delivers to the Issuer and Trustee
(if any Bonds then remain outstanding) with the Declarant' s
request, a written opinion of Bond Counsel addressed to the
Declarant, the Issuer, and the Trustee (if the Bonds then
remain outstanding) to the effect that the amendment or earlier
termination or deletion from this Declaration of such covenants
and restrictions will not adversely affect the exemption from
federal income taxation of interest already received or to be
received on the Bonds. Such opinion of Bond Counsel shall
17
clearly state whether it addresses amendment, termination or
deletion of the covenants and restrictions hereof and shall
specify the applicable paragraph of Exhibit E to be included in
the Certificate of Amendment or Termination or Deletion of
Covenants. Upon receipt of such Declarant request and
accompanying opinion, the Issuer and Trustee (if any Bonds then
remain outstanding) shall execute and deliver the Certificate
of Termination or Deletion of Covenants to the Declarant.
D. The provisions hereof shall be deemed to be no
longer in effect in the event of noncompliance with the
provisions of Section 103(b) (4) (A) of the Code and Treasury
Regulations promulgated or proposed thereunder if such
noncompliance is caused by involuntary loss caused by fire,
seizure, requisition, foreclosure, transfer of title by deed in
lieu of foreclosure, change in federal law or an action of a
federal agency after the date of issue of the Bonds (which
change in law or action prevents the Issuer from enforcing the
requirements hereof) , or condemnation or similar events but
only if within a reasonable period, a principal amount of the
Bonds equal to the outstanding principal amount of the Mortgage
Loan are paid and redeemed. To evidence an event of the kind
stated in this paragraph D, the Issuer, if requested by the
Trustee, or other appropriate person, shall execute and deliver
a Certificate of Termination of Covenants in substantially the
form of Exhibit E attached hereto upon receipt of an opinion of
Bond Counsel to the effect that termination of this Declaration
as a result of such event will not adversely affect the
exemption from federal income taxation of interest received or
to be received on the Bonds. If the Bonds are not paid and
redeemed, either (i) any amounts received as a consequence of
such event shall be used to provide a project which meets the
requirements of Section 103(b) (4) (A) of the Code and Treasury
Regulations promulgated or proposed thereunder or (ii) the
Trustee, or other person shall expressly assume the obligations
of the Declarant thereunder and shall further agree to be bound
by and comply with the terms of this Declaration. The
provisions of this paragraph D shall be deemed to be
inoperable, and the requirements hereof shall continue in
effect, if the operation of this paragraph D would subject the
interest on the Bonds to federal income taxation.
Section 12. Consideration.
The Issuer has adopted and implemented the financing
program for the Development, and issued the Bonds to obtain
moneys to carry out the financing program for the purpose,
18
among others, of inducing the Declarant to acquire, construct
. or rehabilitate and operate the Development to provide
additional decent, safe and sanitary rental housing for Lower
Income Tenants and other persons. In consideration of the
adoption and implementation of the financing program and the
issuance of the Bonds by the Issuer, the Declarant has accepted
the terms and provisions hereof.
Section 13. Recording.
The Declarant shall cause this Declaration of
Restrictive Covenants and all amendments and supplements hereto
and all Certificates relating hereto (except the Certificate of
Continuing Compliance and the Income Computation and
Certification) to be recorded and filed in such manner in the
appropriate public real estate records in and for Washington
County, Minnesota and in such other places as the Issuer may
reasonably request, and shall pay all fees and charges incurred
in connection therewith.
Section 14. Governing Law.
This instrument shall be governed by the laws of the
State of Minnesota except to the extent the laws of the United
States of America or regulations promulgated thereunder may be
applicable.
Section 15. Notices.
Any notice required to be given hereunder shall be
given by registered or certified mail at the addresses
specified below or at such other addresses as may be specified
in writing by the parties hereto:
Issuer: City of Oak Park Heights
14168 - 57th Street North
Oak Park Heights, Minnesota 55082
Attn: City Administrator
Declarant: Oak Ridge Place Limited Partnership,
a Minnesota Limited Partnership
300 Prairie Center Drive
Eden Prairie, Minnesota 55344
Attn: Lawrence O. Hauge
Trustee: First Trust Company, Inc.
First Trust Center
180 East Fifth Street
St. Paul, Minnesota 55101
Attn: Corporate Trust Department
19
Section 16. Severability.
If any provisions of this Declaration of Restrictive
Covenants shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining portions
shall not in any way be affected or impaired.
Section 17. Multiple Counterparts.
This Declaration of Restrictive Covenants may be
simultaneously executed in multiple counterparts, all of which
shall constitute one and the same instrument and each of which
shall be deemed to be an.original.
IN WITNESS WHEREOF, the Declarant has caused this
instrument to besignedh don its
of Mbecalf1by6by its duly authorized
partner as of the
OAK RIDGE PLACE LIMITED PARTNERSHIP,
A MINNESOTA LIMITED PARTNERSHIP
4)' `
By 44A4,1,1G1.4-e-
Its General Partner
This instrument was drafted by:
Briggs and Morgan
2200 First National Bank Bldg.
St. Paul, Minnesota 55101
STATE OF MINNESOTA )
ss
COUNTY OF RAMSEY )
The foregoing instrument was acknowledged before me
this day of March, 1986, by Lawrence O. Hauge, the general
partner of Oak Ridge Place Limited Partnership, a Minnesota
Limited Partnership (the "Declarant" ) , on behalf of said partnership.
Notary Public
[Notarial Stamp]
HEATHER T.DUSTRUD
NOTARY PUBLIC—MINNESOTA
HENNEPIN COUNTY
ZMy commission expires Feb.27,1991
Exhibit A
Legal description for property in Washington County,
Minnesota:
Lot 1, Block 1, Oak Park Heights Garden
Evsnj�Gazette,Nov. 1�
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EASEMENT VA
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Affidavit of Publication nuf/DEE Efts HEREBY GIVEN.HEIGHTS
the
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sworn,on oath says that he is the
60.00
ployee of the publisher of the publisher or authorized 8m is 109 h described as followd real properly affected by said appp
newspaper known as Stillwateragent and em- Avenue 1
edge of the facts which are stated below: Eveningtowit
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(A)The news P 1 west oof the east
Paper has complied with all of the
PARK1, Block
fled newspaper,as requirements constituting b according
Provided by Minnesota Statute g qualification as a quali- Minnesota.
at plat of record, Washington
amended. 331A.02,331A.07,and other
applicable laws,as this[kne, opponents shall be
(B)The printed t s • heard
BY ORDEthisR F T of IL
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which is attached was cut from the coli reasurer 4-
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each week, for — as printed and published =
successive P ed once
Mon. .ins 2 7th day�s�(s: it was first
thereafter printed and
---th day of November Published on
published eY�y ,1989 ,and was
27th 19 day of Novembe and including the
the lower case alphabet from A Z, 89•and printed below is a w
ande and both inclusive,which is hereby copy of
of type used in the composition and acknowledged as being
Publicatlors of the notice:
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ILLWATER EVENING GAZETTE 19
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OPPENHEIMER WOLFF &DONNELLY
Plaza VII Brussels
45 South Seventh Street Chicago
Suite 3400 London
Minneapolis,MN 55402 Minneapolis
(612)344-9300 New York
Telex:701605 Paris
FAX:(612)344-9376 St.Paul
Washington,D.C.
October 18, 1989
VIA MESSENGER
The City of Oak Park Heights
Attn: La Vonne Wilson
14168 - 57th Street North
Box 2007 RECEIVED OCT 1 9 1999
Oak Park Heights, MN 55082
Re: Oak Ridge Place Project
Dear Lavonne:
Enclosed please find a proposed certification of termination of
covenants relating to the Oak Ridge Place Project. As we discussed
on the telephone the original declaration of covenants and
restrictions dated March 20, 1986 provides that upon foreclosure,
and at the request of the Trustee, the City shall join in a
termination of such covenants upon receipt of an opinion of bond
counsel as described in Section 11, Paragraph D. Also enclosed is
a copy of the Declaration of Restrictive Covenants. We are in the
process of preparing such an opinion and will forward it to you. ✓
As you may be aware the proposed purchasers are anxious to close
this transaction and go forward with the management of the
premises. While the closing was initially planned for sometime in
November, the purchaser has completed its financing and would like
to close by November 1. Any help you can give us in expediting the
termination of these covenants would be appreciated.
Sincerely yours,
OP EIMER WOLFF & DONNELLY
(‹i- S;--fAk
Mary E. Senk s
MES:tjm
Enclosure
cc: Lyle Eckberg (w/encl. )
Craig Currie (w/encl. )
Alan E. Bernick (w/encl. )
CERTIFICATION OF AMENDMENT OR
TERMINATION OR DELETION OF COVENANTS
WHEREAS, First Trust National Association as indenture trustee
pursuant to that certain Indenture of Trust dated December 1, 1985
between the City of Oak Park Heights and First Trust is the present
owner of the following described land (the "Land") in the County
of Washington and State of Minnesota, to-wit:
Lot 1, Block 1, Oak Park Heights Garden, according to the
recorded plat thereof, and situate in Washington County,
Minnesota
WHEREAS, Oak Ridge Place Limited Partnership, a Minnesota
Limited Partnership (the "Declarant") entered into a Declaration
of Covenants and Restrictions dated March 20, 1986 (the
"Declaration") recorded in the office of the County Recorder in and
for the County of Washington and State of Minnesota on the 27th day
of March, 1986 as Document No. 504384 ; and
WHEREAS, the Declaration contained certain covenants and
restrictions which run with the land and are binding upon the
Declarant, its successors and assigns; and
WHEREAS, The Issuer, Trustee and their successors and assigns,
were given in said Declaration the full and absolute right and
obligation to amend or terminate or delete such restrictions and
to execute and deliver this Certificate for and on behalf of all
persons and entities who might have been benefitted by such
covenants and restrictions; and
WHEREAS, under the terms and provisions of said Declaration
it is now appropriate to deliver this Certificate and to amend or
terminate or delete such covenants and restrictions and all
preconditions thereto have been fully satisfied;
NOW THEREFORE, this is to certify that the covenants and
restrictions set forth in the Declaration are null and void and of
no further force or effect; the County Recorder in and for the
County of Washington and State of Minnesota is hereby authorized
to accept this instrument for recording and filing as a conclusive
determination of the termination and release of all covenants and
restrictions as set forth in the Declaration, as specified and as
a complete termination of all rights and other remedial provisions
with respect to Section 11 of the Declaration.
Dated this day of October, 1989.
OAK PARK HEIGHTS, MINNESOTA,
as Issuer
By
Its Authorized Representative
(SEAL)
FIRST TRUST NATIONAL ASSOCIATION
as Trustee
By
Its
STATE OF MINNESOTA )
ss.
COUNTY OF )
On this day of , 1989, before me a Notary
Public within and for said County, personally appeared
, to me personally known to be the
, of Oak Park Heights, Minnesota; that the seal
affixed to said instrument is the seal of said public body; that
the instrument was signed and sealed on behalf of said public body
by authority of its governing body, and that said officers
acknowledged said instrument to be the free act and deed of said
public body.
Notary Public
STATE OF MINNESOTA )
ss.
COUNTY OF )
On this day of , 1989, before me a Notary
Public within and for said County, personally appeared
, to me personally known, who, being by me duly
sworn, did say that he is the of First Trust
National. Association as trustee, a national banking association;
and that said instrument was signed on behalf of said corporation
and that said acknowledged said instrument to
be the free act and deed of such association.
Notary Public ft
2
, ..
tr�r '
504384
571D 2/2b/8b
DECLARATION OF RESTRICTIVE COVENANTS
STATE OF MINNESOTA )
) SS
COUNTY OF WASHINGTON)
KNOW ALL PERSONS BY THESE PRESENTS;
This Declaration is made on the date hereinafter set
forth by Oak Ridge Place Limited Partnership, a Minnesota
Limited Partnership, executing this Declaration as the
"Declarant."
WITNESS E T H
WHEREAS, the Declarant is the owner of certain real
property described on Exhibit A attached hereto and made a part
hereof for all purposes (the "Land");
WHEREAS, Declarant desires to adopt a uniform plan
•
for the orderly development of the Land and improvements now ;.
and hereafter located on the Land (such Land and improvements ��
thereon being hereafter collectively referred to as the
"Development") on the basis hereinafter stated; : 4
WHEREAS, the City of Oak Park Heights, Minnesota (the �..
"Issuer") has heretofore issued its Multi-Family Housing s-
Development Revenue Bonds, Series 1.985 (Oak Ridge Place
Project) in the original principal amount of 83,400,000
"Bonds") to provide financing for the Development, which is a, '•3
rental housing development located within the Issuer to be
occupied primarily or in part by persons of low and moderate
Income, and to be acquired, constructed or rehabilitated and :-r �.
equipped, and occupied in conformance with :.he requirements. Of • .
Minnesota Statutes, Chapter 462C (the "Housing Act"), and
conformance with Section 1U3(b)(4)(A) of the Internal RsVeaw •
� y
cud.) of 1954, as amended (the "Code"), and the regulations
proposed or promulgated thereunder, all for the public purpOs0
of assisting persons within the Issuer to obtain decent, sale ,y' :.
and sanitary housing at rentals they can afford; and .."
WHEREAS, the Bonds are issued pursuant to an
Indenture of Trust dated as of December 1, 1985 (the
and between the Issuer and First Trust Conpenym�. : -
IIc.. aurin) by to which
Inc., a Minnesota corporation (the "Trustee") pursuant � �• K. ,
•
•
{
• k
the Issuer has covenanted, among other things, to take such
acts, or cause such acts to be taken, as will cause the
interest on the Bonds to be and remain exempt from federal
income taxation under the Coder
WHEREAS, in order to satisfy the requirements of the
Housing Act and the Code, the Issuer, the Trustee, and the
Declarant have entered into that certain Regulatory Agreement,
as hereafter defined (the "Regulatory Agreement") to set forth
certain terms and conditions relating to the acquisition and
construction and operation of the Development and, in order to
satisfy the requirements of the Regulatory Agreement, the
Declarant does hereby make this Declaration of Restrictive
Covenants/
Y:NW THEREFORE, the Declarant does hereby impose upon
the Land the following covenants, restrictions, charges and
easements which shall be covenants running with the land and
shall be binding upon and inure to the benefit of and be a
burden on any purchaser, grantee, owner or lessee of any
portion of the Land and any other person or entity having any
right, title or interest therein and upon the respective heirs,
executors, administrators, devisees, successors and assigns of
any purchaser, grantee, owner or lessee of any portion of the
Land and any other person or entity having any right, title or ��.�•
interost therein. 9', ' •
Section 1. Definitions. � • '
•
Unless otherwise expressly provided herein or unless .-
the context clearly requires otherwise, the following terms ., •
shall have the respective meanings set forth below for the
purposes hereofr •
"Adjusted Family Income" shall mean the adjusted gross•�~�mar� ti' •
income of all persons who reside in a single residential sent*J, �� '
unit, calculated as set forth on Exhibit 0-1 hereto.
"Appropriate Time" shall have the meaning given such term • y •"
in Section 11 hereof.
4
"Bond Counsel" shall mean Briggs and Morgan, Professional'"'•'"`�,
Association, or any other attorney or firm of attorneys,
acceptable to the Issuer, experienced in matters pertaining to
the tax-exempt financing of residential rental property, and
duly admitted to the practice of law before the highest court
of any state of the United States of America or the District of
Columbia.
•
2
"Bonds" shall mean the Issuer's Multi-Family Housing
Development Revenue Bonds, Series 1985 (Oak Ridge Place
Project) issued pursuant to the Indenture in the original
principal amount of $3,400,000.
"Certification Year" shall mean, with respect to any
tenant, the 12-month period which begins on the earlier of (I)
the first date on which such tenant first occt on auli s the
residential unit in the Develops
subsequent to the first date upon which such residential unit
shall be available for rental subsequent to the acquisition and
construction financed in whole or in part from proceeds of the
Bonds: or (ii) the date on which such tenant signs a lease with
respect to a residential unit in the Developm
amendedo
oand thelfinalnorhtemporarylregulations promulgatedas
te Revenue Code of
thereunder from time to time.
"Completion Date" shall mean hedate of substa tial as
completion of construction and equipping o ofdth to the Issuer of s
by
set forth in a completion certificate pr Aieemtnt. ;
the Declarant pursuant to the Reg
"Declarant" shall mean the partnership executing this
Declaration in the space provided on the execution pegs hereto
as the 'Declarant", being Oak Ridge Place Limited Ps:tnership,
• Minnesota Limited Partnership, and its successors and
assigns.
"Declaration" shall mean this Declaration of Restrictive
Covenants 1 ".
"Delivery Date" shall mean the date on wnicn the Boons are ?`•
issued and delivered to the original purchaser thereof (i•e• ' 4:
December
December 30, 1985).
.�
o^ "Development" shall mean the rental housing
project
A esew .
l .ated on the real property described on Lxhib
acquired, constructed and equipped by the Declarant and ., .•
•
be acq operated as • multi-family rental .
which shall be owned and Act true as a residential z
housing development under tne HousingAct
aegalresids
rental project within the meaning ,�„
Section 1.103-8(b)(4) promulgated under Section 103(b)(4)(A) of t,
the Code.
s
3
•
e
"Elderly Tenants" shall mean individuals who are 55 years
of age or older and if a tenant consists of two or more
individuals one of whom is 55 years of age or older.
"Federal Targeted Area" shall mean a Targeted Area of the
kind described in Minnesota Statutes 1984, Section 462C.02,
Subdivision 9(e) or (f).
"HAP Contract" shall mean any Housing Assistance Payments
Contract executed by and between the Developer and a Public
Agency pursuant to Section 8 of the United States Housing Act
of 1937 (42 U.S.C. 414372).
"Housing Act" shall mean Minnesota Statutes, Chapter 462C,
as amended.
"Indenture" shall mean the Indenture of Trust dated as of
December 1, 1985 by and between the Issuer and the Trustee, as
the same may be from time to time supplemented or amended.
"Issuer" shall mean the City of Oak Park Heights,
Minnesota, its successors and assigns.
"Land" shall mean the real property described in Exhibit
• "A" attached hereto.
SI
"Loan Agreement" shall mean the Loan Agreement, dated
December 1, 1985, between the Issuer and the Developer
providing for the Mortgage Loan, as such Loan Agreement may be
amended or supplemented from time to time.
"Lower-Income Tenants" shall mean and include individuals �*
or families with Adjusted Family Income which does not exceed t,. -.
eighty percent (80 %) of Median Income, adjusted for family •
sizer provided that Adjusted Family Income shall be determined
in a manner consistent with determinations of median income
made under the leased housing program established under $.OtiOs '
8 of the United States Housing Act of 1937, as amended and the
regulations promulgated thereunder end in the manner prescribed
in Treasury Regulations Section 1.167(k)-3(b)(3), as said
Section 8 and Treasury Regulations shall be in effect on the
Delivery Date. In no event, however, will the occupants of a
unit be cc.nsidered to be of low or moderate income if all the
occupants are full-time students, no one of wnich is entitled
to file a joint federal income tax return.
r
r,
4
ti
"Median Income" shall mean the median gross income for the
} area in which the Development is located as determined from
time to time by the United States Department of Housing and
Urban Development. For the purposes of determining the
Adjusted Family Income of Lower-Income Tenants, Median Income
shall be adjusted for family size.
"Mortgage" shall mean, collectively, that certain Mortgage
and Security Agreement and that certain Assignment of Leases
and Rents, both of even date herewith, granting a mortgage on
and security interest in the land, buildings and equipment
comprising the Development, and leases of units in the
Development, both made by the Declarant and securing the
repayment of the Mortgage Loan.
"Mortgage Loan" shall mean the loan to the Developer made
as provided in the Loan Agreement, evidenced by the Loan
Agreement and secured by the Mortgage.
"Public Agency" shall mean a public housing agency,
housing finance agency or other public body or instrumentality
which enters into a HAP Contract, if any, with the Declarant.
"Qualified Number of Days" shall mean 50 percent of the
total number of days comprising the term of the Bonds (assuming
the Bonds are paid on the latest maturity date of any of tnem)
or in the case of a refunding of the Bonds, 50 percent of the
sum of the period the Bonds were outstanding plus the longest
term of any refunding obligations.
• "Qualified Project Period" means a period beginning on the
later of (a) the first day on which at least 10 percent of the •
residential units in the Development are first occupied or (b) •
the Delivery Date, and ending on the later of the date (s) ' •
'
which is 10 years after the date on which at least SO percent
of the residential units in the Development are first occupiedt •
(y) which is a Qualified Number of Days after cne date on which .:
any of the residential units in the Develpoaent is first
occupied: or (z) on which any assistance provided with respect
to the Development under Section A of the United States Housing 'J4
• Act of 1937 terminates.
.q.
"Regulatory Agreement" means the Regulatory Agreement
between the Declarant, the Issuer and the Trustee, providing •
for, among other things, the Mortgage Loan and for certain
requirements with respect to the Development.
5
•
"Targeted Area" shall mean a "targeted area" as definedin
Y
Minnesota Statutes, Section 462C.02, subdivision 9, as am
•
"Trustee" shall mean First Trust Company, Inc., a
or any successor trustee duly appointed
Minnesotanacn corporation,
and acting
Unless the context clearly requires otherwise, words
of the masculine gender shall be construed to include
vice
correlative words of the feminine and neuter gendersvice versa.
versa, and words of the singular number sha�rbenconstrued to
include correlative words
tr of the p terms
c,and
Thisoseonarheroof shalltbective construedntoteffectuate the purposes
and
set ths hehereof.
set forth herein and to sustain the validity
The terms and phrases used in the recitals of this
and the moaning, innludedtfon and
for
Declaration of Restrictive Covenants have been includeddes o!
conveniencerprtaofn reference only for purposes
of
interpretation of all such terms and phrasess of the
ned
this Declaration of Restrictive Covenants shall be nave been
by references to this Section. The titles and heading
and are not to be sections of this Declaration of Restrictive Covenants
cone der for convenience or part hereof andsshallnce neverly be considered or given
cnyseea P this Declaration of Restrictive•nt, it
any effectain construing
Covenants or any provision hereof or in ascertaining
any questions of intent shall arise.
Section 2. Residential Rental Pro acts _
e era noose ax
The Declarant understands, agrees and intends tnat
the Development is to be owned, managed and operated, for as
long as the Bonds remain outstanding and unpaid but in any
es a "residential
phrase is used in Section 103(D)()( )
event for the Qualified Project Period.
of rental project" as Declarantscch ratifies and confirms
n the Code. The sethereby
and agreements
and all of its a Reg latory Agreement. Declarant shall
contained in the Regulatory 1►g Diced to correct any
promptly take whatever action may be required Regulatory
failure to comply with this $eCtion and directedcby
to verify or confirm compliance with the
Agreement, and shall take whatever action may and
the Issuertor Trustee,m
Regulatory Agreement. The Declarant further represents
6
nr
•
warrants that all information disclosed on Exhibits A, B and C
hereto is true and correct in all respects, and that all
information provided in any other certification or report made
pursuant to this Declaration will be true and correct in all
respects on the date provided.
Section 3. Lower-Income Tenants; Federal
Income Tax Law.
(1) To the end of satisfying the requirements of Section
103(b)(4)(A) of the Code relating to individuals of low and
moderate income, during the Qualified Project Period, the
Declarant hereby represents, covenants and agrees as follows* t
(a) At all times during the Qualified
Project Period, at least 20 percent of the
completed residential units in the Development
shall be occupied (within the meaning of Treasury
Regulation Section 103-8(b)(5)(ii) under Section
103(b)(4)(A) of the Code) by Lower-Income Tenants.
For purposes of satisfying the requirements of tits
preceding sentence, the following rules apply*
(i) an individual or family which
qualifies as a Lower-Income Tenant will
continue to qualify as such as long as he,
she or they continues to reside in such unit
even though such Lower-Income Tenant's income
rises and subsequently ceases to meet the
income or other requirements of a
Lower-Income Tenants :.�,;
(ii) when a Lower-Income Tenant leaves ~c
a 4nit, such unit will be considered•as
occupied by a Lower-Income Tenant it it is
held vacant and available for such occupancy
until it is reoccupied by another tenant, ,; ' ,` /
other than on a temporary period which in no ", ` '•+
event shall exceed 31 days, at which time the
status of the new tenant as a Lower-Income :J
Tenant is to be determined;
7
•
•
•
. .�,.;. Fri:�: a. .• ,. . .- �. .
(iii) for the purpose of determining
whether a Lower-Income Tenant's Adjusted
Family Income is equal to or less than 30% of
Median Income, Declarant shall use the Median
Income figure for the appropriate family
sizes
(iv) promptly after the Declarant
becomes aware of the occurrence of a change
in the status of a Lower-Income Tenant by
marriage or a decrease in family size or by
the addition of an income-earning person
(other than a dependent) to the household,
the status of such tenant as a Lower-Income
Tenant shall be re-verified, or the dwelling
unit occupied by such tenant shall no longer
be counted toward compliance with the require-
ment stated in subsection (a) above,
(v) during initial rent-up of the
Development, at least 20 percent of the
residential units rented up at any time in
each building (upon and after the first date
upon which ten percent (10%) of the
residential units in each respective building
are first occupied) will be occupied by Lower-
Income Tenants: and •
`�h•..
(vi) the Declarant will refrain from
renting residential units to persons other
than Lower-Income Tenants as necessary to
satisfy the requirements of tnis subsecti•n. r," `
(a). .• .
(b) Except as otherwise provided in Section • {`�
3(2) hereof, the Declarant shall obtain and ., ?
maintain on file a sworn, notarised Income
Computation and Certification in the form attached
hereto as Exhibit G-1 from each Lower-Income 4•;
Tenant residing in the Development and each such
Lower-Income Tenant's Adjusted Family Income shall
be computed in the manner required by Treasury •
8
, 4
Y�
Regulation 11.l67(k)-3(b)• as it shall be in
effect on the date of initial issuance of the be
Bonds, or in such other form and l manner pas may proceduresrequired by applicable rules,
official statements, regulations or policies now
y tie
or hereafter promulgated or proposed
Department of the
p Treasury or the Internal Revenue
Service
ection wwith
r spec of the Cods:
issued under
S
(c) Except as otherwise provided in Section
3(2) hereof, the Declarant shall ink and
ant
maintain re file from suffici� to verify the
evidence reasonably including
Lower-Income Tenant's income and assets,
as may be necessary (i) a copy of such
Lower-Income Tenant's most recently filed federal
•
income tax return, (ii) a verification forof
Lower-Income Tenants employeer, other
compensation,Tandn(iii) e
verification of other
sources of income, if any:days after the initial
(d) Within unit(in)the Development by a
occupancyoof Tenant,ay the Declarant will provide to
Cheer suer copies of such Lower
the Issuer and the Trustee tion and
Income Tenant's Income Comp cling
Certification inthe fo m attached the supporting
hereto as
Exhibit tit1, together to subsection (c)s
documentation obtained pursuant any duly the
andsed
the tativeaof willhpermitthe Trustee, Revenue
representative of the Iurueor, the Internal
Service to of the Treasury bOOksrY records of the
Service to inspect the and Low
er-Income
Declarant pertaining to the income a
Tenants residing in the Developm
(e) Except as otherwise provided ns�,tion
3(2) hereof, the Declarant shall prepareor
the Trustee and so and
before to the fIirst r
andFebruary, May,
before the eachleayduring the Qualified pro)ect
Periodta of yearn'.inuing Compliance as
with•
this Section 3, executed by the
coricomplianc Certificate of Co
Declarant in substantially the form attached
hereto as Exhibit P. -
9
•
.
(2) The Declarant need not fulfill the requirements of
subparagraphs (b) and (c) of Section 3(1) hereof, nor need the
Declarant fulfill the reporting requirements of subparagraphs
(d) and (e) of Section 3(1) hereof, and shall be deemed to be
in compliance with this Section 3, if,
(a) The Declarant shall have executed a HAP
Contract with respect to the Development, pursuant
to Section 8 of the United States Housing Act of
1937 (42 U.S.C. 1437f) and shall have provided an
executed copy thereof to the Issuer;
(b) The HAP Contract provides that at least
20 percent of the residential units in the
Development (or 15 percent of such units in a
Federal Targeted Area) spall be leased to
individuals and families qualifying as
Lower-Income Families under Section 8 of the
United States Housing Act of 1937 and the
regulations thereunder, and, for purposes of
making such determination, the percentage of
median gross income which qualifies as low or
moderate income is at least 8U percent:
(c) The Declarant snail at all times be and •
remain in full compliance with all provisions and
requirements of the HAP Contract and the Public ►
Agency which acts so administrator of the HAP
Contract shall agree to report any failure to w
comply with the HAP Contract to the Issuer and the
Trustee. ..
Immediately upon termination of the HAP Contract, for � > .
any reason whatsoever, or upon receipt of notice by the
Declarant 'hat the Declarant is in default under the HAP
Contract or that the Development is not in compliance with the
rental requirements of this Section 3, or upon receipt of
notice by the Issuer or Declarant that the percentage of
median Income utilised to determine if individuals or families
qualify as Lower-Income Families for purposes of the HAP
Contract exceeds 80 percent, the Declarant shall be required,
and the Declarant agrees, to henceforward fulfill all data and
reporting requirements of subparagraphs (b) through (e) of
•
Section 3(1) with respect to all new Lower-Income Tenants and
with respect to occupancy of the Development as a whole, and to
promptly obtain, prepare and submit to the Issuer and Trustee
such supplemental information with respect to existing
Lower-Income Tenants as the Issuer shall reasonably require to
establish compliance with this Section 3.
10
opemen
Section 4. Multifamil Housi nelt:
�nts,
Certs State Statutory Red
The Declarant hereby declares its understanding,
intent and agreement that the Development is to be owned. as
managed and operated as a 'multifamily housing development.
Section 462C.02.
such term is defined in Minnesota Statutes,
operated in
Subdivision 5, and that the Developmentshalbe per
all respects in conformance with the requirements the and
Loan
provisions of the Housing Act, for so long ratifies
remains outstanding and unpaid. The Declarant hereebywarrratifs
and confirms each and all of its representation, arra
and agreements contained in Section 5 of the Regul
Agreement.
Section 5. State Statuto R uirements Issuer
edu reents.
(1) Intentionally Omitted.
(2) To the end of satisfying the requirements oflSSt ay to
462C.05, Subd. 4 of the Housing Act, if applicable,
developments designed for occupancy primarily by Elderly
Tenants, during the period the Bonds remain outstanding, the
Declarant represents, covenants and agrees as follows:
At all times during the period that the Bond
(a) percent of the corp
remainsitial unitsg. at least 75 nt shall be occupied by
residential units in the he Development
satisfying the
requirements of thea p
Elderly Tenants. receding sentience, the following �.
rules apply:
An individual qualifies as an
(i) uglify ''r
Elderly Tenant and will contitocontinues ltO i
as such as long ,'•`•)
•
reside in such unit, and
(ii) When an Elderly Tenant leaves 3 '`
unit, such unit will be considered occupied
by an Elderly Tenant if it isuheld
ell vacant and
available for such occupancy
reoccupied by another tenant, other than On a
temporary period which in no event shall ^
exceed 31 days, at w ch time the status of
the new tenant as an Elderly Tenant is to be ,�
determined.
11
•
•
•
(b) The Declarant agrees that in order to avoid
violating the requirements that at all times during the
period that the Mortgage Loan remains outstanding at least
75 percent of the completed residential units in the
Development will be occupied by Elderly Tenants, the
following rules apply:
(i) during initial rent-up of the Development,
at least 75 percent of the residential units rented
up at any time will be occupied by Elderly Tenants;
and
(ii) the Declarant will refrain from renting
residential units to persons other than Elderly
Tenants as necessary to satisfy these requirements.
(3) The Declarant shall permit any duly authorized
representative of the Issuer and the Trustee or the Minnesota
Housing Finance Agency to inspect the books and records of the
Declarant pertaining to the status of Elderly Tenants, residing
in the Development; and
(4) The Declarant shall prepare and submit to the Issuer
and the Trustee on or before the first day of February, May,
August and November of each year during the period that the
Bonds remain outstanding, and within thirty (30) days after any
change in occupancy of a residential unit in the Development, a
Certificate of Continuing Compliance as to compliance with this
Section 5, executed by the Declarant in substantially the form
attached hereto as Exhibit F.
(5) Intentionally Omitted. �?
(6) The Development shall be maintained and operated at
all times in compliance with the policies, guidelines and -4? ••
agreements of the Issuer, and to that end the Declarant
specifically agrees: rFnJ
. r '
12
•
ti
",1
(a) that if Exhibit C specifies that rent
increase limitations shall apply, the Declarant
shall not increase the monthly rents set forth
therein by amounts greater than those permitted
for the period of time specified therein;
(b) Intentionally omitted.
(c) the Developer shall punctually and
faithfully comply with all of the terms and
conditions expressed in the notes, mortgages and
other agrs:.ments and instruments relating to any
subordinated financing provided by the Issuer nr
any other public body or agency or non-profit
entity.
Section 6. Covenants Run with the Land:
Qualified Project Per—
Priority.
The Declarant hereby declares its express intent that
the covenants, reservations and restrictions set forth herein
shall be deemed covenants running with the Land and shall pass
to the Declarant's successors in title. Each and every
contract, deed or other instrument hereafter executed covering
or conveying the Land or any portion thereof shall conclusively
be held to have been executed, delivered and accepted subject
to such covenants, regardless of whether or not such covenants
are set forth in such contract, deed or other instrumec,t.
Unless sooner terminated in accordance with Section 11 hereof,
such covenants shall continue in full force and effect for as
long as the Bonds remain outstanding or for the Qualified
Project Period, whichever is longer: it is expressly agreed and
understood that the provisions of Sections 2 and 3 hereof are
intended to survive payment of the Bonds and the expiration,
release, termination or discharge of the Mortgage Loan and all
agreements, security interests and instruments relating
thereto.
The commencement, length and termination of the
Qualified Project Period shall be established by a Certificate
As To Qualified Project Period in substantially the form
attached hereto as Exhibit D. Such Certificate As To Qualified
Project Period shall be executed by the Declarant and Issuer,
13
and shall not be effective until duly recorded with respect to
the Land in the appropriate public real estate records in and
for the county in which the Development is located. Until and
unless the Certificate is so filed and recorded, the commence-
ment of the Qualified project Period shall be October 1, 1986,
and the termination of the Qualified Project Period shall be
October 1, 2001.
Declarant requests and warrants that, upon the
recording of this Declaration in the appropriate public land
records office, this Declaration dhall not be subordinate or
subject to any liens, encumbrances, easements or other title
matters other than the liens or other items set forth on
Exhibit B hereto.
Section 7. Uniformity; Common Plan.
The provisions hereof shall apply uniformly to the
entire Development in order to establish and carry out a common
plan for the use, development and improvement of the Land.
Section 8. Burden and Benefit.
e
ideclares its ntent thaththe burdentofetheycovenants set forthshereing and
concern the Land in that the Declarant's legal interest in the
Land hereby may
urther declaresbe rendered ss itsaluable by The Declarant
understanding and intent, however,
that the benefit of such covenants concern the Land by
enhancing and increasing the enjoyment and use of the Land and •
the Development by or for Lower-Income Tenants or Elderly ~
Tenants, as applicable, and to benefit the Issuer, the Trustee
and the owners from time to time of the Bonds.
Section 9. Sale or Transfer of Development. ;4
The Declarant hereby covenants and agrees not to
sell, transfer or otherwise dispose of the Development without >•
j
obtaining the prior written consent of the Issuer and the
Trustee, which shall be conditioned solely upon receipt of
}
14
4
Vc
r
evidence satisfactory to the Issuer, and the Trustee that the
purchaser or transferee of the Declarant has assumed in writing
i: and in full the Declarant's duties and obligations under this
Declaratiion of Restrictive Covenants and upon an opinion of ,
Bond Counsel to the effect that such sale, transfer, or
disposition will not adversely affect the exclusion from
federal income taxation of the interest on the Bonds. It is •
hereby expressly stipulated and agreed that any sale, transfer
or other disposition of the Development in violation of this
• Section shall be null, void and without effect, and shall not
be effective to relieve the Declarant of its obligations under
this Declaration of Restrictive Covenants. Nothing in this
Section 9 shall be construed to limit the right of the
Declarant (if a limited partnership) to sell limited
partnership interests in itself.
Section 10. Notice of Default; Remedies;
Enforceability.
In the event of a violation or attempted violation of
any of the provisions hereof, the Issuer or the Trustee shall
give written notice thereof to the Declarant, and if such
violation or attempted violation has not been cured within . .
thirty (30) days thereafter, may institute and prosecute any 1
proceeding at law or in equity to abate, prevent or enjoin any !
such violation or attempted violation, or to recover monetary
damages caused by such violation or attempted violation.
Developer agrees that the remedy of an action to recover
monetary damages for violation or attempted violation of the
provisions hereof will be inadequate, and the Issuer or Trustee t
shall have the right to institute an action for and seek
specific performance by the Declarant to remedy such violation
or attempted violation. The provisions hereof are imposed upon
and made applicable to the Land and shall run with the Land and
shall be enforceable against the Declarant, each purchaser, •
grantee, owner or lessee of the Development, and the respective .
heirs, legal representatives, successors and assigns of the ,_
Declarant and each such purchaser, grantee, owner or lessee.
No delay n enforcing the provisions hereof as to any breach or
violal4 •hall impair, damage or waive the right of any party
entitle,. a enforce the same or to obtain relief against or
recover for the continuation or repetition of such breach or
violation or any similar breach or violation thereof at any
. later time or times.
15
.t . tk
The monetary damages recoverable by any beneficiary
limited in that such t of the covenants expressed herein shall be ant andc
,. beneficiaries shall have recourrssenssoleo� the owners,
Development
the assets of the Declarant, partners of the Declares:
stockholders or general or limiteddfppar such monetary they Declarant
shall have any ersonal liability
shall not apply to any monetary ocligoof
This paragraphulatory Agreement. /ti.
the Declarant under Section 8 of the Reg
Section 11. Amendment Termination. ,
t
A. The provisions of
prior totne
fDeclaration
statedshall
term�setoe ►'
amended, terminatedinstrument in writing
forth in this Declaration except by an
• duly executed by the Issuer, Trustee (if any Bents remain
rs
outstanding) and the Declarant or their respective
ep(c)ive successorson
or assigns, or in accordance with paragraph
lir provided, that:
(i) the provisions of Sections 4 and 5
hereof shall be terminated automatanallyanupon ,1
n
payment in full of the Mortgage
recording of a satisfaction of the Mortgage in
connection therewith: and
(ii) the provisions of Section expheriration .
shall be terminated automatically
Period, upon4
of the Qualified Project
Unless sooner terminated or amended or deleted from this ?"
each of the covenants
Declaration as in this Section provided, he longer of the -'
r.
and restrictions set forth in this Declaration above shall
continuente itermfull
offorce
the Bondseffect
the Qualified Project Period,
remainingi
understood that the :
and shall thereupon terminate bego! no further force
pand
er Hct, it being expressly agreedt
security instruments
provisions of this Declaration hereof are intended to survivents .,�
the expiration and satisfaction of any financing arrangements• placed of record evidencing and securing
imade psition and satidsfactionuction of the occurs prior tothent,
! suchexpirationProject Period.
expiration of the Qualified t
t
lb
t
.
lir 1
•
B. At any "Appropriate Time", as hereinafter
defined, the Declarant, or its successors or assigns, may v
^< request that the Issuer and Trustee (if any Bonds then remain r
outstanding) execute and deliver to the then owner of the
Development a Certificate of Amendment or Termination or
Deletion of Covenants in the form attached to this Declaration
as Exhibit "E", which Certificate shall have been previously t
executed by the Declarant, its successor or assign. If the i
Declarant's request is made at an "Appropriate Time", the
Issuer, the Trustee (if any Bonds then remain outstanding) will ,
execute and deliver to the Declarant the Certificate of i
Amendment or Termination or Deletion of Covenants. Any such
certification entered into by the Issuer and the Trustee (if
any Bonds then remain outstanding) shall be (and it shall be so (
provided in the certification itself) a conclusive
determination of the amendment or the satisfaction and •
termination or deletion of the covenants and restrictions in p
this Declaration with respect to the obligations of the
Declarant and its successors and assigns under this 't
Declaration, it being the intention of the Issuer that upon the
execution and filing of any amendment such covenants and h.
restrictions shall thereafter and for all purposes be modified t •
and amended and that upon the granting and filing of any
terminatior or deletion such covenants and restrictions snail
thereafter for all purposes be forever terminated or deleted ;
from this Declaration.
.
C. It shall be an "Appropriate Time" for the . _ ,,'
Issuer's, and Trustee's (if any Bonds then remain outstanding) <1
execution and delivery of the Certificate of Amendment or t =
Termination or Deletion of Covenants with respect to .4:i'
':'t -
termination or deletion at the expiration of the stated term of •-,:;r`
such covenants and restrictions as set forth in this :4:';
Declaration. Prior to such expiration of the stated term, it .1, .-
shall be an "Appropriate Time" for the execution and delivery •., ,..':
of the Certificate of Amendment or Termination or Deletion of
Covenants only if Declarant delivers to the Issuer and Trustee `•yX +
(if any Bonds then remain outstanding) with the Declarant's _
request, a written opinion of Bona Counsel addressed to the
Declarant, the Issuer, and the Trustee (if the Bonds then s.,,
remain outstanding) to the effect that the amendment or earlier a.' :
termination or deletion from this Declaration of such covenants
and restrictions will not adversely affect the exemption from
federal income taxation of interest already received or to be
.
received on the Bonds. Such opinion of Bond Counsel shall •Y "
t
f
17
i
0
•
4i
Ag
•
clearly state whether it addresses amendment, termination or
deletion of the covenants and restrictions hereof and shall ;.
specify the applicable paragraph of Exhibit E to be included in
the Certificate of Amendment or Termination or Deletion of .
Covenants. Upon receipt of such Declarant request and
accompanying opinion, the Issuer and Trustee (if any Bonds then
remain outstanding) shall execute and deliver the Certificate
of Termination or Deletion of Covenants to the Declarant. : -
D. The provisions hereof shall be deemed to be no
longer in effect in the event of noncompliance with the
provisions of Section 103(b)(4)(A) of the Code and Treasury
Regulations promulgated or proposed thereunder if such
noncompliance liance is caused by involuntary loss caused by fire,
seizure, requisition, foreclosure, transfer of title by deed in
lieu of foreclosure, change in federal law or an action of a
federal agency after the date of issue of the Bonds (which
change in law or action prevents the Issuer from enforcing the
requirements hereof), or condemnation or similar events but
only if within a reasonable period, a principal amount of the
Bonds equal to the outstanding principal amount of the Mortgage
Loan are paid and redeemed. To evidence an event of the kind
stated in this paragraph D, the Issuer, if requested by the
Trustee, or other appropriate person, shall execute and deliver
• Certificate of Termination of Covenants in substantially the
form of Exhibit E attached hereto upon receipt of an opinion of
Bond Counsel to the effect that termination of this Declaration
as a result of such event will not adversely affect the
exemption from federal income taxation of interest received or
to be received on the Bonds. If the Bonds are not paid and j` -
redeemed, either (i) any amounts received as a consequence of
•
such event shall be used to provide a project which meets the r '
requirements of Section 103(b)(4)(A) of the Code and Treasury
Regulations promulgated or proposed thereunder or (ii) the �•a
Trustee, or other person shall expressly assume the obligations
of the Declarant thereunder and shall further agree to be bound
by and comply with the terms of this Declaration. The iJ
provisions of this paragraph D shall be deemed to be
inoperable, and the requirements hereof shall continue in
effect, if the operation of this paragraph D would subject the
interest on the Bonds to federal income taxation. yS_:
Section 12. Consideration. AIL
The Issuer has adopted and implemented the financing C
program for the Development, and issued the Bonds to obtain
moneys to carry out the financing program for the purpose, •
•
18
1 '
41
acquire, construct �
among others, of inducing the Declarant totaco provide
or rehabilitate and operate the Development
housing for Lower •
' additional decent, safe and sanitary ,
Income Tenants and other persons. In consideration f t the
� ,.• adoption and implementation of the financing program
issuance of the Bonds by the Issuer, the Declarant has accepted '
the terms and provisions hereof.
Section 13. Recordin .
The Declarant shall cause this Declarative is hereto ,
Restrictive Covenants and all am nd Aentscand supand ple supplements
of
and all Certificates relating and ;
Continuing Compliance and the Income Computation
Certification)ppopeto be real estaadteand recordsdin such
County,opoyriMie public such other e• incurred
reasonablynneques anand nshall pay alllfees andcharges
mayu
request,
in connection therewith.
Section 14. rovers g—Law•
This instrument shall be governed by the laws of the
State of Minnesota rXregtpromulgated the extent the laws of the United
States of America
regulations thereunder may be
applicable.
Section 15. Notices.
Any notice required to be given hereunder shall be
given by registered or certified mail at the addresses
specified below or at lush other addresses as may be specified
in writing by the
City of Oak Park Heights ?,issuers 14168 - 57th Street North
Oak Park Heights, Minnesota 55082 i:
Attn: City Administrator
Declarants Oak Ridge Place Limited Partnership,
a Minnesota Limited Partnership
300 Prairie Center Drive
Eden Prairie, Minnesota 55344
Attn: Lawrence 0. Hauge
First Trust Company, Inc.
Trustees First Trust Center
180 East Fifth Street
gt, Paul, Minnesota 55101
Attn: Corporate Trust Deparent ,
19 ,
•
4
Section 16. Severability.
If any provisions of this Declaration of Restrictive
Covenants shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining portions
shall not in any way be affected or impaired.
Section 17. Multiple Counterparts.
This Declaration of Restrictive Covenants may be
simultaneously executed in multiple counterparts, all of which
shall constitute one and the same instrument and each of which
shall be deemed to be an.original.
i•
I
• M
•' t has caused this
1' its duly authorized I;,,. IN WITNESS ygREOF, the Declaranby t�;�,' instrument to be signed on otfs�=chlf1986.
A,: partner as of the 20th day
71
OAK RIDGE PLACE LIMITED PARTNERSHIP,
� A MINNESOTA LIMITED PARTNERSHIP
By � �..(yrs it1/i
Its General Partner
•
This instrument was drafted by:
Briggs and Morgan
2200 First National Bank Bldg.
St. Pauls Minnesota 55101
4
i
1
1
r
i
t
V
STATE OF MINNESOTA )
ae
COUNTY OF RAMSEY
The foregoing instrument was acknowledged before me
this c day of Mnrch, 1986, by Lawrence O. Hauge, the general
partner of Oak Ridge Place Limited Partnership, a Minnesota
Limited Partnership (the "Declarant").. on behalf of said partnership.
Notary Pub c
[Notarial Stamp)
HEATHSER T.pUtoRT
rpu.. sou
` . MENNF►1 COU dT
v iwM.s.40•.a...Nib Z),1991
48
Exhibit A
i tion for property in Washington County,
Legal dascr P
Minnesota: Perk Heights Garden
Lot 1, Block 1, Oak F
•
EXHIBIT B
Intentionally Omitted
•
EXHIBIT C
The Development
Description of the site on which the Development is to be
constructed:
See Exhibit A
Unit numbers and unit types
Number of Unit
Units 2222
43 A
5 B
6 C
12 0
15 E
2 P
3 d
Unit Code
• A - 1 bedroom, 637 square feet
8 - 1 bedroom, 702 square feet
C - 1 bedroom, 770 square feet
D - 2 bedrooms, 866 square feet
E - 2 bedrooms, 889 square feet
F - 2 bedrooms, 877 square feet
C - 1 bedroom (handicap) 637 square feet
The Development is designed primarily for occupancy by
Elderly Tenants.
Moderate Income Tenant Requirement: None.
C-1
J
i
EXHIBIT D .
CERTIFICATE AS TO
QUALIFIED PROJECT PERIOD r
a
Limited Partnership, present
NIimited, a place located
Oak Ridge (the "Declarant")
housing project (the "Development")Minnesota Limited Partnership "Land") in the County of .
owner of the rental land (the
on hi following natate of Minnesota, and the South
Washington Block 6, said Lots.
Lots 1 than 10 incluseve, _ ad oining and all s,
vacated Eugene St Street Block 6,
andHalf of hru 30 inclusive,
B said lots in
of
ac Lots 21 tce Streetadjoiningidsi
vacated Wand Ce 's Addition to of record
Coolethereof on file Washington
r
McMillan and the platRecorder,according isto the County
Co the office
County, entered into a Declaration of
dated as of March 20, 1986 (the
WHEREAS, the Declarant 1in the
"De
Covenants and Restrictions ons or t e• 198ty of
office
of the County Re n an Document No.
office of the Recoider
ton and State of Minnesota as
Washing i and certain covenants
contains are certain
upon
EAg, the Declaration a Burin a !.
with the land and and until ,,
�� which run assigns at all time
and restrictions as therein defined, unless
its successors terminated ed or
the DelcarPtojeCt Period, ore amended,
Qualified end
ouch deleted asaprovidednts and rintthetDeclaration; Section 9• L.,
Bele and provisions of S to be �,`."
under the tense occurrences are a�
WHEREAS, dates of certain the issues. ; ,
int to be executedtbis Certificate;of the Declaration the the form of .•..`%
theseabecshed by an ubinstrum
eubatantiallY Declarant do hereby •�.'t•'-
Declarant T the Issuer and
NOW THEREFORE.
certify and declare that+ t .
:
D 1 ,A
i.
•
on which ten (10) percent of the units in
1, The day the Declaration) were Occup
the Daveloptuent (as definedw in was the date of commencement of
19 . which
washa Pro ect nriod.
the Uua g0) percent of the units
19f e the
2. The date on which fifty 19 .
Project were occupied was s
ins the Pchj ears therea ter
date which is ten (10) y first unit in the Project
3. The date on which th19 and the ate whichcis
occupied was er,of days from said date date
was Occup the numb the finalsi maturity fiftyr (50)cancyent April 1, 2008 (being
defined in the Declaration), is
first occupancy to �
of the Bonds as with
19 provided which assistance
vndtdd Statesh
4. The date on Housing
respect to the Project under Section
provided in the
Act of 1937 terminates, as p
Housing with the 19 unless said
Assistance Payments contracts date of
n whir event t e early an
a arta nate � established by
onminctthe Issuer and the
termination of said assistance shall e
amendment
to this Certificate executed by
Declarant. uplifted Ptojeo3
termination of the Qualified
2.
5. The date of dates set forth in paragraphs
and
is the and
oft ande
unless this Certificate is
and 4 hereof, and until and
19..... 198_.
is , 19
day of
Dated this —
CITY OF OAK PARK HEIGHTS, MINNESOTA,
as Issuer
•
By Or Z • resentat ve
is u e P n
D 2
•
OAK RIDGE PLACE LIMITED
PARTNERSHIP, A MINNESOTA
LIMITED PARTNERSHLP
•
By
Its General Partner
h •
.4r
T �
1 `ay.� •
1
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••
•
.,a w
STATE OF MINNESOTA )
) as.
COUNTY OF )
On this day of
, 19 , before me
personally apyeared
n Notary Public witTi�n todmeopersonally known to be the
of Oak Park Heights, Minnesota; that the seal
affixed to said instrument is the corporate seal of said public
aidr that the inbyrauthority ofnt was 9ned and sealed on its governing body, andiof
that
said public bodyo by me duly sworn, did acknowledge said
said officer who, being by
instrument to be the free act and deed of said public body.
Notaty Pub c
i
STATE OF MINNESOTA )
ss. •
COUNTY OF ) .
, 19 , before me a
On this day of ersonally appeared
Notary Public with n and for sa d County, p
the general partner of Oak Ridge Place >w
Limited Partnership, a Minnesota Limited Partnership, and that
said partner acknowledged id instrument to be the free act
and deed of such partnership.
Notary Public i
i
I
k.
s.
D 4
•
• 4-
EXHIBIT E
• CERTIFICATION OF AMENDMENT OR
TERMINATION OR DELETION OF COVENANTS
is
WHE^EAS, n descra bed land the Land")
the present owner oY the and
9
in the County of Washington and State of Minnesota, to-wit:
Lots 1 thru 10 inclusive, Block 6, and the
South Half of vacated Eugene Street adjoining
said lots, and Lots 21 thru 30 inclusive,
Block 6, and all of vacated Wallace Street
adjoining said lots in McMillan and d Cooley's
Addition to Stillwater according
plat .
thereof on Roile or of record in tne office f
the Cecorder, Washington County,
Minnesota.
WHEREAS, Oak Ridge Place Limited Partnership,
a
auto a
Minnesota Limited Partnership (the "Declarant") entered
(the
of Covenantsnrecorded inathections dated office f theS�teto! 1986
(the "Declaranion ) of Washington J
Recorder in and for the County 1986 as Document No.Minnesota on
and
WHEREAS, the Declaration contained certain covenants
and restrictions hichcrunwitentheslindsandnare binding upon
the Declarant, its
WHEREAS, The Issuer, Trustee and their successors and
given in said Declaration the full and absolute
wereobamend or terminate or delete such
assigns, scion to
restr andcti os andwho ertif have porn
r
restrictions to execute and deliver this Certificate o
and on behalf of all persons and entities
benefitted by such covenants and restrictions; and
WHEREAS, under the terms and provisions of said
Declaration it is now appropriate ettosuch deliver
covthisnaneCertificate
and to amend or terminate or
restrictions and all preconditions thereto have been fully
satisfied:
E 1
_-, -
certify that C(a)
OR (b) IF
NOW THEREFORE, this is to restrictions eat forth in
the covenants and null and void and of no
INAPPLICABLE): (a)
Declaration are Recorder
in•
v anddfor n
Sectionh — effect; the County is hereby
d State of Minnesota and filing
further force or ton an instrument for recording
Couhoy of Washington this termination and Pilin of
authorized to a determination of the tion an
set forth termination°n °f
as a conclusive rmi to
of
all covenants and as
specified and assia complete with respectof the
S
�ti the Declaration, remedial pthat deletion of
• tel rights and otherin saidtSection other
covenantseon 1 ofd the Declarationtonprovidedforthdelete any
modify, amend or unless
and restrictnoots� in the Decl�.ration,
ctv Data ren rictl expressed of the Declaration ause forth
covenant orv rants sir
and restrictions covenants and restrictions
a set
all thedeletedntsr (b) the co or any oftext
hereby _ of the Declaration ( as follows:them, a sit
specified)in Seatare hereby amended to readfor the County of
of Recorder in and athhoriznt to
Washington
and the County conclusive
of Minnesota area arfiiing as a
Wacchitgton State the covenants and
deter nate nn of thehamendment°of
of the Declaration, as
determination set orth in Section
restrictions
specified.
Dated this day of
OAK PARK HEIUHTS, MINNESOTA,
as Issuer
yy
Its Authorized Representative
(SEAL%
E-2
•
17.
.3:•••
•
FIRST TRUST COMPANY, INC.,
• as Trustee f-
By
i•
• It
P..
$-
a .
k..
ti
E-3 !, •
•
A'
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•
•
OAK Luh PLACE LIMITS') PARTN=RSLLIP. A
KISMIDOTAP
Lining) P iI
aa Declarant
Dy
its O.nara PartM
STATE OF MINNESOTA ) a7
COUNTY of
COV 19 , before M a
day of ��r�rally are me a
On this for said Cour Y
Notate Public vie personally tto otahe seal
d
kno�+n that the
to
Oats Par1c lethit►1: lic body=
at is the seal o! said p behalf o!
instrument
was signed and sealed onand that saidaid
publthatic
nt authoritits governing y' act and
the ins nc to the free
public body n 1 said instructs
officers acknowledged
body•
deed of said p�
Notary Public
E-4
STATE OF MINNESOTA )
) ss.
COUNTY OF
On this day of , 19 , before me a
Notary Public within and for sa d County, personally appeared
, to me personally known, who, being by me duly
sworn, did say that he is the of First Trust
Company, Inc., a Minensota corporations and that said
instrument was signed on behalf of acknowledgedsinstrumentcorporation
that
said to be the
free act and deed of such corporation.
Notary Public
STATE OF MINNESOTA )
ss.
COUNTY OF
On this day of , 19 , before me a
Notary Public wither and for said County, personally appeared
to ms personally known, who, being by me duly
sworn, did say that he is the general partner of Oak Ridge
Place Limited Partnership, a Minnesota Limited Partnership; and
that said instrument was signed on behalf of said partnership
and that said general partner acknowledged said instrument to
be the free act and deed of such partnership.
Notary Public
K
E-5
6.
*:
•
i EXHIBIT F
1
1
CERTIFICATE
OF
CONTNU
IING PROGRAM COMPLIANCE
Dates , 19_•
The
owing information
nnwith
ithtr (fect"to Oak
kpRidte)
Place Project, Oak Park Heig a
is being provided by Oak Ridge Place Limited Partnership,
Minnesota Limited Partnership (the "Declarant")
pursuant to that certain Declaration of Restr ct ve
Covenants dated as of March 20, 1986 (the "Declaration") with
respect to the Developments
General
(I) The total number of residential
units in the
Development which are completednd The tavailable for
r
of
occupancy is
such units Occup1ed s
(II) The Declarant has obtained an "Income
roviued
Computation and Certification" in the form proviued
either Exhibit G-1 or G-2 to the
Dseclaration,
clraion, from
each Tenant named below, income
ateedtherein
•
has been verified as required by
3(1) (c) or Section 5(1) (b)(1ii) of the ueclarati the
and each such Certificate is being
aintained byDeclarant in its records with respect to the
Development. Attached hereto is the mostr sent ouch
Certificate for each such Tenant who side dateton
Certificate since
which the last "G rt C°ih�Declarant. Program
Compliance" was filed by
(III) In renting the residential units in
nrtlersncs
e
Development, the Declarant has hlssnot tfgiven persons (except
to any particularoswho
ualify as Lower-Income Tenants,
for parsons who q y or handicapped
Moderate IscomprTopriate): andants or ,none of the units _
tenants, a• appropriate):
F-1
6
r.N.
•
-
•
' I
listed below as occupied by Lower Income Tenants have
been rented for occupancy entirely by students, no
one of which is entitled to file a joint return for
federal income tax purposes.
(IV) All of the residential units in the Development
have been rented pursuant to a written lease which
complies witn the requirements of Section of the
Regulatory Agreement, and the term of each lease is
at least months.
(V) The information provided in this "Cdrtificate of
Continuing Program Compliance" is accurate and
complete, and no matters have come to the attention
of the Declarant which would indicate that any of the
information provided herein, or in any Certificate
obtained from the Tenants named herein, is inaccurate
or incomplete in any respect.
Lower Income Tenants
(A) The following residential units (identified by
unit number) are presently vacant but have been
desiganted for occupancy by "Lower-Income Tenants",
as such term is defined in the Declaration and are
being held vacant and available for that purpose (for
a total of )s
Unit Number
(B) The following residental units have been
re-designated as units for Lower-Income Tenants since
19 , the date on which the last
Certificate of Continuing Program Compliance" was
filed Dy the Declarants
P-2
I
',i
Unit Previous Designation Replaciny Unit
I
Number Of Unit (if anr
iL Number
Ii
Y
The following residential unitsto be occupied by Tenantsrebasedconsidered on the
Lowe -income
to
i information set forth below=
Date of
Name of Tenant and Adjusted Dateiof
Unit Number of Persons Family incomes Occupancy
Number Residing in the Unit
i (1)
(2)
(3)
(4)
(5) ,_—.—
f
(6)
(7)
(d)
L
F-3
t.
1 -
\ ',
(10)
•
(D) of the residential units ( = of
aS ,
all res ent a units) ae occupied�by,for
held available for occupancy by, a
Tenants.
Elde�enants.
(A) The following residential units (identified by
unit number) are now occupied by elderly or units
•
handicapped tenants, for a total of �._.
------------
-------------
(B) The following residential units (identified by
unit number) are being held available for occupancy
by elderly or handicapped tenants, for a total of
unites
(C) residential units in the Development
( raritriisidential units inthe
Development)
areheld now occupied by, or are beinghandicapped tevanan.
or
occupancy by, elderly or
P-4
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- • • - . , •
-. ....
•••„•,,...,,,.:.,.,• ..,.,.., ' '''''
4„....... i - -,-. -, ... . . -...--- ..1 ;444',5-t4;i4.,.:3, ..-...'..•04/4/440016:11111sts"-.
,,,,,,•• - • :
•',..7 '•• • .
•••
••••,'
111 111211/211 IM'ISO,. I lave borate alibied
?..- is goaturee Go behalf of tale Deolateot• an • 19_s #
-,t-
-",
ask Itlage Placa Ltialtad Partnership, a
lelaossota Liattod Partnership. as
1, . Oeoloraat
SI'
Ita osaaral Partner
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1.
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el
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, 71
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••, .. - .- -.,..tne..,, i.-4:i:":,,,.: ;e -t..;-.-',7.,-• `-.-: ..-i- ''e It'"" ,-.4.1q.i.: ,;',-.'..::.:.-..!i.4.,f'''...--,''. ;..' - -.•-._- '.: : '.4 %-.4,----.•
4",-.4.*** ..4:::.....,,t---- -'• '" ' 'I- "::,_,,,t....:1:f.-.I.' .--.4,....4:-=-2--•,-,;4';:i:-..,-5,7t;::,:'•::-' 7...Yk:;•;:!:•.:•7-.."..i'....r*F.,"4": - ' ' ;•.—:.T."'',...7.;`:-,•,
•••.t. --; ..
._._-**-'"" 41" .' • -, .':.?: -.•" •••••• :•.- --.1., 1_,:....,r-r:..1..s.'"Ill.--nr."4::..,:
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•";;g, ,;'..-',--':IDCHISIT 0-1. ,....-- . .
_ . voco_L.rxmt.i, rJtOPIPUT ?ION AND• -CERTIFICATION •
es ncome snants
.. . .
' t1111 - • - -.still vq14,. ... ,...... tewa. .;,.. . . , .. . . - - ....
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.•;74-
-r. "t• Develcipaents `Oak' - •ge tPlace Project ..- .,. ., .
..., 1 Park Height'.- --nn-e-sot a-550S2
Declarant: Oak Ridge Place Limited Partnership, a Minnesota ,
. - Limited Partnership A.
. ...4;1.-.
-r*
-,..*
I/We, thi Undersigned, being first duly sworn, state tnat
I/we have read and.answered fully, frankly and personally each
• of the following questions for all persons (including minors) .1.
who are to occupy the unit in the above apartment development
for which application is made, all of whom are listed below:
• ::., . . .
. ,
1 ' -- 2 3 4 5
Name of MembersRelationship
of the -'silto Head of Social Security Place of .;
,
Household1Household - - Humber
,:----- L1/432.
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1 .6. The antici todincome of all the above persons during the -/
I
12_ 0flthperiodSgimmimg this date, .t
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i y
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• • 4
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. a. includin all wages and salaries, overtime
pay,
coissions, ees, tips and bonusesbefore
of payroll business or
deductions; net income from the operationpersonal bl business
or
expenditures for business expansion or
profession or from the rental of realorointereat and
(without deducting capital indebtedness): payments and
dividends;amortization theoperiodic paym licrec,
fromsocial unit annuities, insurance dpolh benefits
ts mfusends,
pensions, disability paymentsenefin
r. and
similar
to types of periodic receipts;
and other earnings,
uch as unemployment and disability
lieu of atjom workmen's compensation and severance pay;
thechmaximum a, public assistance available to them
bo maximum amountpof p ulnc
above persons; periodic and deerbandareywancea,
as alimony and child support payments stares not residing
gifts received from persons
pay and
in
contributions and and all regular Y, special(whether or not
allowancesn wdwelling;
iof a "` g owhonisArmed
headForces
of the housenold
living in the dwelling)
or spouse; but gifts
• sporadic or irregular g
b, excludin casual, sp for or in reimbur8eent of
specifically assets,
inheritances,mounts w ps est lPm
sum additions to family
medical ea% lump a
such as nherritances, insurance payments (including
sins and settlement for personal
payments under health and accident insurance and workmen
or orcapital y
or property losses; amounts of educational acnolarahips
paid directly to the student or the educational to a
and amounts paid by fees,
institution, the costs of tuition,
booksveteran for use in meeting
9n eitherr case theao8lyto vicee extentxte
books and equipment, special pay P exposed to hostile
j used for such purposes; from home and
fire;e familyrelocation who is awaym
a ants under -TitletllAbquisition tne Uniform
ooP Ym tthe °
Policies
Assistance fo fosterchildpayments;
j Policies Act of 1970; of food
1 value of coupon allotments for the purchase
pursuant to the Food Stamp Act of 1964 which is in excess
l of the amount actually charged for the allotments; and
payments received pursuant to participation in ACTION
volunteer programs,
is as follows: S
G-1/2
1
•
. , ' C .
C .
•
4; whose income or
of the persona described above (or s bonds,
was included in item 6) has any savings,�, If any of capital investment,
contributions or other form
_ equity in real property by all
provide: such assets o �
a. the total value of all
such persons: $_____....-_______ ueriveo from '
income expected to be this date:
of
r•
b. the n°thet12-montperiod commencing
such assets in and
$ which is included in
c.
the amount of such income `
item 6: $
in column l above
8. Students:
a. Will all of the persona listed
been full-time students during fiveional
this calendar year at with
be or have they correspondence school)
calendar institution than a
regular faculty(other students?
regular
Yes _ No ---
Is any such person (other than nonresident
aliens) married .an
b. ible to file a point federal
d elig _
income tax return?
Yes �_ No tion is
the above informs
Pd a that all of income tax law of the
We acknowledge 9 under federal to financeth
the bondsntus obligations issued consent
relevant to the or other oblig is being made•
the spar mwhich application the issuer Wef such
the theacdisclosurefoof such bonds or other
bto ds rof such information to and --
ations, the holders
behalf.
obligations or other obligations,
acting on
obligations and any
i
V_1/3
A.
6.
41.
- • . -
•
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INFORMATION SET FORTH
THE UNDERSIGNED HEREBY CERTIFY THAT THE J►CKNOW SET THAT
THE UNDERSIciNE►� UNDERSIGNED
WILL
ABOVE IS TRUE AND CORRECT.BE OCCUPIED BY ICE IF ANY OF THE
THEELASE FOR THE TEN (10) DAYS WRITTEN BE CANCELLED UPON
IS NOT TRUE AND CORRECT.
INFORMATION
Tenant
r �
I.
Tenant
Subscribed and sworn to before me
this day of
a _
C n and or the
(Notary Seal) otary Pu
State ofres=
My Commies on Exp
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...,40.„, ,,L. .„, CCOPLETION BY DECLARANT
• (OR ITS MANAGER) 001i1
-i-.-
-,,,,.. ....,
1. Calculation of eligible,tenantincome:
-...„-._ il
a. Enter amount entered for entire
household in 6 above: $---------- ., ,
11
b. If the amount entered in 7.a
above is greater than $5,000, enter the
greater of (i) the amount entered in 7.b '4
0
less the amount entered in 7.c or (ii) 10%the -i,
of amount entered in 7.a.: $----------
c. TOTAL ELIGIBLE INCOME (Line 1.a
plus line 1.b): $----------
2. The amount entered in 1.0 is less than or equal to 80% of .-
median income for the area in which the Development is located, .
.4-
as defined under the Declaration ("Lower Income Tenant").
..
.,-,.;•
3. Number of apartment unit assigned:
;0
4. This apartment unit was was not last occupied for
a period of at least 31 cosi"e days by persons whose .4..
aggregate anticipated annual income as certified in the above .,
manner upon their initial occupancy of the apartment unit was lz
. ..
less than or equal to 80% of Median Gross Income in the Area.
THE UNDERSIGNED HEREBY CERTIFIES THAT HE/SHE HAS NO KNOWLEDGE . .
OF ANY FACTS WHICH WOULD CAUSE HIM/HER TO BELIEVE THAT ANY OF
THE INFORMATION PROVIDED BY THE TENANT MAY BE UNTRUE OR
INCORRECT.
OAK RIDGE PLACE LIMITED PARTNERSHIP, ,
A MINNESOTA LIMITED PARTNERSHIP
BYTE—.....--------
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•kY ?� 3�IZ'1RT1fES8 WRERE0F, the Declarant has caused this
;d instrument to be signed on its banal! by its duly authorised
partnsr:
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t _ + STATE OF MINNESOTA ) ss
E- ' COUNTY OF RAMMSSEY ) ,;,;'
The foregoing instrument was acknowledged efoysnaral :i
this day of March, 1986, by Lawrence O. Haug
r. partner of Oak Ridge Place Limited Partnership, a Minnesota
Limited Partnership (the "Declarant").
Notary Pub c
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[Notarial Stamp]
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DOC. __13"4/091
JOHN A
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CITY OF
OAK PARK HEIGHTS
14168 - 57th Street North -Box 2007
OAK PARK HEIGHTS, MINNESOTA 55082
439-4439
October 12 , 1989
Title Insurance of Minnesota
400 Second Avenue South
Minneatolis, MN 55401
Gentlemen:
Nancy Barber of Gray, Plant & Moody has asked that
I direct this letter to you regarding Oak Ridge Place lo-
cated in Oak Park Heights.
This eighty-Six unit complex was constructed according
to all City Codes and Ordinances and the United Building
Code which the City has adopted.
The complex is a permitted use in the City Zoning
Ordinance and is a R-B Zoning (Residential/Business. )
Sincerely,
CITY OF OAK PARK HEIGHTS
CSL Tonne i son
Administrator/Treasurer
pc: Nancy Barber
Yom !!//
•
First Trust
First Trust Center
P.O. Box 64111
St. Paul, MN 55164-0111
•
July 24, 1989
The Holders of:
City of Oak Park Heights , Minnesota Multifamily Revenue
Bonds (Oak Ridge Place Project) Series 1985
Dear Bondholders:
As mentioned in our earlier notice, the court date for the
approval of the Purchase Agreement for the sale of the project
has been set for August 16, 1989 at 11:00 a.m in Room 1015 of
the Ramsey County Courthouse located at 15 West Kellogg in St.
Paul , Minnesota.
A copy of the Court's Order is enclosed. You are entitled to
attend this hearing and make your views known to the Court. At
the hearing, the Judge will decide whether or not First Trust
should accept or reject the Purchase Agreement.
As always, if you should have questions in regards to this
action, please do not hesitate to contact the undersigned.
Sincerely yours,
Jon M. Stevens
Assistant Vice President
(612) 223-7097
JMS/rlh
Enclosure
82288
2425n/48
FILED
STATE OF MINNESOTA �istwo+ court Administrate,'
JUL 1 31989 DISTRICT COURT
COUNTY OF RAMSEY J. t• G• KOWSKI
By 1,: OeputSECOND JUDICIAL DISTRICT
-- c � -�� - yo ?
Court File No.
Case Type: Other Civil
In the Matter of the ORDER FOR HEARING ON
Trusteeship created by PETITION OF FIRST
City of Oak Park Heights, TRUST NATIONAL ASSOCIATION
Minnesota AS TRUSTEE FOR INSTRUCTIONS
AND CONFIRMATION IN THE
ADMINISTRATION OF A TRUST
First Trust National Association (formerly known as First
Trust Company, Inc. ) , the Trustee herein, having filed a Petition
for Instructions in the Administration of a Trust pursuant to
Minnesota Statutes § 501.35, and the Court having assumed
jurisdiction.of said Trust as a proceeding in rem under Minnesota
Statutes § 501. 33, now upon motion of Oppenheimer Wolff & Donnelly,
attorneys for Trustee as Petitioner.
IT IS ORDERED:
1. Hearing upon said petition be had by this Court at a
special term thereof to be held in Room 1015 of the Courthouse,
Saint Paul, Minnesota on August 16, 1989, at 11:00 o'clock A.M. ,
or as soon thereafter as counsel can be heard.
2. Notice of such hearing be given by publishing a copy of
this order one time in a legal newspaper of Ramsey County,
Minnesota, at least 20 days before the date of the hearing and by
mailing a copy thereof together with a copy of the said petition
to each party in interest at his last known address at least 10
days prior to said date.
3 . The parties in interest are hereby referred to the
petition provided to them and on file in the office of the Clerk
of this Court for a specification of the matters to be considered
at said hearing.
Dated: ere 4 , 1989
-' • 6::)%1A*
J - .ome Plunkett
d - of the District Court
OPPENHEIMER WOLFF & DONNELLY
By: Mary E. Senkus, #152389
Craig Currie, #20461
3400 Plaza VII
45 South Seventh Street
Minneapolis, Minnesota 55402
Telephone: (612) 344-9300
EillabAclounistfil?
STATE OF MINNESOTA JUL 101989 DISTRICT COURT
Ko S(I
COUNTY OF RAMSEY By Depur SECOND JUDICIAL DISTRICT
Court File No. C7--89-7096
AMENDED PETITION OF FIRST
In the Matter of the Trusteeship TRUST NATIONAL ASSOCIATION
created by City of Oak Park AS TRUSTEE, FOR INSTRUCTIONS
Heights, Minnesota IN THE ADMINISTRATION OF
A TRUST PURSUANT TO MINN.
STAT. § 501. 35
TO THE DISTRICT COURT FOR THE SECOND JUDICIAL DISTRICT:
Petitioner, First Trust National Association, as trustee of
the above-described trust, by and through its undersigned counsel,
petitions the Court as follows:
1. Petitioner, First Trust National Association (f/k/a First
Trust Company, ' Inc. ) as trustee, ("First Trust") , is a national
banking association with its principal office in St. Paul,
Minnesota, duly established, existing and authorized to accept and
execute trusts. Petitioner is the duly appointed, qualified and
acting Trustee under the Indenture of Trust dated as of December
1, 1985 (the "Indenture") between City of Oak Park Heights,
Minnesota (the "City") and First Trust. By the terms of the
Indenture, the City issued and sold, and First Trust agreed to act
as trusteefor the benefit of the holders of, certain Multi-family
Housing Development Revenue Bonds, Series 1985 (Oak Ridge Place
Project) (the "Bonds") in the aggregate principal amount of
$3,400,000. The Proceeds of the Bonds were loaned to Oak Ridge
Place Limited Partnership, a Minnesota Limited Partnership (the
"Partnership") pursuant to a Loan Agreement, dated as of December
1, 1985, between the City and the Partnership (the "Loan
Agreement") to finance the construction of a multi-family rental
housing facility (the "Facility") on real property located in the
City and legally described on Exhibit "A" attached hereto. The
funds received from the sale of the Bonds were by the City loaned
to the Partnership and used to acquire and construct the Facility.
2. The rights and interest of the City in the Partnership
loan under the Loan Agreement were assigned to First Trust to
secure payment of the Bonds. The Partnership, pursuant to the
terms of the Loan Agreement agreed on a non-recourse basis, to
repay its loan in such amounts and at such times as necessary to
pay Bond interest and principal as due. The obligations of the
Partnership to pay the Loan Agreement indebtedness was further
evidenced and secured by the Mortgage and Security Agreement, dated
as of March 20, 1986, from the Partnership, as mortgagor, to First
Trust (the "Mortgage") constituting a first mortgage lien against
the Facility.
3. A default exists under the Indenture and the Loan
Agreement, in that payments due under the terms of the Loan
Agreement from and after July 2, 1987, have not been made. Accrued
interest due under the terms of the Bonds in 1987, 1988 and 1989,
in the amount of $718,059.56 has not been paid. The entire
principal balance of the Bonds remains outstanding. Approximately
$206,000 remains in the Bond reserve fund held by First Trust.
4. Pursuant to the terms of the Loan Agreement and Mortgage,
the Bond indebtedness is not a personal obligation of the
Partnership for which First Trust has recourse to any assets of the
Partnership, or its partners, other than recourse against the
Facility. Given the non-recourse nature of the Bond indebtedness,
the only sources of payment to the Bondholders are the proceeds in
the reserve fund and the Facility or its value.
5. First Trust has exercised its foreclosure remedies under
the Mortgage and was the purchaser, as trustee, of the Facility at
Sheriff's Sale held on December 16, 1989, and confirmed by order
of Washington County District Court dated January 4, 1989. The
2
mortgage redemption rights of the Partnership expire on July 5,
1989 .
6. First Trust placed its interest in the Facility
for forille
on the public market and received an offer to purchase
thefrom REM Corporation at a sales price of $2,300, 000. First Trust
made a counter-offer to REM Corporation at ales price subject tof
$2 ,450r
e 000, and the counter-offer was accepted,
periods of redem tion, REM Corporation's
expiration . of the pp
inspection of the Facility, arrangement of financing and the
Court's approval of the sale as petitioned herein.
7 . First Trust had received a real estate appraisalof
the
Facility's value prior to its placing the Facility on the
et.
The appraisal indicated a value of $2,800,000, however, that
appraisal was based upon assumed Facility rental amounts that First
Trust has been advised were above current market competitive
levels. When adjusted for lower market rents,
the appraised value
is indicated to be between $2,400,000 and $2,500,000.
8. As stated above, the value of the Facility and the Bond
reserve fund represent the only
available sources of payment of
amounts owing with respect to the Bonds. Sale of the Facility at
the offered price of $2,450,000, together with reserver suit o iin s,
less costs and expenses of First Trust, would to 74-77% of their
a
distribution to Bondholders approximatelyequal
original principal investment. No other sums can be recovered and
a loss of approximately 23-26% of Bondholders' principal Based upon its evaluation anod the
aall
and
interest would result. First
circumstances, including the potential value of the Facility, Fst
the
Trust believes that the proposed sale of the Facility presents
best economic result for Bondholders,
as any delay in sale to
solicit higher sales price is not assured of success and would
result in continued accrued interest loss and costs.
3
9. Based upon the foregoing, First Trust, in discharging its
duties as trustee, believes that it is obligated at this time to
seek from this Court instructions relative to the proposed sale of
the Facility to REM Corporation and the final, partial repayment
of the debt evidenced by the Bonds. Specifically, First Trust
seeks an Order of the Court, after notice to all parties pursuant
to Minn. Stat. § 501. 35, requiring a hearing to be held before the
Court, at which time an Order will be sought authorizing First
Trust to undertake the proposed Facility sale to REM Corporation.
10. For purposes of the hearing on this Petition, First
Trust believes that the only parties other than First Trust, the
Partnership and the City who are or may be interested or may claim
to have an interest in this proceeding are the Bondholders. First
Trust believes it has a reasonably current list of all Bondholders
from .which addresses could be obtained for purposes of giving
notice of a hearing.
WHEREFORE, pursuant to the provisions of Minn. Stat. § 501. 35
and all other applicable law, Petitioner First Trust National
Association, as trustee, prays that this Court make and enter
herein an Order designating the time and place when the respective
parties in interest may be heard upon the matters set forth in this
Petition; that said notice of the hearing be served in the manner
specified in the accompanying Order; that the Court undertake to
represent all parties in interest who are unascertained or not in
being or who are minors or outside the State of Minnesota, pursuant
to the provisions of Minn. Stat. § 501.36; and that at such
designated time and place this Court make a further Order as
follows:
1. Authorizing and instructing First Trust to complete the
proposed Facility sale to REM Corporation by accepting
payment of the purchase price of $2, 450, 000 and
distribute the same together with remaining monies in the
reserve funds less any costs and expenses as final
settlement of all Bond payment obligations and all
4
remaining indebtedness evidenced by the Bonds, and to
assign and. release all rights, title, liens, claims and
encumbrances held by First Trust on behalf of the
Bondholders against the Facility; and
2 . Granting such other and further relief as the Court may
deem lawful, just and proper in the premises.
Dated: July 10, 1989
OPPENHEIMER WOLFF & DONNELLY
By Mar S kus, #152389
Craig ur i , #20461
45 South Sev t Street, Suite 3400
Minneapolis, Minnesota 55402
(612) 344-9300
Attorneys for Petitioner First
Trust National Association
5
111111 First Trust
Member First Bank System
a
First Trust Center
P.O. Box 64111
St. Paul, MN 55164-0111
January 20, 1988
City of Oak Park Heights
14168 - 57th Street North
Oak Park Heights , MN 55082
Oak Ridge Place Partnership
A Minnesota Limited Partnership
300 Prairie Center Drive
Eden Prairie, MN 55344
Attn: Lawerence 0. Hauge
RE : Section 8.02 of the Indenture of Trust between the City of
Oak Park Heights , Minnesota and First Trust Company, Inc .
dated December 1 , 1985 ($3,400, 000 Oak Ridge Place Project)
Gentlemen/Ladies :
You are hereby notified that, based on the occurance and
continuance of an Event of Default under Section 8.01 of the
above referenced Indenture of Trust, the Trustee is hereby
declaring the principal of all the Unpaid Bonds in amount of
$3,400, 000 and the interest accrued thereon immediately due and
payable, and such principal and interest shall become due and
payable at the place of payment as provided in the Bonds .
Please be aware that the date of such acceleration is immediate
and notice of such will be sent to the bondholders in the most
timely manner possible.
Sincerely yours,
on M . Stevens '1g
;;;2
Assistant Vice President
;1)
(612 ) 223-7097 ' drir
"--- IR ix\ 0
JMS/nk fA
o
82288 + v
1613/81
THE EBENEZER COMPANY 2500 Park Avenue, Minneapolis, MN 55404(612)879-1457
EBENEZER
June 10, 1987
RE: Oak Ridge Place
6060 Oxboro Ave. N.
Oak Park Heights, MN 55082
Dear Vendor:
Please note that on June 30, 1987, Ebenezer will cease
its management and marketing affiliation with Oak Ridge
Place.
You should direct any questions that you have about
future management at Oak Ridge Place to a representative
of the owner, Mr. Lawrence Hauge, Suburban National
Bank, 300 Prairie Center Drive, Eden Prairie, MN 55344,
Tel. (612) 941-7100.
Thank you for your services provided to us at Oak Ridge
Place. 4
I Si cerlU71 y,
11.64
Wes Cochrane
Executive Vice President
'-‘4111
First Trust
First Trust Company,Inc.
First National Bank Building
Saint Paul,Minnesota 55101
February 24, 1986
City of Oak Park Heights
14168 57th Street North
Oak Park Heights , MN 55082
Attn: Mayor
Dear Mayor :
Enclosed is bond number T-2 for the multi-family bond issue
which was closed in December. Bond T-1 has been delivered for
transfer and we are in need for the Mayor and City
Administrator to sign the correct page to issue the new bond.
I would appreciate your quick attention to this matter and have
the bond signed and returned to my office so that we can
complete this transfer. Please call me with any questions .
Sincerely yours ,
on M. Stevens
rust Officer
(612) 291-6204
JMS/sg
wp2057K
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Member First Bank System
UNITED STATES OF AMERICA
STATE OF MINNESOTA
COUNTY OF WASHINGTON
CITY OF OAK PARK HEIGHTS, MINNESOTA
No. T- 2 $3,400,000
MULTI-FAMILY HOUSING DEVELOPMENT REVENUE BOND,
SERIES 1985
(OAK RIDGE PLACE PROJECT)
Nominal Date Mandatory
Interest of Original Purchase
Rate Issue Date
% per annum 12-30-85 3-20-86
1. KNOW ALL PERSONS BY THESE PRESENTS that the City of Oak Park
Heights, in the County of Washington and State of Minnesota (the "Issuer"),
for value received, promises to pay to Plant & Co. or registered assigns, but
only from the Multi-Family Housing Development Revenue Bond Fund,
Series 1985 (Oak Ridge Place Project) (the "Bond Fund") and upon
presentation and surrender hereof at the principal corporate trust office of the
Trustee named below, the principal sum of Three Million Four Hundred
Thousand Dollars in installments of principal in the following amounts on
December 1 in each of the following years:
Year Principal Amount Year .Principal Amount
1990 $10,000 2000 $25,000
1991 10,000 2001 30,000
1992 15,000 2002 35,000
1993 15,000 2003 35,000
1994 15,000 2004 40,000
1995 15,000 2005 45,000
1996 20,000 2006 50,000
1997 20,000 2007 55,000
1998 25,000 2008 2,915,000
1999 25,000
or, if this Bond is prepayable as stated below, on a prior date on which it
shall have been duly called for redemption, and to pay interest on said
principal sum to the Record Date Holder hereof, as defined below, solely from
the Bond Fund, until the principal sum is paid or discharged, at the interest
rate as specified above (calculated on the basis of a 360-day year of twelve
30-day months). Interest shall be payable on the Remarketing Date. After
the Remarketing Date, interest shall be payable semiannually on June 1 and
December 1 of each year (each, an "Interest Payment Date"). In all cases
interest shall accrue and be payable from the most recent Interest Payment
Date to which interest has been paid or provided for. The "Record Date
Holder" is the person in whose name this Bond is registered in the Bond
Register maintained by the Trustee named below or its successor in trust (the
"Registered Holder" or "Holder" hereof) either (i) at the close of business on
the fifteenth (15th) day of the month (whether or not a business day) next
preceding each Interest Payment Date_ (the "Record Date"), irrespective of any
transfer or exchange of this Bond subsequent to such Record Date and prior
to such Interest Payment Date, or (ii) if the Issuer shall be in default in
payment of interest due on such Interest Payment Date, at the close of
business on a date (the "Special Record Date") for the payment of such
defaulted interest established by notice mailed by the Trustee on behalf of the
Issuer. Notice of the Special Record Date shall be mailed not less than
fifteen (15) days preceding the Special Record Date, to the Registered Holder
at the close of business on the fifth (5th) day preceding the date of mailing.
Interest shall be payable by check or draft mailed to the Registered Holder at
his address as it appears on the Bond Register on the Record Date or the
Special Record Date, as the case may be, except as otherwise provided in the
Indenture; provided, however, any Holder of Bonds in an aggregate principal
amount equal to or greater than $500,000 may elect, upon written notice to the
Paying Agent (accompanied by proper wire instructions), to be paid the
interest on such Bonds payable on any Interest Payment Date by
in federal funds to any bank in the United States specified in such t ransfenotice.
The principal of and interest and premium, if any, on this Bond are payable
in lawful money of the United States of America.
2. This Bond is one of an issue in the aggregate principal amount of
$3,400,000, all of like nominal date of original issue and tenor except as to
serial number, issued in accordance with an Indenture of Trust, dated as .of
December i, 1985 (the "Indenture"), duly executed and delivered by the
Issuer to First Trust Company, Inc., in St. Paul, Minnesota (the "Trustee"),
setting forth the terms upon which such Bonds are issued. The Bonds of this
series are issued by the Issuer for the purpose of making a loan of the
proceeds thereof (the "Loan") to Oak Ridge Place Limited Partnership, a
Minnesota Limited Partnership (the "Company") under the provisions of a Loan
Agreement, dated as of December 1, 1985, by and between the Issuer and the
Company (the "Loan Agreement"), to provide financing for a
proect within
meaning of Minnesota Statutes, Chapter 462C, consisting of hejacquisitionthe of
real estate located in the City of Oak Park Heights, Minnesota (the "City"),
and the construction and installation thereon of a multi-family elderly
residential rental facility (the "Project"). The Company has agreed under the
Loan Agreement to repay the Loan, together with interest thereon, in amounts
and at times sufficient to pay the principal of,
on the Bonds as the same shall become due and p' if any, and(the i "Basic
Payments"). The obligation of the Company to make Basic Payments, however,
is a non-recourse obligation with respect to the general partners in the
Company which imposes no personal pecuniary liability on any of its general
partners or any of their respective assets other than, following the
Remarketing Date, pursuant to a separate guaranty. Pursuant to the
Indenture, the Issuer has assigned and pledged to the Trustee, for the equal
and ratable benefit of the Holders of the Bonds, the Basic Payments due under
the Loan Agreement and on the Remarketing Date cause to be funded a
Reserve Fund in the amount of twelve (12) months' average annual amortized
-2-
and
interest to further secure payment of the
Btonds
executed and
interest
and•
principal Agreement thereon. Pursuant to a Mortgage and Security A he Remarketing Date (the
delivered by the Company on or prior for the equal and ratable benefit of
"Mortgage"), will grant to the Trustee,
the Holders of the Bonds, a mortgage lien on and a security interest in the
Project to secure the repayment of the Loan. In addition the Loan has been
secured by a pledge by the Issuer of all sums held by the Trustee in the
Funds created pursuant to the Indenture. From and after the Remarketing
Date, the Loan will also be securedt bndeficit Y itllgnnt of leases and rents with
oan guaranty agreement and by
respect to the Project, by an operating
a completion guaranty both to be given by the general partner of the Company
Reference
to the Trustee (collectively, the "Collateral SecuriyDocuments").
Collateral Security
made to the Loan Agreement, Mortgage,
is hereby supplemental thereto, for a
Documents and Indenture, including all indentures thereto,
among
description of the property encumbered and assigned, the provisions,
others, with respect to the nature and extent of the security, the rightsthf
the Issuer, and the rights, duties and obligations of the Company,
Trustee and the Holders of the Bonds and the terms upon which the Bonds are
issued and secured.
3. The Bonds of this series are subject to prepayment and redemption or
purchase as follows:
All Bonds maturing after June 1, 1993, are
(a) Optional Prepayment.
subject to redemption and prepayment upon request by the Company to
the Trustee on June 1, 1993, and on any Interest Payment Date thereafter
until June 1, 1995, in whole or in part, and if in part in principal
increments thereof of• $5,000 and by
lot, at their principal amount plus
c
accrued interest and a premium expressed as a percentage of p P
al
amount, set forth in the following table for the designated redemption
dates:
Redemption •Date
Premium
June 1, 1993 and December 1, 1993 2%1$
June 1, 1994 and December 1, 1994
None
June 1, 1995
All Bonds maturing after June 1, 2003, aret suo bject
c to reTrured mp ion and
prepayment upon request by the Company
2003, and on any Interest Payment Date thereafter, in whole or ino art,
and if in part in principal increments thereof
and ofa $
,00prem0um andxpressed as
their principal amount plus accrued interest
a percentage of principal amount, set forth in the following table for the
designated redemption dates:
-3-
Redemption Date Premium
June 1, 2003 and December 1, 2004 2%
June 1, 2004 and December 1, 2005 1%
June 1, 2005 and thereafter None
(b) Calamity Prepayment. All Bonds shall be called for redemption and
prepayment on any Interest Payment Date at par and accrued interest
without premium if the Company exercises its right to terminate the Loan
Agreement either in the event of damage to or destruction or
Condemnation of the Project or any part thereof as provided in
clauses (B) or (C) of Section 8.04(1) of the Loan Agreement, or in the
event of changes in the Constitution or laws of the United States of
America or in the State of Minnesota as provided in clause (D) of
Section 8.04(1) of the Loan Agreement. Bonds shall also be called for
redemption in inverse order of their maturity and by lot within any
maturity, to the extent Net Proceeds (as defined in the Indenture) remain
after restoration and rebuilding of the Project if the Company elects to
rebuild or restore the Project after damage, destruction or condemnation.
(c) Determination of Taxability. If a "Determination of Taxability" (as
defined in the Loan Agreement) occurs, and the Company provides for
prepayment of the Bonds as . required in Section 7.08 of the Loan
Agreement, all Bonds shall be called for redemption and prepayment on
the first day of the then next succeeding month for which proper notice
of call can be given at par and accrued interest, plus a premium for each
Bond called prior to maturity equal to eight percent (8%) of the principal
amount of Bonds redeemed..
(d) Subject to the provisions of Section 3.05 of the Indenture, on each
Mandatory Purchase Date, the holder hereof shall tender this Bond to the
Trustee for purchase on behalf of the Company, and the Trustee shall
purchase this Bond on behalf of the Company (but solely from amounts on
deposit in the Purchase Fund established by the Indenture), at a
purchase price equal to the principal amount hereof.
(e) On June 1, 1996, the holder hereof shall tender this Bond to the
Trustee for purchase on behalf of the Company, and the Trustee shall
purchase this Bond on behalf of the Company (but solely from amounts on
deposit in the Purchase Fund established by the Indenture), at a
purchase price equal to the principal amount hereof.
4. In the event of optional redemption by lot, the Trustee shall assign to
each Bond then Outstanding (as defined in the Indenture) a distinctive number
for each $5,000 of the principal amount of such Bond. The Trustee shall then
- select by lot, using such method of selection as it shall deem proper in its
discretion, from the numbers so assigned to such Bonds, as many numbers as,
at $5,000 for each number, shall equal the principal amount of such Bonds to
be redeemed. The Bonds to be redeemed shall be the Bonds to which were
assigned numbers so selected; provided, however, that only so much of the
principal amount of such Bond of a denomination of more than $5,000 shall be
redeemed as shall equal $5,000 for each number assigned to it and so selected.
If a Bond may be redeemed only in part, it shall be surrendered to the
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Trustee (with, if the Issuer or the Trustee so requires, a written Inst
rument
of transfer in form satisfactory to the Issuer and the Trustee duly executed
by the Holder thereof or his attorney duly authorized in writing) and the
Issuer shall execute and the Trustee shall authenticate and deliver to the
Holder of such Bond, without service charge, a new Bond or Bonds of the
same series, of any authorized denomination or denominations, as requested by
such Holder, having the same stated maturity and interest rate of any
authorized denomination or denominations in aggregate principal amount equal
to and in exchange for the unredeemed portion of the principal of the Bond so
surrendered.
5. If the date for payment of the
on this Bond shall be a Saturday, Sunday, legapremium,
ho id y or a day on if any, or n which
banking institutions in the city where the principal corporate trust office of
the Trustee is located are authorized by law or executive order to close, then
the date for such payment shall be the next succeeding day which is not a
Saturday, Sunday, legal holiday or a day on which such banking institutions
are authorized to close, and payment on such date shall have the same force
and effect as if made on the nominal date of payment.
6. Notice of redemption shall, if required by law, be published at least once
before the redemption date in a daily or weekly financial journal or newspaper
of general circulation in Minneapolis, or Saint Paul, Minnesota, and shall be
mailed to each Holder of a Bond to be redeemed but, if published notice is
given, no defect in or failure to give such mailed notice of redemption shall
affect the validity of the proceedings for redemption of any Bond. All Bonds
so called for redemption, provided funds fortheir redemption have been duly
deposited, will cease to bear interest on the specified redemption date and
(except for the purpose of the payment) shall no longer be protected by the
Indenture and shall not be deemed Outstanding under the Indenture, and shall
thereafter be payable solely from the funds provided for payment.
7. This Bond and the series of which it forms a part are issued pursuant t
and in full compliance with the Constitution and laws of the State of Minnesota
particularly Minnesota Statutes, Chapter 462C, as amended, and pursuant to
resolutions adopted and approved by the Issuer, which resolutions authorized
the Project and the execution and delivery of the Indenture, and the issuance
of the Bonds as special, limited obligations payable solely from revenues
derived from the Loan Agreement except that under certain circumstances the
Bonds may be payable from Bond
Bonds ds, and he proceeds, insurance proceeds, Condemnation
proceeds of security given for the Loan. The Loan
repayments under the Loan Agreement are scheduled to be sufficient to pay
the principal of, premium, if an
become due and y, and interest on the Bonds as the same
payable and are to be paid to the Trustee for the account of
the Issuer and credited to the Bond Fund as a special trust fund account
created by the Issuer and have been and are hereby
that
purpose. The Bonds and the interest due thereon do not pand esh ll drnever
constitute a general indebtedness of the Issuer within the meaning of any state
constitutional or statutory provision and do not and shall not constitute or
give rise to a pecuniary liability or moral obligation of the Issuer, the State of
Minnesota or any of its political subdivisions, or a charge against their gener
t
credit or taxing powers, or to the extent gal
liability of any officer, employee or agent of the Issuer.
by law, any pecuniary
-5-
8. The Registered Holder of this Bond shall hav^ no right to enforcip try
provisions of the Indenture or to institute action to enforce the covenants
therein, or to take any action with respect to any Event of Default ,under the
Indenture, or to institute, appear in or defend any suit or other proceedings
with respect thereto, except as provided in the Indenture. Modifications or
alterations of the Indenture, or of any indenture supplemental thereto, may be
made only to the extent and in the circumstances permitted by the Indenture.
9. With the consent of the Issuer, the Company, and the Trustee, as
appropriate, and to the extent permitted by and as provided in the Indenture,
the terms and provisions of the Indenture, the Loan Agreement or any other
instrument supplemental thereto, may be modified or altered by the consent of
the Registered Holders of at least 51$ in aggregate principal amount of the
Bonds then Outstanding thereunder.
10. The Indenture also contains provisions permitting Holders of a majority in
aggregate principal amount of the Bonds at the time Outstanding, on behalf of
all the Holders of all the Bonds and with the consent of the Issuer, to waive
compliance by the Issuer with certain provisions, of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent
or waiver by the Registered Holder of this Bond shall be conclusive and
binding upon such Registered Holder and on all future Registered Holders of
this Bond and of any Bond issued in lieu hereof whether or not notation of
such consent or waiver is made upon this Bond.
11. The Bonds are issued as fully registered Bonds in the denomination of
$5,000 or any whole multiple thereof. The Bonds are interchangeable for one
or more Bonds in authorized denominations upon surrender thereof by the
Holder at the principal office of the Trustee, in the manner and subject to the '
limitations provided in the Indenture. The Issuer, the Trustee and any
additional paying agents may deem and treat the Registered Holder hereof as
the absolute owner hereof (whether or not this Bond shall be overdue) for the
purpose of receiving payment of or on account of principal hereof and, interest ,
(except as otherwise hereinabove provided with respect to the Record Date and
Special Record Date) due hereon and for all other purposes, and the Issuer,
the Trustee and any additional paying agents shall not be affected by any
notice to the contrary.
12. Subject to the limitations provided in the Indenture, this Bond is only
transferable by the Registered Holder hereof upon surrender of this Bond for
transfer at the principal corporate trust office of the Trustee, duly endorsed
or accompanied by a written instrument or instruments of transfer in the form
printed on this Bond or in another form satisfactory to the Trustee and
executed and with guaranty of signature by the Registered Holder hereof or
his attorney duly authorized in writing, containing written instructions as to
the details of the transfer of the Bond, along with the social security number
or federal employer identification number of such transferee and, if such
transferee is a trust, the name and social security or federal employer
identification numbers of the settlor and beneficiaries of the trust, the date of
trust and the name of the trustee. Thereupon the Issuer shall execute (if
necessary) and the Trustee shall authenticate and deliver, in exchange for
this Bond, one or more new Bonds in the name of the transferee, of an
authorized denomination or denominations, in aggregate principal amount equal
-6-
to the principal amount of this Bond, of the same maturity, and bearing
interest at the same.
13. No service charge shall be made to the Registered Holder ' for any
registration, transfer or exchange hereinbefore referred to, but the Trustee
may require payment of a sum sufficient to cover any tax, fee or other
governmental charge that may be imposed in connection with any transfer or
exchange of Bonds, other than exchanges expressly provided in the Indenture
to be made without charge to Holders of the Bonds.
14. IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all acts,
conditions and things required to exist, to happen and to be performed
precedent to and in the execution and delivery of the Indenture and the
issuance of this Bond do exist, have happened and have been performed in
due time, form and manner, as required by law, and that the issuance of this
Bond and the series of which it forms a part, together with all other
obligations of the Issuer, does not exceed or violate any constitutional or
statutory limitation on indebtedness.
15. This Bond shall not be valid or become obligatory for any purpose or be
entitled to any security or benefit under the Indenture unless the Certificate
of Authentication hereon shall have been executed by the Trustee.
•
-6A-
IN WITNESS WHEREOF, the City of Oak Park tieights, Washington County.
Minnesota, by its governing body, has caused this Bond to be executed in its
name by the manual signature of its Mayor and its Administrator and by. the
manual signature of a Responsible Agent of the Trustee acting as
authenticating agent, and has caused this Bond to be sealed with its official
seal printed hereon.
Date of Registration:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This Bond is one of the
Bonds described in the
within mentioned Indenture.
First Trust Company, Inc.,
Trustee
By •
Responsible Agent
CITY OF OAK PARK HEIGHTS
By i1 /1. ADit
Mayor
J ..
City Administrator
(SEAL)
-7-
ASSIGNMENT
For value received, the undersigned hereby sells, assigns and transfers unto
the within Bond and does hereby
irrevocably constitute and appoint attorney to
transfer the Bond on the books kept for the registration thereof, with full
power of substitution in the premises.
Dated:
Notice: The assignor's signature to this assignment must correspond
with the name as it appears upon the face of the within Bond in
every particular, without alteration or any change whatever.
Signature Guaranteed:
Signature(s) must be guaranteed by a national bank or trust company or by a
brokerage firm having a membership in one of the major stock exchanges.
•
The Trustee will . not effect transfer of this Bond unless the information
concerning the transferee requested below is provided.
Name and Address:
(Include information for all joint owners if, the
Bond is held by joint account)
Insert social security or
other identifying number
of Transferee
-8-
ROBERT J.PRArra ANN HUNTaoDs
MATTHEW a Lamar r DAvID J.SPENCER LAW OFFICES Jots T J.PRA TRUDY R.H0DS GASTEAZORO
OE N.
Boast DOUGl J.COLA.Ja. JAMEs G.RA: ELIZABETH J.ANDREWS
ROBERT A NMICHAEL L.SlotRo BRIGGS AND M O R G A N RICHARD H.Manx Gsaaoas J.STINMOE
Fasts HAMMOND Ka MICHAEL DAMES xvcus TRUDY J.HA,,. Cassias B.Roosts
LEONARDomaJ.Kam J.Scoff E MCD PROFESSIONAL ASSOCIATION MART L.IPPEL Taws L.Sun
BUWr E G.SWANSON Jowl B.VAN DE Nirron JAMES A.Voss PAUL M.GALES
N.J. E.VIN.JR. RICHARD
B.0. Aa Nonni,JR. Rows L.lists= MART M.DYasarB
D.V. C.FO BE Ammo,C.
ECH ROBERr H.WOODS Kava A.Baso
Jost J.
CNHRLso JAMES BECHEB WWLSM J.JoARIs MANE SCRRDIDER
JOHN V.S a o JAMES E.NELSON 2200 FIRST NATIONAL HANE BUILDING MARGARET R.SAVAoa MARWI M.DURifi
JE RZ F.
oarMOUs,JR. STEVE A.GEID Blues G.Daunt NAxcr D.ARIusON
TERET N.DoYE Jon. A•B SAINT PAUL,MINNESOTA 56101 Toss STEMBERDER MICHAEL J.MCELueZEZM
RI RD H.Dona H.MAC.n4 MARY E.SCHAIYNER PAUL S.JACOBSEN
RICHARDoan H.Jinx ALANJEMMY
H.F.SKE MICHAEL H.STREAT=H TIMOTHY J.KEENAN
JOHN D I..SO as JarraaT F.SHAW JOHN H.LaDsrraM
Parts H.
SORRIrsox Elmo
0. 1.,.Lavin TELEPHONE (612) 291-1215 RICHARD D.ANDERSON
ParasL& DAVID B.SANDGamma. SALLY A.Scope=
RONALD LHRCH DAVID. SAND TELECOPIER (912) 222-4071 DAVID C.MCDONALD Off OWNS=
JOHN T E.O O R JOSEPM.MIA= x Hams W.Moan J.Ns=?bares
STROYER JOSEPH P..MIA= ERIC NusBEI RICHARD K.KYLE
STEPHEN WOEDON ANDREA R.RAYNOR ANDREW R.KIHTzaoRN Joel M.PASSIM
OHNN L..RENS OC TxDRL M.FLIU INCLUDING THE FORMER FIRM OF FREDERICK P.ANGST SAMUEL H.MORGAN
JOHN R. LABS N MARTINI P.FLASaRTr ROBERT L.LEE FRANC N.OsAHAM
Lows A.LARsox H.FIsa LEVITY, PALMER, BOW EN, ROTMAN Ae SHAEE A.Low=DAME
CLARENCE G.Emus
JOHN N.Scutum
May 6, 1986
To: Distribution List
Re: City of Oak Park Heights - $3,400, 000 Multi-Family
Housing Development Revenue Bonds, Series 1985
(Oak Ridge Place Project) Remarketing - March 20, 1985
Gentlemen:
Enclosed for substitution in your transcripts for the
above matter are pages 15-17 of the Disbursing Agreement (tab 5) .
Section 6.9 was moved to immediately follow Section 6.8 .
Also included are recorded copies of the Financing Statement
filed with the Secretary of State, Mortgage, Assignment of
Rents and Leases and Declaration of Restrictive Covenants.
If you have any questions, please call Trudy Halla or me.
Very truly yours,
............. .9/-4-7---- A-4- —...$6.____
Susan M. Style
Legal Assistant
SMS: j
Enclosures
2200 FIRST NATIONAL BANE BUILDING 9400 IDS CENTER
SAINT PAUL,MINNESOTA 66101 MINNEAPOLIS,MINNESOTA 55402
19181 891-1816 (918)300-0661
6.5 . If the Company abandons the Improvements or
unreasonably delays or ceases work thereon for a period of
• fifteen (15) days, or delays construction or suffers construc-
tion to be delayed for any period of time for any reason
whatsoever so that the completion of the Improvements cannot be
accomplished in the judgment of the Trustee on or before
June 30, 1987 (provided, however, that completion of the
Project may be delayed for up to 90 days on account of an
Unavoidable Delay if the Trustee' s security would not be
adversely affected by such delay) ; or
6.6. If the Improvements are materially damaged or
destroyed by fire or other casualty and the loss is not
adequately covered by additional owner equity funds supplied by
the Company or insurance proceeds actually collected or in the
process of collection; or
6.7. If at the time any advance is requested by the
Company the title to the Project is not marketable, regardless
of whether the lien, encumbrance or other question existed at
the time of any prior advances; or
6.8. If any material provision of this Agreement
shall at any time for any reason cease to be valid and binding
on the Company, or shall be declared to be null and void, or
the validity or enforceability thereof shall be contested by
the Company or the Company shall deny that the Company has any
or further liability or obligation under this Agreement; or
• 6.9 If all of the conditions to disbursement of
funds from the Construction Fund set forth in Section 4.2 have
not been satisfied by the Company or waived by the Remarketing
Agent on or prior to June 30, 1986.
Notwithstanding the above, the Trustee may draw under any
letter of credit or negotiate any check and use the proceeds
thereof to complete the Project whether or not an Event of
Default has occurred. The Trustee may also draw under any
letter of credit within 15 days of its expiration and deposit
the proceeds thereof into the Construction Fund to pay Project
Costs, whether or not an Event of Default has occurred. Any
letter of credit and checks delivered to the Trustee hereunder
shall secure payment of the Bonds and performance by the
Company of its obligations under the Loan Agreement and
Collateral Security Documents.
15
then, in any such event, the Trustee may, at its option,
declare the occurrence of an "Event of Default" and may, at its
option (in addition to exercising it' s rights under the
• Mortgage, the Assignment of Leases and Rents or the Guaranty or
any other documents executed and delivered herewith or
therewith or pursuant hereto or thereto) , take any one or more
of the following actions, in addition to any other actions
available to it at law or equity:
(a) Enter the Land and the Improvements to complete
the Improvements and use the funds undisbursed in the
Construction Fund (together with any earnings thereon) to
pay for remaining costs of such completion. Draw under
any letter of credit provided and negotiate any checks and
use the proceeds thereof to pay such costs. To the extent
such amounts are insufficient to pay such costs, the
Trustee may advance funds in such amounts as the Trustee
may deem appropriate to pay such costs, in which event the
Company shall be liable for all amounts as the Trustee may
have so advanced, plus tirReferencesuch
Rate ofadditional
First at
an annual rate equal
othe
National Bank of Saint Paul as publicly announced. Funds
advanced by the Trustee in the reasonable
completeexercise
of its
judgment that the same are neededp
he
Improvements or to protect its security are to be deemed
obligatory advances hereunder and shall be secured by the
Mortgage. The Company hereby constitutes and appoints the
Trustee its true and lawful attorney-in-fact with full
• power of substitution either in the name of the Trustee or
in the name of the Company: (i) to complete or cause to
be completed, all or any part of the Improvements;
to use
the Plans; to make such additions and changes and
corrections in the Plans which the Trustee shall deem
necessary or desirable to complete all or any part of the
Improvements; to collect and use any funds of the Company,
including any balance which may be held on deposit by the
Disbursing Agent; to use any funds which manre remain
unadvanced under this Agreement; to employ su
ch
contractors, subcontractors, agents, architects and
inspectors and enter into such contracts and arraanngements
as shall be required for such purposes; to pay,
settcompromise all existing bills and claims which may be
liens against the Project or as may be necessary or
reasonably desirable for the completion of the work or
clearance of title; to examine and execute all
applications and certificates in the name of the Company;
to prosecute and defend all actions or proceedings in
connection with the construction work on, or any other
16
matter relating to, the Improvements, and to do any and
every act which the Company might do in its own behalf;
• (ii) to enforce by any means that the Trustee then deems
necessary or advisable, all of the terms, covenants and
conditions of any of the documents described in Sections 2
or 4 hereof; (iii) to perform each of the terms, covenants
and conditions to be kept and performed by the Company
under any of the documents described in Sections 2 or 4
hereof; (iv) without limiting the foregoing, to perform
each of the terms, covenants and conditions to be kept or
performed by the Company under this Agreement, and any of
the documents described in Sections 2 or 4 hereof; and (v)
to do all things that the Trustee then deems necessary or
advisable, including, without limitation, the execution of
instruments in the name of the Company or as
attorney-in-fact for the Company, for the purpose of
carrying out the powers enumerated in (i) , (ii) , (iii),
and (iv) of this sentence.
The powers herein granted to the Trustee shall be deemed
to be powers coupled with an interest and the same are
irrevocable. The Company shall reimburse the Trustee for
all costs and expenses incurred by the Trustee in the
exercise of any such powers, together with interest
thereon, at an annual rate equal to the Reference Rate of
The First National Bank of Saint Paul upon demand.
(b) Refuse to consent to additional disbursements
• from the Construction Fund.
(c) Exercise any rights and remedies available to
the Trustee under the Loan Agreement, the Indenture
(including acceleration of payment of the Bonds) ,
Mortgage, the Assignment of Leases and Rents, the
Guaranty, and any other document or letter of credit
collateral thereto.
7 . Miscellaneous.
7.1 . The Company agrees,, whether or not the trans-
action hereby contemplated is consummated, to pay recording
fees, mortgage registration taxes, all title insurance charges,
including title insurance, commitment fees and premiums
incurred in connection herewith, and attorneys' fees incurred
subsequent to the date hereof, including but not limited to
attorney' s fees incurred in enforcing the terms, covenants and
conditions of this Agreement or any document referred to
herein, or in exercising any of the rights and powers granted
to the Trustee herein or in any document referred to herein.
7.2. All representations and warranties contained
herein or made in writing by or on behalf of the Company in
connection with the transactions contemplated hereby shall
•
17
This STATEMENT is presented for filing pursuant to the Uniform Commercial Code
Debtor(s)(Last Name First)and Address(es) Secured Party(les)and Address(es) For
Oak Ridge Place First Trust Company, Inc. offier
Limited Partnership 332 Minnesota St.
300 Prairie Center Dr. St. Paul, Moi 55101
Eden Prairia, ME 55344
1.This financing statement covers the following types(or items)of property:
!ny and all (i) fixtures or tangible personal • Li
Assignee(¢) "Secured�alrty
rroperty now or hereafter attached or affixed �; k r. ::
:o the real estate described as Washington County,
tinnesota: Lot 1, Block 1, Oak Park Heights,
tinnesota, (ii) other tangible personal property
use or hereafter located within or used in connection
rith the real estate and the facility thereon,
❑ If crops are covered describe the
Ind (iii) additions to, replacements of and real estate and give the name of
lubstitutions for any of the foregoing as may the record owner.
Me permitted or required by the Mortgage or
2. 0 Products/Proceeds the Loan Agreement ;elating
iiollatered eral are thereto.
Covby
this Statement
TERMINATION STATEMENT:This statement of Termination of Financing is presented to a Filing Officer pursuant to the Uniform Commercial
Code.The Secured Party certifies that the Secured Party no longer claims a security interest under the financing statement bearing the file
number shown above.
Date 19�
BY:
(Signature of Secured Party or Assignee of Record.Must be signed)
(3) Filing Officer Copy Acknowledgement(Rev.2/85)
504386
586S
This Mortgage and Security Agreement contains after-acquired
property provisions and constitutes a fixture financing state-
ment under Section 336.9-313, Minnesota Statutes.
MORTGAGE AND SECURITY AGREEMENT
AMONG
OAK RIDGE PLACE LIMITED PARTNERSHIP,
A MINNESOTA LIMITED PARTNERSHIP, Mortgagor
and
FIRST TRUST COMPANY, INC.
as Trustee and Mortgagee
ii,a6 ,.ft Nit 4107
r
R g._ >at on ,:x hereon o�$ 00
Dated as of March 20, 1986 f
C(24-2 Za.1
• ed 4rt eXati
Multi-Family Housing Development Revenue Bonds, Series 1985
(Oak Ridge Place Project)
Tax statements for the real This instrument was drafted by:
property described in this
instrument should be sent to: Briggs and Morgan
Professional Association
Oak Ridge Place Limited 2200 West First National Bank
Partnership, a Minnesota Building
Limited Partnership Saint Paul, Minnesota 55101
300 Prairie Center Drive
Eden Prairie, Minnesota 55344
TABLE OF CONTENTS
(Not a Part of This Agreement)
PAGE
1
PARTIES
2
RECITALS
2
GRANTING CLAUSES
ARTICLE ONE - DEFINITIONS, EXHIBITS AND GENERAL 5
PROVISIONS 5
Section 1-1 . Definitions 5
Section 1-2. Exhibits 9
Section 1-3. Rules of Interpretation
10
ARTICLE TWO - GENERAL COVENANTS 10
Section 2-1 . General Covenants
Section 2-2. Title and Instruments of Further
Assurance 1 10
Section 2-3. Performance of Covenants
1
ARTICLE THREE - THE MORTGAGED PROPERTY 1313
Section 3-1 . Maintenance 13
Section 3-2. Modifications
Section 3-3. Installation of Mortgagor' s 13
Equipment 14
Section 3-4. Removal of Project Equipment
Section 3-5. Release of Project Premises 14
Intentionally Omitted 14
Section 3-6. Tie-Ins 4
Section 3-7. Damage and Destruction 15
Section 3-8. Condemnation 16
Section 3-9. Mortgagor' s Right to Contest 1718
Section 3-11. Trand Other Governmental and
Section 3-11. Taxes18
Utility Charges 18
Section 3-12. Insurance 229
Section 3-13. Liens 22
Section 3-14. Permitted Contests 23
Section 3-15. Easements 24
Section 3-16. Rules, Laws and Regulations 24
Section 3-17. Management of Project
ARTICLE FOUR - DEFAULT; REMEDIES OF MORTGAGEE 2525
Section 4-1 . Events of Default 25
Section 4-2. Remedies of Mortgagee 265
Section 4-3 . Right of Entry 27
Section 4-4. Application of Money 27
Section 4-5. Termination of Proceedings 27
Section 4-6. Rights of Bondholders 27
Section 4-7 . Waiver
PAGE
ARTICLE FIVE - THE MORTGAGEE 28
Section 5-1. Right of Inspection 28
Section 5-2. Right of Mortgagee to Pay Taxes
and Other Charges 28
Section 5-3. Reimbursement of Mortgagee 28
ARTICLE SIX - MISCELLANEOUS 29
Section 6-1. Supplements or Amendments to this
Mortgage 29
Section 6-2. Severability 29
Section 6-3. Successors and Assigns 29
Section 6-4. Notices 29
Section 6-5. Execution Counterparts 30
•
Section 6-6. Waiver 30
Section 6-7. Fixture Filing 31
Section 6-8. Construction Mortgage 31
SIGNATURES 32, 33
ACKNOWLEDGMENTS 34, 35
THIS MORTGAGE AND SECURITY AGREEMENT, dated as of
March 20, 1986, between Oak Ridge Place Limited Partnership, a
Minnesota limited partnership, as mortgagor (the "Mortgagor" ) ,
and First Trust Company, Inc. , St. Paul, Minnesota, a Minnesota
corporation, as mortgagee (the "Mortgagee") ;
WITNESSETH
WHEREAS, the Mortgagor is the owner of certain real
property (the "Project PremisesIl) located in the County of
Washington, State of Minnesota, legally described in Exhibit A
attached hereto and made a part hereof; and
WHEREAS, there is to be constructed and installed on
the Project Premises a certain 77,500 square foot building and
related improvements and equipment (the "Facility") to be used
by the Mortgagor as a multi-family residential rental building;
and
WHEREAS, the City of Oak Park Heights, Minnesota, a
municipal corporation organized and existing under the
Constitution and laws of the State of Minnesota (the "Issuer") ,
has issued and delivered its Multi-Family Housing Development
Revenue Bonds, Series 1985 (Oak Ridge Place Project) , in the
aggregate principal amount of $3,400,000, bearing interest at
various rates set forth in the Indenture of Trust hereinafter
referred to, which rates are incorporated herein by reference,
and maturing finally on June 1, 2008 (the "Bonds" ) , under and
pursuant to Minnesota Statutes, Chapter 462C, as amended, and
an Indenture of Trust, dated as of December 1, 1985 (as the
same may be amended or supplemented from time to time in
accordance with the provisions thereof, herein called the
"Indenture") , between the Issuer and the Mortgagee; and
WHEREAS, the Issuer has loaned the proceeds of the
Bonds to the Mortgagor pursuant to a Loan Agreement, dated as
of December 1, 1985 (as the same may be amended or supplemented
• from time to time in accordance with the provisions thereof,
herein called the "Loan Agreement") , between the Issuer and the
Mortgagor, for the purpose of paying all or a portion of the
cost of the Project (as herein defined) ; and
WHEREAS, pursuant to the Loan Agreement, the Mortgag-
or has covenanted, among other things, to make Basic Payments
sufficient to pay the principal of, premium, if any, and inter-
est on the Bonds when due; and
WHEREAS, the Issuer has, by the Indenture, pledged
and granted to the Mortgagee a security interest in all of its
right, title and interest in the Loan Agreement (except for
certain rights to payment of certain expenses and
indemnification) , including, but not limited to its right to
receive such Basic Payments, in order to secure the full and
prompt payment of the principal of, premium, if any, and
interest on the Bonds; and
WHEREAS, the Issuer and the Mortgagee have required
that the Mortgagor secure the Bonds by this Mortgage.
NOW, THEREFORE, KNOW ALL PERSONS, that the Mortgagor,
in consideration of the issuance of the Bonds and the making of
the Loan as aforesaid and other good and lawful consideration,
the receipt of which is hereby acknowledged, and to secure, and
as security for, the making of the Basic Payments by the
Mortgagor to the Mortgagee and of all of the other covenants,
agreements, representations, warranties and conditions herein
or in the Loan Agreement contained, by these presents does
hereby unto the Mortgagee, its successors and assigns for ever,
grant, bargain, sell, mortgage, convey, assign, transfer,
pledge, set over and confirm and grant a lien and security
interest in, with power of sale, all and singular the following
described premises and property:
FIRST
The Mortgagor' s entire estate and interest in the
Project Premises, including the reversion or reversions,
remainder or remainders in and to the Project Premises and each
and every part thereof; and all rights, title and interest of
the Mortgagor in and to any streets, ways or alleys adjoining
the Project Premises or any part thereof;
SECOND
The Mortgagor's entire estate and interest in and to
all buildings, structures, additions and improvements now or
hereafter located on the Project Premises, and all tenements,
hereditaments, appurtenances, rights, privileges and immunities
thereunto belonging or appertaining;
THIRD
The Mortgagor' s entire estate and interest in and to
any Project Equipment, as herein defined;
2
FOURTH
All proceeds from any property described in the Grant-
ing Clauses hereof, and any and all other property of every
name and nature from time to time hereafter by delivery or by
of anykind conveyed, mortgaged, pledged, assigned or
writing hereunder by the
transferred, as and for additional security
Mortgagor or by anyone in its behalf or with its written con-
sent to the Mortgagee, which is hereby authorized to receive
any and all such property at any and all times and to hold and
apply the same subject to the terms hereof;
TO HAVE AND TO HOLD all the same with all privileges
and appurtenances hereby conveyed and assigned, or agreed or
intended so to be, to the Mortgagee and its successors and to
them and their assigns forever, in trust,
rata,benefitheleandssecurity
with
power of sale for the equal and p
of each and every Holder of the Bonds issued under theto
Indenture, without preference, priority ortddistinction
noasot one
participation in the lien, benefit and protection it in the
Bond over or from the others, by reason
onfofprito for tyy other
issue or negotiation or maturity
reason whatsoever, excephatseachthe
andIndenture
such Bondsshallotherwise expressly provided, so Mortgage and
have the same right, lien and
llege under same effecttassifthame
be equally secured hereby with
had all been madeofiandedexpressedetosmaturenonuone and the
the delivery here were
same date;
SUBJECT TO Permitted Encumbrances as defined in
Section 1-1 hereof;
that if the Mortgagor, its succes-
PROVIDED, HOWEVER, a or cause to be paid,
succes-
sors or assigns, shall well and truly pay,
requiredcaset tob p
all of the Basic Payments and other payor
e
paid under the Loan Agreement, said Basic Payments being in the
principal amount of $3,400,000, with ntheest thereon at provisions settforth
rates borne by the Bonds, according to
in the Loan Agreement (which is by reference incorporated
herein and made a part hereof with the same effect as if
causet to
were set forth in full herein) , and shall also pay
be paid all other sums payable under the Loan Agreement and
this Mortgage by the Mortgagor, and shall well and truly
su keep,
nt
porfhe and oofethisaMortgagecovenants
the Loanconditions
Agreement to be
to the terms payto the
kept, performed and observed by it, and shall
Mortgagee all sums of money due or to become due to it in
3
accordance with the terms and provisions
shalhereof,
l henethis
Mortgage. and the rights hereby granted ee, on payment of its
and be void, and thereupon the Mortgag
lawful charges and disbursements then
unpaid,cost nxs demand of the
Mortgagor and upon the payment
thereof, shall duly execute,ofacknowlede satisfactionndo deliver
releaseoinhe
Mortgagor such instruments
respect of the Facility as may be necessary or proper to
discharge this Mortgage of record, and if necessary shall
grant, reassign and deliver tto ortgay and itsinsuccessorst or
assigns, all and singular the
hproperty
hereby granted and asl�eVaouslyadisPosedll substitutes
or releasedtherefor,
asrin
any part thereof, notP Mortgage shall be
the Loan Agreementprovided;
forced and effectlse, this
and remain in
THE MORTGAGOR and MORTGAGEE further agree as follows:
4
ARTICLE ONE
DEFINITIONS, EXHIBITS AND GENERAL PROVISIONS
Section 1-1. Definitions. In this Mortgage the
following terms have the following respective meanings unless
the context hereof clearly requires otherwise:
Act: Minnesota Statutes, Chapters 462C, 426A and 475, as
amended;
Assignment of Leases and Rents: the Assignment of Leases
and Rents dated March 20, 1986, from the Mortgagor to the
Mortgagee;
Basic Payments: the payments made by the Mortgagor pur-
suant to Section 4.02 of the Loan Agreement;
Bonds: the $3,400,000 Multi-Family Housing Development
Revenue Bonds, Series 1985 (Oak Ridge Place Project) issued by
the Issuer pursuant to the Indenture;
Bond Counsel: the firm of Briggs and Morgan, Professional
Association, of Saint Paul and Minneapolis, Minnesota, or any
other firm of nat�oallly revenuerecognized
financingcounsel
selectedexperienced
the in
tax exempt indust
Mortgagee and acceptable to the Issuer and Mortgagor;
Collateral Security Documents: the Assignment of Leases
and Rents and any other assignments, collateral agent
agreements, mortgages, security agreements or guaranties
heretofore or hereafter mtoesecurethe
paymentbenefit
ofand
thewith
gondsthe
or the
consent of the Mortgagee
Loan;
Condemnation: the word Condemnation or phrase "eminent
domain" as used herein shall include the taking or requisition
by governmental authority or by a person, firm or corporation
acting under governmental authority and a conveyance made under
threat of Condemnation, provided such conveyance is made with
the approval of the Mortgagee, which approval shall not be
unreasonably withheld, and Condemnation award shall mean pay-
mentr for property condemned or conveyed under threat of condem-
nation;
Event of Default: any of the events referred to as such
in Section 4-1 hereof;
5
Facility: that certain 77, 502 gross square foot, 3-story
plus underground parking, 87-unit apartment building and
related improvements and equipment which are required by
Section 3.01 of the Loan Agreement to be constructed and
installed on the Project Premises together with all additions
to, replacements of and substitutions for any of the foregoing
t
which may be made as permitted or required by the Mortgage;
excluding property installed pursuant to Section 3-3 of the
Mortgage (if proper notice is given to the Trustee as Mortgagee
pursuant to the provisions of said Section) and any other
property released or taken by Condemnation as authorized or con-
templated by the Mortgage;
Indenture: the Indenture of Trust, dated as of
December 1, 1985, betweenthe
Issuerime and
d the Mortgagee
oras
trustee, as the same may from
supplemented as therein provided;
Independent Counsel: anattorney
designated
thebhighest
the
Mortgagee, duly admitted to practice law
court of any state who may be counsel to the Mortgagor or the
Issuer but who may not be an officer or a full time employee of
the Mortgagor or the Issuer (any opinion of Independent Counsel
shall be a written opinion signed by such Counsel) ;
Independent Engineer: an architect, engineer or
architectural or engineering firm designated by the Mortgagee,
registered and qualified to practice such profession under the
laws of the State of Minnesota, and not a full-time employee or
officer of the Mortgagor or the Mortgagee;
Issuer: the City of Oak Park Heights, Minnesota, its
successors and assigns;
Loan Agreement: the Loan Agreement,
dated as of
December 1, 1985, between the Issuer and the Mortgagor as the
same may from time to time be amended or supplemented as
therein provided;
Loan: the loan by the Issuer to the Mortgagor of the
proceed -of the Bonds;
Mortgage: this Mortgage and Security Agreement, including
any mortgage supplemental hereto entered into in accordance
with the provisions hereof and of the Indenture;
Mortgagee: First Trust Company, IncS . qualified and
. , St.
Paul,
Minnesota, and any successor trustee app
acting as such under the provisions of the Indenture;
6
Mortgaged Propertythe
intangible
Grantingproperties,
Clausesehereof, as
al,
personal or mixed, described
they may at any time exist;
Mortgagor: Oak Ridge Place Limited Partnership, a
Minnesota Limited Partnership, its successors and assigns, and
anyt surviving,hay assumegits obligationspartnership
Section 7 .05 of
other
entity which y
the Loan Agreement;
Net Proceeds: with respect to any property insurance
payment or Condemnation award, the amount remaining therefrom
after payment of all expenses incurred in the collection
thereof;
Outstanding Bonds: as of the date of determination, all
Bonds theretofore issued and delivered under the Indenture
except:
(A) Bonds theretofore cancelled by the Mortgagee as
Trustee under the Indenture or by the Paying Agent nunder
tht eeled
Indenture or delivered to the Trustee or Paying Age
or for cancellation;
(B) Bonds for which payment or redemption monies or
securities (as provided in Article Seven of the Indenture)
shall have been theretofore deposited with the Trustee or
Paying Agent in trust for the Holders of such Bonds; provided,
however, that if such Bonds are tovbe e rn edeemed,
to tnotice
lof such
redemption shall have been duly g
or irrevocable action shallr ave Bien daten to call such Bonds
e
for redemption at a stat
(C) Bonds in exchange delivered pursuantfor or in lieu of wtoctheother
Bonds shall have been issued an
Indenture.
Permitted Encumbrances: this Mortgage and, as of any
particular time,
(A) liens for taxes and special
assessments
Mortgagorthen
delinquent, or delinquent but being contestedby
pursuant to Section 3-14;
(B) utility, access and other easements and rights-
of-way, restrictions and exceptionsthate
Mortgagorrtcerti-
fies will not interfere with impairoperated, thefopera-
he
tions
Property (or, if it is not being
for which it was designed or last modified) ;
7
h.
(C) such minor defects, irregularities, encumbranc-
es, easements, rights-of-way and lclouds s nintitle
eaas norto mally
exist with respect to properties
he
Mortgaged Property and do not, in the opinion ted tndepbndent
Counsel, materially impair the property
affecfor
the purpose for which it was acquired or is held by the Mort-
gagor;
(D) any mechanic' s,
laborer' s, materialman' s, suppli-
er' s, or vendor' s lien or right in respect thereof if payment
is not yet due under the contract in question or if such lien
is being contested in accordance with Section 3-14;
(E) any building, zoning and subdivision ordinances
and any other application development, pollution control, water
conservation and other laws, regulations,tateofMinnesotaaand respective
ordinances
of the Federal Government and
agencies thereof and the political subdivisions in which the
Mortgaged Property is located subject, however,
tore the
cother
provisions of the Loan Agreement
and the require compliance therewith;
(F) liens arising in connection with workers'
compensation, unemployment insurance, taxes, assessments,
statutory obligations or liens, scial lty constructiononor
undetermined liens and charges incidental to
other similar charges arising in the ordinary course
seeofed
operation and not overdue or, if overdue, being
pursuant to Section 3-14;
(G) easements; restrictions or encumbrances shown on
Exhibit A hereto or permitted under Section 3-15; and
(H) any other lien which is subordinated to the
endent
Mortgage or which in the opinionoftBond deCouiseloortIndep
Counsel will not materially impair
Bondholders;
Project: the Project Premises and the Facility, including
all Project Equipment, as they may at any time exist;
Project Equipment: any and all (i) fixtures or tangible
personal property now or hereafter attachednaolaffixedytoothe
Project Premises, (ii) other tangible p
ersor
hereafter located within or sein(iii) additionsntoltreplacementst
Premises or the Facility, and
of and substitutions for any of the foregoing as may De
8
permitted or required by this Mortgage or the Loan Agreement,
installed pursuant to Section 3-3 of
but excluding property ursuant to
this Mortgage if notice is given to the oMo Mf ortgagee
releasedto
the provisions of said Section and any
or taken by Condemnation as authorized or contemplated by the
Mortgage;
Project Premises: the real estate described in Exhibit
A
attached hereto together with all additions to, re laaEemias permit-
ted
of
and substitutions for the foregoing which may
be madted ar required by
this Mortgage, but excluding any real estate
released or taken by Condemnation as authorized or contemplated
by the Mortgage;
Representative: a general partner of the Mortgagor, or
any other person at any time designated to act on behalf of the
e
Mortgagor, as evidenced bywrittencertificate
signatureeofusuch prsond to
the Mortgagee containing thespecimen partner thereof;
and signed for the Mortgagor by a general
Section 1-2. Exhibits. Attached to andi ybireference
made a part of this Mortgagethe following
Exhibit A: a legal description of the Project Premises.
Section 1-3. Rules of Interpretation.
(1) This Mortgage shall be interpretedin
accordance with
and
governed bythe laws of the State of Minnesota;
hereof, " "hereunder, " and words
(2) The words "herein, " section
of similar import, without reference to any particular
or subdivision, refer to this
sMorMortgage
oasnharwhole rather than
to any particular section or
he
(3) Any terms not defined hereintutt sdefineedningin thereinn
Agreement or the Indenture shll atherwise;
e
unless the context hereof requires
(4) The Table of Contents and headings
nd oare a aticlesnot aarndof
sections herein are for convenience only
this Mortgage; and
Unless the context hereof clearly requires otherwise,
(5) plural and vice versa, and the
the singular shall include the
masculine shall include the feminine and vice versa.
9
ARTICLE TWO
GENERAL COVENANTS
Section 2-1 . General Covenants. This Mortgage shall
cover and secure:
(A) Payment of any and all indebtedness referred to
in the Loan Agreement, together with any renewals or extensions
thereof, including, but not limited to, the Basic Payments;
(B) Any present or future demands of any kind or
have against the
nature which the Iss� Mortgagee
Loanmay
Agreement or this
Mortgagor under or pursuant
Mortgage, whether absolute or contingent, whether due or not,
whether otherwise secured or not, or whetheror arisxistingnerang tf he;
time of the execution of this Mortgage
and
(C) Performance of each covenant, agreement or condi-
tion of the Mortgagor set forth herein and in the Loan Agree-
ment and the Assignment of Leases and Rents.
Section 2-2. Title and Instruments of Further Assur-
ance. (1) The Mortgagor repcWnertof therMortgagedants, ePropertynants and
agrees that itis the lawful
and that it has good right and lawful authority to mortgage,
assign and pledge the same as provided herein; that,t itdhas not
made, done, executed or suffered,
and willexecute or suffer, any act or thing whereby its estate or
interest in and title to the Mortgaged Property or any part
thereof shall or may be impaired or changed or encumbered in
any manner whatsoever except by Permitted Encumbrances; that it
does warrant and will defend the title to the Mortgaged
Property against all claims and demands whatsoever not
specifically excepted herein;r interest that
in it will
not
cond title tonthe
Mortgaged Property to any p ey all
or any part of its estate °erson, except as expressly permitted
in Section 8.01 of the Loan Agreement.
(2) All buildings, structures or improvements which may
beacquireor constructed arelocated ontheProject
udMortgagor
subsequent
P
remises and
date hereoff and which
all property of every kind or nature added to or installed in
any building, structure or improvement located on the Project
10
Premises, acquired by the Mortgagor after the date hereof and
all Project Equipment acquired after the date hereof or
equipment acquired in substitution or replacement of Project
Equipment shall immediately upon the acquisition thereof by the
Mortgagor, and without any further conveyance or assignment,
become subject to the mortgage lien and security interest of
this Mortgage. Nevertheless, the Mortgagor, will do, execute,
acknowledge and deliver, all and every such further acts,
conveyances and assurances as the Mortgagee shall require for
accomplishing the purposes of this subsection (2) .
(3) The Mortgagor will cause this Mortgage and all
supplements hereto, financing statements, and any other
instruments of further assurances, to be promptly recorded,
filed and registered, and at all times to be recorded, filed
and registered, in such manner and in such place as may be
required by law or requested by the Mortgagee to fully preserve
and protect the rights of the Mortgageee hereunder as to all
Mortgaged Property.
(4) The Mortgagor will furnish to the Mortgagee promptly
after the execution and delivery of this Mortgage and of each
supplemental instrument of further assurance, an opinion of
counsel to the Mortgagor stating that, in the opinion of such
counsel, this Mortgage and appropriate financing statements or
such supplemental instrument of further assurance has been
properly recorded, filed and/or registered, or has been
received for record, filing and/or registration in each
requisite jurisdiction, so as to make effective the lien
intended to be created by this Mortgage, and reciting the
details of such actions, including the date or date of such
recordation, filing and/or registration or receipt for record,
filing and/or registration, or state that in the opinion of
such counsel, no such action is necessary to make such lien
effective.
Section 2-3. Performance of Covenants. The Mort-
gagor covenants and warrants that the Bonds, the Indenture, the
Loan Agreement, this Mortgage and the Collateral Security
Documents have been validly executed and delivered and are
valid and enforceable obligations of the parties thereto in
accordance with the terms thereof and hereof; that this
Mortgage does not, nor do the Bonds, the Indenture, the Loan
Agreement or the Collateral Security Documents, nor does the
performance or observance by the Mortgagor of any of the
matters or things in this Mortgage and the Loan Agreement and
the Collateral Security Documents provided for, contravene any
covenant in any indenture or agreement affecting the Mortgagor;
and that the Mortgagor will faithfully perform at all times any
11
EXHIBIT B
Intentionally Omitted
i
EXHIBIT C
The Development
Description of the site on which the Development is to be
constructed:
See Exhibit A
Unit numbers and unit types
Number of Unit
Units Type
43 A
5 B
6 C
12 D
15 E
2 F
3 G
Unit Code
A - 1 bedroom, 637 square feet
B - 1 bedroom, 702 square feet
C - 1 bedroom, 770 square feet
D - 2 bedrooms, 866 square feet
E - 2 bedrooms, 889 square feet
F - 2 bedrooms, 877 square feet
G - 1 bedroom (handicap) 637 square feet
The Development is designed primarily for occupancy by
Elderly Tenants.
Moderate Income Tenant Requirement: None.
C-1
EXHIBIT D
CERTIFICATE AS TO
QUALIFIED PROJECT PERIOD
WHEREAS, Oak Ridge Place Limited Partnership, a
Minnesota Limited Partnership (the "Declarant") is the present
owner of the rental housing project (the "Development") located
on the following described land (the "Land") in the County of
Washington and State of Minnesota, to-wit:
Lots 1 thru 10 inclusive, Block 6, and the South
Half of vacated Eugene Street adjoining said lots,
and Lots 21 thru 30 inclusive, Block 6, and all of
vacated Wallace Street adjoining said lots in
McMillan and Cooley' s Addition to Stillwater
according to the plat thereof on file or of record
in the office of the County Recorder, Washington
County, Minnesota.
WHEREAS, the Declarant entered into a Declaration of
Covenants and Restrictions dated as of March 20, 1986 (the
"Declaration") recorded on , 1986 in the
office of the County Recorder in and for the County of
Washington and State of Minnesota as Document No.
; and
WHEREAS, the Declaration contains certain covenants
and restrictions which run with the land and are binding upon
the Delcarant, its successors and assigns at all times during a
Qualified Project Period, as therein defined, unless and until
such covenants and restrictions are amended, terminated or
deleted as provided in the Declaration; and
WHEREAS, under the terms and provisions of Section 3,
of the Declaration the dates of certain occurrences are to be
established by an instrument to be executed by the Issuer, and
the Declarant in substantially the form of this Certificate;
NOW THEREFORE, the Issuer and Declarant do hereby
certify and declare that:
D 1
1 . The day on which ten10
( ) percent of the units in
the Development (as defined in the Declaration) were occupied
was , 19 , which was the date of commencement of
the Qualified Project Period.
2. The date on which fifty (50) percent of the units
in the Project were occupied was , 19 , and the
date which is ter (10) years thereafter is
19
3 . The date on which the first unit in the Project
was occupied was , 19 , and the date which is
fifty (50) percent of the number of days from said date of
first occupancy to April 1, 2008 (being the final maturity date
of the Bonds as defined in the Declaration) , is
19
4. The date on which assistance provided with
respect to the Project under Section 8 of the United States
Housing Act of 1937 terminates, as provided in the Housing ,
Assistance Payments Contract with the
is , 19 , unless said
Contract is terminated, in which event the earlier date of
termination of said assistance shall be established by an
amendment to this Certificate executed by the Issuer and the
Declarant.
5. The date of termination of the Qualified Project
Period is the latest of the dates set forth in paragraphs 2, 3
and 4 hereof, and until and unless this Certificate is amended,
is , 19
Dated this day of 198 .
CITY OF OAK PARK HEIGHTS, MINNESOTA,
as Issuer
By
Its Authorized Representative
D 2
OAK RIDGE PLACE LIMITED
PARTNERSHIP, A MINNESOTA
LIMITED PARTNERSHIP
By
Its General Partner
i
D 3
STATE OF MINNESOTA )
ss.
COUNTY OF )
On this day of , 19 , before me
a Notary Public within and for said County, personally appeared
to me personally known to be the
of Oak Park Heights, Minnesota; that the seal
affixed to said instrument is the corporate seal of said public
body; that the instrument was signed and sealed on behalf of
said public body by authority of its governing body, and that
said officer who, being by me duly sworn, did acknowledge said
instrument to be the free act and deed of said public body.
1
Notary Public
STATE OF MINNESOTA )
ss.
COUNTY OF )
On this day of , 19 , before me a
Notary Public within and for said County, personally appeared
, the general partner of Oak Ridge Place
Limited Partnership, a Minnesota Limited Partnership, and that
said partner acknowledged said instrument to be the free act
and deed of such partnership.
Notary Public
D 4
EXHIBIT E
CERTIFICATION OF AMENDMENT OR
TERMINATION OR DELETION OF COVENANTS
WHEREAS. , a is
the present owner of the following described land (the "Land")
in the County of Washington and State of Minnesota, to-wit:
Lots 1 thru 10 inclusive, Block 6, and the
South Half of vacated Eugene Street adjoining
said lots, and Lots 21 thru 30 inclusive,
Block 6, and all of vacated Wallace Street
adjoining said lots in McMillan and Cooley' s
Addition to Stillwater according to the plat
thereof on file or of record in the office of
the County Recorder, Washington County,
Minnesota.
WHEREAS, Oak Ridge Place Limited Partnership, a
Minnesota Limited Partnership (the "Declarant") entered into a
Declaration of Covenants and Restrictions dated March 20, 1986
(the "Declaration") recorded in the office of the County
Recorder in and for the County of Washington and State of
Minnesota on , 1986 as Document No.
and
WHEREAS, the Declaration contained certain covenants
and restrictions which run with the land and are binding upon
the Declarant, its successors and assigns; and
WHEREAS, The Issuer, Trustee and their successors and
assigns, were given in said Declaration the full and absolute
right and obligation to amend or terminate or delete such
restrictions and to execute and deliver this Certificate for
and on behalf of all persons and entities who might have been
benefitted by such covenants and restrictions; and
WHEREAS, under the terms and provisions of said
Declaration it is now appropriate to deliver this Certificate
and to amend or terminate or delete such covenants and
restrictions and all preconditions thereto have been fully
satisfied;
E 1
NOW THEREFORE, this is to certify that [ (a) OR (b) IF
INAPPLICABLE] : (a) the covenants and restrictions set forth in
Section of the Declaration are null and void and of no
further force or effect; the County Recorder in and for the
County of Washington and State of Minnesota is hereby
authorized to accept this instrument for recording and filing
as a conclusive determination of the termination and release of
all covenants and restrictions set forth in Section of
. the Declaration, as specified and as a complete termination of
all rights and other remedial provisions with respect to
Section 11 of the Declaration provided that deletion of the
covenants and restrictions set forth in said Section of
the Declaration shall not modify, amend or delete any other
covenant or restriction expressed in the Declaration, unless
all the covenants and restrictions of the Declaration are
hereby deleted, or (b) the covenants and restrictions set forth
in Sections of the Declaration (or any of them, as
specified) are hereby amended to read as follows: [insert text
of amendment]; the County Recorder in and for the County of /
Washington and State of Minnesota are hereby authorized to
accept this instrument for recording and filing as a conclusive
determination of the amendment of the covenants and
• restrictions set forth in Section of the Declaration, as
specified.
Dated this _ day of .
OAK PARK HEIGHTS, MINNESOTA,
as Issuer
By
Its Authorized Representative
(SEAL)
E-2
FIRST TRUST COMPANY, INC. ,
as Trustee
By
Its
i
E-3
OAK RIDGE PLACE LIMITED PARTNERSHIP, A
MINNESOTA
LIMITED PARTNERSHIP,
as Declarant
By
Its General Partner
STATE OF MINNESOTA )
ss.
COUNTY OF )
On this day of , 19_, before me a
Notary Public within and for said County, personally appeared
, to me personally known to be the
, of Oak Park Heights, Minnesota; that the seal
affixed to said instrument is the seal of said public body;
that the instrument was signed and sealed on behalf of said
public body by authority of its governing body, and that said
officers acknowledged said instrument to be the free act and
deed of said public body.
Notary Public
E-4
STATE OF MINNESOTA )
ss.
COUNTY OF )
On this day of , 19_, before me a
Notary Public within and for said County, personally appeared
, to me personally known, who, being by me duly
sworn, did say that he is the of First Trust
Company, Inc. , a Minensota corporation; and that said
instrument was signed on benalf of said corporation and that
said acknowledged said instrument to be the
free act and deed of such corporation.
Notary Public �
STATE OF MINNESOTA )
ss.
COUNTY OF
On this day of , 19_, before me a
Notary Public within and for said County, personally appeared
, to me personally known, who, being by me duly
sworn, did say that he is the general partner of Oak Ridge
Place Limited Partnership, a Minnesota Limited Partnership; and
that said instrument was signed on behalf of said partnership
and that said general partner acknowledged said instrument to
be the free act and deed of such partnership.
Notary Public
E-5
EXHIBIT F
CERTIFICATE
OF
CONTINUING PROGRAM COMPLIANCE
Date: , 19
The following information with respect to Oak Ridge
Place Project, Oak Park Heights, Minnesota (the "Development") ,
is being provided by Oak Ridge Place Limited Partnership, a
• Minnesota Limited Partnership (the "Declarant") to
pursuant to that certain Declaration of Restrictive
Covenants dated as of March 20, 1986 (the "Declaration") with
respect to the Development:
General
(I) The total number of residential units in the
Development which are completed and available for
occupancy is . The total number of
such units occupied is .
(II) The Declarant has obtained an "Income
Computation and Certification" in the form provided
as either Exhibit G-1 or G-2 to the Declaration, from
each Tenant named below, the income stated therein
has been verified as required byeither Section
3(1) (c) or Section 5(1) (b) (iii) of the Declaration
and each such Certificate is being maintained by the
Declarant in its records with respect to the
Development. Attached hereto is the most recent such
Certificate for each such Tenant who signed such a
Certificate since , 19 , the date on
which the last "Certificate of Continuing Program
Compliance" was filed by the Declarant.
(III) In renting the residential units in the
Development, the Declarant has not given preference
to any particular group or class of persons (except
for persons who qualify as Lower-Income Tenants,
Moderate Income Tenants or elderly or handicapped
tenants, as appropriate) ; and none of the units
F-1
•
listed below as occupied by Lower Income Tenants have
been rented for occupancy entirely by students, no
one of which is entitled to file a joint return for
federal income tax purposes.
(IV) All of the residential units in the Development
have been rented pursuant to a written lease which
complies witn the requirements of Section _ of the
Regulatory Agreement, and the term of each lease is
at least months.
(V) The information provided in this "Certificate of
Continuing Program Compliance" is accurate and
complete, and no matters have come to the attention
of the Declarant which would indicate that any of the
information provided herein, or in any Certificate
obtained from the Tenants named herein, is inaccurate
or incomplete in any respect.
i
Lower Income Tenants
(A) The following residential units (identified by
unit number) are presently vacant but have been
desiganted for occupancy by "Lower-Income Tenants",
as such term is defined in the Declaration and are
being held vacant and available for that purpose (for
a total of ) :
Unit Number
(B) The following residental units have been
re-designated as units for Lower-Income Tenants since
, 19 , the date on which the last
"Certificate of Continuing Program Compliance" was
filed by the Declarant:
F-2
Unit Previous Designation Replacing Unit
Number Of Unit (if any) Number
(C) The following residential units are considered
to be occupied by Lower-Income Tenants based on the
information set forth below:
Name of Tenant and Date of
Unit Number of Persons Adjusted Initial
Number Residing in the Unit Family Income Occupancy
(1)
(2)
(3)
i
(4)
(5)
(6)
(7)
(8)
F-3
(9)
(10)
(D) of the residential units ( % of
all residential units) are occupied by, or are being
held available for occupancy by, Lower Income
Tenants.
Elderly Tenants.
(A) The following residential units (identified by
unit number) are now occupied by elderly or
handicapped tenants, for a total of units:
(B) The following residential units (identified by
unit number) are being held available for occupancy
by elderly or handicapped tenants, for a total of
units:
(C) residential units in the Development
( % of all residential units in the Development)
are now occupied by, or are being held vacant for
occupancy by, elderly or handicapped tenants.
F-4
IN WITNESS WHEREOF, I have hereunto affixed my
signature, on behalf of the Declarant, on 19
Oak Ridge Place Limited Partnership, a
Minnesota Limited Partnership, as
Declarant
By:
Its General Partner
/
F-5
• EXHIBIT G-1
INCOME COMPUTATION AND CERTIFICATION
[Lower Income Tenants]
Development: Oak Ridge Place Project
Address:
Oak Park Heights, Minnesota 55082
Declarant: Oak Ridge Place Limited Partnership, a Minnesota
Limited Partnership
I/We, the undersigned, being first duly sworn, state ttiat
•
I/we have read and answered fully, frankly and personally each
of the following questions for all persons (including minors)
who are to occupy the unit in the above apartment development
for which application is made, all of whom are listed below:
1 2 3 4 5
Name of Members Relationship
of the to Head of Social Security Place of
Household Household Ate Number Employment
HEAD
SPOUSE
Income Computation
6. The anticipated income of all the above persons during the
12-month period beginning this date,
G-1/1
•
a. including all wages and salaries, overtime pay,
commissions, fees, tips and bonuses before payroll
deductions; net income from the operation of a business or
profession or from the rental of real or personal property
(without deducting expenditures for business expansion or
amortization of capital indebtedness) ; interest and
dividends; the full amount of periodic payments received
from social security, annuities, insurance policies,
retirement funds, pensions, disability or death benefits
and other similar types of periodic receipts; payments in
lieu of earnings, such as unemployment and disability
commpensation, workmen' s compensation and severance pay;
the maximum amount of public assistance available to the
above persons; periodic and determinable allowances, such
as alimony and child support payments and regular
contributions and gifts received from persons not residing
in the dwelling; and all regular pay, special pay and
allowances of a member of the Armed Forces (whether or not
living in the dwelling) who is the head of the household
or spouse; but
b. excluding casual, sporadic or irregular gifts;
amounts which are specifically for or in reimbursement of
medical expenses; lump sum additions to family assets,
such as inheritances, insurance payments (including
payments under health and accident insurance and workmen' s
compensation) , capital gains and settlement for personal
or property losses; amounts of educational scholarships
paid directly to the student or the educational
institution, and amounts paid by the government to a
veteran for use in meeting the costs of tuition, fees,
books and equipment, but in either case only to the extent
used for such purposes; special pay to a serviceman head
of a family who is away from home and exposed to hostile
fire; relocation payments under Title II of the Uniform
Relocation Assistance and Real Property Acquisition
Policies Act of 1970; foster child care payments; the
value of coupon allotments for the purchase of food
pursuant to the Food Stamp Act of 1964 which is in excess
of the amount actually charged for the allotments; and
payments received pursuant to participation in ACTION
volunteer programs,
is as follows: $
G-1/2
7. If any of the persons described above (or whose income or
contributions was included in item 6) has any savings, bonds,
equity in real property or other form of capital investment,
provide:
a. the total value of all such assets owned by all
such persons: ' $
b. the amount of income expected to be derives from
such assets in the 12-month period commencing this date:
$ , and
c. the amount of such income whicn is included in
item 6: $
8. Students:
a. Will all of the persons listed in column 1 above /
be or have they been full-time students during five
calendar months of this calendar year at an educational
institution (other than a correspondence school) with
regular faculty and students?
Yes No
b. Is any such person (other than nonresident
aliens) married and eligible to file a joint federal
income tax return?
Yes No
We acknowledge that all of the above information is
relevant to the status under federal income tax law of the
interest on the bonds or other obligations issued to finance
the apartment for which application is being made. We consent
to the disclosure of such information to the issuer of such
bonds or other obligations, the holders of such bonds or other
obligations and any trustee acting on their behalf, and
G-1/3
THE UNDERSIGNED HEREBY CERTIFY THAT THE INFORMATION SET FORTH
ABOVE IS TRUE AND CORRECT. THE UNDERSIGNED ACKNOWLEDGE THAT
THE LEASE FOR THE UNIT TO BE OCCUPIED BY THE UNDERSIGNED WILL
EE CANCELLED UPON TEN (10) DAYS WRITTEN NOTICE IF ANY OF THE
INFORMATION ABOVE IS NOT TRUE AND CORRECT.
Tenant
Tenant
Subscribed and sworn to before me this day of
•
i
(Notary Seal)
Notary Public in and for the
State of
My Commission Expires:
G-1/4
FOR COMPLETION BY DECLARANT
(OR ITS MANAGER) ONLY
1. Calculation of eligible tenant income:
a. Enter amount entered for entire
household in P above: $
b. If the amount entered in 7.a
above is greater than $5,000, enter the
greater of (i) the amount entered in 7.b
less the amount entered in 7 .c or (ii) 10%
of the amount entered in 7.a. :
c. TOTAL ELIGIBLE INCOME (Line l.a
plus line l.b) : $
2. The amount entered in l.c is less than or equal to 80% of
median income for the area in which the Development is located,
as defined under the Declaration ( "Lower Income Tenant") .
3. Number of apartment unit assigned:
4. This apartment unit was was not last occupied for
a period of at least 31 .consecutive days by persons whose
aggregate anticipated annual income as certified in the above
manner upon their initial occupancy of the apartment unit was
less than or equal to 80% of Median Gross Income in the Area.
THE UNDERSIGNED HEREBY CERTIFIES THAT HE/SHE HAS NO KNOWLEDGE
OF ANY FACTS WHICH WOULD CAUSE HIM/HER TO BELIEVE THAT ANY OF
THE INFORMATION PROVIDED BY THE TENANT MAY BE UNTRUE OR
INCORRECT.
OAK RIDGE PLACE LIMITED PARTNERSHIP,
A MINNESOTA LIMITED PARTNERSHIP
By
Its
G-1/5
IN WITNESS WHEREOF, the Declarant has caused this
instrument to be signed on its behalf by its duly authorized
partner as of the 20th day of March, 1986.
OAK RIDGE PLACE LIMITED PARTNERSHIP,
A MINNESOTA LIMITED PARTNERSHIP
By
Its General Partner
STATE OF MINNESOTA )
ss
COUNTY OF RAMSEY )
The foregoing instrument was acknowledged before me
this day of March, 1986, by Lawrence O. Hauge, the general
partner of Oak Ridge Place Limited Partnership, a Minnesota
Limited Partnership (the "Declarant") .
Notary Public
[Notarial Stamp]
_, • ' . :ti
01
C o0o x ,s.= r % : :•
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68. 0 C13
XI
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4"11.8°
C
5040S7
586S 2/26/86
ASSIGNMENT OF LEASES AND RENTS
THIS ASSIGNMENT OF LEASES AND RENTS (the "Assign-
ment") is made as of the 20th day of March, 1986, between Oak
Ridge Place Limited Partnership, a Minnesota limited
partnership (the "Company") , and First Trust Company, Inc. , a
Minnesota corporation (the "Trustee" ) , its successors and
Nassigns.
WITNESSETH:
WHEREAS, the Company is the owner of certain real
estate located in the County of Washington, State of Minnesota,
described in Exhibit A, attached hereto and incorporated herein
by reference (the "Project Premises" ) ; and
WHEREAS, the City of Oak Park Heights, Minnesota (the
"Issuer" ) , has issued its Multi-Family Housing Development
Revenue Bonds, Series 1985 (Oak Ridge Place Project) , in the
principal amount of Three Million Four Hundred Thousand Dollars
($3,400,000) (the "Bonds") , and loaned the proceeds thereof to
the Company (the "Loan" ) pursuant to a Loan Agreement between
the Issuer and Company, dated December 1 , 1985 (the "Loan
Agreement") , to finance the cost of acquisition of the Project
Premises and construction of buildings and related improvements
(the "Facility" ) and equipment (the "Project Equipment" )
located on the Project Premises in the City of Oak Park
Heights; and
WHEREAS, under the terms of the Loan Agreement, the
Company is required to make payments (the "Basic Payments") to
repay the Loan; and
WHEREAS, the Trustee has agreed to act as trustee for
the Bondholders pursuant to an Indenture of Trust (the
"Indenture" ) , dated December 1, 1985, between the Trustee and
Issuer; and
WHEREAS, to secure payment of the Loan and Bonds, the
Company has executed and delivered to the Trustee a Mortgage
and Security Agreement, of even date herewith (the "Mortgage" ) ,
covering inter alia, the Project Premises, the Facility and the
Project Equipment now or hereafter located thereon (all of
which are more specifically identified in the Loan Agreement
and are hereinafter collectively referred to as the "Project" ) ;
and
WHEREAS, the Company, may, from time to time here-
after, during such time as the indebtedness secured hereby
remains outstanding, enter into leases and other agreements
under which the Company is entitled to rents with respect to
all or part of the Project with various persons or entities;
and
2
WHEREAS the Issuer and Trustee have required the
execution of this Assignment.
NOW THEREFORE, in consideration of the foregoing, and
for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the Company,
the Company hereby grants, transfers and assigns to the
Trustee:
•
1.
All of the Company' s interest in and to the "Leases" .
The term "Leases" as used in this Assignment shall be deemed to
include any and all leases or subleases now or hereafter placed
during the term of this Assignment upon, and any and all
amendments thereto and any other agreement under which the
Company is entitled to rent with respect to, all or part of the
Project.
2.
All rents, income, receipts, revenue and profits
arising from the Leases and all renewals and extensions thereof
together with all rents, income, profits, issues, revenues and
benefits from the use and occupation of the Project, including
any sums payable to the Company by reason of physical damage to
to the Project, whether accruing before or after foreclosure of
the Mortgage or during the period of redemption thereof.
3
The Leases and all rents, income, profits, issues,
benefits, proceeds, revenues and guarantees assigned hereby are
hereinafter sometimes collectively referred to as "Collateral. "
3.
All guarantees of the Leases; if any.
I.
THIS ASSIGNMENT is made for the purpose of providing addi-
tional security for and shall secure:
A. The payment of the principal sum, premium, if
any, and interest on the Bonds.
B. The payment of Basic Payments.
C. The payment of all other sums with interest there-
on becoming due and payable to the Trustee and the Issuer under
the provisions of this Assignment, the Mortgage, the Indenture,
the Loan Agreement, or any other instruments evidencing, secur-
ing or concerning the Bonds, the Loan Agreement, the Mortgage,
the Indenture, this Assignment, and said instruments are some-
times collectively referred to as the "Loan Documents" ) .
D. The performance and discharge of each and every
obligation, covenant and agreement of the Company and the
Issuer contained in the Loan Documents.
II .
THE COMPANY WARRANTS AND REPRESENTS to the Trustee
(i) that the Company is not prohibited under any agreement with
any other person or under any judgment from the execution and
4
delivery of this Assignment, the performance of each and every
condition herein contained; (ii) that no action has been
brought or threatened which in any manner is likely to
interfere with any of the Company' s obligations hereunder;
(iii) that the Collateral is free and clear of any and all
liens, security interests and encumbrances except those
expressly excepted in the applicable Loan Documents; and (iv)
-that the Company has full power and authority to execute and
deliver this Assignment and that said execution and delivery
has been duly authorized and does not conflict with or con-
stitute a default under any law or any agreement or instrument
binding upon the Company or the Project.
III.
THE COMPANY COVENANTS with the Trustee (i) to observe
and perform all the obligations imposed upon the lessors under
the Leases and not to do or permit to be done anything to
impair the Trustee' s security; (ii) not to collect any of the
rent, income or profits arising or accruing under the Leases or
from the Project in advance of the time when the same shall
become due; (iii) except for an assignment subject to the terms
of this Assignment, not to execute any other assignments of
lessor's interest in the Leases or assignments of rents arising
or accruing from the Leases or from the Project; (iv) not to
subordinate the Leases to any encumbrance or to permit, consent
or agree to such subordination without the Trustee's prior
5
written consent except as may be expressly permitted in the
Mortgage; (v) not to alter, modify or change the terms of the
Leases or give any consent or exercise any option required or
permitted by such terms without the prior written consent of
the Trustee; (vi) not to cancel or terminate the Leases or to
accept a surrender thereof or to convey, transfer, suffer or
permit a conveyance or transfer of the Project or portion
thereof or of any interest therein so as to effect, directly or
indirectly, proximately or remotely, a termination or
diminution of the obligations of, lessees' thereunder; (vii)
not to alter, modify or change the terms of any guaranty of the
Leases or cancel or terminate such guaranty without the prior
written consent of the Trustee; (viii) at the Trustee' s request
to execute and deliver all such further assurances and
assignments in the Project as the Trustee shall from time to
time require, including without limitation assignments of
leases not yet executed; (ix) to keep the Leases free from any
liens, encumbrances or security interests whatsoever, other
than the security interest hereunder, or as may otherwise be
expressly permitted by the Mortgage or the prior written
consent of the Trustee and promptly to pay or discharge all
taxes assessed against the Leases and all liens which may
attach thereto; and (x) to maintain the Leases in full force
and effect, to enforce the Leases in accordance with their
terms, to appear in and defend any action or proceeding arising
6
under or in any manner connected with any of the Collateral and
to give prompt written notice to the Trustee of any claim of
default under the Leases together with a true and complete copy
of any such claims.
IV.
THIS ASSIGNMENT is made on the following terms,
covenants and conditions:
1. So long as (a) there shall exist no default by
the Company in the timely payment of the indebtedness secured
hereby as described in Section I above or in the performance of
any other obligation, covenant or agreement set forth in the
Loan Documents or in the Leases to be performed by the Company,
(b) none of the statements, representations or warranties made
or furnished to the Issuer or the Trustee by or on behalf of
the Company with respect to the Loan Documents be untrue or
incomplete in any material respect as of the date made and (c)
the Project is not subject to garnishment, levy, attachment or
lien, then in such event the Company shall have the right to
collect at the time of, but not prior to, the date provided for
the payment thereof, all rents, income, receipts, revenue,
proceeds and profits arising under the Leases or from the
Project described therein and to retain, use and enjoy the
same.
7
2. Upon the occurrence of an Event of Default in the
terms and conditions of the Loan Agreement or the Mortgage, and
without regard to waste, adequacy of security or the solvency
of the Company, Trustee shall, upon application to the District
Court in the County where the Project or any part thereof is
located, be entitled to the appointment of a receiver for the
rents, profits and all other income of every kind which shall
accrue and be owing for the use and occupation of the Project
or any part thereof. From and after the date of appointment of
the receiver through the entire redemption period from any
foreclosure sale, the receiver shall collect the rents, profits
and all other income of any kind from the Project, manage the
Project so as to prevent waste, execute leases within or beyond
the period of the receivership if approved by the court, and
apply all rents, profits and other income collected by the
receiver in the following order:
(a) reasonable fees of the receiver;
(b) the items listed in Minnesota Statutes,
Section 576.01, Subd. 2, (1 )-(4) in the priority
as numbered;
(c) expenses for normal maintenance,
operation and management of the Project; and
(d) the balance as provided in Section 8-6
of the Indenture, or, at the election of the
Trustee, to the amount required to be paid to
8
effect a reinstatement or redemption, as the case
may be, pursuant to Minnesota Statutes, Section
580.30, 580.23 and 581.10.
3. Upon the occurrence of an Event of Default under
the terms and conditions of the Loan Agreement or the Mortgage
and without regard to waste, adequacy of the security, or
solvency of the Company, the Trustee may collect all rents and
profits from the occupiers of the Project upon the filing by
the Trustee, in the office of the County Recorder or, in the
case of registered property, in the office of the Registrar of
Titles, for the County in which the Project is located, of a
notice of the occurrence of said Event of Default and the
service of said notice of default upon the occupiers of the
Project. The Trustee shall apply all rents and profits so
collected, from the date of filing and service upon the occupi-
ers of notice of default through the redemption period from any
foreclosure sale, in the same manner as is provided above where
the rents and profits are collected pursuant to the appointment
of a receiver. For the purpose aforesaid, the Trustee may
enter and take possession of the Project and manage and operate
the sale and take any action which, in the Trustee's judgment,
is necessary or proper to conserve the value of the Project.
The Trustee may also take possession of, and for these purposes
use, any and all of the property contained in the Project.
9
4. The Trustee shall not be liable for any loss
sustained by the Company resulting from the Trustee' s failure
to let the Project after default or from any other act or
omission of the Trustee in managing the Project after default
unless such loss is caused by the willful misconduct and bad
faith of the Trustee. The Trustee shall not be obligated to
perform or discharge any obligation, duty or liability under
the Leases or under or by reason of this Assignment and the
Company shall, and does hereby agree to, indemnify the Trustee
for, and to hold the Trustee harmless from, any and all liabil-
ity, loss or damage which may or might be incurred under the
Leases or under or by reason of this Assignment and from any
and all claims and demands whatsoever which may be asserted
against the Trustee by reason of any alleged obligations or
undertakings on its part to perform or discharge any of the
terms, covenants or agreements contained in the Leases. Should
the Trustee incur any such liability under the Leases or under
or by reason of this Assignment or in defense of any such
claims or demands, the amounts thereof, including costs, ex-
penses and reasonable attorneys ' fees, shall be secured hereby
and by the Loan Documents, and the Company shall reimburse the
Trustee for such amounts immediately upon demand. It is
further understood that this Assignment shall not operate to
place responsibility either for the control, care, management
or repair of the Project upon the Trustee or for the carrying
10
out of any of the terms and conditions of the Leases; neither
shall this Assignment operate to make the Trustee responsible
or liable for any waste committed on the Project by the tenants
or any other parties, or for any dangerous or defective
condition of the Project or for any negligence in the
management, upkeep, repair or control of the Project resulting
in loss or injury or death to any tenant, licensee, employee or
stranger.
5 . Upon payment in full of the Bonds and interest
thereon and all sums due under the Loan Documents, this
Assignment shall become and be void and of no effect, but the
affidavit, certificate, letter or statement of any officer,
agent or attorney of the Trustee showing any part of such
obligations to remain unpaid shall be and constitute conclusive
evidence of the validity, effectiveness and continuing force of
this Assignment and any person may, and is hereby authorized
to, rely thereon. The Company hereby authorizes and directs
the lessees named in any Leases now in effect or any other or
future lessee or occupant of the Project upon receipt from the
Trustee of written notice to the effect that a default exists
thereunder or under the Bonds, this Assignment or any other
Loan Documents, to pay over to the Trustee all rents, income
and profits arising or accruing under the Leases or from the
Project and to continue so to do until otherwise notified by
the Trustee.
11
6. The Trustee may take or release other security
for the payment of said indebtedness, may release any party
primarily or secondarily liable therefor and may apply any
other security held by the Trustee to the satisfaction of such
indebtedness without prejudice to any of the Trustee' s rights
under this Assignment.
7. Nothing contained in this Assignment and no act
done or omitted by the Trustee. pursuant to the powers and
rights granted to the Trustee hereunder shall be deemed to be a
waiver by the Trustee of the Trustee's rights and remedies
under the Loan Documents. This Assignment is made and accepted
without prejudice to any of the rights and remedies possessed
by the Trustee under the terms thereof. The right of the
Trustee to collect said indebtedness and to enforce any other
security held by the Trustee may be exercised by the Trustee
either prior to, simultaneously with, or subsequent to any
action taken by the Trustee hereunder.
8. In case of any conflict between the terms of this
Assignment and the terms of the Loan Agreement or the Mortgage,
the terms of the Loan Agreement or the Mortgage, as the case
may be, shall prevail, but whenever possible, the provisions
hereof shall be deemed supplemental to and not in derogation of
the provisions of the Loan Agreement or the Mortgage.
9. Neither this Assignment nor any provisions hereof
may be changed, waived, discharged or terminated orally, but
12
IN WITNESS WHEREOF, the party constituting the
Company has caused this Assignment of Leases and Rents to be
duly executed as of the year and day first above written.
Oak Ridge Place Limited Partnership
By kl/q41(.44.4.... CQ, /`t
Its General Partner
DRAFTED BY: Briggs and Morgan
Professional Association
2200 West First National Bank Building
St. Paul , MN 55101
STATE OF MINNESOTA )
COUNTY OF ) ss.
RAMSEY )
The foregoing instrument was acknowledged before me
this olio day of March, 1986, by
Lawrence
Hauge, the
general partner of Oak Ridge Place Limited Partnership, a
Minnesota Limited Partnership, on behalf of said limited
partnership.
•
Notary Public
[Notarial Seal]
HEATHER T.DUSTRUD
rry$` NOTARY PUBLIC—MINNESOTA
'rt .` HENNEPIN COUNTY
My commission expires Feb.27,1991
Exhibit
Legal description for property Ain Washington County,
y�
Lot 1, Block 1, Oak Park Heights Garden
oa :IC-co -•c,*oc
-I n -! (,0a 3� 2-,1 ya
iik
r. (� ,` I •
•i Tot N ==m
C .tl
Em
u �r� G r r O •-.. -4:17 Z
b 0. 2
( C co
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O
0.
•
.
MATTHEW J.LEVITT DAVID J.SPENCER LAW OFFICES ROBERT J.PRATTE ANN HUNTRODS
COLE OEHLER DANIEL J.COLE,JR. JOHN BULTENA THUDS R.GASTEAZORO
ROBERT M.BOWEN DOUGLAS L SHOE JAMES G.RAY ELIZABETH J.ANDREWS
FRANK HAMMOND MICHAEL H.JERONIMUS BRIGGS A N D MORGAN RICHARD H.MARTIN GREGORY J.STENMOE
LEONARD J.KEYES R.SCOTT DAVIES TRUDY J.HALL/. CHARLES B.ROGERs
ROBERT G.SHARE J.PATRICK MCDAVITT PROFESSIONAL ASSOCIATION MANY L.IPPEL TERRY L.SINE
BUNT E.SWANSON JOHN B.VAN DE NORTH,JR. JAMES A.VOSE PAUL.M.GALES
M.J.GALVIN,JR. RICHARD G.MARK ROBYN L.HANSEN MANY M.DYRSETH
DAVID C.FORSBERG ANDREW C.BECHER ROBERT E.WOODS KEVIN A.BERG
JomN J.McNEELY JAMES E.NELSON 2200 FIRST NATIONAL BANE BUILDING Wnm' J.JOAHIs MARK SCHROEDER
MCNEIL V.SEYMOUR,JR. JEROME A.GEIS MARGARET H.SAVAGE MARIAN M.DURKIN
JERRY F.ROTMAN STEVE A.BRAND SAINT PAUL,MINNESOTA 55101 BRIAN G.BELISLE NANCY D.ARNISON
TERENCE N.Do= JOEL H.GOTTEsA AN TONY STEMBEROER MICHAEL J.McELLISTaEM
RICHARD H.KYLE ALAN H.MACLIN MARY E.SCHAFFNEB PAUL S.JACOBSEN
JOHN L.DEVNEY JEFFREY F.SHAW MICHAEL H.STEEATER TIMOTHY J.KEENAN
RONALD L.SORENSON MATTHEW L.LEviTT TELEPHONE (612) 291-1215 JOHN H.LLNDSTROM
PETER H.SEED DAVID G.GREENING RICHARD D.ANDERSON
SAMUEL L HANSON DAVID B.SAND SALLY A.Sc000nr
RONALD E.OacHAND DANIEL M.COUGHLAN TELECOPIER (612) 222-4071 DAVID C.McDcaruio or corms=
JOHN TROYER JOSEPH P.NoA.CK BRUCE W.MOOTS J.NEIL HOaTON
STEPHEN Wnn icE CHARLES R.HAYNoa ERIC MUSSON RICHARD H.KYLE
AVRON L.GORDON ANDREA M.BOND INCLUDING THE FORMER FIRM OF ANDREW R.HRYTZIROER JOHN M.PALMER
JOHN R.HENEFICK TIMOTHY P.FLAHERTY FREDERICK P.ANGST SAMUEL H.MORGAN
THOMAS A.LAasox MARTIN H.FISH LEVITT, PALMER, BOWEN, ROTMAN & SHARE ROBERT L.LEE FRANK N.GR&KAM
A.LAURENCE DAvis
CLARENCE G.FRAM
JOHN M.Summit;
March 12, 1986
Ms. LaVonne Wilson
City Administrator-Treasurer
City of Oak Park Heights
14168 57th Street North
Oak Park Heights, MN 55082
Re: City of Oak Park Heights- $3,400,000
Multifamily Housing Redevelopment Revenue
Bonds, Series 1985 (Oak Ridge Place Project)
Dear Ms. Wilson:
The definitive Bonds issued in connection with the above
transaction are now being prepared; however, the printer has
informed us that he does not have specimen signatures of the
Mayor and City Administrator to be used as printed facsimiles.
Please sign your name three times on an unlined, 3" x 5"
piece of white paper and have the Mayor do the same. Please
call Kathy Streater of this office as soon as the signatures
are ready to arrange for a messenger to pick them up at the
City.
I would appreciate your immediate attention to this matter
as the final closing will take place next week. Please feel
free to call if you should have any questions.
Very
truly yours,
Glc -►�-- - l
Linda B. Manahan
Legal Assistant
LBM:pjh
2200 FIRST NATIONAL BANK BUILDING 2400 I D S CENTER
SAINT PAUL,MINNESOTA 55101 MINNEAPOLIS,MINNESOTA 55402
(612)291-1215 (812)339-0061
MINNESOTA
46 HOUSING
AW FINANCE
AGENCY
December 16, 1985
Ms. LaVonne Wilson
City of Oak Park Heights
14168 North 57th Street
Oak Park Heights, Minnesota 55082
RE: LAWRENCE O. HAUGE PROJECT
Dear Ms. Wilson:
In response to your request of December 13, 1985, I directed staff to review
your program. Staff reviewed the application and found it to be complete as
of December 13, 1985. Pursuant to Section 462C.04, the 30-day period in
which the Agency must act commenced as of December 13, 1985. Said 30-day
period will end January 12, 1985.
If you have any questions concerning this matter, please call Monte Aaker
at 296-8208.
Sincerely
ames1 So e
E ecuti Director
/lyn
cc: Trudy Halla
Ann S. Helgeson
400 Sibley Street, Suite 300, St. Paul, Minnesota 55101 (612) 296-7608
Equal Opportunity Housing and Equal Opportunity Employment
•
l;E!j . JURAN & MOODY, INC.
Established 1 9 3 9
NI
Minnesota Mutual Life Center
400 North Robert Street - Suite 800
Saint Paul, Minnesota 55101-2091
Telephone 612/224-1500
Minn. WATS 1-800-752-4886
December 3, 1985 Outstate WATS 1-800-328-3833
LaVonne Wilson
Administrator-Treasurer
City Hall
14168 - 57th Street North
Oak Park Heights, MN 55082
RE: OAK RIDGE PLACE APARTMENT PROJECT
HOUSING REVENUE BOND FINANCING
CITY OF OAK PARK HEIGHTS, MINNESOTA
Dear Ms. Wilson:
Enclosed for your review and signature are five copies each of a
General Certification and Multifamily Certification for the
above-referenced bond transaction. Please review and contact me if
you have any questions. After reviewing, please sign each of the
copies and return four of each to me.
We have to submit these Certificates to the Minnesota Housing Finance
Agency no later than Friday, December 6, so it is important that we
process the Certificates as soon as possible.
Very sincerely yours,
J AN b MOODY, INC.
Jerome L. Hertel
Vice President
JLH/eh
enclosures
Saint Paul, MN - Minneapolis, MN - Houston, TX - Clearwater, FL - Naples, FL - La Jolla, CA - Phoenix, AZ
.
EXHIBIT B
GgNERAJ CERTIFICATION
1• Mame of Applicant: City of Oak Park Heights, Minnesota
2. If Applicant is other than a statutory or home rule
charter
provide a copy of the statute or ordinance which authorizesApil
cant to issue revenue bonds to finance housingstate
the date such statute or ordinance was adopted. programs, and state
3. Housing Plan:
(a) Date and location of public hearing;
November 25, 1985; City Municipal Building, Oak Park Heights, Minnes
(b) Date and place of publication ota
of notice of public hearing;
October 24, 1985; Stillwater Gazette
(c) Date of adoption of Housing" Plan by Applicant's
body; governing
November 25, 1985
(d) Date of submission of Housing Plan to applicable Regionale.
Development Commission or Metropolitan Council; ha
copy of those comments.) p (Attach a
October 24, 1985
(e) If the comments of the Regional Development
Metropolitan Council were unfavorable or contained su Commission esr
tions for amending the plan, describe:
(i) amendments to the plan adopted by Applicant in re-
sponse,
See attached letter from Metropolitan Council
(or)
(ii) reasons why such amendments were deemed unadvisable.
4. Statewide Housing Policies:
(a) Identify which statewide housing g Policies are intended to be
furthered by this
program. Reference MHFA Procedural Guide for local
Housing Bond Programs, August 1985. Part 1. A. (d), policies (a)
(c), (d), (h), (k), (1), (m) (b),
8/22/85
-11-
01078
•
(b) Is the state building code applicable to housing constructed
within Applicant's jurisdiction? (If not, attach copy of all
building codes which are applicable to housing to be con-
structed or rehabilitated under this program.) YES X
NO
(c) Describe procedures you intend to implement to ensure that
the housing to be constructed or rehabilitated under this
program:
(i) complies with the state building code standards;
Compliance is insured by the City's required permits and
inspections.
(ii) will be available to all eligible persons without im-
permissible discrimination;
On-site management will implement non-discriminatory policies
while bein monitored by the City.
(iii) will be constructed or rehabilitated only by con-
tractors who provide equal opportunity for employment
without impermissible discrimination;
The loan agreement will require the developer to choose
contractors that provide equal opportunity for employment.
(iv) will not result in the displacement of low-income res-
idents without provision for adequate relocation as-
sistance;
No displacement is anticipated.
(v) will be in furtherance of those statewide housing pol-
icies specified in 4(a) .
Proiect and Program will be reviewed prior to commitment approval
and bond closing.
•
5. Bond Issuance:
The following information should be provided to the greatest de-
gree of accuracy possible at the time of submission of this Appli-
cation. Minor variations between projected figures and those
actually obtained at the time of issuance will not be deemed ma-
terial.
(a) Total value of bond issuance;
$3,700,000
(b) Direct costs of issuance (gross spread): Provide information
below in' 5(c) and 5(b) which is applicable to your Program.
The exact nature of the fees and costs of bond issuance will
depend upon the nature of the arrangements you make to place
and service your bonds.
8/22/85 -12- 0107R
•
(1) Fees to be included in l.A(4) . (See page 4)
(i) Management fee;
1/2%
(ii) Take down (Sales Commission) ;
1-1/2%
(iii) Met to underwriters;
1%
(iv) Special tax counsel fee;
none
(v) Underwriter's counsel fee;
$7,500
(vi) Blue sky counsel fee;
included in (v) above
(vii) Printing costs (of official statements and
underwriting documents) ;
$3,000
(viii) Computer sevices;
included in (i), (ii) and (iii)
(ix) Advertising;
included in (i), (ii) and (iii)
(x) Clearance fee;
included in (i), (ii ) and (iii)
(xi) Travel and other expenses ofunderwriters;
included in (i), (ii) and (iii)
(xii) Charges for Federal Reserve Bank funds;
included in (i), (ii) and (iii)
(xiii) Rating agency fees;
n/a
(xiv) Signature company fee;
n/a
(2) Other fees.
(i) Applicant's financial advisor fee;
1-1/2%
8/22/85 -13- 01078
(ii) Cost of printing bonds;
$1,500
(iii) Bond Counsel fee;
$20,000
(iv) Other charges (please specify);
Total: $202,400
(c) Cost of maintaining bonds:
(i) Bond trustees' fee;
$3,900 •
(ii) Audits;
none
(iii) Salary to existing city personnel attributable to
bond, maintenance work (including supervision df out-
side contractors) ;
none
(iv) Salary of additional city personnel added to maintain
bonds;
none
(v) Other costs;
none
Total: $3,900
6. Indicate if the proposed bond issue is:
(a) Public offering X
(b) Private placement
7. Administrative Costs of Program:
Provide the ihformation below which is applicable to your Program.
The nature of the fees and costs of administration will depend upon•
the nature of the delivery system derived for your Program.
8/22/85 -14-
oia7a
•
(a) Start-up Costs:
(i) Loan origination fee;
n/a
(ii) Loan review fee;
n/a
(iii) Commitment fee;
n/a
(iv) Salary of personnel of Applicant (excluding Program
Administrator) attributable to placing the loans;
n/a
(v) Reimbursement to issuer for administrative costs of
loan placement;
n/a
(vi) Cost of housing planr e n
preparation (if charged to bond
proceeds) ;
n/a
(vii) Other (please specify);
n/a
Total:
(b) Ongoing administrative costs:
(i) Servicing fee; •
$1,000 annually
(ii) Trustee and paying agent fees
included in (i) above
(iii) Insurance premiums;
none
(iv) Salary of Applicant's personnel (other than Program
Administrator) attributable to ongoing administrative
costs;
none
(v) Other (please specify);
none
Total: $1,000
8/22/85 -15-
0107R
(c) Salary of Program Administrator (If more than one Program is
administered, amount attributable to this Program. ) ;
none
8. Net amount of bond proceeds which will be available for mortgage
loans, construction, or rehabilitation (excluding all fees) .
$3,493,70
9. Provide information sufficient to establish that the interest on
the bonds will be exempt from federal income tax, or in the alter-
native, attach a preliminary opinion of bond counsel to that ef-
fect.
See preliminary opinion of bond counsel .
•
•
•
•
8/22/85 -16- 0107R
VERIFICATION
the undersigned, hereby
stats that he/she is the11-.��-[., of the Appli-
cant, is authorized to execute this document on behalf of the Appli-
cant (a copy of which authorization is attached hereto) , and that the
information set forth in this General Certification is true, correct,
and complete.
1
Subscribed and swwn to before me,
this day of AJC-e.,, t- , 198 . -434
JUDY L. JOHNSON
NOTARY PUBLIC-MINNESOTA
,. WASHINGTON COUNTY
MY COMM. EXPIRES DEC. 131'1
Notary Public //iaG County, Minnesota
My Commission expires 1.9.1.,c . 13 / 981 .
•
•
•
8/22/85 -17- 01078
•
EXHIBIT D
MULTI-FAIMILY CERTIFICATION
1. Name of Applicant
City of Oak Park Heights, Minnesota
2. Date and location of public hearing on program.
November 25, 1985; City Municipal Building, Oak Park Heights, Minnesota
3. Date and place of publication of notice of public hearing.
October 17, 1985; Stillwater Gazette
4. Date of adoption of the program by Applicant's governing body.
November 25, 1985
5. (a) Total loan proceeds to be expended on new developments.
$3,493,700
(b) Total loan proceeds to be expended on rehabilitation of
existing buildings.
none
6. Answer those sections applicable to your Program.
(a) Income limits for program participants.' 20% of the units wili be set
aside for persons with income at or below 80% of the medium income of the
SMSA for the Twin Cities Metropolitan Area. will
(b) Describe how Applicant will ensure that future occupancy
be restricted to persons and families meeting the above-
described income limits. Oak Park Heights City Staff will review
applicants under its current regulatory policy.
(c) If the program is to be located in a targeted area:
(i) Targeted area. n/a
(ii) State date of establishment and geographical limits.
8/22/85 -21- 01078
. -
(d) If the program is to be for elderly or handicapped develop-
ments:
(i) Percentage of units reserved for elderly.
n/a
(i•
i) Percentage of units reserved for handicapped.
3 units
(iii) Describe how Applicant will ensure continued occupancy
in the development by such persons:
State requirement
7. Unit distribution.
(i) Unit type (i.e. , number of bedrooms) , number of units,
rent.
1 bedroom units 46 $713/month*
1 bedroom units with den 11 $790/month*
2 bedroom units 29 $930/month*
8. If the proposed project is either a condominium or a cooperative:
(a) Unit type, number of units, purchase price.
n/a
•
(b) Income limits.
n/a
9. If the proposed project is a combination of a multi-family housing
development and a new or existing health care facility as defined
by Minn. Stat 5474.02, provide a description of the services to be
provided and their estimated costs.
n/a
*includes fees for congregate. dining.
•
8/22/85 -22- 0107R
11 VERIFICATION
i v _ a' /-�-Za�%,-- the undersigned, hereby car-
of iss that he/she is theA1. of Applicant,
is authorized to execute this document on behalf of Applicant (a copy
of which authorization is attached hereto), and that the information
set forth in this Multi-family Certification is true, correct, and .
complete.
Subscribed and sworn to before me,
this ,.i day of A2e,ce r,4,Lcxc , 1986-- . oivommAmmtommNmNommArt,
9'4/ aJUDY L. JOHNSON
NOTARY PUBLIC-MINNESOTA
WASHINGTON COUNTY
MY COMM.EXPIRES DEC.13,1989
Notary Public ex., �. G County, Minnesota
My Commission expires !✓..e c.. /3i / 92'9
•
41
•
8/22/85 -23- 01078
Evening Gazette, Oct. 17, 1985
NOTICE OF PUBLIC HEARING
ON PROPOSAL FOR A PRO-
GRAM TO FINANCE A MULTI-
FAMILY RENTAL HOUSING
DEVELOPMENT
(PROJECT) I
To whom it may concern:
Affidavit of PublicationNotice is hereby given that the City
Council of the City of Oak Park Heights,
Minnesota will meet in the City Hall in the
STILLWATER EVENING GAZETTE city of Oak Park Heights, Minnesota at
7:00 o'clock .m.on November 4,1985,to
. bposal of flWi`ence O.
STATE OF MINNESOTA ) he "Developer':).that the City
)ss. undertake a program to finance the
COUNTY OF WASHINGTON ) development hereinafter described,pur-
suant to the City's housing plan under
John Easton,being duly sworn,on oath says that he is the publisher or authorized agent Minnesota Statutes,Chapter 462C,by the
issuance of revenue obligations.
and employee of the publisher of the newspaper known as Stillwater Evening Gazette,and The Development
has full knowledge of the facts which are stated below: The development consistsof the ac-
quisition and construction and equipp-
(A) The newspaper has complied with all of the requirements constituting qualification ing of a 77,502 square foot (approx-
imately) elderly multi-family rental
as a qualified newspaper,as provided by Minnesota Statute 331A.02,331A.07,and other ap- housing development of approximate•
plicable laws,as amended. r ly 87 residential rental units located on
the Northwest corner of the intersec-
tion The printed 'JOt 1 G n`' u'�l i c j? A "•
.C)R tion of 60th Street North (Highway 36
r Frontage Road) and Oxboro Avenue
Y North in Oak Park Heights, Min-
P c : rI i t'V of Cc k Pork T-'Ad II'h t S i 'nesote. The development will be
'' --designed for occupancy primarily by
which is attached was cut from the columns of said newspaper, and was printed and elderly persons. Not less than 2096 Of
published once each week, for C n8 IiK4U.fiKe daysVOK it was first the
on the units in the development will be
•
Thursday , the t h day of October • occupied by persons of low income,a
_____— category presently defined under
19.4'.7-,and was thereafter printed and published on every__ to and in- federal law to mean persons or
_ families whose income is 80%or less
eluding the _— --- day of , 19 ; and of the median income (adjusted for
family size)for the Oak Park Heights
printed below is a copy of the lower case alphabet from A to Z, both inclusive,which isarea as determined by the United f
hereby acknowledged as being the size and kind of type used in the composition and s States Department of Housing and Ur- iI
.. - ban Development.Total approximate
publication of the notice: development costs of the Project will ! I
be approximately $e,7owfle. end (E
abcdefghijklmnopgrstuvwxyz / /� Development will be owned and [
BY. operated by the Developer ora part- S
TITLE. P fisher nership or other entity to be formed in ,
which the Developer will be a general I
Subscribed and sworn to before me on this partner. Non-housing components
tray be included within The develop-
17th (1(^t O h A r P "Ment but substantially all(90%)d Nie r-
�+ day of — — —
�7 - development will consist of rental
19 _ •*s*�'4� �t> .u-^ `'v"`" `'� vhousing and functionally dated
... BEVERLY HARVIEUX facilities
LI �' NOTARY PUBLIC-MINNESOTA F The estimated principal Amount of
/ • _ ds or other obligations to be issued to
�. Air`' ` 1, � , WASHINGTON COUNTY finance the Development will be approx.,
Notary Publ. My Commission Expires Feb.28,1991 '#mately$3,700,000. ,
Said bonds Or other obligations,Is
,when
;issued,will not constitute a charge,
"lien or encumbrance upon any property of
RATE INFORMATION the City except the Development and the
-revenues to be derived from the Develop-
".An
/}� ` ent. Such bends or obligations wilt tot
(1) Lowest classified rate paid by com- 9�i .a charge against the City's general
mercial users for comparable space S /C / '"Credit br taxing powers but are payable '
(Line,word,or inch rate) --from sums to be paid by the owner of the
Development pursuant,to fav*nua
(2)Maximum rate allowed by law for the
S � /, 7 -' agreements. .
above matter / 'Further information , the
(Line,word,or inch rate) Development, and the financing pro-
grams
therefor, may be obtained from
(3) Rate actually charged for the above - /' 7-- the City Administrator-Treasurer, City
matter s Hall,14168-57th Street North.
(Line,word,or inch rate) At the time and place fixed for the
public hearing,the City Council will give
all persons who appear at the hearing an
Received Payment 19 'Opportunity to express Their views with
STILLWATER EVENING GAZETTE respect to the proposal. Written corn—
',ments
om' ments will be considered If submitted on
By --------_—_--------- •yor prior to the date of the hearing.
, Dated this 16th day of October,1985.
(BY ORDER OF THE CITY '
COUNCIL OF THE CITY OF:.,;.
OAK PARK HEIGHTS)
By/s/La Vonne Wilson
'
City Administrator-Treasurer
10/17
City of Oak Park Heights
Minutes of meeting held November 25 , 1985
Page two -
Continued hearing on the. Lawrence .O.:# uge p,roje t,.=, Mayor
called for comments.-','" , s S ' ititYP #rte;` toyed to
close hearing. .4 aye votes. Hearing closed.
Torgerson, seconded by Carufel, moved to adopt Resolution
#85-11-29 approving the multifamily housing program on above
Hauge project tied in with the Washington County HRA plan.
Roll call vote with 4 ayes cast. Resolution adopted.
Torgerson, seconded by Doerr, moved to adopt Resolution
#85-11-30 approving the multifamily housing plan and bond
program for Swager Bros. , Inc. to construct 20 units at
estimated amount of $1, 200 , 000. Roll call vote with 4 ayes
cast. Resolution adopted.
Carufel , as 9T��d by Torgerson, moved to adopt Resolution
#85-11-31' ewer RarRd water increases of $1 . 00 per quarter
plus $ . 0per 1000 gallons of usage over 15 ,000 gallons
per quarter effective first quarter 1986. Roll call vote
with 4 ayes cast. Resolution adopted.
Torgerson, seconded by Carufel, moved to accept proposed
language to amend the Joint & Cooperative agreement to clarify
the meaning of a quorum as understood and practiced by the
Cable Commission. 4 aye votes . Carried.
On motion of Carufel and seconded by Doerr, approval was
made to transfer $141 .00 from Parks/Other Improvements to
Municipal Bldg./ Furniture & Equipment for the purchase of
two tables. 4 aye votes. Carried.
On motion of Torgerson, and seconded by Doerr, approval
'e:J
. of 1986 licenses was made contingent on receipt of insurance
and bonds . 4 aye votes. Carried.
Torgerson, seconded by Doerr, moved to adjourn. 4 aye votes.
Adjourned.
' /TYonne son
Administrator/Treasurer
h + WA /
!o 11 $S 571B
NOTICE OF PUBLIC HEARING ON
PROPOSAL FOR A PROGRAM TO FINANCE A
MULTI-FAMILY RENTAL HOUSING DEVELOPMENT
(LAWRENCE O. HAUGE PROJECT)
To whom it may concern:
Notice is hereby given that the City Council of the
City of Oak Park Heights, Minnesota will meet in the City Hall
in the City of Oak Park Heights, Minnesota at o'clock
p.m. on November 4, 1985, to consider the proposal of
Lawrence O. Hauge (the "Developer") that the City undertake a
program to finance the development hereinafter described,
pursuant to the City' s housing plan under Minnesota Statutes,
Chapter 462C, by the issuance of revenue obligations.
The Development
The development consists of the acquisition
and construction and equipping of a 77,502
square foot (approximately) elderly
multi-family rental housing development of
approximately 87 residential rental units
located on the Northwest corner of the inter-
section of 60th Street North (Highway 36
Frontage Road) and Oxboro Avenue North in Oak
Park Heights, Minnesota. The development
will be designed for occupancy primarily by
elderly persons. Not less than 20% of the
units in the development will be occupied by
persons of low income, a category presently
defined under federal law to mean persons or
families whose income is 80% or less of the
median income (adjusted for family size) for
the Oak Park Heights area as determined by
the United States Department of Housing and
Urban Development. Total approximate
development costs of the Project will be
approximately $3,766,115 . The Development
will be owned and operated by the Developer
or a partnership or other entity to be formed
in which the Developer will be a general
partner. Non-housing components may be
included within the development but
substantially all (90%) of the development
will consist of rental housing and
functionally related facilities.
The estimated principal amount of bonds or other obli-
gations to be issued to finance the Development will be
approximately $3,700,000.
Said bonds or other obligations, as and when issued,
will not constitute a charge, lien or encumbrance upon any
property of the City except the Development and the revenues to
be derived from the Development. Such bonds or
obligations
will not be a charge against the City' s generalthe owner
taxing powers but are payable from sums to be paid by
of the Development pursuant to revenue agreements.
Further information concerning the Development, and
the financing programs therefor, may be obtained from the City
Administrator-Treasurer, City Hall, 14168-57th Street North.
At the time and place fixed for the public ic tearing,
the City Council will give all persons who app
hearing an opportunity to express their views with respect to
the proposal. Written comments will be considered if submitted
on or prior to the date of the hearing.
Dated this day of October, 1985.
(BY CITY COUNCIL OF
THE CITY OF OAK PARK HEIGHTS)
By /si
City Administrator-Treasurer
.
5718
EXHIBIT A
LAWRENCE 0. HAUGE PROJECT PROGRAM
PROGRAM
The Project is to be owned and operated by Lawrence O.
Hauge (the "Developer") . It will contain 87 rental units, all
of which will be reserved for elderly persons. The Project
will be located on 3.317 acres of land at the northwest corner
of the intersection of 60th Street North (Highway 36 Frontage
Road) and Oxboro Avenue North. The building will have three-
floors of units and one level of underground parking for a
total of 77,502 sq. ft.
At least twenty percent of the dwelling units in the
Project will be required to be rented to persons and families
with adjusted gross incomes not in excess of 80% of the median
family income as estimated by the United States Department of
Housing and Urban Development for the Wo.odbury; area, thus
meeting a requirement similar to that of Minnesota Statutes,
Section 462C.05, Subd. 2. The Project is qualified under
Minnesota Statutes, Section 462C.05, Subd. 4, as a development
designed for rental primarily to elderly or handicapped
persons. Of these three potential sources of statutory
authorization for financing the Project, the City will enforce
fully the last, Section 462C.05, Subd.4.
The method of financing proposed is the issuance of bonds
in the aggregate principal amount of $3,700,000. The bonds
will be publicly offered with the aid of an underwriter and a
trustee will hold funds and accounts for the construction of
the project and payment of the bonds. A reserve of $150,000
will be funded with proceeds of the bonds, and it is expected
that $3,540,000 (approximately 95.68%) of the bond and loan
proceeds will be expended on the Project. One mortgage loan in
the estimated amount of $3,700,000 will be made in this
program, and bonds in the estimated amount of $3,700,000 will
be required to finance such loan. It is expected that the
bonds will be sold in 1985. The bonds will be issued by the
4
City after agreement is reached on their terms and the terms of
related agreements. A trustee will generally maintain the
bonded program, paying bondholders and enforcing such agree-
ments. The trustee will distribute bond proceeds as provided
in such agreements .
The requirements of the City will be imposed in various
contracts and agreements with the Developer and others, and
such requirements will be enforced by the City and the trustee
in accordance with the agreements, and generally the City and
its departments will monitor the project for compliance. In
addition, the City will require that at least annually the
Developer or owner of the Project certify to the City that low
income persons occupy the 20% of units set aside for them.
Agreements with the Developer will require that units be rented
to elderly and handicapped persons without impermissible
discrimination, and that contractors constructing the Project
provide equal opportunity for employment without impermissable
discrimination.
The costs to the City of the program, including all
administrative costs, generally will be paid or reimbursed by
the Developer. This program helps to meet the needs of low and
moderate income families in the City, which needs include
decent housing at affordable prices and medical assistance on
an emergency basis. Most of the elderly persons expected to
occupy the Project have low or moderate incomes, and in
addition 20% of the units will be set aside and occupied only
by low income persons as noted above. Changes in the program
as described herein may be approved by the City.
2
INOMOMMI
EXHIBIT A
PROJECT PROGRAM
PROGRAM
The Project is to be owned and operated by Lawrence O.
Hauge (the "Developer") . It will contain 87 rental unit ,
percent ( %) of which will be reserved for elderly persons.
The Project will be located on 3.317 acres of l
nd ath (the noray north-
west corner of the intersection of 60th
Street 36 Frontage Road) and Oxboro Avenue North. The building will
have a 22,279 square
each of the four levels will be approximately
feet, for a total of 89, 116.
[The Project is to be located
StatutesVdevelopment
Chapter 472A,land
established pursuant to Minnesota
hence is within a targeted area under MinnesotaStatutes,
ofes,
Section 462C.05, Subd. 3.] At least twenty percent
the
dwelling units in the Project will beq fired to bf re rented
n to
persons and families with adjusted grossthe Uniteds
of 80% of the median family income as estimated by
States Department of Housing and Urban Development for the
Woodbury area, thus meeting a requirement similar to that of
Minnesota Statutes, Section 462C.05, Subd. 2 . The Project is
qualified under Minnesota Statutes, Section
i462 . 5, Subd.
4,
as a development designed for rental primarily
tosouelds elderly
handicapped persons. Of these three potentialope Project, the Cityf
sill enforcetfullyathenfor last,fSectiong462C.05, JSubd.4.
will enforce
The method of financing proposed is the issuance of bonds
in the aggregate principal amount of $3,7 ,0un0. Thtee bonsr and a
will be publicly offered with the aidan
trustee will hold funds and accounts for the construction of
the project and payment of the bonds . A reserve of $150,000d
will be funded with proceeds of the bondj,oand tbis expand loan
ecte
that $ (approximately loan in
proceeds will be expended on the Project . One mortgageis
the estimated amount of $3, 700, 000 will be made in th000 will
program, and bonds in the es t�It�snt of expected700that the
be required to finance such loan
bonds will be sold in 1985. The bonds will be issued by the
City after agreement is reached on their terms and the terms of
related agreements. A trustee will generally maintain the
bonded program, paying bondholders and enforcing such agree-
ments. The trustee will distribute bond proceeds as provided
in such agreements.
The requirements of the City will be imposed in various
contracts and agreements with the Developer and others, and
such requirements will be enforced by the City and the trustee
in accordance with the agreements, and generally the City and
its departments will monitor the project for compliance. In
addition, the City will require that at least annually the
Developer or owner of the Project certify to the City that low
income persons occupy the 20% of units set aside for them.
Agreements with the Developer will require that units be rented
to elderly and handicapped persons without impermissible
discrimination, and that contractors constructing the Project
provide equal opportunity for employment without impermissable
discrimination.
The costs to the City of the program, including all
administrative costs, generally will be paid or reimbursed by
the Developer. This program helps to meet the needs of low and
moderate income families in the City, which needs include
decent housing at affordable prices and medical assistance on
an emergency basis. Most of the elderly persons expected to
occupy the Project have low or moderate incomes, and in
addition 20% of the units will be set aside and occupied only
by low income persons as noted above. Changes in the program
as described herein may be approved by the City.
2
LAW OFFICES
BRIGGS AND MORGAN
PROFESSIONAL ASSOCIATION
2200 FIRST NATIONAL BANE BUILDING
SAINT PAUL,MINNESOTA 55101
TELEPHONE (612) 291-1215
TELECOPIER (612) 222-4071
INCLUDING THE FORMER FIRM OF
LEVITT, PALMER, BOWEN, ROTMAN & SHARE
September 30 , 1985
VIA MESSENGER
Mr. Jerome Hertel
Juran & Moody
400 North Robert Street
Suite 800
Saint Paul, Minnesota 55101
Re: City of Oak Park Heights Proposed Elderly
Multi-Family Rental Housing Development
(Lawrence 0. Hauge Project)
Dear Jerry:
Enclosed for your review and comment in connection
with the above transaction are drafts of the following
documents:
1. Notice of Public Hearing
2. Preliminary Resolution
3 . Program Description
In preparing the enclosed documents I reviewed
the latest statutory changes to 462C and the new MHFA Appli-
cation requirements and discovered that while I had enough
information to draft the Notice of Public Hearing I did
not have enough information to fully complete the preliminary
resolution and program description. There is now a require-
ment that prior to publication of the Notice of Public
Hearing the program documents be submitted to the Metropolitan
Council for their approval . This can be done at the same
time that the Notice is sent to the newspaper for publication
REG
1195
00l
2400 IDS CENTER
2200 FIRST NATIONAL BANK BUILDING MINNEAPOLIS MINNESOTA 66402
SAINT PAUL,MINNESOTA 66101 fA42)309-0861
(612)2e1-1216
BRIGGS AND MORGAN
Mr. Jerome Hertel
September 30, 1985
Page Two
but the program documents must be in more complete form
than would be required just to publish Notice of Public
Hearing.
By copy of this letter I am circulating the drafts
of documents to the other parties to this transaction to
get their comments . I will contact you on Tuesday morning
to get final comments . As you can see from the way the
documents are drafted I have set up the hearing for the
second meeting in October. It occurs to me that if the
City is planning another special meeting between the first
and second meetings in October that this matter might be
considered then. In any event the Notice of Public Hearing
must be published at least 15 days prior to the hearing
in a newspaper of general circulation in the City. Mark
Vierling has informed me that the Stillwater Gazette is
a daily newspaper of general circulation and is the legal
newspaper of the City.
Please call me with your questions or comments.
Very truly yours,
—r-rudtf. G . �Q L
i,
Trudy J. Halla
TJ :dt
en
cc: Distribution List
DISTRIBUTION LIST
CITY OF OAK PARK HEIGHTS
PROPOSED ELDERLY MULTI-FAMILY RENTAL HOUSING DEVELOPMENT
(LAWRENCE 0. HAUGE PROJECT)
Lawrence 0. Hauge
300 Prairie Center Drive
Eden Prairie, MN 55344
941-7100
Herbert Lefler. Esq.
LeFevere, Lefler, Kennedy,
O'Brien & Drawz
2200 First Bank Place West
Minneapolis, MN 55402
333-0543
Jerome P. Hertel
Juran & Moody
400 North Robert Street
Suite 800
Saint Paul, MN 55101
224-1500
LaVonne Wilson
City Administrator-Treasurer
City of Oak Park Heights
14168 57th Street North
Oak Park Heights, MN 55082
439-4439
Mark Vierling, Esq.
Eckberg, Lammers & Briggs
126 South Second Street
Stillwater, MN 55082
RSB NOTE10 jjatjjjjjte
FROM
City
of Oak Park Heights
• h the attached on or before Frida , .October lay
Please ubl'�s
1985•
Thank ou•
SIGNET-
TOPS NO g.A
UTMO
1111111111.111111111.1....
4
571B
NOTICE OF PUBLIC HEARING ON
PROPOSAL FOR A PROGRAM TO FINANCE A
MULTI-FAMILY RENTAL HOUSING DEVELOPMENT
(PROJECT)
To whom it may concern:
given that the City Council of the
Notice is hereby Hall
City of Oak Park Heights, Minnesota will meet 7 the CitloHa
Minnesota at -
ck
in the City of Oak Park Heights, of
p.m. on November 4_, 1985, to consider the proposal undertake a
Hauge (the "Developer" ) that the City
Lawrence O. ent hereinafter described,
program to finance the development plan under Minnesota Statutes,
Chapter 4622C,, by
C6Cth1housing
the issuance revenue obligations.
The Development
The development consists of the acquisition
and construction and equipping of a 77,502
(approximately) elderly
square foot
multi-family rental housing development of
approximately 87 residential rental units
located on the Northwest corner oe 3inter-
section of 60th Street North (Highway
Frontage Road) and Oxboro Avenue North in Oak
Park Heights, Minnesota. The development
will be designed for occupancy primarily by
elderly persons . Not lss than 20f theby
units in the developmentoccupied
persons of low income, a category r
defined under federal law to mean persons presently
families whose income is 80% or lessof
the
median income (adjusted for family
or
the Oak Park Heights area as determined by
the United States Department of Housing and
Urban Development. Total approximate
development costs of the Project will be
approximately $3,766,115. The
theveloplentr
ent
will be owned and operated by
entity to be formed
or other
or a partnership
in which the Developer wille a general
partner. Non-housing components
may be included within the development but
substantially all (90%) of the development
will consist of rental housing and
functionally related facilities.
The estimated principal amount of bonds or other obli-
gations to be issued to finance the Development will be
approximately $3,700,000.
Said bonds or other obligations, as and when issued,
will not constitute a charge, lien or encumbrance upon any
property of the City except the Development and the revenues to
be derived from the Development. Such bonds or obligations
will not be a charge against the City's general credit or
taxing powers but are payable from sums to be paid by the owner
of the Development pursuant to revenue agreements.
Further information concerning
obtainedDevelopment,
the City
the financing programs therefor, may be
Administrator-Treasurer, City Hall, 14168-57th Street North.
At the time and place fixed for the public hearing,
the City Council will give all persons who appear at the
hearing an opportunity to express their views with respect to
the proposal. Written comments will be considered if submitted
on or prior to the date of the hearing.
Dated this /` day of October, 1985.
(BY ORDER OF THE CITY COUNCIL OF
THE CITY OF OAK PARK HEIGHTS)
City Administrator-Treasurer
LAW OFFICES ANDREA M.BOND FHIDaH1C[P ANGST
MADRH. RosserER L.Lu
MArr
OEHLERr J.LsvlrT JOHNTHOMAS A.FLA SON BRIGGS AND MORGAN Roesrr H.1151rs Axx HUxraooa
COLErM.BDAVID A.CARSON
Roamer M.MONDx DAVID J..Cote.SPENCER Jomv BULIMIA Taman R.GASraAz
Fono
Less*DAMMOND DANIELOUGLJ..Saoa PROFESSIONAL ASSOCIATION Jesse G.RAT EuzesrU J.ANDREWS
RoBERTD J.KammSMARE MICHAELCHH JER RICHARD R.MAN= GREGO/T J.Brooms
BUREHr G.ANSON . AVIES TRUDT J.HALIJ Giu�-B.Rouses
Nest L MppDt TIaH!L.Stns
N.J. E.SwAJa. J.Perry DATc D Mew E.Wows P.m LSu GALES
M.J. C.FO BE J.HII B.V MDE NORvirr 2200 FIRST NATIONAL BANE BUILDING
JOVID J.
CNEELDa RRIC B. G. DI Nome.Jv. RoBYN L HAxesx MART M.DTasarS
WILLIAM J.Jorxts KEVIN A.Rano
JOHNMai
McNDstT A onsw G.
MARE wHOAM J R.SAVAOD MARIAN M.ano
JERRE F.
SHmaoae.JD. JAMES G.Haceaa SAINT PAUL, MINNESOTA bb101 HASO G.BK.S V MARDI D..Dogma,TEREN F.N.DoY JAROM K.NELSON BsIaDun RrO1EUSLE Mme.'s'.A ason nl
RICHARD H.Dolts STEVE A.
BGasRAND MAC! TEMEIRrssa PAULMICH S.EL J. cE.
RI
NA.. H.HTts JOEL oraxo TELEPHONE (612) 291-1218 M RT E. CHAPENAnt
JoHNsiN
D.DDORET Jost H.GarrasMAx MICR IL .Ssmai
RONALDEtERK.
SDHLxsml ALAN H.F.SHAWA Joss H. I DSTROMox
Saran H.SHao Jamar F. TELECOPIER 1612) 222-4071
RONALD L.ORCHA D . Lerma SALLY A.S0DDDIN Or a0UxsEL
DAVID G.GREENING DAVID G.McDoNAID J.Nam.Morrox
RONALD E.ORCHARDBacon W.Moon RICrAHD E.EELS
STEPHENSOHN Morse DANIEL B.
GOUGHLAN INCLUDING THE FORMER FIRM OF Roan R E.EEL
AVE0N GORDON DOSED SAND ERIC Nnssw Moamar
ER
ATaox L.GoCDoJoalra P.NoAcs AxneDw H.Hnrraxose Hamm IL
N.GYM
Joan R.HaxancD CHARLES R.HATxoC LEVITY, PALMER. BOWEN, ROTbiAN & SHARE A.Lummox Davis
GLARsrcE G.Faun
Jolla,M.SUU•ITAJ
October 17 , 1985
VIA MESSENGER
Mr. Mark Vierling
Eckberg, Lammers & Briggs
126 South Second St.
Stillwater, MN 55082
Re: City of Oak Park Heights Proposed Elderly
Multi-Family Rental Housing Development
(Lawrence O. Hauge Project)
Dear Mark:
Pursuant to our phone conversation enclosed
in connection with the above transaction are copies of a
notice of public hearing and the preliminary resolution
including as Exhibit A a description of the housing program.
i understand from the developer that the City has agreed
to hear this matter at its meeting on November 4 . It was
unclear whether a notice of public hearing had been published.
If a notice has not been published the enclosed notice should
be published in the next edition of the newspaper so that
the fifteen day requirement will be met.
I am sending a copy of the enclosed documents
to the Metropolitan
Council
anyfor
questionsconsideration
commentsas pleaserequired
by state law. If you
call me.
Vetruly yours,
/./4444(•Vaie
Trudy J. Halla �`vtQ
TJH/ks tG
Enc. �9a�
cc: Mr. Lawrence 0. Hauge OG� �
Mr. David Kennedy
Mr. Jerome P. Hertel
Ms . LaVonne Wilson 2noolnsc$xsas
2200 PIEST NATIONAL BANE BUILD1NO MINNEAPOLIS,200 l MINNESOTA 860.08
SAINT PAUL,MINNESOTA 65101 (012)J.7INNES
(012)291-1216
ti
571B
RESOLUTION RECITING A PROPOSAL FOR A
FINANCING PROGRAM FOR A MULTI-FAMILY RENTAL
HOUSING DEVELOPMENT, GIVING PRELIMINARY
APPROVAL TO THE PROJECT AND THE PROGRAM
PURSUANT TO MINNESOTA STATUTES, CHAPTER 462C,
AUTHORIZING THE ISSUANCE OF HOUSING REVENUE BONDS
AND AUTHORIZING THE SUBMISSION OF
FINANCING PROGRAM FOR APPROVAL TO THE
MINNESOTA HOUSING FINANCE AGENCY AND
AUTHORIZING THE PREPARATION OF NECESSARY
DOCUMENTS AND MATERIALS IN CONNECTION
WITH THE SAID PROJECT AND PROGRAM
(LAWRENCE O. HAUGE PROJECT)
WHEREAS,
(a) Minnesota Statutes, Chapter 462C
(the "Act) confers upon cities, or housing
and redevelopment authorities or port
authorities authorized by ordinance to
exercise on behalf of a city the powers
conferred by the Act, the power to issue
revenue bonds to finance a program for the
purposes of planning, administering, making
or purchasing loans with respect to one or
more multi-family housing developments within
the boundaries of the city;
(b) The City has received from
Lawrence O. Hauge (the "Developer") a
proposal that the City undertake a program to
finance a Project hereinafter described,
through the issuance of revenue bonds or
obligations (in one or more series) (the
"Bonds" ) pursuant to the Act;
(c) The City desires to: facilitate
ilitatthin ehe
the development of rental housing
community; encourage the
eveopment of
affordable housing opportunities
residents of the City; encourage the
development of housing facilities designed
for occupancy by persons of low or moderate
income; encourage the development of housing
facilities designed for occupancy primarily
by elderly persons; and encourage the
development of blighted or underutilized land
and structures within the boundaries of the
City; and the Project will assist the City in
achieving these objectives.
(d) The Developer is currently engaged
in the business of real estate development.
The Project to be financed by the Bonds is
the acquisition, construction and equi
ping
of a 77,502 square foot (approximately)
elderly multi-family rental housing
development of approximately 87 rental units
located at the northwest corner of the
intersection of 60th Street North (Highway 36
Frontage Road) and Oxboro Avenue North in the
City, and consists of the acquisition of land
and the construction of buildings thereon
which will result in the provision of
additional rental housing opportunities to
persons within the community;
(e) The City has been advised by
representatives of the Developer that con-
ventional, commercial financing to pay the
capital costs of the Project is available
only on a limited basis and at such high
costs of borrowing that the economic
feasibility of operating the project would be
significantly reduced, but the Developer has
also advised the City that with the aid of
municipal financing, and resulting low
borrowing costs, the Project is economically
more feasible;
2
(f) A public hearing on the Project and
the financing program therefor was held on
October 28, 1985, after notice was published,
all as required by Minnesota Statutes,
Section 462C.05, subd. 5, at which public
hearing all those appearing at said hearing
who desired to speak were heard and written
comments, if any, were considered;
(g) No public official of the City has
either a direct or indirect financial
interest in the Project nor will any public
official either directly or indirectly
benefit financially from the Project;
NOW THEREFORE, BE IT RESOLVED by the City Council of
the City of Oak Park Heights, Minnesota, as follows:
1. The City hereby gives preliminary approval to the
proposal of the Developer that the City undertake the Project,
described above, and the program of financing therefor
described on Exhibit A hereto, pursuant to Minnesota Statutes,
Chapter 462C, consisting of the acquisition, construction and
equipping of multi-family rental housing facilities within the
City pursuant to the Developer's specifications and to a
revenue agreement between the City and the Developer on such
terms and conditions with provisions for revision from time to
time as necessary, so as to produce income and revenues
sufficient to pay, when due, the principal and interest on the
Bonds in a total principal amount not to exceed $3,700,000 to
be issued pursuant to the Act to finarche acquisiion,agreement
construction and equippingProject;
may also provide for the entire interest of the Developer
therein to be mortgaged to the purchasers of the Bonds, or a
trustee for the holder(s) of the Bonds; and the City, hereby
undertakes preliminarily to issue its bonds in accordance with
such terms and conditions;
2. At the option of the City, the financing may be
structured so as to take advantage of whatever means are
available and are permitted by law to enhance the security for,
n;sprnotB
3. On the basis of information available to the City
it appears, and the City hereby finds, that the Project consti-
tutes a multi-family housing development within the meaning of
3
subdivision 5 of Section 462C.02 of the Act; that the Project
will be occupied by elderly persons of low or moderate income;
the availability of the financing under the Act and the
willingness of the City to furnish such financing will be a
substantial inducement to the Developer to undertake the
Project, and that the effect of the Project, if undertaken,
will be to encourage the provision of additional multi-family
rental housing opportunities to residents of the City, to
assist in the redevelopment of blighted and marginal land and
to promote more intensive development and use of land within
the City;
4. The Project, and the program to finance the
Project by the issuance of revenue bonds, is hereby given
preliminary approval by the City subject to the approval of the
financing program by the Minnesota Housing Finance Agency
( "MHFA" ) and the Metropolitan Council and subject to final
approval by the City, the Developer and the purchasers of the
Bonds as to ultimate details of the financing of the project;
5. In accordance with subdivision 5 of Section
462C.05, Minnesota Statutes, the Mayor is hereby authorized and
directed to submit the program for financing the project to
MHFA, requesting its approval, and other officers, and
employees and agents of the City are hereby authorized to
provide MHFA with preliminary information as it may require;
6. The Developer has agreed and it is hereby
determined that any and all costs incurred by the City in
connection with the financing of the Project whether or not the
project is carried to completion and whether or not approved by
MHFA will be paid by the Developer;
7. Briggs and Morgan, Professional Association,
acting as bond counsel, and Juran and Moody, Inc. , investment
bankers, are authorized to assist in the preparation and review
of necessary documents relating to the Project and the
financing program therefor, to consult with the City Attorney,
Developer and purchasers of the Bonds (or trustee for the pur-
chasers of the Bonds) as to the maturities, interest rates and
other terms and provisions of the Bonds and as to the covenants
and other provisions of the necessary documents and submit such
documents to the City for final approval;
4
8. Nothing in this Resolution or the documents
prepared pursuant hereto shall authorize the expenditure of any
municipal funds on the Project other than the revenues derived
from the Project or otherwise granted to the City for this
purpose. The Bonds shall not consitute a charge, lien or encum-
brance, legal or equitable, upon any property or funds of the
City except the revenue and proceeds pledged to the payment
thereof, nor shall the City be subject to any
liability thereon. The holder of the Bonds shall never have
the right to compel any exercise of the taxing power of the
City to pay the outstanding principal on the Bonds or the
interest thereon, or to enforce payment thereon against any
property of the City. The Bonds shall recite in substance that
Bonds, including the interest thereon, are payable solely from
the revenue and proceeds pledged to the payment thereof. The
Bonds shall not constitute a debt of the City within the
meaning of any constitutional or statutory limitation.
9. In anticipation of the approval by MHFA and the
issuance of the Bonds to finance all or a portion of the
Project, and in order that completion of the project will not
be unduly delayed when approved, the Developer is hereby
authorized to make such expenditures and advances toward
payment of that portion of the costs of the Project to be
financed from the proceeds of the Bonds, as the Developer
considers necessary, including the use of interim, short-term
financing, subject to reimbursement from the proceeds of the
Bonds if any when delivered but otherwise without liability on
the part of the City.
Adopted by the City Council of the City of Oak Park
Heights, this 4th day of November, 1985.
5
MINNESOTA
411,416 HOUSING
4/1* FINANCE
AGENCY
• vs�pEc 198
December 19, 1985 RECO
Ms. LaVonne Wilson
City of Oak Park Heights
14168 North 57th Street
Oak Park Heights, Minnesota 55082
RE: LAWRENCE 0. HAUGE PROJECT
Dear Ms. Wilson:
On December 19, 1985, the members of the Board of the Minnesota Housing
Finance Agency adopted the enclosed resolution.
If you have any questions concerning this matter, please call me at
612-296-8208.
Sincerely,
714ea
Monte Aaker
MA/ln
Enclosure
cc: Trudy Halla
Ann S. Helgeson
400 Sibley Street, Suite 300, St. Paul, Minnesota 55101 (612) 296-7608
Equal Opportunity Housing and Equal Opportunity Employment
MINNESOTA HOUSING FINANCE AGENCY
400 Sibley Street
St. Paul, Minnesota 55101
RESOLUTION NO. MHFA 85-71
RESOLUTION REGARDING THE STATUS OF
CERTAIN HOUSING PROGRAMS
WHEREAS, certain cities have submitted housing programs to
the Minnesota Housing Finance Agency pursuant to Minn.
Stat. S 462C.04, Subd. . 2, which cities and programs are identified
below; and
WHEREAS, the said cities wish to be advised of the status of
such housing programs prior to the end of the calendar year 1985.
NOW, THEREFORE, BE IT RESOLVED THAT:
1. The following housing programs which have been submitted
to the Minnesota Housing Finance Agency by the cities named are in
complete form as of the 13th day of December, 1985:
Those housing programs listed in Exhibit A, attached
hereto and incorporated herein by reference as if set
forth in full at this point.
2. The Minnesota Housing Finance Agency has not, prior to or
at the board meeting held this 19th day of December, 1985, rejected
the housing programs listed in paragraph 1, above.
3. The Minnesota Housing Finance Agency does not intend to
call or hold another or special board meeting for the purpose of
rejecting the housing programs listed in paragraph 1, above.
Adopted this 19th day of December, 1985.
ti
Chairman Member
EXHIBIT A
City Project
Lakeville Southfork Village Limited Partnership Project
Burnsville Walden Limited Partnership Project
Dakota County Housing Haven Villa Project
and Redevelopment
Authority
Mankato Hanover House Project
St. Louis Park Monterey Place Apartment Project
Eden Prairie Prairie Village Apartments, Phases I and II
Washington County Housing HD Investments Apartment Project
and Redevelopment
Authority--City of
Woodbury
Washington County Housing CSM's Apartment Project
and Redevelopment
Authority--City of
Woodbury
Sartell H.H.H. Inc. Project
White Bear Lake GSM's Apartment Project
St. Paul Shepard Park Area Development
Hopkins Hopkins Block Partners Project
New Hope Broadway LaNel Elderly Apartment Homes
Minnetonka Ridge Pointe Senior Housing Project Phases II and III
and Prairie Village Apartments Project
Minnetonka Tax Increment Multifamily Housing Revenue Bonds
Minnetonka Brier Creek Apartments (PHD Properties Project)
Brooklyn Park North Ridge Properties of Brooklyn Park
St. Anthony Kenzie in the Village
Coon Rapids Margaret Place Apartments Project
- 2 -
City Project
Burnsville Berkshire of Burnsville Project
Red Wing Haven Villa
Bloomington Hampshire Hills I and II
Maplewood Hazel Ridge Elderly Project
Eden Prairie Preserve Place Apartment Project
Eden Prairie Eden Pointe Apartment Project
Washington County Housing GDS and Associates Project
and Redevelopment
Authority--City of
Stillwater
Eden Prairie HD Investments Project
Minnetonka Southampton Apartment Project
Washington County Housing The Seasons
and Redevelopment
Authority--City of
Woodbury
Burnsville CSM Corporation Project
Eden Prairie CSM Corporation Project
Minnetonka Williston Road Limited Partnership Project
Burnsville Greenhaven Village
Burnsville City Square Apartment
Minnetonka Minnetonka Hills Apartment Project
St. Paul Hill Creek Apartments Project
Washington County Housing Orleans Homes Number One
and Redevelopment
Authority--City of
Stillwater
Dakota County Housing Westwood Ridge Apartment Project
and Redevelopment
Authority--West St. Paul
Washington County Housing Swager Brothers Inc. Project ($1.2 million)
and Redevelopment
Authority--City of Oak
Park Heights
• ` - 3 -
City Project
Washington County Housing Swager Brothers Inc. Project ($2.8 million)
and Redevelopment
Authority--City of Oak
Park Heights
Minneapolis Laurel Village I
Minneapolis Laurel Village II
Minneapolis Laurel Village III
Minneapolis Laurel Village IV
Minneapolis Laurel Village V
Minneapolis Laurel Village Tower A
Minneapolis Laurel Village Tower C
Minneapolis Laurel Village Renovation
Minneapolis Laurel Village Swinford
Oak Park Heights Lawrence 0. Hauge Project
Chaska Water's Edge of Jonathan Project
St. Paul Summit Place Development Project
Robbinsdale Robin Center South Elderly Housing Project
Little Canada Sherman Rutzick and Associates Project
St. Paul Sibley and Jackson Towers Project
Bloomington Crow/Bloomington Apartments Project
Fridley Fridley Plaza Apartments Project
St. Paul Fort Road West Project
Dakota County Housing Southview Gables Project
and Redevelopment
Authority--Inver Grove
Heights
Burnsville Atrium Apartments Housing Project
St. Louis Park Oakmont Place Apartments
Eagan Thomas Lake Place
- 4 -
,
City Project
St. Louis Park Walker Place Apartment Project
Minnetonka Cedar Hills East Apartments
Minneapolis Nicollet Park Project
New Brighton Park Place Project
Bloomington Gables Apartment Housing Project
Crystal Becker Park Elderly
LAW OFFICES
:BRIG(* S AND MORGAN
PROFESSIONAL ASSOCIATION
2200 FIRST NATIONAL BANK BUILDING
SAINT PAUL,MINNESOTA 55101
TELEPHONE (6121 291-1215
TELECOPIER (612) 222-4071
INCLUDING THE FORMER FIRM OF
LEVITT, PALMER, BOWEN, ROTMAN & SHARE
December 23 , 1985
VIA MESSENGER
Mr. Lawrence O. Hauge
Mr. David J. Kennedy
Mr. Jerome P. Hertel
Ms. LaVonne Wilson
Mr. Mark Vierling
Mr. Roger D. Gordon
Ms. Marcia Hanson
Mr. James Ehrenberg
Ms. Andrea M. Bond
Re: City of Oak Park Heights - $3,400,000 .
Multifamily Housing Development Revenue
Bonds, Series 1985 (Oak Ridge Place
Project)
Ladies and Gentlemen:
Enclosed for your review and comment in
connection with the above transaction are marked second
drafts of the following documents:
1. Loan Agreement;
2 . Indenture of Trust;
3 . Regulatory Agreement;
4 . Final Resolution.
Also enclosed are first drafts of the closing certificates
and opinions. Please note that the Borrower' s certificate
and Borrower' s attorney opinion are exhibits to the
Regulatory Agreement.
2200 FIRST NATIONAL DANS BUILDING 2400 IDS CENTER
SAINT PAUL,MINNESOTA 55101 MINNEAPOLIS,MINNESOTA 55402
(612)291-1215 (918)009-0661
BRIGGS AND MORGAN
December 23 , 1985
Page Two
We have received approval from the Minnesota
Housing Finance Agency. The First Bank Saint Paul
"parking" requirements still have not been entirely
incorporated into the documents. Please call me as
soon as possible with your questions or comments.
Very truly yours,
r"."
A46014:1)4464---
Trudy
Trudy J. 'Halla
TJH/ks
Enc.
• / l 1
/9,eta..ddz--
LOAN AGREEMENT 1/444.1,
BETWEEN
170-71
p fs.
CITY OF OAK PARK HEIE 04
E( l rK u
AND
OAK RIDGE PLACE LIMITED PARTNERSHIP,
A MINNESOTA LIMITED PARTNERSHIP
$3,400,000
MULTI-FAMILY HOUSING DEVELOPMENT REVENUE
BONDS, SERIES 1985
(OAK RIDGE PLACE PROJECT)
DATED: DECEMBER 1, 1985
The interest of the City of Oak Park Heights, Minnesota, in this Loan
Agreement has been assigned to First Trust Company, Inc., in St. Paul,
Minnesota.
This instrument was drafted by:
Briggs and Morgan, P.A.
2200 First National Bank Building
Saint Paul, Minnesota 55101
documents and transactions related hereto or thereto or contemplated hereby
or thereby, including, without limitation, the exercise by the Trustee of any
of its rights or remedies pursuant hereto or thereto.
SECTION 1.0.11.. Survivorship of Obligations. All obligations of the Company
under Sections 4.03(f), 7.04, 7.07, 7.08 and IQ.09 shall survive payment of
the Bonds or earlier termination of this Agreement under Section 7.07 or
8.04.
IN WITNESS WHEREOF, the Issuer and the Company have caused this
Agreement to be executed by their duly authorized officers.
CITY OF OAK PARK HEIGHTS
Its Mayor
fr
(SEAL) � �) ��.�-A.a,r„�
(-1tsCity Administrator
OAK RIDGE PLACE LIMITED
PARTNERSHIP, a Minnesota Partnership
By
Its General Partner
-38-
DRAFT NO. 1
(12-2n-85)
CITY OF OAK PARK HEIGHTS, MINNESOTA
ISSUER
AND
FIRST TRUST COMPANY, INC.
TRUSTEE
INDENTURE OF TRUST
Dated: December 1, 1985
$3,400,000 MULTI-FAMILY HOUSING DEVELOPMENT
REVENUE BONDS, SERIES 1985
(OAK RIDGE PLACE PROJECT)
This instrument was drafted by:
BRIGGS and MORGAN,
PROFESSIONAL ASSOCIATION
2200 First National Bank Building
Saint Paul, Minnesota 55101
• SECTION 12.09. Determination of Taxability. If any action is commenced
which questions the exemption of interest on the Bonds from federal income
taxation or which might result in a Determination of Taxability and if
requested by the Company or Issuer and if the costs of such contest, as
estimated by the Trustee, are deposited by the Company with the Trustee in
advance, the Trustee hereby covenants that it will contest such action or
Determination of Taxability in accordance with the terms of the Loan
Agreement. All costs of such contest shall be borne by the Company.
IN WITNESS WHEREOF, the Issuer has caused these presents to be signed in
its name on its behalf by its Mayor and City Administrator and has caused its
corporate seal to be hereunto affixed, and to evidence its acceptance of the
trusts hereby created the Trustee has caused these presents to be signed in
its name and behalf by its duly authorized officers, and has caused its official
seal to be hereunto affixed, all as of the 1st day of December, 1985.
CITY OF OAK PARK HEIGHTS,
MINNESOTA
By:
Mayor
By
�-�Cy Administrator
FIRST TRUST COMPANY, INC.
As Trustee
By:
Its:
By:
(Seal) Its
Indenture of Trust dated as of December 1, 1985 by and between the City of
Oak Park Heights, Minnesota, and First Trust Company, Inc.
-72-
UNITED STATES OF AMERICA
STATE OF MINNESOTA
COUNTY OF WASHINGTON
CITY OF OAK PARK HEIGHTS, MINNESOTA O
No. R
MULTI-FAMILY HOUSING DEVELOPMENT REVENUE BOND,
SERIES 1985
(OAK RIDGE PLACE PROJECT)
Mandatory
Nominal Date Purchase
Interest of Original Maturity Date CUSIP
Rate Issue Date
% per annum 12-1-85 12-1-
H KNOW ALL PERSON BY THESE PRESENTS that the City of Oak Park
the County of Washington and State of Minnesota (the "Issuer"),
Heights, uipromises to pay
for value received, r registered assigns, but only from the Multi-
k
Family
Housing Development Revenue Bond Fund
i don and surrender, her Ridge
Project) e
r(the "Bond Fund") and upon prese
principal sum
principal corporate trust office of the Trustee named below, the this Bondlm
is
of DOLLARS on the datepriorset dae forth
above, or,which it shall have been duly
prepayable easd stated below, on a
for redemption, and to pay interest on said principal sum to the Record
called from the Bond Fund, until the
Date Holder hereof, as defined below, solely ec,
paid or discharged, at the interest rate s specified
Prior above
pincipal sum is of twelve 30-day
(calculatedo
hRemaonet the baeis f afin 360-day yearInterest
ins Remarketing Date (as defined in the Indenture y of parva hereinafter
heferred to)
interest shall be payable monthly on the first
r
the
e
g
shall also be payable on the Remarketing Date.1 and
de December 1 rke teach ate,
interest shall be payable semiannually on
Jun"). In all cases interest shall accrue and e
(each an "Interest Payment Date Payment Date to which'interest
has been
name
payableidoprovidedrom thmost recent"Recordrst y the in whoseos named
paid or for. The Date Holder" is the person
this Bond is registered in the Bond Register maintained terse Holder" or "Holder" hereof)
below or its successor in trust (the "Reg of the month
each Interest Payment Date
either (i) at the close of business on the fifteenth (15th) day of this Bond
(whether or not a business day) next preceding
(the "Record Date"), irrespective of any transfer or exchange
Payment Date, or
subsequent to such Record Date
defaultrin payment of Interest
interest due on such
(ii) if the Issuer shall be ininess on a "Special Record
of notice mailed
Interest Payment paymentDate, of such l defaulted sinterest established s by notice Record Date
Date") for the Special
by the Trustee on behalf of the Issuer. Notice receding the Special Record
shall be mailed not less than fifteen (15) days P check or draft
e to the Registered Holder at the closeobusiness
iness on
the
by fifth (5th) day
Date,
preceding the date of mailing. Interest shall
IN WITNESS WHEREOF, tt—; City ..f .,.>>e i•s. a ..,: yr.a s-�•a..w �.ys �..i„
County, Minnesota, by its governLn4 , 4�.,
this Bond to be executed in its name by the manual -►ilr,ar ;sr .a
Of its Mayor and its Administrator and by the manual
signature of a Responsible Agent of the Trustee acting
as authenticating agent, and has caused this Bond to
be sealed with its official seal printed hereon.
Date of Registration:
TRUSTEES CERTIFICATE
OF AUTHENTICATION
This Bond is one of the
Bonds described in the
within mentioned 'Indenture.
First Trust Company, Inc. ,
Trustee
By
Responsible Agent
CITY OF OAK PARK HEIGHTS
BY i,-�� ./, 4„
Mayor
City Administrator
(SEAL)
0
-7-
LI $3,400 ,000 MUIBONDSLYSERII;�Nly85
DEVELOPMENT REVENUE
(Oak Ridge Place Project)
horization to Trustee to Execute Bonds
Aut
Clerk of the City of
ned, Mayor and City of the City transmit
The undersigned,
on behalf mint Revenuertransmit
Heights (the Housing Development City, dated
Oak Park Heig
Bodsherewith ries ,000 Multi-Family
Project)tofthhe City,
December
Seri1es 1985 (Oak Ridge" pursuant 1985,eyou are
(the "Bonds") . of the
Trust securing the Bonds, dated December 1,
b the execution When the
re ut dtBond.Trustee' s Co authenticate fAuthe n�cation on eacha delivered e
Bondsrha Certificatebthey are to the purchase price
paymento
of
have been authenticated, pon 1985•
on the amount of $3,400,000 plus interest o ccrCe tomber the date
of such delivery. Delivery is scheduled
Dated December _, 1985.
CITY OF OAK PARK HEIGHTS
A ifa��f'.r�r
By �_�� 400"
Mayor
J
C ty Clerk
(SEAL)
Draft 12/20/85
584AA
REGULATORY AGREEMENT
By and Among
City of Oak Park Heights
(as Issuer)
and
Oak Ridge Place Limited Partnership,
a Minnesota Limited Partnership
(as Developer)
and
First Trust Company, Inc.
(as Trustee)
Dated as of December 1, 1985
This instrument drafted by:
Briggs and Morgan
Professional Association
St. Paul, Minnesota
expenses and fees and disbursements of
including administrativeatrneyBondCounseland any consultant retained
the Issuer' s attorney,
in connection herewith, all of which expenses the Developer
;�ylCG� 0.0 rale
O It is further agreed that no covenant or agreement
contained herein shall be deemed to be the covenanteor agent,
agreement of any member of the Issuer, or any
offic ,employee or representative of the Issuer, or the Trutee, shnll
and none of such persons
his or her individual capacity, or accountability by
be subject to any personal liability virtue of any
reasonoof the "statuteoorhrulefofwhether
or by the enforcement of
constitution,
any assessment or penalty, or otherwise.
the Issuer, the Trustee and the
Developer have caused this Agreement WITNESS WHEREOF, the
to be signed, sealed and
attested on their behalf by duly authorized representatives,.
all as of the date first written hereinabove.
CITY OF OAK PARK HEIGHTS
By
, I.
�,i4 4
is •aye
(SEAL) By
-1/4111-111=
Its Administrator
•
25
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i
GENERAL, SIGNATURE AND
r STATE OF MINNESOTA NON-LITIGATION CERTIFICATE
CITY OF OAKCOUNTY OF ASHINGTON )PARK HEIGHTS) ss
We, the undersigned, being the duly quali'tied and
ctin Mayor and Clerk of the City of in said County and State,
a 9
do hereby certify as follows:
1. The following are all of the officers of the City
and members of the City Council:
Office
Name
Mayor
Frank Sommerfeldt Cleric
memeer
Joseph J. Carufel Councilmember
Jack R. Doerr Councilmember
Barbara O'Neal Councilmember
Barry Torgerson 1 were
2. Members of the Council listed in paragraph
the duly elected, qualified and acting members at the time the
resolution authorizing issuance of $3,400,000 Multi-Family
sin Development Revenue Bonds, Series 1985 (Oak Ridge Place
Hou 9
was ado ted at a meeting of the City
Project) (the "Bonds" ) , P
" er 23, 1985 at which meeting a
Council duly held on December
1rum was present and no other person participated in the
quo
vote.
3. The adoption of the resolution referred to in
h 2 and the execution and delivery of any agreements
paragraph P
contemplated thereby will not violate any existing law relating
c P
4
• 6. There is on the date of this certificate no
litigation threatened or pending questioning the organization
or boundaries of the City or the right of any of us to our
respective offices, or in any manner questioning our right and
power to execute and deliver the Bonds, the Loan Agreement, the
Regulatory Agreement, the Bond Purchase Agreement and the
Indenture relating thereto, or otherwise questioning the
validity of the Bonds, the Loan Agreement, the Bond Purchase
Agreement and the Indenture or the validity of the pledge of
the revenues appropriated for the payment of the principal of
and interest on the Bonds.
WITNESS our hands and the seal of said City this
day of December, 1985.
City of Oak Park Heights
21-tffro-kA .Lvv7a4"
Mayor
City Clerk
(SEAL)
0
1111111111111111111111111111111111111111.1111.1...m.-
NONARBITRAGE CERTIFICATE
ned are the duly qualified and acting
The undersig hts, Minnesota (the
Mayor and Clerk of the City
of Oak Park Heig
„ ar ed, either alone or with others, with
the
"City ) ch g - 400,000
of issuing and delivering $3,
responsibility Series 1985 (Oak Ridge
Multi-Family Development Revenue Bonds,
Place Project) , dated December 1, 1985 (the
"Bonds") , of the
loaned by the City
City. The proceeds of the Bonds are being esota Limited
a Minno Oak Ridge Place Limited Partnership, real estate and
(the "Company") to acquire certain
Partnership thereon an elderly
acquire, construct, install and equip
multi-family "project")
pursuant
housing development (collectively the
to a Loan Agreement dated as of December 1, 1985 (the
The Bonds
"Loan Agreement") between the Company and the City.
in secured by an Indenture of Trust (tne
are initially be g
the First Trust Company,
"Indenture") , between the City and Inc. dated
int Paul, Minnesota (the "Trustee )
the "Regulatory
er 1,in Saint 1985, a Regulatory Agreement
Decem, bthe City and the Company'
Agreement") executed. by the trustee,
and to the best of our knowledge and belief, there
are no facts, estimates or circumstances other
than those mentioned above that would materially
change the conclusion that it is not expected that
the proceeds of the Bonds will be used in a manner
that would cause the Bonds to be arbitrage bonds
under Section 103(c) of the Code and the
Regulations. The City has not been notified of
any listing of it by the Internal Revenue Servide
as an issuer that may not certify its bonds.
IN WITNESS WHEREOF, the undersigned have hereunto set
their signatures and the official seal of said City this
day of December, 1985.
CITY OF OAK PARK HEIGHTS
24.141 e . 1014-14A-1,1-1444—
Mayor
lerk
(SEAL)
•
0
IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII
114,
Q I Information Return for Private Activity Bond IssuesOMBMB .1545-0720
(Rev.Decer, er. 84) ExpiresNoNO 12/31/87
Form v O Under Sections 103(1)and 103A
Department or. easury Check box if Amended ►
Internal Revenue Service 2 Issuer's employer Returnentuinumber
pati Reportin: Authorit
1 Issuers name Heights ht S 4 Issue number
City of Oak Park g
3 Mil strl?t 57th Street North Pas wte°t'ssue 1985
5 City or town Park
and ZIP cope Heights , MN 55082 December
Oak rk Face Amount
Part ti 7 •e of Issue(Check box(es)that a• •1
Bonds other than Industrial Development Bonds(IDBS):
7 ❑ Student loan bond • • . . . . of State certification) Check box if you elect .trebate
8 ❑ Qualified mortgage bond: (attachl❑coPY .
arbitrage profits to the U.S. ►
9 0 Qualified veterans'mortgage bond . • : • • • . • . • • • • •' 1///,10 0 Private exempt entity bond
Industrial Development Bonds: • • ///
ii 0 Industrial park bond. •
12 0 Small issue IDB:Check box if$10 million small issue election I.
13 Exempt Activity Bond(check type(s)below):
a C; Residential rental projects(section 103(b)(4)(A)) a
•
b 0 Sports facilities(section 103(b)(4)(B))
4 C Check box if exempt from volume limitations P.
❑ Convention facilities(section 103(b)( )( ))�
4 D lo.d ❑ Airports,docks,etc.,(section 103(b)( )( ))�Check box if exempt from volume limitations
e 0 Sewage or waste disposal facilities(sectic:.103(b)(4)(E))
f 0 Pollution control facilities(section 103(b)(4)(F)) • . ,
g 0 Water furnishing facilities(section 103(b)(4)(0)) • • •
h 0 Hydroelectric generating facilities(section 103(b)(4XH))
1 Mass commuting vehicles(section 103(bX4X1))
j Local district heating or cooling facilities(section 1003( )( X )) 103 b.4.E
k Facilities for the local furnishin:of electric ener 1 (o)G
Part III Descri•tion of OblI:ations
Term(in years)
14
1111111111111111111111111.111111111111111111111111111
1111111111111 II 11.1611111111111111111111.1111111111111
11.11111111111111111111111111.11
ihIIIIIIIIIIIIIIIIIIIIIIIrl."I 111111111111.11111111111.11111111111111111111111111111111111111.16
■
IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIINIIIIIIIIIIIII"IHIINIIIIIIIIIIIIIIII
•► ears.
15 Weighted avera:e maturity of the issue . •
16 If issue is an advance refundin:•enter the earliest call date
Proceeds of Issue
price(regs.section 1.103.13(02)) . • . , ,
17 Total purchase ,
18 Proceeds used for bond issuance costs . • . , ,
•
i9 Proceeds allocated to reasonably required reserve or replacement fund
20 Proceeds used to refund prior issues. . Form 8038 (Re+ 12-84)
21 Non•refundio:proceeds of the issue(subtract
1 of the lines 18.Instructions9.and
0 from line 17)
For Paperwork Reduction Act Notice,see fag
rorm 8038(Rev 12-84) Page 2
r1 Description of Property Financed by Non-refunding Proceeds
(Do not complete for student loan bonds or mortgage bonds) _ ilik
22 Type of Property Financed(or portion thereof financed by non-refunding proceeds.) 0420% 'Alii,
a 3-yr.ACRS property
b 5-yr.ACRS property
c 10-yr.ACRS property
d 15-yr.ACRS property
L
e 18-yr.ACRS property
f Cost of land
g Cost of other property(see instructions)
23 Other use of non-refunding proceeds(subtract lines 22a—g from Part IV,line 21Xsee instructions) . . _
24 Standard industrial classification(SIC)of non-refunding proceeds for the financed project.
S I C Code t--
tion refunding proceeds s
$)C Code Non-refunding proceeds$ I
a
d
b • e
c
f I —
25 Average weighted economic life of the project(complete only for IDBS)
► years.
PartVt Description of Initial Principal Users
(Do not complete for student loan bonds or mortgage bonds)
26 Initial Principal Users:
(A) (B) (C) Employer identification number
)
User Name Address
(i) Oak Ridge Place Partner-
ship, a Minnesota limited
(ii) partnership
(iii)
(iv)
.(v)
27 Common parents(if any)of initial principal users listed above:
User rom Name A(C) (0)
ddress Employer identification number
above)
•
PartVII Approval of Issue (Complete only for IDBs)
28 Name of Governmental units approving issue P. City of Oak Park Heights
City Council - SEE
29 Names and positions of applicable elected representatives or date of referenda approving issue 0. Exhibit A
Part VIII Volume Limitations for Qualified Mortgage or Veterans' Bonds .
1 Issuer's volume limitation
2 Amount of volume limitation surrendered to other issues (e.g., under section 103A(gX3)(B) or
25(c)(2)(A)(li))
3 Amount of bonds previously issued
4 Unused volume limitation(subtract lines 2 and 3 from line 1)
Under penalties of perjury.I declare that I nave enamined this return.and accompanying schedules and statements,and to the best of my knowledge and belief.
Please they are true.correct,and complet Declaration of preparer(other than taxpayer)is based on all information of which preparer has any knowledge.
Sign 9„„4„.&,....„,k d.JF ' o/' Mayor
Here Signature of officer Date / hue
Check,f I Preparer's social security no.
Preparer's I seif.em.
Paid signature I pi d _II l
Preparer's Firm's name(or E.1.No.
Use Only yours,,f self-employed) ' ZIP code
and seeress
*U.S.Government Printing *Man 11a1--4el.4as/teeff
590AA of Meeting of the
Extract of Minutes the 4
City Council of ofMinnesota
City of Oak Park Heights,
a regular
Pursuant to due call and notice thereof, Heights,
pur of Oak park
meeting of the City Council of the City
Minnesota was duly held at the City Hall in said City on -
M•
he 23rd day of December, 1985 , at 7 : 00
o' clock P
Monday, t resent. Barbara O'Neal
The following members. were p and Barry
Mayor) , Jack Doerr , Joseph Carufel,
(actin g
Torgerson; erfeldt (P4ayor)
and the following were absent: Frank Somm
Member Car
ufel introduced the following .
resolution and moved its adoption:
PROJECT UNDER
RESOLUTION AUTHORIZING A INDUSTRIAL
THE MINNESOTA MUNICIPAL ISSUANCE ENUE BONDS
DEVELOPMENT ACT AN
MULTI-FAMILY TO CE THEPROJECT
TO oit�g
tion for the adoption of the foreg
The mo
re member and
Doerr
solution was duly seconded by favor
upon vote being taken thereon the following voted in Carufel, and
thereof: Barbara O'Neal, Jack Doerr , Joseph
Barry Torgerson;
and the following voted against the same: none;
whereupon said resolution was declared duly passed and adopted.
i
RESOLUTION AUTHORIZING PiOJECT ECTRINDER
THE MINNESOTA MUNICIPAL
DEVELOPMENT ACT
EEPMENTR
DOSEENUEBONDS HE ISSUCE F
MULTI-FAMILY HOUSING
TO FINANCE THE PROJECT
BE IT RESOLVED by the Council of the City of Oak Park
Heights, Minnesota; as follows:
1. The Council has received a proposal from Oak
Ridge Place ,Limited Partnership, a Minnesota Limited
Partnership (the "Company")
that the City undertake to
partially finance a cet474C?rMinnesotaherein
Statutess(theeaAct") ,
pursuant to the Chapter
400 ,000 Multi-Family II
through issuance by the City of it*A$3 , Ridge Place
Housing Development Revenue
heBonds,
st 1985
(Oak
Sant Paul
Project) (the "Bonds") •
(the "Bond Purchaser" has a reed to urchase the Bonds.
2. The Company desires to acquire certain real
qu
estate and construct thereon an appre
approximately 77,500msquare
squaare
foot building and related improvements and equip
able
for use as an 87 unit elderly housing project (hereinafter
referred to as the "Project") .
The Project as described above
will further the policies and purposes of the Act andithe
City's Housing Plan and the findings made in the p
relresolution adopted by this Council onsNovember
ot25 ,P 19 Sect are
approving the housing program with P
echereby ratified, affirmed and approved.
3. It is proposed that, pursuant toeadeoanaAgreement
s
dated December 1, 1985, between the City, the Cer,y nn the
Company as Borrower (the "Loan Agreement") ,
proceeds of the Bonds to the Company to partially finance the
cost of the Project. The basic payments to be made by the
under the Loan Agreement are fixed so as to produce
Company the principal of, premium, if any,
revenue sufficient to pay ro osed
and interest on the Bonds when due. It is further 'proposed
and
that the City assign its rights to thebasic
pato ymentst nust
certain other rights under the Loan Agreement
Company, Inc. , in St. Paul, Minnesota (the "Trustee") as
security for payment of the Bonds under an Indenture of Trust
theity,
dated December 1, 1985 (the "Indenture") . The Culaeor
Company and the Trustee have also entered into a Regulatory
-2-
Agreement dated December 1 ,
1985 relating to the Project. On
or before the Remarketing Date, as defined in te and Indsnture,
the Company will grant to the Trustee a mortgage
inteoest in the Project and enter into anAssignment llso ases
and Rents. At that time/ll,awrence 0. Hail andl a delivercompletiono
deficit loan guarantyII
the Trustee an operating
guaranty.
4. This Council by action taken on November 25, 1985
gave preliminary approval to the Project audits Housing
Plan
Finance AgencyAha� Qiven
and Program andAthe Minnesota Housigo further the purposes and
approval to the Program as tending
policies of the Act.
• 5 . Pursuant to the preliminary approval of the
Council, forms of the following documents have been submitted
to the Council for approval:
(a) The Loan Agreement.
(b) The Indenture.
(c) The Regulatory Agreement.
6. It is hereby found, determined and declared that:
(a) the financing
for Project described in
•
the Loan Agreement and Indenture referred to above
constitutes a Housing Program authorized by the
Act;
(b) the purpose of the Project is and the
P
effect thereof will be to promote the public
welfare by the acquisition, construction naand
equipping of a multi-family elderly
l
facility.
(c) the project is to be located within the
City limits, at a site which is easily
aaccnd essible
to employees residing within the City
surrounding communities; r
-3-
(d) the acquisition, construction and
installation of the Project, the issuance and sale
of the Bonds, the execution and delivery by the
City of the Loan Agreement, and the Indenture, and
the performance of all covenantsaand agreements of
the City contained in the Loan Agreement and
Indenture and of all other acts and things
required under the constitution and laws of the
State of Minnesota to make the Loan Agreement,
Indenture and Bonds valid and binding obligations
of the City in accordance with their terms, are
authorized by the Act;
(e) it is desirable that the Company be
authorized, subject to the terms and
dch nditions
set forth in the Loan Agreement,
ermand
conditions the City determines to be necessary,
desirable and proper, to complete the acquisition
and installation of the Project by such means as
shall be available to the Company and in the
manner determined by the Company, and wiwith or
without advertisement for bids as required for the
acquisition and installation of municipal
facilities;
(f) it is desirable that the Bonds be issued
by the City upon the terms set forth in the
Indenture;
(g) the basic payments under the Loan
Agreement are fixed to produce revenue sufficient
to provide for the prompt payment of principal of,
premium, if any, and interest on the Bonds issued
under the Indenture when due, and the Loan
Agreement, Regulatory Agreement and Indenture also
provide that the Company is required to pay
all
expenses of the operation and maintenance of the
Project, including, but without limitation,
adequate insurance thereon and insurance against
all liability for injury to persons or property
arising from the operation thereof, and all taxes
and special assessments levied upon or with
respect to the Project Premises and payable during
the term of the Regulatory Agreement, Loan
Agreement and Indenture;
• -4-
rovisions of the Act, and as
(h) under the p the
provided in the Loan Agreement and Indentuerre, th
Bonds are not to be payable from ored adged upe
d upon
A .any funds other than the revenue p ect to any
payment thereof; the City is no holder oftubBonds shall
any by the
liability thereon; anyexercise
ever have the right to compelaey of the otde
City of its taxing powers to pay r to enforce
s
or the interest or premium thereon, or
ohs Cory
payment thereof against any property
except the interests of the City in the Loan
Agreement which have been assigned to the Trustee
under the Indenture; the Bonds shall not al or
constitute a charge, lien or encumbrance, legepfor
-equitable upon any property of the City
excinterests of the City in the Loan Agreement which
havenbeenuathegBods°shallTrustee
recite thatunder
thethe
Bonds -
Indenture; the part of
are issued without moral obligation on the
the state or its political subdivisions, and
that
e
the Bonds, including interest thereon, arepayable
solely from the revenues pledged to the payment
thereof; and, the Bonds shall not constitute a
debt of the City within the meaning
of any
constitutional or statutory limitation.
approval of the City Attorney and
7. Subject to the reement
the provisions of Section 10, retofandsall otherdocuments Loan in
and Indenturebdinand exhibits ereof are approved substantially
the
in ittparagrap
the form submitted. The Loan Agreement, directedeand to Bon sA
and
in substantially the form submitted, a the Mayor
theecutty ind the name rnwhonbehalf of the City are also authorized to executee and
City Administrator
e
_ deliver/�any other documents ancertificates
ofathe documents
transaction described. P
necessary to the transaction herein
escribede shall
n bdelie
said
d
Loan eandnIndenture. provided . .
-
Loan Agreement -
g. The City shall proceed forthwith to issue its
Bonds, in
the form and upon the terms set forth incthe
Inhase the
Indenture. The offer of the Bond Purchaser o
dads at ar plus accrued intereetto ceed the
dateor obef livtrynat$
/UM-11111111.B ; interest rate of to ere lessy atcants
and as otherwise specified in the In •
denture •is . d- rce e
.n t e date of
-5-
Dated:
/2_1Z3
BRIGGS AND MORGAN
2200 First National Bank Building
Saint Paul,Minnesota 55101
1612)291-1215
ENCLOSURE MEMO
To: MS . 0—V.- -- 11U1:1-4--
Co St Og st- •A
Re:
Herewith the following:
•
�) L•
- �9
✓ y)
•s
F
✓ 6j
�- e5 Ike. 3 8. .C3 ..')
� 9)
BRIGGS AND MORGAN
BY �`"di'
LAW OFFICES
BRIGGS AND MORGAN
PROFESSIONAL ASSOCIATION
2200 FIRST NATIONAL BANS BUILDING;
SAINT PAUL,MINNESOTA 55101
TELEPHONE (612) 291-1216
TELECOPIEE (612) 222-4071
INOLUDINO THE FORMER HIRM OH
LEVITT, PALMER,BOWEN, ROTMAN & SHARE
December 18, 1985
VIA MESSENGER
Mr. Lawrence 0. Hauge
Mr. David J. Kennedy
Mr. Clayton LeFevere
Mr. Jerome P. Hertel
Ms. LaVonne Wilson
Mr. Mark Vierling
Mr. Roger D. Gordon
Ms. Marcia Hanson
Mr. James Ehrenberg
Re: City of Oak Park Heights, Minnesota
Hauge Elderly Housing Project
Ladies and Gentlemen:
Enclosed for your review and comment in
connection with the above transaction are first drafts
of the following documents:
1. Loan Agreement;
2. Indenture of Trust;
3. Regulatory Agreement;
4. Final Resolution.
If this transaction is to close before the
end of the year it will be necessary for the City
to adopt the Final Resolution at its last meeting
in December, December 23 . Please review the documents
immediately and call me with any questions or comments.
2200 FIRST NATIONAL BANE BUILDINO 5400 IDS CENTER
SAINT PAIIL.,MINNESOTA.55101 MINNEAPOLIS.MINNESOTA 55405
(612)221-7215 (615)039-0661
BRIGGS AND MORGAN
December 18 , 1985
Page Two
We are still awaiting approval from the
Minnesota Housing Financing Agency. I am aware that
First Saint Paul has certain "parking" requirements
but I have not yet attempted to incorporate all of
them into the documents.
Very truly yours,
611,0424:1J
Trudy J. Halla
TJH/ks
Enc.
r
DRAFT NO. 1
(12-17-85)
LOAN AGREEMENT
BETWEEN
CITY OF OAK PARK .HEIGHTS
AND
OAK RIDGE PLACE PARTNERSHIP,
A MINNESOTA LIMITED PARTNERSHIP
$3,200,000
MULTI-FAMILY HOUSING DEVELOPMENT REVENUE
BONDS, SERIES 1985
(OAK RIDGE PLACE PROJECT)
DATED: DECEMBER , 1985
The interest of the City of Oak Park Heights, Minnesota, in this Loan
Agreement has been assigned to First Trust Company, Inc., in St. Paul,
Minnesota.
This instrument was drafted by:
Briggs and Morgan, P.A.
2200 First National Bank Building
Saint Paul, Minnesota 55101
TABLE OF CONTENTS
(This Table of Contents is not part of the Loan Agreement and is only for
convenience of reference.)
Page
PARTIES 1
PREAMBLE 1
ARTICLE I - DEFINITIONS, EXHIBITS AND MISCELLANEOUS
Section 1.01 Definitions 1
Section 1.02 Exhibits 2
Section 1.03 Company's Acts 2
Section 1.04 Rules of Interpretation 3
ARTICLE II - REPRESENTATIONS OF ISSUER AND COMPANY
Section 2.01. Representations by the Issuer 3
Section 2.02. Representations by the Company 5
ARTICLE III
Section 3.01. Acquisition, Construction and Equipping
of Project by Company 8
Section 3.02. Payment of Cost by Company 9
Section 3.03. Authorization by Issuer 11
Section 3.04. Issuance of Bonds 12
Section 3.05. Disbursements from Construction Fund 12
Section 3.06. Establishment of Completion Date 13
Section 3.07. Payment and Performance Bond 14
Section 3.08. Enforcement of Contract 15
Section 3.09. Title Assurances 15
ARTICLE IV - THE LOAN, BASIC PAYMENTS, ADDITIONAL
CHARGES AND ADDITIONAL FINANCING
Section 4.01. The Loan 15
Section 4.02. Basic Payments 16
Section 4.03. Additional Charges 17
Section 4.04. Company's Obligations Unconditional 18
Section 4.05. Company's Remedies 18
ARTICLE V - PROJECT COVENANTS
Section. 5.01. Project Operation and Maintenance 19
Section 5.02. Sale or Lease of Project 19
Section 5.03. Mortgage and Assignment of Leases and Rents 20
Section 5.04. Advances 20
Section 5.05. Alterations to the Project
and Removal of Project Equipment 20
ARTICLE VI - DAMAGE, DESTRUCTION AND CONDEMNATION
Section 6.01. Damage and Destruction 20
Section 6.02. Condemnation 20
Section 6.03. Net Proceeds 20
{
Page
ARTICLE VII - COMPANY'S COVENANTS
Section 7.01. Covenant for the Benefit of the
Trustee and the Bondholders 21
Section 7.02. Inspection and Access 21
Section 7.03. Annual Statement, Certificate of
Compliance and Other Reports 21
Section 7.04. Indemnity by Company 22
Section 7.05. Status of Company 23
Section 7.06. Filing of Financing Statements 24
Section 7.07. Assurance of Tax Exemption 24
Section 7.08. Determination of Taxability 25
Section 7.09. Set Aside 27
ARTICLE VIII - COMPANY'S OPTIONS
Section 8.01. Assignment and Transfer 27
Section 8.02. Prepayment 28
Section 8.03. Direction of Investments 28
Section 8.04. Termination of Loan Agreement 28
ARTICLE IX - EVENTS OF DEFAULT AND REMEDIES
Section 9.01. Events of Default 30
Section 9.02. Remedies 31
Section 9.03. Disposition of Funds 32
Section 9.04. Nonexclusive Remedies 32
Section 9.05. Attorney's Fees and Expenses 32
Section 9.06. Effect of Waiver 33
Section 9.07. Waiver of Stay or Extension 33
Section 9.08. Issuer May File Proofs of Claim 33
Section 9.09. Restoration of Positions 33
Section 9.10. Suits to Protect the Project 33
Section 9.11. Performance by Third Parties 34
Section 9.12. Exercise of the Issuer's Remedies by Trustee 34
Section 9.13. Non-Recourse Obligation 34
ARTICLE X - GENERAL
Section 10.01. Amounts Remaining in Funds 35
Section 10.02. Notices 35
Section 10.03. Binding Effect 35
Section 10.04. Severability 35
Section 10.05. Amendments, Changes, and Modifications 35
Section 10.06. Execution Counterparts 35
Section 10.07. Limitation on Municipality Liability 35
Section 10.08. Representations of Company 36
Section 10.09. Attorneys Fees and Costs 36
Section 10.10. Release
Section 10.11. Survivorship of Obligations 36
Y
Page
SIGNATURES 37
EXHIBIT A - Legal Description
EXHIBIT B - Definitions B 1 - B 7
LOAN AGREEMENT
THIS LOAN AGREEMENT is made and entered into as of the 1st day of
December, 1985, by and between the City of Oak Park Heights, a body
corporate and politic organized under the laws of the State of Minnesota (the
"Issuer"), and Oak Ridge Place Partnership, a Minnesota Limited Partnership
(the "Company").
WHEREAS, the Issuer and the Company, each in consideration of the
representations, covenants and agreements of the other as set forth herein,
mutually represent, covenant and agree as follows:
ARTICLE I.
DEFINITIONS, EXHIBITS AND MISCELLANEOUS
SECTION 1.01. Definitions. The terms used herein, unless the context
hereof shall require otherwise, shall have the following meanings, and any
other terms defined in Section 1.01 of the Indenture (attached hereto as
Exhibit B and incorporated herein by reference) shall have the same meanings
when used herein as assigned them in the Indenture unless the context or
use thereof indicates another or different meaning or intent.
Agreement: this Loan Agreement between the Issuer and the Company
as the same may from time to time be amended or supplemented as
provided herein and in the Indenture;
Architect: the architect for the Project selected by the Company and
designated in writing to the Trustee;
Construction Contract: any contract or contracts between the Company
and any third party, including any architectural, engineering and
consulting agreements, for the acquisition, construction and installation
of the Facility and any amendments or supplements thereto made and
filed as required under Section 3.01(b);
Date of this Agreement: December 1, 1985;
Event of Default: any of the events set forth in Section 9.01;
Housing Plan: the Housing Plan for the Issuer, adopted on
November 25, 1985, pursuant to Minnesota Statutes, Chapter 462C, as
amended.
Indenture: the Indenture of Trust between the Issuer and the Trustee,
Ora-ii--1 date herewith, as the same may from time to time be amended or
supplemented as therein provided.
Net Bond Proceeds: Bond proceeds, including interest earnings
thereon, less such Bond proceeds, if any, including interest earnings
thereon, used to fund the Reserve Fund and to pay or reimburse for the
payment of capitalized interest, issuance expenses and any other neutral
costs;
Net Worth: shall be computed in accordance with generally accepted
accounting principles with all assets recorded at fair market value except
that the computation of "Net Worth" shall not include the value of (a)
any home (principal residence or vacation) or home furnishings, (b)
personal automobiles, (c) Individual Retirement Accounts, (d) pension
and profit sharing plans or (e) the interest of a person or entity in the
Company or the Project or the value of their interest in an entity that
has an interest in either the Company, the Project or another entity that
has an interest in the Company or the Project, but shall only be
excluded to the extent that such value is attributable to the Company or
the Project or an entity with an interest therein; "Net Worth" shall be
evidenced by financial statements compiled by an Independent Accountant
except in the case of a corporation, whose financial statements shall be
audited, dated not more than 90 days prior to the date of such
determination; "Net Worth" of a general or limited partnership shall be
the aggregate "Net Worth" of the general partners in the general or
limited partnership. If requested by the Trustee, assets contained in
such financial statements shall be the subject of an MAI or equivalent
appraisal at no cost to the Trustee to confirm such asset value;
Program: the specific project plan submitted to the City by the
Company describing the project for which the Bonds are to be issued,
adopted by the governing body of the City on November 25, 1985, and
December 23, 1985.
Registered Holder: the person in whose name a Registered Bond is
registered in the Bond Register;
Term of this Agreement: the period of time commencing on the Date of
this Agreement and terminating on the final maturity date of the Bonds
or upon earlier termination of this Agreement under Section 7.07 or
8.04, whichever date occurs sooner;
Treasury Regulations: all proposed, temporary or permanent federal
income tax regulations then in effect and applicable;
Working Capital Expense: Project Costs or other expenses which are
paid or reimbursed from (i) Net Bond Proceeds or (ii) in the case of any
interest expense which the Company may not under the Code charge to
the capital account of the Project, Bond Proceeds, including earnings
thereon and which the Internal Revenue Service treats as working capital
or inventory, all within the meaning of Section (103(b) of the Code.
SECTION 1.02. Exhibits. The following Exhibits are attached to and by
reference made a part of this Agreement:
Exhibit A: legal description of the Project Premises;
Exhibit B: definitions from Indenture;
SECTION 1.03. Company's Acts. Where the Company is permitted or
required to do or accomplish any act or thing hereunder, the Company may
cause the same to be done or accomplished by a third party selected by the
-2-
Company with the same force and effect as if done or accomplished by the
Company.
SECTION 1.04. Rules of Interpretation
(a) This Agreement shall be interpreted in accordance with and
governed by the laws of the State of Minnesota.
(b) The words "herein" and "hereof" and "hereunder" and words of
similar import, without reference to any particular section or
subdivision, refer to this Agreement as a whole rather than to any
particular section or subdivision of this Agreement.
(c) References in this Agreement to any particular article, section or
subdivision hereof are to the designated article, section or subdivision of
this Agreement as originally executed.
(d) All accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles; and all computations provided for herein shall be
made in accordance with generally accepted accounting principles
consistently applied and applied on the same basis as in prior years.
(e) The Table of Contents and titles of articles and sections herein are
for convenience only and are not a part of this Agreement.
(f) Unless the context hereof clearly requires otherwise, the singular
shall include the plural and vice versa and the masculine shall include
the feminine and vice versa.
(g) Articles, sections, subsections and clauses mentioned by number
only are those so numbered which are contained in this Agreement.
(h) For purposes of this Agreement and the Indenture, a Petition in
Bankruptcy shall be deemed dismissed only if either (a) the petition is
dismissed by order of a court of competent jurisdiction and no further
appeal rights exist from such order or (b) the Company notifies the
Trustee that such a dismissal has occurred.
(i) Any opinion of counsel required hereunder shall be a written
opinion of such counsel.
ARTICLE II.
REPRESENTATIONS OF ISSUER AND COMPANY
SECTION 2.01. Representations by the Issuer. The Issuer makes the
following representations as the basis for its covenants herein:
(a) The Issuer is a body corporate and politic duly organized and
existing under the laws of the State of Minnesota and is issuing the
Bonds to finance the Cost of the Project pursuant to the Act;
-3-
(b) In authorizing the Project the Issuer's purpose is, and in its
judgment the effect thereof will be, to promote the public welfare by
providing for the construction of a multi-family housing development
designed for rental to and occupancy primarily by elderly persons,
which development will be in furtherance of the Housing Plan of the
Issuer adopted pursuant to the Act; and by halting the movement of
persons of retirement age to other areas thus preserving the economic,
human and social resources of the community in which the Project is
situated;
(c) The Issuer has undertaken all legal, administrative and regulatory
action required of it to approve and effectuate the Housing Plan and the
Program, including (a) due notice of and the holding of a public hearing
with respect thereto on October 28, 1985 and November 25, 1985, (b)
the adoption of a resolution approving the Housing Plan and the Program
on November 25, 1985, (a) submission of the Housing Plan to the
appropriate regional development commission as set forth in Minn. Stat.
Section 462C.04, Subd. 1, (d) satisfaction of the notice and hearing
requirements of Minn. Stat. Sections 462C.01, 462C.04 and 462C.05,
Subd. 5, and (e) submission of the Program to the Minnesota Housing
Finance Agency for review and approval of the Program by that agency
pursuant to Minn. Stat. Section 462C.05, Subd. 5;
(d) The issuance and sale of the Bonds, the execution and delivery of
this Agreement, the Indenture and the Regulatory Agreement and the
performance of all covenants and agreements of the Issuer contained in
this Agreement, the Indenture and the Regulatory Agreement, have been
duly authorized by resolutions of the governing body of the Issuer
adopted at meetings thereof duly called and held on November 25, 1985,
and December 23, 1985 by the affirmative vote of not less than a
majority of its members;
(e) The Bonds, this Loan Agreement, the Indenture and the Regulatory
Agreement constitute the valid and binding obligations of the Issuer
enforceable against the Issuer in accordance with their respective terms
(subject to bankruptcy, insolvency and other laws affecting enforcement
• of creditors rights generally);
(f) To provide funds to be loaned to the Company to finance the
payment of Project Costs, in anticipation of the repayment thereof, the
Issuer has duly authorized the Bonds in the original aggregate principal
amount of Three Million Two Hundred Thousand and 00/100 Dollars
($3,200,000.00) and the issuance and sale thereof to the original
Purchaser upon the terms set forth in the Resolution, under the
provisions of which the Issuer's interest in this Loan Agreement have
been pledged and assigned to the Trustee as security for the payment of
the principal of and interest and prepayment premium, if any, on the
Bonds;
(g) Under the provisions of the Indenture the Issuer's interest in this
Agreement and certain payments due hereunder are pledged and assigned
to the Trustee as security for the payment of the principal of and
interest and premium, if any, on the Bonds;
-4-
(h) The Issuer has authorized the Company, in accordance with the
provisions of the Act and subject to the terms and conditions the Issuer
has determined to be necessary, desirable and proper, to provide for
the acquisition, construction and installation of the Project under the
Plans and Specifications by such means as shall be available to the
Company and in the manner determined by the Company, and with or
without advertisement for bids as may be required for the construction,
acquisition and installation of facilities by the Issuer; and has ratified,
confirmed and approved all actions heretofore taken by the Company
consistent with and in anticipation of such authority;
(i) The Bonds are to be issued within the exemption provided under
Section 103(b)(4)(A) of the Internal Revenue Code with respect to
multi-family residential rental facilities; provided, however, that nothing
contained herein shall prevent the Issuer from qualifying the Bonds
under a different exemption if, and to the extent, such exemption is
permitted by law and consistent with the object and purposes of the Act;
and
(j) No public official of the Issuer has either a direct or indirect
financial interest in this Loan Agreement or the Project nor will any such
public official either directly or indirectly benefit financially from this
Loan Agreement or the Project within the meaning of Minnesota Statutes,
Section 471.87.
SECTION 2.02. Representations by the Company. The Company makes the
following representations as the basis for its covenants herein:
(a) The Company is a limited partnership duly organized under the laws
of the State of Minnesota, is in good standing and duly authorized to
conduct its business in the State of Minnesota, has full power and
authority to enter into this Agreement, the Mortgage, the Regulatory
Agreement, the Declaration and the Assignment of Leases and Rents and
to use the Project for the purpose set forth in this Agreement and by
proper action has authorized, or prior to the execution and delivery
thereof, will have authorized the execution and delivery of this
Agreement, the Mortgage, the Regulatory Agreement, the Declaration and
the Assignment of Leases and Rents and has approved the Indenture;
(b) The execution and delivery of this Agreement, the Mortgage, the
Regulatory Agreement, the Declaration and the Assignment of Leases and
Rents, the consummation of the transactions contemplated thereby, and
the fulfillment of the terms and conditions thereof do not and will not
conflict with or result in a breach of any of the terms or conditions of
the Company's partnership agreement, any restriction or any agreement
or instrument to which the Company is now a party or by which it is
bound or to which any property of the Company is subject, and do not
and will not constitute a default under any of the foregoing, or in
violation of any order, decree, statute, rule or regulation of any court
or any state or federal regulatory body having jurisdiction over the
Company or its properties, including the Project, and do not and will
not result in the creation or imposition of any lien, charge or
encumbrance of any nature upon any of the property or assets of the
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Company contrary to the terms of any instrument or agreement to which
the Company is a party or by which it is bound;
(c) The Program, the Project and the intended use thereof do now and
will continue to comply with all applicable regulations and requirements
of the Housing Plan, the Program, the Issuer, the regional development
commission and the Minnesota Housing Finance Agency, specifically
including, but not limited to, continued existence as a multi-family
residential rental facility used primarily by elderly persons;
(d) There is or will be public access to the Project Premises; and, as
of the date hereof, the use of the Project as designed and proposed to
be operated complies, or will comply, in all material respects, with all
presently applicable development, pollution control, water conservation
and other laws, regulations, rules and ordinances of the Federal
Government and the State of Minnesota and the respective agencies
thereof and the political subdivisions in which the Project is located.
The Company has obtained or will obtain all necessary and material
approvals of and licenses, permits, consents and franchises from federal,
state, county, municipal or other governmental authorities having
jurisdiction over the Project to acquire, construct, install, and operate
the Project and to enter into, execute and perform its obligations under
this Agreement, the Regulatory Agreement, the Mortgage, the
Declaration and the Assignment of Leases and Rents;
(e) The proceeds of the Bonds, together with any other funds to be
contributed to the Project by the Company or otherwise in accordance
with this Agreement, will be sufficient to pay the cost of acquiring and
completing the Project in a manner suitable for operation as required in
Article III;
(f) The Bonds are to be issued within the exemption provided under
Section 103(b)(4)(A) of the Code; provided, however, that nothing
herein shall prevent the Issuer from qualifying the Bonds under a
different exemption if and to the extent such exemption is permitted by
law and consistent with the objects and purposes of the Act; and
"substantially all" of the proceeds of the Bonds will be used for the
acquisition, construction, reconstruction, or improvement of land or
property of a character subject to the allowance for depreciation within
the meaning of Section 103(b)(6) of the Code;
(g) Comparable private financing for the Project was not found by the
Company to be reasonably available, and the Project would not be
undertaken by the Company but for the availability of the financing
herein authorized;
(h) A major inducement to the Company to acquire and construct the
Project was the source of financing provided under the Act and the
assurance the Company received from the Issuer that such financing
would be made available to the Company; and any Project Costs
heretofore incurred by the Company for which the Company shall
hereafter seek reimbursement as provided in Section 3.05, were incurred
in anticipation of reimbursement from the proceeds of revenue bonds of
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the Issuer if such proceeds should become available on terms acceptable
to the Company; and the Company investigated the possibility of such
financing prior to incurring such Project Costs; and the Company did
not commence acquisition or construction of the Project prior to
November 25, 1985, the date on which the Issuer gave preliminary
approval of the Project and the financing thereof in whole or part
through revenue bonds;
(i) The entire Cost of the Project is estimated to be at least equal to
the face amount of the Bonds, but the Company acknowledges that the
Issuer has made no warranty or representation, either express or
implied, that the amount in the Construction Fund will be sufficient to
pay such Costs or that the Project will be suitable to the Company's
needs;
(j) The Company is not in the trade or business of selling properties
such as the Project and is acquiring the Project for investment purposes
only or otherwise for use by the Company in its trade or business, and
therefore the Company has no intention to now or in the foreseeable
future voluntarily sell, surrender or otherwise transfer, in whole or
part, its interest in the Project;
(k) There are no actions, suits, or proceedings pending or, to the
knowledge of the Company, threatened against the Company or any
property of the Company in any court or before any federal, state,
municipal or other governmental agency, which, if decided adversely to
the Company would have a material adverse effect upon the Company or
upon the business or properties of the Company; and the Company is
not in default with respect to any order of any court or governmental
agency;
(1) The Company is not in default in the payment of the principal of or
interest on any indebtedness for borrowed money nor in default under
any instrument or agreement under and subject to which any
indebtedness for borrowed money has been issued;
(m) The Company has filed all federal and state income tax returns
which, to the knowledge of the general partners of the Company, are
required to be filed and have paid all taxes shown on said returns and
all assessments received by them to the extent that they have become
due;
(n) The Company has reviewed and approved the provisions of the
Indenture;
(o) No public official of the Issuer has either a direct or indirect
financial interest in this Agreement or the Project nor will any public
official either directly or indirectly benefit financially from this
Agreement or the Project within the meaning of Minnesota Statutes,
Section 412.311 and 471.87; and
(p) The Company reasonably expects to complete the Project and has
incurred and will incur prior to the Disbursement Date substantial
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b.
binding obligations with respect to the 9roject and in reliance upon the
issuance of the Bonds and will accordingly assume risk of substantial
economic loss if the Project is abandoned.
ARTICLE III.
SECTION 3.01. Acquisition, Construction and Equipping of Project by
Company. In connection with the completion of the Project, the Company
represents and covenants as follows:
(a) Plans and Specifications and Architect's Contract. Prior to the date
on which any amounts are disbursed from the Construction Fund in
payment of construction-related costs (the "Disbursement Date") the
Company will enter into a contract with the Architect and will cause
Plans and Specifications to be prepared for construction and installation
of the Facility by the Architect, and to be approved by appropriate
public officials and will be filed with the Trustee. The contract with the
Architect or the assignment thereof to the Trustee shall provide that the
Architect will perform its obligations therein for the Trustee at the
Trustee's request should the Trustee desire to succeed to the Company's
interests in such contract after default by the Company. The Plans and
Specifications may be modified and amended if such modifications and
amendments are deemed by the Company to be necessary or desirable to
the completion of the Project, do not materially reduce the size or
change the character of the Project and will not cause the total Project
Costs to exceed the balance then remaining in the Construction Fund and
other funds of the Company available to pay such Costs. All such
modifications or amendments shall, upon request of the Trustee, be filed
with the Trustee.
(b) Construction Contract. Prior to the Disbursement Date, the
Company will enter into the Construction Contract for construction and
installation of the Facility and a copy of the Construction Contract will
be filed with Trustee. The Construction Contract or the assignment
thereof to the Trustee shall provide that the Contractor will perform its
obligations therein for the Trustee at the Trustee's request should the
Trustee desire to succeed to the Company's interests in the Construction
Contract after default by the Company. The Construction Contract may
be amended or supplemented if such amendments or supplements are
deemed by the Company to be necessary or desirable and will not cause
the total Project Costs to exceed the then remaining balance in the
Construction Fund and other funds of the Company available to pay such
Costs. All such amendments or supplements shall be filed with the
Trustee.
(c) Installation and Construction. The Company will cause the Facility
to be constructed and installed substantially in accordance with the Plans
and Specifications and wholly within the boundary lines of the Project
Premises and provide all other improvements, access roads, utilities,
parking facilities, and other items required for use as a multi-family
residential rental facility.
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(d) Survey. On or before the Remarketing Date, the Company will file
with the Trustee a plat or survey prepared by a registered land
surveyor, certified to the Trustee, containing the correct legal
description of and showing the dimensions and the location of all
improvements, easements, encroachments and other visible encumbrances
upon the Project Premises and a certificate of the registered land
surveyor or the Architect showing that the Facility as it presently
exists, is within the lot lines of the Project Premises and complies with
all applicable set back requirements.
(e) Commencement and Completion. The Company agrees to commence
construction of the Project on or before June 15, 1986. The Company
will complete the Project as promptly as practicable with all reasonable
dispatch and in any event no later than , except only as
completion may be delayed by strikes, riots or acts of God or the public
enemy, shortages of materials or supplies or any other reason beyond
the reasonable control of the Company for which a reasonable extension
of the time of completion shall be granted as determined by the Trustee,
provided that if the Project is not completed by that date there shall be
no resulting liability on the part of the Issuer and no abatement or
diminution in the payments required to be made by the Company under
Article IV.
(f) Insurance and Payment and Performance Bonds. The Company will
cause insurance and payment and performance bonds to be procured and
maintained during construction of the Facility as required in Section 3.07
of this Agreement.
(g) Title Assurances and Recording. The Company will cause to be
delivered to the Trustee on or before the Remarketing Date the title
insurance policy or binder as is required under Section 3.09 and to be
executed, recorded and filed in the office of the County Recorder of
Washington County, Minnesota, and at any other place or places required
by Bond Counsel, before the Remarketing Date, the Mortgage, the
f Assignment of Leases and Rents, the Declaratio all financing statements
and any title curative documents that the Trust, the Company or Bond
Counsel may deem necessary or desirable to perfect or protect the title
of the Company to the Project, the lien of the Mortgage and Assignment
of Leases and Rents thereon and the lien of the Indenture.
(h) Assignments and Consents. On or prior to the Disbursement Date
the Company shall deliver to the Trustee an Assignment of the
Architect's Contract and the Construction Contract with the general
contractor in a form acceptable to the Remarketing Agent and in
accordance with the Disbursing Agreement.
SECTION 3.02. Payment of Cost by Company. The Company agrees that it
will provide any and all money required for the prompt and full payment of
all sums required to complete the Project, including all of the following items
which the Issuer agrees will he reimbursable from Bond proceeds to the
extent and in the manner provided in Sections 3.05 and 3.06 and subject to
the provisions of the Act:
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(a) all expenses incurred and to be incurred in connection with the
development, acquisition, construction and installation of the Project,
including but not limited to the cost of acquiring the Project Premises,
the contract price of all labor, services, materials, supplies and
equipment furnished under any contract for construction and installation
of the Facility or otherwise incurred in connection therewith, including
the cost of all Project Equipment and all appurtenances thereto, and of
all rights-of-way for access and utility connections to and from the
Project, and all fees required for recording all financing statements and
any title documents relating to the Mortgage, Indenture, Regulatory
Agreement or Assignment of Leases and Rents;
(b) the expense of preparation of the Plans and Specifications for the
Facility, including utilities, and all other facilities necessary or desirable
in connection therewith, and all other architectural, engineering and
supervisory services incurred and to be incurred in the planning,
construction and completion of the Facility;
(c) all legal (including Bond Counsel and counsel to the Company,
Original Purchaser, Initial Holder, Remarketing Agent and Trustee),
abstractors', financial and accounting fees and expenses, administrative
and rating agency fees (if any), printing and engraving costs and other
expenses incurred and to be incurred on or before or in connection with
the Completion Date with respect to (i) the establishment of title to the
Project Premises, (ii) the authorization, sale, issuance and initial
remarketing of the Bonds, (iii) the preparation or this Agreement, the
Mortgage, the Indenture, the Assignment of Leases and Rents, the
Guaranty, the Declaration and all other documents necessary to the Bond
Closing, the Remarketing Date and the Disbursement Date or required by
this Agreement, the Mortgage or the Indenture or (iv) the establishment
of the Completion Date including compliance with any governmental or
administrative rules or regulations on or before such date;
(d) premiums on all insurance (including any title insurance) required
to be taken out and maintained during the period before the Completion
Date;
(e) all expenses incurred in seeking to enforce any remedy against any
contractor, any subcontractor or any supplier in respect of any default
under any contract with such person;
(f) all deed taxes, mortgage registry taxes, recording fees and other
taxes, charges and assessments and license and registration fees of
every nature whatsoever incurred and to be incurred in connection with
the acquisition or completion of the Project including the financing
thereof;
(g) ,the cost of all other labor, services, materials, supplies and
equipment necessary to complete the construction, acquisition and
installation of the Facility, including but not limited to the Project
Equipment;
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(h) all fees and expenses of the Trustee and Paying Agent under the
Indenture that become due on or before the Completion Date or in
connection with the establishment of the Completion Date;
(i) all interest accruing on money borrowed by the Company for
temporary financing of the Cost of the Project, including interest
accruing on the Bonds during the construction period and for six months
thereafter in excess of any Bond proceeds initially deposited in the Bond
Fund at Bond Closing for such purpose;
(j) without limitation by the foregoing, all other expenses which under
accepted accounting practice constitute necessary capital expenditures
for the completion of the Project or issuance of the Bonds, not including
working capital or expendable supplies (all of which are nevertheless to
be supplied by the Company from its own funds without reimbursement);
and
(k) all advances, payments and expenditures made or to be made by
the Issuer, the Trustee and any other person with respect to any of the
foregoing expenses.
The Company shall be solely responsible for paying all such Project Costs
until the issuance of the Bonds. Thereafter all Project Costs may be paid or
reimbursed from available monies in the Construction Fund to the extent and
in the manner permitted in Sections 3.05 and 3.06. If, however, such monies
are insufficient to pay in full Project Costs payable therefrom or are
otherwise unavailable to pay any Project Costs, the Company shall
nevertheless promptly pay so much of such Costs as may be in excess of such
available monies in the Construction Fund. The Company shall not by reason
of the payment of such excess Costs be entitled to any reimbursement from
the Issuer in excess of any monies available therefor in the Construction
Fund or for any abatement ordiminution of the Basic Payments or Additional
Charges.
SECTION 3.03. Authorization by Issuer. In accordance with the Act, the
Company agrees:
(a) to acquire, construct and install the Facility and the Project
Equipment as provided in Section 3.01, upon the Project Premises which
are owned by the Company;
(b) to make, execute, acknowledge and deliver any contracts, orders,
receipts, writings and instructions, with any other persons, firms or
corporations, and in general to do all things which may be requisite or
proper for acquiring, constructing and installing the Project;
(c) pursuant to the provisions of this Agreement, to pay all fees, costs
and expenses incurred in the acquisition, construction and installation of
the Project from funds made available therefor in accordance with this
Agreement or otherwise subject to the right to contest such fees, costs
and expenses;
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(d) so long as the Company is not in default under any of the
provisions of this Agreement or the Mortgage to exercise all authority
hereby conferred, which is granted and conferred irrevocably to the
Completion Date and thereafter until all activities in connection with the
acquisition, construction and installation of the Project shall have been
completed.
Neither the authorization granted in this Section nor any other provision of
this Agreement shall be construed as making the Company an agent of or joint
venturer with the Issuer.
SECTION 3.04. Issuance of Bonds. The Issuer has contracted for the sale
of the Bonds authorized by the Indenture, and the Company has and does
approve the terms of the Indenture. Forthwith upon execution of this
Agreement and the Indenture, or as soon thereafter as practicable, the Issuer
will execute the Bonds and cause them to be authenticated by the Trustee
and delivered to the Original Purchaser upon payment of the purchase price
and filing with the Trustee of the opinion of Bond Counsel as to the legality
of the Bonds and the furnishing of all other documents required by this
Agreement and the Indenture to be furnished before delivery. The Issuer
will then cause the proceeds of the Bonds to be transmitted to the Trustee,
who is required by Section 5.01 of the Indenture to deposit the same in the
following trust funds in the following amounts:
(a) in the Bond Fund, an amount equal to the accrued interest; and
(b) in the Construction Fund, the remainder of the proceeds.
If for any reason such documents are not 'furnished and the approving
opinion of Bond Counsel in customary form cannot be obtained, then this
Agreement shall be terminated and be void and of no effect and the Company
shall be obligated to pay all costs and expenses enumerated in Section 3.02
and incurred on or before the date of such termination.
SECTION 3.05. Disbursements from Construction Fund.
(a) The Issuer has in the Indenture authorized and directed the
Trustee to disburse money from the Construction Fund, subject to and
in accordance with the terms of any Disbursing Agreement, to or upon
the order of the Company, in payment or reimbursement of all items of
Cost enumerated in Section 3.02 and certified in writing by the Project
Supervisor and the Representative of the Company to be due and
payable or to have been paid by the Company to the persons entitled
thereto; provided that in no event shall:
(1) any Net Bond Proceeds be used to pay or reimburse for the
payment of the acquisition of any property other than land (or an
interest therein) unless the first use of such property is pursuant
to such acquisition or unless "rehabilitation expenditures" are to be
made with respect to such property in an amount equal to or
greater than 15$ of the amount of Bond proceeds used to acquire
such property and are to be made by December 15, 1987; and
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(2) twenty-five percent (25%) or more of Net Bond Proceeds be
used to pay or reimburse for the payment of the acquisition of
land; or
(3) more than $ in Bond proceeds, including
earnings thereon, be used to pay or reimburse for the payment of
any Project Costs incurred prior to November 25, 1985.
(b) to request a disbursement from the Construction Fund for Project
Costs, the Company shall submit to Title:
(1) an AIA form of draw request;
(2) the receipts or lien waivers or cancelled checks from such
contractors, subcontractors and materialment specified in the draw
request, and any other documentation which may be deemed
necessary by Title as a condition for disbursement of money from
the Construction Fund; and
(3) all other documents required by the Disbursing Agreement.
When Title has approved a draw request it shall notify the Trustee
orally or in writing of its approval and the Trustee shall disburse sums
from the Construction Fund to Title for the account of the Company.
(c) If at any time Title or the Project Supervisor estimates that the
total Cost of the Project remaining to be paid from the Construction
Fund exceeds the total of the amount of money which in the judgment of
the Trustee and as demonstrated by the sworn construction statement
will be available in the Construction Fund to pay such Project Costs,
the Trustee may require that the Company forthwith deposit in the
Construction Fund cash or securities acceptable to the Trustee, in an
amount up to 100% of the estimated deficiency. If Title shall request it
of the Trustee in writing each Project Supervisor's certificate shall be
approved by Title before the Company shall be entitled to payment from
the Construction Fund, and if requested by Title the lien waivers,
receipts or cancelled checks specified above or copies thereof (if
acceptable to Title) shall also be filed with Title.
(d) Notwithstanding any provisions of this Agreement until the
conditions set forth in this paragraph hereof have been satisfied, the
Trustee shall not make any disbursements from the Construction Fund
(from Bond proceeds or interest earnings thereon) unless the Bonds are
prepaid or accelerated:
(1) the Company shall have acquired fee simple title to the Project
Premises on or prior to the date that is six months from the date
hereof and has, on the date of such acquisition, executed and
recorded the Declaration against the Project Premises;
(2) other requirements of Section 3.01 hereof shall have been
satisfied.
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✓ (3) all Costs of Issuance due to the Original Purchaserunder the
Remarketing Agreement or any other agreement with the Company
have been paid or will be paid from a simultaneous disbursement
from the Construction Fund; and
(4) all conditions set forth in Section 5.02(f) of the Indenture
have been satisfied.
SECTION 3.06. Establishment of Completion Date.
(a) The Completion Date shall be that date on which the Trustee shall
acknowledge receipt of the following items, which the Company shall
furnish to the Trustee no later than 30 days after completion of the
Project:
(1) a certificate signed by the Project Supervisor containing an
updated description of all Project Equipment and stating that (i) the
acquisition, construction and installation of the buildings,
improvements, equipment and all other facilities comprising the
Facility have been completed in substantial conformity with the
Plans and Specifications (ii) the entire Cost of the Project has been
paid, or is then due and payable in accordance with a certificate of
the Project Supervisor and Company Representative submitted in
accordance with Section 3.05 hereof, (iii) the Project conforms to all
applicable zoning (by special use permit or otherwise), planning
and building regulations and laws, pollution control laws and
regulations and is suitable and sufficient for efficient operation for
the purpose specified in Section 3.01(c), and (iv) the certificate is
given without prejudice to the rights against third parties which
may exist at the date thereof or which may subsequently come into
being; -
(2) final lien waivers from all contractors involved in the Facility
or other evidence satisfactory to the Trustee that payment of the
contractors has been made or provided for;
(3) a certificate of occupancy, if any, required by the City;
(4) an AIA form of Certificate of Substantial Completion executed
by the Architect;
(5) if there is any surplus in the Construction Fund to be
transferred to the Bond Fund as provided in Section 3.06(b) below,
a statement from the Company Representative describing each item
for which a Working Capital Expense has been incurred and
certifying the total amount of Working Capital Expenses incurred or
to be incurred;
(6) any completion endorsement to the mortgagee's policy of title
insurance secured in accordance with the provisions of Section
3.09; and
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(7) an "as-built" survey showing the location of all improvements,
including the Facility, easements, encroachments, utilities, and
other visible encumbrances upon the Project Premises.
(b) On the Completion Date, any balance remaining in the Construction
Fund shall be disbursed by the Trustee to the Company or its order in
such amount as may be necessary to pay, or to reimburse to the
Company for the payment of, any part of the Cost of the Project which
has not theretofore been paid by the Company or has not theretofore
been reimbursed to the Company, as the case may be, in accordance
with the provisions of Section 3.05. Any balance thereafter remaining in
the Construction Fund shall be transferred by the Trustee to the
Reserve Fund or, if none, to the Bond Fund.
SECTION 3.07. Payment and Performance Bond. Before any claims for work,
materials and equipment furnished under any Construction Contract for the
construction of the Project is certified for payment by the Project Supervisor
and Company Representative and paid from the Construction Fund by the
Trustee, a payment and performance bond in the form prescribed in Section
574.26, Minnesota Statutes, shall be secured by the Company from the
contractor or each subcontractor, executed by a responsible surety company
authorized to do business in the State of Minnesota, naming the Trustee as a
co-obligee, in a penal sum equal to the entire amount to become payable
under the applicable contract and conditioned as required by the aforesaid
statute for the completion of the work in accordance with the Plans and
Specifications and for the payment of all claims of subcontractors (or sub-
subcontractors) and suppliers. Any sums which become payable pursuant to
the provisions of any bond so furnished shall he used and applied as
provided in Section 3.08. Said bonds shall be delivered by the Company to
the Trustee before such contractor commences work. The Company shall not
be required to have a bond for work performed by it or to secure a bond
from a vendor of any Project Equipment who is not responsible for the
installation thereof.
SECTION 3.08. Enforcement of Contract. In the event of default of any
contractor or subcontractor under any Construction Contract or in the event
of a breach of warranty with respect to any materials, workmanship or
performance, the Company will promptly proceed, either separately or in
conjunction with others, to exhaust its remedies against the contractor,
subcontractor or vendor in default and against any surety on a bond securing
the performance of such contract, provided, however, that the Company may
on the advice of its counsel and with the Trustee's consent refrain from
exhausting such remedies if determined by the Company not to be in its best
interests and not necessary to complete the Project. The Company will
promptly advise the Trustee of the steps it intends to take in connection with
any such default. Any amounts recovered pursuant to any bond or by way
of damages, refunds, adjustments or otherwise in connection with the
foregoing, after deduction of expenses incurred in such recovery, other than
any amounts resulting from the loss of income, shall be paid into the
Construction Fund if received before the Completion Date, and otherwise shall
be paid into the Bond Fund, provided that the Company may obtain
reimbursement for any payments made by the Company in connection with
such action as an item of Cost as provided in Section 3.05.
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SECTION 3.09. Title Assurances. On or prior to the Remarketing Date, the
Company shall cause to be furnished to the Trustee a commitment for a
mortgagee's policy of title insurance issued by Title in an amount not less
than the original principal amount of the Bonds, insuring:
(a) that fee title to the Project Premises is in the Company;
(b) that the Mortgage is a valid first lien upon the Project Premises
subject only to Permitted Encumbrances;
(c) that the Project and its use do not violate any zoning or other use
restrictions covering the Project Premises and provides the coverage
included within the standard "Form 100" endorsement; and
waiving and insuring over the following standard exceptions: (a) facts which
would be disclosed by a comprehensive survey of the Project Premises, (b)
mechanics', contractors' or materialmen's liens and lien claims and (c) rights
of parties in possession.
ARTICLE IV.
THE LOAN, BASIC PAYMENTS,
ADDITIONAL CHARGES AND ADDITIONAL FINANCING
SECTION 4.01. The Loan. The Issuer agrees, upon the terms and
conditions herein specified, to lend to the Company the proceeds received by
the Issuer from the sale of the Bonds, excluding any accrued interest, by
causing such proceeds to be deposited with the Trustee for disposition as
provided herein and in the Indenture. The amount of the Loan shall also be
deemed to include any "discount" or any other amount by which the aggregate
price at which the Issuer sells the Bonds to the Original Purchaser is less
than the aggregate principal amount of the Bonds, plus accrued interest; and
the obligation of the Issuer to make the Loan shall be deemed fully discharged
upon so depositing the proceeds of the Bonds with the Trustee.
SECTION 4.02. Basic Payments. Subject to the Company's right of
prepayment granted in Section 8.02, the Company agrees to repay the Loan in
installments of Basic Payments as follows:
(a) During the Term of this Agreement, the Company shall make Basic
Payments in immediately available funds as follows:
(1) On or before the 25th day of each month (or the next
succeeding Business Day if the 25th is not a Business Day),
commencing December 25, 1985, in an amount equal to one-sixth of
the interest due on all Outstanding Bonds on their next succeeding
interest payment date (plus with respect to the first payment due
hereunder an amount equal to interest on the Bonds from
December 1, 1985, to Bond Closing) plus from and after January 25,
19 an amount equal to one-twelfth of the principal due on all
Outstanding Bonds on their next succeeding principal payment date.
If on any principal payment date the balance on hand available in
the Bond Fund is in excess of the amount then required to be on
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hand therein pursuant to the payments required by this Section
4.02, the surplus shall be credited against the next succeeding
Basic Payment due under subsection (a)(1) of this Section 4.02.
(2) In any event the sum of the Basic Payments payable under
this Section shall be sufficient to pay all principal, interest and
premium, if any, on the Bonds as such principal, interest and
premiums become due, at maturity, upon redemption, acceleration or
otherwise and accordingly (i) if on the 25th day of the calendar
month immediately preceding such Maturity Date the balance in the
Bond Fund, is not sufficient for this purpose, the Company will
make a Basic Payment on such 25th day to cure the deficiency.
(3) The payment required to be made under Section 7.08(c)
hereof.
(4) On the Mandatory Purchase Date the amount necessary to be
deposited in the Purchase Fund to permit the Trustee to purchase
the Bonds on the Mandatory Purchase Date as required by Section
3.05 of the Indenture.
(b) All payments of Basic Payments shall be made directly to the
Trustee at its corporate trust office, for the account of the Issuer and
shall be deposited by the Trustee in the Bond Fund. In the event the
Company shall fail to make any of the payments required in this section
4.02, the item so in default shall continue as an obligation of the
Company until the amount in default shall have been fully paid, and the
Company agrees to pay the same with interest thereon (including to the
extent permitted by law, interest on overdue installments of interest) at
the rate borne by the respective Bonds as to which such default exists.
(c) The accrued interest on the Bonds from the date of the Bonds to
the date of Bond Closing shall be applied as a credit against the first
Basic Payment due under Subsection (a)(1) of this Section 4.02.
(d) As provided in Internal Revenue Service Revenue Procedure 79-5,
Revenue Procedure 81-22 and 26 CFR 601.201 (and any subsequent
amendments, modifications or replacements thereof) Restricted
Construction Funds in the Bond Fund shall be used only to prepay
Bonds which are subject to redemption at their earliest call date without
penalty or premium or to pay a pro rata portion of the principal of the
Bonds as provided in Section 5.03(d) of the Indenture.
(e) Neither Restricted Construction Funds used to prepay Bonds nor
any other sums set aside in the Bond Fund to purchase or prepay Bonds
(other than accrued interest and Bonds prepaid pursuant to Section
3.01(d) of the Indenture) shall be deemed available as a credit against
Basic Payments required to be made under Section 4.02.
(f) In no event shall any purchase of any Bonds made by or on behalf
of the Company result in the discharge of either (i) the Bonds so
purchased, (ii) the obligations under this Section 4.02 to make Basic
Payments relating to the Bonds so purchased, or (iii) the Loan made
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hereunder to the extent of the Bonds so purchased, unless and to the
extent the Bonds so purchased are surrendered to the Trustee and
cancelled.
(g) Basic Payments may be made in the form of cash or Permitted
Investments (at face value) payable on or before the next succeeding
Maturity Date.
SECTION 4.03. Additional Charges. The. Company agrees to pay, when due,
each and all of the following:
(a) to or upon the order of the Trustee, when due, all fees of the
Trustee for services rendered under the Indenture and all fees and
charges of the Paying Agent, registrars, legal counsel, accountants,
engineers, public agencies and others incurred in the performance, on
request of the Trustee, of services required under the Indenture for
which the Trustee and such other persons are entitled to payment or
reimbursement; provided that the Company may, without creating a
default hereunder, contest in good faith the necessity or reasonableness
of any such services, fees or expenses other than the Trustee's fees for
ordinary services as set forth in the Indenture, Paying Agent fees and
any fees or charges of public agencies;
(b) to the Issuer, all reasonable expenses directly incurred by the
Issuer to perform its obligations or exercise its rights under this
Agreement, and all other reasonable expenses incurred by the Issuer in
relation to the Project which are not otherwise required to be paid by
the Company under the terms of this Agreement, provided that a
Representative of the Company or the Trustee shall have given prior
written approval to the incurring of such other expenses, and all
indemnity payments required to be made under Section 7.04;
(c) to the Trustee the amount of all advances made by the Trustee,
with interest thereon, as provided in Section 5.04;
(d) to the Issuer or the Trustee, as the case may be, interest at the
rate per annum equal to the "reference rate of interest" charged by the
The First National Bank of Saint Paul as such rate shall change from
time to time, on each payment commencing on the date when due and
required in this Section to be made to the Issuer or the Trustee, if not
made when due and if not advanced by the Trustee under the
Indenture, Mortgage or Assignment of Leases and Rents; and
(e) to the Trustee, all amounts requested by the Trustee under Section
6.04 of the Indenture.
SECTION 4.04. Company's Obligations Unconditional. All Basic Payments and
Additional Charges and all other payments required of the Company hereunder
shall be paid without notice or demand and without setoff, counterclaim, or
defense for any reason and without abatement or deduction or defense (except
as provided in Section 8.02). The Company will not suspend or discontinue
any such payments, and will perform and observe all of its other agreements
in this Agreement, and, except as expressly permitted in Sections 7.08 and
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8.04, will not terminate this Agreement for any cause, including but not
limited to any acts or circumstances that may constitute failure of
consideration, destruction or damage to the Project or the Company's
business, the taking of the Project or the Company's business by
Condemnation or otherwise, the lawful prohibition of the Company's use of the
Project or the Company's business, the interference with such use by any
private person or corporation, the invalidity or unenforceability or lack of
due authorization or other infirmity of this Agreement, or lack of right,
power or authority of the Issuer to enter into this Agreement, eviction by
paramount title, commercial frustration of purpose, bankruptcy or insolvency
of the Issuer or the Trustee, change in the tax or other laws or
administrative rulings or actions of the United States of America or of the
State of Minnesota or any political subdivision thereof, or failure of the
Issuer to perform and observe any agreement, whether express or implied, or
any duty, liability or obligation arising out of or connected with this
Agreement, or for any other cause whether similar or dissimilar to the
foregoing. Any present or future law to the contrary notwithstanding, it is
- the intention of the parties hereto that the Basic Payments and other amounts
payable by the Company hereunder shall be paid in full when due without any
delay or diminution whatever.
SECTION 4.05. Company's Remedies. Nothing contained in this Article shall
be construed to release the Issuer from the performance of any of its
agreements herein, and if the Issuer should fail to perform any such
agreements, the Company may institute such action against the Issuer as the
Company may deem necessary to compel the performance so long as such
action shall not violate the Company's agreements in Section 4.04 or diminish
or delay the amounts required to be paid by the Company pursuant to Section
4.02 of this Agreement. The Company acknowledges, however, and agrees
that any pecuniary obligation of the Issuer created by or arising out of this
Agreement shall be payable solely out of the proceeds derived from this
Agreement, the sale of the Bonds, any insurance and Condemnation awards
received pursuant to the Mortgage or upon the sale or other disposition of
the Project upon a default by the Company or otherwise.
ARTICLE V.
PROJECT COVENANTS
SECTION 5.01. Project Operation and Maintenance. The Company shall pay
all expenses of the operation and maintenance of the Project including, but
without limitation, adequate insurance thereon and insurance against all
liability for injury to persons or property arising from the operation thereof,
and all taxes and special assessments levied upon or with respect to the
Project and payable during the Term of this Agreement, all in conformance
with and subject to any good faith contest provisions provided in the
Mortgage.
SECTION 5.02. Sale or Lease of Project.
(a) The Company may sell the Project and the Company may assign its
obligations under this Agreement and may be released of its obligation
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under this Agreement (and may be dissolved pursuant to Section 7.05)
under the following conditions:
(1) No Event of Default has occurred and is continuing unless
such Event of Default is cured as of the date of sale;
(2) The purchaser assumes all obligations of the Company under
this Agreement, the Regulatory Agreement, the Declaration, the
Mortgage and the Assignment of Leases and Rents;
(3) After such purchase, the purchaser has a Net Worth at least
equal to $ ; and
(4) OTHER?
(b) Notwithstanding the prior provisions of this Section, in no event
shall the Project be sold or leased (other than pursuant to leases in the
ordinary course of business) within three years of the Bond Closing,
unless an opinion of Bond Counsel is first filed with the Trustee stating
in effect that such sale or lease will not impair the tax exempt status of
the Bonds.
(c) The Company shall provide the Trustee and Issuer 30 days advance
written notice of any sale or assignment.
SECTION 5.03. Mortgage, Assignment of Leases and Rents and Guaranty.
In consideration of the Loan, and as security for the Basic Payments to be
made by the Company for the payment of the Bonds, and as security for the
performance of all of the other obligations, agreements and covenants of the
Company to be performed and observed hereunder, the Company shall, on or
prior to the Remarketing Date, (i) execute and caused to be recorded the
Mortgage and Assignment of Leases and Rents as required under Section
3.01(g) and shall keep, perform and observe each of its obligations
thereunder and (ii) deliver to the Trustee, the Guaranty.
SECTION 5.04. Advances. The Company acknowledges and agrees that
under the Indenture Mortgage and Assignment of Leases and Rents the
Trustee may take certain action and make certain advances relating to the
Mortgaged Property or to certain other matters as expressly provided therein,
and the Company shall be obligated to repay all such advances on demand,
with interest from the date of each such advance, at the rate and under the
conditions set forth in the Indenture, Mortgage or Assignment of Leases and
Rents, as the case may be.
SECTION 5.05. Alterations to the Project and Removal of Project Equipment.
The Company shall, subject to the terms and conditions of the Mortgage, have
the right from time to time at its cost and expense, to remodel and make
additions, modifications, alterations, improvements and changes (collectively
referred to as "alterations") in or to the Project or to remove any Project
Equipment therefrom as the Company in its discretion, may deem to be
desirable for its uses and purposes, provided such alterations or removal do
not impair the character of the Project as a "project within the meaning of
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the Act or impair the exemption of the interest on the Bonds from federal
income taxation.
ARTICLE VI.
DAMAGE, DESTRUCTION AND CONDEMNATION
SECTION 6.01. Damage and Destruction. If there are any Outstanding
Bonds when the Project is damaged or destroyed by fire or other casualty,
the Company shall either restore the Project as required by the Mortgage and
the Indenture or if Section 8.04 of this Agreement is applicable, exercise its
option to prepay the Loan, in whole or in part, pursuant to said Section.
SECTION 6.02. Condemnation. If there are any Outstanding Bonds when the
Project or any part thereof is taken by Condemnation, the Company shall
either restore the Project as provided in the Mortgage and the Indenture or if
Section 8.04 of this Agreement is applicable, exercise its option to prepay the
Loan, in whole or in part, pursuant to said Section.
SECTION 6.03. Net Proceeds. Pursuant to the Mortgage the proceeds of
property insurance in excess of $25,000 and any Condemnation awards are to
be paid to the Trustee for deposit in the Property Insurance and Award
Fund. If the Company elects to restore the Project after damage, destruction
or Condemnation, any Net Proceeds remaining after completion or restoration
shall be transferred to the Redemption Fund and shall be used in accordance
with Section 5.09 of the Indenture.
ARTICLE VII.
COMPANY'S COVENANTS
SECTION 7.01. Covenant for the Benefit of the Trustee and the
Bondholders. The Company recognizes the authority of the Issuer to assign
its interest in and pledge monies receivable under this Agreement (other than
certain payments required to be made to the Issuer under Sections 4.03(b),
(e) and (f), 7.04 and 9.04) to the Trustee as security for the payment of the
principal of and interest and redemption premiums, if any, on the Bonds, and
the payment of all fees and expenses of the Trustee; and hereby agrees to be
bound by, and joins with the Issuer in the grant of a security interest to the
Trustee in any rights and interest the Company may have in sums held in the
Funds described in Article V pursuant to the terms and conditions of the
Indenture to secure payment of the Bonds. Each of the terms and provisions
of this Agreement is a covenant for the use and benefit of the Trustee and
the Holders of the Bonds, so long as any thereof shall remain Outstanding;
but upon payment in full of the Bonds in accordance with Article VII of the
Indenture and of all fees and charges of the Trustee and Paying Agent, all
references in this Agreement to the Bonds, the Holders thereof and the
Trustee shall be ineffective, and neither the Trustee nor the Holders of any
of the Bonds shall thereafter have any rights hereunder, save and except
those that shall have theretofore vested or that arise from provisions
hereunder which survive termination of this Agreement.
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SECTION 7.02. Inspection and Access. The Company agrees that the
Trustee and its duly authorized agents shall have the right at all reasonable
times to examine and inspect and for that purpose to enter upon the Project
Premises, and shall also have such right of access thereto as may be
reasonably necessary to cause the construction and installation of the Project
to be completed as provided in Article III and to cause the Project to be
properly maintained in accordance with Article V and in accordance with the
applicable provisions of the Mortgage in the event of failure by the Company
to perform these obligations.
SECTION 7.03. Annual Statement, Certificate of Compliance and Other
Reports.
(a) Within 120 days after the close of each fiscal year, the Company
will cause to be furnished to the Trustee a copy of an annual financial
statement (compiled, review or audited?) by an Independent Accountant
in accordance with generally accepted accounting principles. Within 60
days after the end of each calendar quarter other than the calendar
quarter ending December 31, the Company will cause to be furnished to
the Trustee a copy of the Company's balance sheet as of the end of such
quarter and a statement of income certified by a general partner of the
Company.
(b) At the time the Company furnishes the annual financial statement
herein required, the Company shall also furnish the Trustee a certificate
in a form approved by the Trustee and executed by the Company
Representative and declaring that during the same fiscal year covered by
the statement and continuing to the date of execution of the certificate,
the Company has fully complied with the terms and conditions of this
Agreement except as otherwise fully disclosed in the certificate.
(c) The Company will, upon request, and at the Company's expense,
furnish to the Trustee, Original Purchaser, the Remarketing Agent and
Issuer at such times and in such form as such party may reasonably
require a copy of such other reports containing such information as is
necessary to comply with any lawful reporting or continuing registration
requirements imposed by any agency of the State of Minnesota under the
Act, the Minnesota Blue Sky Laws or any other applicable state law as it
now exists or may hereafter be amended or any agency of any other
state in which the Bonds have been sold, or such information as is
necessary to comply with federal securities law.
SECTION 7.04. Indemnity by Company. The Company will, to the fullest
extent permitted by law, protect, indemnify and save the Issuer and Trustee
and their officers, agents, employees and any person who controls the Issuer
or Trustee within the meaning of the Securities Act of 1933, harmless from
and against all liabilities, losses, damages, costs, expenses (including
attorneys' fees and expenses of the Company and the Issuer), causes of
action, suits, claims, demands and judgments of any nature arising from:
(a) any injury to or death of any person or damage to property in or
upon the Project or growing out of or connected with the use, non-use,
condition or occupancy of the Project or any part thereof including any
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and all acts or operations relating to the construction or installation of
property or improvements. The foregoing indemnification obligations
shall not be limited in any way by any limitation on the amount or type
of damages, compensation or benefits payable by or for the Company,
customers, suppliers or affiliated organizations under any Workers'
Compensation Acts, Disability Benefit Acts or other employee benefit
Acts;
(b) violation of any agreement, provision or condition of this
Agreement, except by the Issuer;
(c) violation of any contract, agreement or restriction which shall have
existed at the commencement of the Term of this Agreement or shall have
been approved by the Company;
(d) violation of any law, ordinance, court order or regulation affecting
the Project, or a part thereof or the ownership, occupancy or use
thereof;
(e) any statement or information relating to the expenditure of the
proceeds of the Bonds contained in the "Arbitrage Certificate" or similar
document furnished by the Company to the Issuer or the Trustee which,
at the time made, is misleading, untrue or incorrect in any material
respect; and
(f) any untrue statement or alleged untrue statement of a material fact
contained in any offering material relating to the sale or remarketing of
the Bonds (as from time to time amended or supplemented) or arising out
of or based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make
the statements therein not misleading, or failure to properly register or
otherwise qualify the sale of the Bonds or failure to comply with any
licensing or other law or regulation which would affect the manner
whereby or to whom the Bonds could be sold.
Promptly after receipt by the Issuer or Trustee, as the case may be, or any
such other indemnified person of notice of the commencement of any action in
respect of which indemnity may be sought against the Company under this
Section, such person will notify the Company in writing of the commencement
thereof, and, subject to the provisions hereinafter stated, the Company shall
assume the defense of such action (including the employment of counsel who
shall be counsel satisfactory to the 'Issuer, Trustee or such other person as
the case may be, and the payment of expenses). Insofar as such action shall
relate to any alleged liability in respect of which indemnity may be sought
against the Company, the Issuer, the Trustee or any such other indemnified
person shall have the right to employ separate counsel in any such action and
to participate in the defense thereof, but the fees and expenses of such
counsel shall not be at the expense of the Company unless the employment of
such counsel has been specifically authorized by the Company. The Company
shall not be liable to indemnify any person for any settlement of any such
action effected without its consent.
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The provisions of this Section 7.04 shall survive the payment and discharge
of the Bonds.
SECTION 7.05. Status of Company.
(a) The Company is and throughout the Term of this Agreement will
remain duly qualified to do business as a limited partnership in
Minnesota, and will maintain its existence, will not dissolve or otherwise
dispose of all or substantially all of its assets; provided that the
Company may sell or otherwise transfer all or substantially all of its
assets to or consolidate or merge with or into another entity and assigns
obligations under this Agreement and be released from its obligations
hereunder, if (i) no Event of Default has occurred and is continuing
unless such Event of Default is cured as of the date of such transfer,
consolidation or merger; (ii) the surviving, resulting or transferee
entity, if other than the Company, assumes all of the obligations of the
Company under this Agreement, the Regulatory Agreement, the
Declaration, the Mortgage and the Assignment of Leases and Rents, by
written instrument delivered to the Issuer and Trustee; (iii) the
surviving, resulting or transferee entity if other than the Company has
a Net Worth at least equal to $ after giving effect to such
consolidation, merger or sale; and (iv) OTHER?
(b) Nothing herein contained is intended to prohibit the Company from
substituting limited partners or selling limited partnership interests in
the Company so long as such sale or transfer does not affect the tax-
exempt status of the Bonds.
(c) Before any transfer, merger or consolidation, the Company shall
give 30 days written notice thereof to the Issuer and the Trustee. The
Company shall not effect such merger, consolidation or transfer if the
result thereof would be to subject the interest payable on the Bonds to
Federal income taxes under Section 103 of the Code.
SECTION 7.06. Filing of Financing Statements. The Company agrees that it
will, at its sole expense, file or cause to be filed any financing statements
and continuation statements required or requested by the Trustee to perfect
the security interest of the Trustee in this Agreement and the payments to be
made hereunder granted under the Indenture.
SECTION 7.07. Assurance of Tax Exemption. In order to assure that the
interest on the Bonds shall at all times be free from federal income taxation,
the Company represents and covenants with the Issuer, the Trustee and all
Holders of Bonds that:
(a) the Company will fulfill all conditions specified in Section
103(b)(4)(A) of the Code and Regulation 1.103-8(b), to qualify the
Bonds thereunder;
(b) the Company will not use (or permit to be used) the Project or use
or invest (or permit to be used or invested) the proceeds of the Bonds
or any other sums treated as "bond proceeds" under Section 103(c) of
the Code including "investment proceeds," "invested sinking funds" and
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"replacement proceeds," in such a manner as to cause the Bonds to be
classified "arbitrage bonds" under Section 103(c) of the Code and
applicable federal income tax regulations;
(c) the Company will not cause any Working Capital Expenses to exceed
10% of the Net Bond Proceeds in violation of the requirement in Section
103(b) of the Code that substantially all of the proceeds of the Bonds be
used for the acquisition or improvement of land or depreciable property;
(d) no portion of the Net Bond Proceeds will be used to acquire or
otherwise provide any private or commercial golf course, country club,
airplane, skybox or other private luxury box, health club facility,
facility used primarily for gambling, store the principal business of
which is the sale of alcoholic beverages for consumption off premises,
land (or interest therein) to be used for farming purposes, existing
property other than land (unless the first use of such property is
pursuant to such acquisition or unless "rehabilitation expenditures" are
made with respect to such property in an amount at least equal to 15% of
the amount of Bond proceeds used to acquire such property and are to
be made by December 15, 1987), massage parlor, tennis club, skating
facility (including roller skating, skateboard and ice-skating), racquet
sports facility (including any handball or racquetball court), hot tub
facility, suntan facility or racetrack, and in no event will more than 25%
of the Net Bond Proceeds (or 24.9% in the case of land) be used to
acquire or otherwise provide a facility the primary purpose of which is
either retail food and beverage services, automobile sales or service, the
provision of recreation or entertainment, or land (other than land used
for farming purposes) all within the meaning of Section 103(b)(6) of the
Code;
(e) the average maturity of the Bonds does not exceed 120% of the
average reasonably expected economic life of the Project within the
meaning of Section 103(b)(14) of the Code;
(f) the Company shall provide the Issuer at Bond Closing with all
information required to satisfy the informational requirements set forth in
Section 103(1) of the Code including the information necessary to
complete IRS Form 8038; and
(g) the Company will not otherwise use Bond proceeds, including
earnings thereon, or take or fail to take any action, the effect of which
would be to impair the exemption of interest on the Bonds from federal
income taxation.
SECTION 7.08. Determination of Taxability.
(a) A "Notice of Taxability" shall mean receipt by the Issuer, the
Company, the Trustee or any Holder or former Holder of a Bond of
notice of the actual or proposed issuance of a statutory notice of
deficiency or ruling of the National Office or any District Office of the
Internal Revenue Service, or of the actual or proposed commencement of
a court proceeding or other action, or of the final enactment of a change
in any applicable federal statute, the effect of which notice of
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dameficiency, ruling, proceeding, action or statutory change is or would be
Determination of Taxability. Ai
"Determination of Taxability" shall
ean the issuance of a statutory notice of deficiency by the Internal
Revenue Service, ora ruling of. the National Office or any District Office
of the Internal Revenue Service or a final decision of a court of
competent jurisdiction or a change in any applicable federal statute which
holds or provides in effect that the interest payable on the Bonds is
includible in the gross income of the Holder or any prior Holder for
federal income tax purposes except on account of the Bonds being held
by a "substantial user" or a "related person" thereof, within the
meaning of Section 103(b) of the Code as a result of any act, omission
or misrepresentation of the Company; provided, however, that a
Determination of Taxability shall be deemed not to have occurred unless
the Company has, to the extent permitted by law, been afforded the
opportunity, at its election and expense as hereinafter provided, to
participate fully in a contest of such claim and, if the Company elects to
participate in such contest, until (a) such contest has been either finally
determined by a court of competent jurisdiction from which no further
appeal exists or abandoned by the Company or (b) three years have
elapsed from the receipt of notice by the Company of a Notice of
Taxability. The Company shall be deemed to have not been afforded the
opportunity to participate fully unless such Holder or former Holder
shall, upon written request of the Company and at the expense of the
Company, contest such Notice of Taxability in good faith; upon such
request, inform the Company, of the status of such contest; and upon
such request, in good faith, submit and file, to the extent permitted by
law, on its and the Company's behalf, any written briefs or arguments,
all at the expense of the Company, prepared by the Company or its
counsel and, to the extent permitted by law, afford the Company's
counsel an opportunity to participate fully in such contest and any oral
arguments, conferences and other parts of such contest. The Company
shall not have the right to participate in a contest of such claim unless
(i) within 120 days after receipt of Notice of Taxability from the Trustee
or any such Holder or former Holder, the Company shall make a written
request that such claim be contested and shall furnish a written opinion
of Bond Counsel to the effect that a reasonable basis exists for
contesting such claim; (ii) the Company agrees to indemnify and hold
harmless such Holder or former Holder from and against any and all
liability, damage, loss, cost or expense (including attorney's fees) which
such Holder or former Holder may incur as the result of contesting such
claim; and further hereby agrees to pay on demand all costs and
expenses which such Holder or former Holder may incur in contesting
such claim and to furnish such bond, letter of credit or other form of
security for said obligations as such Holder or former Holder may
reasonably request, and (iii) immediately deposit with the Trustee an
amount equal to the premium specified in Section 7.06 of the Indenture.
It is the intent of the Issuer and the Company that such additional
payments be made to insure payment of the premium on the Bonds in the
event that they are to be redeemed pursuant to such "Determination of
Taxability." The Trustee shall deposit such sums in a segregated
account in the Bond Fund to be used only for payment of such premium
and amounts in such account may not be credit against monthly
installments of Basic Payments. If the appeal or contest of such
-26-
"Determination of Taxability" is successful, amounts in such account
shall be returned to the Company.
(b) Within one hundred and twenty (120) days (or ninety (90) days of
if the Company has elected to participate in a contest of the statutory
notice of deficiency or similar notice giving rise to the Determination of
Taxability), after the occurrence of a Determination of Taxability, the
Company shall give written notice to the Issuer and Trustee stating a
date for providing funds for redemption of the Bonds which date is not
less than thirty (30) days after the notice is mailed and not more than
forty-five (45) days after the notice is mailed and at least thirty (30)
days prior to the redemption date; and the Company shall make
arrangements satisfactory to the Trustee for the giving of notice
required for redemption of all of the Outstanding Bonds on the first day
of the next succeeding month for which proper notice thereof can be
given. .
(c) Upon a Determination of Taxability the Company shall pay on the
date set under subsection (b) for providing funds for redemption of the
Bonds or, if the Company has failed to establish such date as required
in subsection (b), on the last Business Day on which such date may be
set under subsection (b), an amount equal to the sum of the following:
(1) an amount which, when added to the amounts on deposit in
any of the Funds established in Article V of the Indenture and
available for that purpose, will equal the principal amount of all
then Unpaid Bonds plus accrued interest thereon to the redemption
date, plus a premium for each Bond called prior to maturity equal
to the amount specified in Section 7.06 of the Indenture; provided,
however, if the Determination of Taxability occurred because
interest became taxable for Federal income tax purposes as a result
of the enactment of legislation or the promulgation by the Internal
Revenue Service or the United States Department of Treasury of
regulations or rules after the issuance of the Bonds, which causes
the interest to become subject to Federal income taxation, then no
premium shall be due; plus
(2) an amount equal to the Paying Agent's and Trustee's fees,
accrued and to accrue until final payment and redemption of the
Bonds, and all other advances, fees, costs and expenses reasonably
incurred by the Trustee, the Issuer and the Paying Agent,
including Bond Counsel and legal fees.
(d) If this Agreement has not been terminated under Section 8.04 prior
to the payment date described in subsection (b) above, this agreement
shall be terminated on said payment date and the closing for the
termination of this Agreement shall be completed otherwise as provided
for termination of this Loan Agreement upon exercise of the
Company's options under Section 8.04.
CO If the Company receives the statutory notice of deficiency or similar
notice described in subparagraph (1) above and the Company complies
with the provisions of this Section 7.08, the Issuer and Trustee shall
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have no right to accelerate the Loan under Section 9.02(a) or to bring
any action for damages on behalf of any Bondholders (or former Holders)
as a result of any act, omission or misrepresentation of the Company
giving rise to such notice and in no event shall the occurrence of a
Determination of Taxability in itself constitute a default under this
Agreement; provided that nothing in this Section 7.08 shall be construed
to limit the right of the Issuer to bring any action for any losses or
damages suffered by the Issuer, or to limit the right of the Issuer,
Company, or Trustee to join or intervene in, or to join by compulsory
process another party to, any legal action relating to the bonds or to
the exemption from federal income taxation of the interest thereon.
SECTION 7.09. Set Aside. At all times during the qualified project period
twenty percent (20$) or more of the units of the Project shall be occupied by
individuals of low income within the meaning of Section 103(b)(4)(A) of the
Code, all as further provided in the Regulatory Agreement.
ARTICLE VIII.
COMPANY'S OPTIONS
SECTION 8.01. Assignment and Transfer. The Company may assign its
rights and obligations under this Agreement and, as an incident thereto,
transfer its interest in the Project without the prior consent of the Issuer or
the Trustee, but subject to the provisions of Section 5.02 and 7.05 and
provided that no such assignment and transfer shall subject the interest
payable on the Bonds in the hands of persons other than the Company or any
other "substantial user" or "related persons" to Federal income taxes.
SECTION 8.02. Prepayment. The Company may at any time transmit funds
directly to the Trustee, for deposit in the Bond Fund, in addition to
amounts, if any, otherwise required at that time pursuant to this Agreement,
and direct that said money, be utilized by the Trustee to:
(a) redeem Bonds which are then or will be redeemable in accordance
with their terms on an interest payment date specified by the Company
occurring at least thirty (30) days after the money is deposited for this
purpose by the Company; or
(b) purchase Bonds in accordance with the provisions of Section 5.06 of
the Indenture; or
(c) provide for the discharge of Bonds prior to their maturity or
redemption dates as provided in Section 7.01 of the Indenture.
SECTION 8.03. Direction of Investments. Except during the continuance of
an Event of Default, the Company shall have the right during the Term of
this Agreement to direct the Trustee to invest or reinvest all monies held for
the credit of Funds established by Article V of the Indenture in such
securities as are authorized by law for such funds, subject, however, to the
further conditions of Article VI of the Indenture.
-28-
SECTION 8.04. Termination of Loan Agreement. Except during the
continuance of an Event of Default, the Company shall have the option of
terminating this Agreement subject to the following conditions:
(a) such option may be exercised only if one of the following events
shall have occurred:
(1) if all Bonds shall have matured or will mature or be subject to
redemption in accordance with their terms on their then next
succeeding interest payment date or if provision is otherwise made
for payment of all Bonds in such manner that the Indenture will be
discharged under Article VII thereof on or before the date of
termination; or
(2) if the Project shall have been damaged or destroyed to such
extent that in the reasonable judgment of the Company (i) the
Project cannot reasonably be restored within six (6) months to
substantially its condition immediately preceding such damage or
destruction, or (ii) cannot reasonably be used to carry on the
normal operations of the Company for six (6) months; or
(3) if by reason of Condemnation, title shall have been taken to all
or substantially all of the Project or the Project Premises or so
much thereof that in the reasonable judgment of the Company, (i)
the Company will be prevented from carrying on its normal
operations for six (6) months, or (ii) if more than 10% of the
Facility or 20% of the Project Premises are taken; or
(4) if as a result of any changes in the Constitution of the State
of Minnesota or the Constitution of the United States of America, or
of any legislative or administrative action, whether state or federal,
or of any final decree, judgment or order of any court or
administrative body, whether state or federal, entered after the
contest thereof by the Company in good faith, the agreements
contained in this Agreement shall have become impossible of
performance in accordance with the intent and purposes of the
parties as expressed herein.
(b) in any of the events stated in subsection (a), clauses (2) through
(4) above, if the Company determines to exercise its option to terminate
this Agreement, it must give written notice of its decision to exercise its
option within one hundred twenty (120) days after such event;
(c) the Company shall give written notice to the Issuer and to the
Trustee of its intention to exercise the option, stating therein a
termination date not less than forty-five (45) nor more than ninety (90)
days after the date the notice is mailed, but in no event prior to the
date on which all Outstanding Bonds shall be deemed discharged under
Article VII of the Indenture; and the Company shall make arrangements
satisfactory to the Trustee for the giving of any notice required for
redemption of all of the Outstanding Bonds on the date on which the
Bonds are to be redeemed;
-29-
(d) the Company shall pay to the Trustee an amount equal to the sum
of the following;
(1) an amount which, when added to the aggregate amount of any
other available balances on deposit in the Funds created under
Article V of the Indenture, will be sufficient to discharge the
Indenture in accordance with Article VII thereof and terminate the
lien of the Mortgage; plus
(2) to the extent not paid under subsection (a) above, an amount
equal to the Trustee's and Paying Agent's fees and expenses under
the Indenture, accrued and to accrue until final payment and
redemption of the Bonds and all other advances, fees, costs and
expenses reasonably incurred and to be incurred on or before the
termination date by the Trustee and Paying Agent under the
Indenture and by the Issuer under this Agreement;
provided that, in any event, in order to effect prepayment or
discharge of any Outstanding Bonds the company shall, prior to the
termination date, satisfy the requirements of Section 8.02; and
(e) on the termination date, a closing shall be held at the principal
office of the Trustee, or any other office mutually agreed upon. At the
closing the Issuer and Trustee shall, upon acknowledgment of receipt of
the sum set forth in subsection (d) above, execute and deliver to the
Company such releases and other instruments as the Company reasonably
determines is necessary to terminate this Agreement. All further
obligations of the Company hereunder, except under Section 4.03(f),
7.04, 7.07 and 7.08, shall thereupon, terminate; provided, however, that
the Company shall also remain obligated to pay or reimburse the Issuer
and Trustee for the payment of all other fees, costs and expenses
unaccounted for in the sum paid in accordance with subsection (d) above
and reasonably incurred before or subsequent to such closing in
connection with the Bonds; provided further, however, that the
obligations under the Agreement relating to the payment of Project Costs
out of Bond proceeds held in the Construction Fund and the payment of
Trustee's fees and expenses shall survive if (a) the Agreement should
terminate prior to the Completion Date, (b) the Project has not been
abandoned and (c) proceeds of such Bonds, including interest thereon,
remain available in the Construction Fund for the payment of Project
Costs, all as provided in Section 7.05 of the Indenture.
ARTICLE IX.
EVENTS OF DEFAULT AND REMEDIES
SECTION 9.01. Events of Default. Any one or more of the following events
is an Event of Default under this Agreement, and the term "Event of
Default," wherever used herein, means any one of the following events,
whatever the reason for such default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body:
-30-
(a) if the Company shall fail to pay any Basic Payments required under
Section 4.02(a)(1) or (2) on or before the date that the payment is due
and such failure continues for ten (10) days; or if on the Maturity Date
the amounts in the Bond Fund are insufficient IT_pay sums due to the
Bondholders on such Maturity Date; or if on Mandatory Purchase
Date there are not sufficient funds on deposit in the Purchase Fund to
permit the Trustee to purchase Bonds as required by Section 3.05 of the
Indenture;
(b) if the Company shall fail to pay any Basic Payments required under
Section 7.08(c) on or before the date that the payment is due;
(c) if the Company shall fail to pay any Additional Charges on or
before the date that the payment is due, and shall continue to be in
arrears for ten (10) days after mailing of a notice to it by the Issuer or
the Trustee that said Additional Charges have not been received on the
due date;
(d) if the Company shall fail to observe and perform or shall breach
any other covenant, condition or agreement on its part under this
Agreement and such failure or breach shall continue for a period of
thirty (30) days after mailing of a notice to it by the Issuer or the
Trustee, specifying such failure or breach and requesting that it be
remedied, unless the Trustee shall agree in writing to an extension of
such time prior to its expiration for such longer period as may be
reasonably necessary to remedy such default provided that the Company
is proceeding with reasonable diligence to remedy the same;
(e) if the Company or any of the Guarantors shall
(1) file a Petition in Bankruptcy or for any reorganization,
arrangement, composition, readjustment, liquidation, dissolution, or
similar relief under the Bankruptcy Code; or under any similar
federal or state law; or
(2) make an assignment for the benefit of its creditors; or
(3) admit in writing its inability to pay its debts generally as they
become due; or
(4) be adjudicated a bankrupt or insolvent; or if a petition or
answer proposing the adjudication of the Company, or any of the
Guarantors, as a bankrupt or its reorganization under any present
or future federal bankruptcy act or any similar federal or state law
shall be filed in any court and such petition or answer shall not be
discharged or denied within ninety (90) days after the filing
thereof; or a receiver, trustee or liquidator of the Company, or
any of the Guarantors, or of the Mortgaged Property, or any part
thereof, shall be appointed in any proceeding brought against the
Company, or any of the Guarantors, and shall not be discharged
within ninety (90) days after such appointment, or if the Company,
or any of the Guarantors, shall consent to or acquiesce in such
appointment;
-31-
(f) the partnership agreement of the Company shall expire or be
annulled; or if the Company shall be dissolved or liquidated (other than
when a new entity assumes the obligations of the Company under the
conditions permitting such action contained in Sections 5.02 or 7.05 or
when dissolution occurs as a result of the death, disability or
bankruptcy of a partner under circumstances where action is taken in
accordance with the partnership agreement to reconstitute the
partnership);
(g) if an Event of Default should occur and be continuing under the
Indenture, Mortgage, the Regulatory Agreement, the Guaranty, or the
Assignment of Leases and Rents; or
(h) if any representation of warranty made by the Company herein, or
by a general partner of the Company in any document or certificate
furnished the Trustee or the Issuer in connection herewith or therewith
or pursuant hereto or thereto, shall prove at any time to be, in any
material respect, incorrect or misleading as of the date made.
SECTION 9.02. Remedies.
(a) Subject to the provisions of Section 9.13 hereof, whenever any
Event of Default shall have happened and be subsisting and the Trustee
shall have accelerated the Unpaid Bonds pursuant to Section 8.02 of the
Indenture, the Trustee or the Issuer (with the prior written consent of
the Trustee) shall declare all the Basic Payments payable for the
remainder of the Term of this Agreement (an amount equal to that
necessary to pay in full all Outstanding Bonds and the interest thereon
and any call premium assuming acceleration of the Bonds under the
Indenture and to pay all other indebtedness thereunder) to be
immediately due and payable whereupon the same shall become
immediately due and payable by the Company; and under no other
circumstances may payment of the Loan be accelerated;
(b) Subject to the provisions of Section 9.13 hereof, whenever any
Event of Default shall have happened and be subsisting, any one or
more of the following remedial steps may also be taken to the extent
permitted by law:
(1) the Trustee or the Issuer (with the prior written consent of
the Trustee) may take whatever action at law or in equity may
appear necessary or appropriate to collect all sums then due and
thereafter to become due, or to enforce performance and observance
of any obligation, agreement, covenant, representation or warranty
of the Company, under this Agreement, the Mortgage, the
Assignment of Leases and Rents or any related instrument; or to
otherwise compensate the Issuer, Trustee or Bondholders for any
damages on account of such Event of Default; and
(2) the Issuer (without the prior written consent of the Trustee if
the Trustee is not enforcing the Issuer's rights in a manner to
protect the Issuer or is otherwise taking action that brings adverse
consequences to the Issuer) may take whatever action at law or in
-32-
equity may appear necessary or appropriate to enforce its rights of
indemnification under Section 7.04 and to collect all sums then due
and thereafter to become due to the Issuer under Section 4.03,
7.04, 7.09 and 9.05 of this Agreement.
SECTION 9.03. Disposition of Funds. Any amounts collected pursuant to
action taken under Section 9.02 (other than sums collected for the Issuer on
account of its rights to indemnification and certain direct payments to be
made to the Issuer under Sections 4.03, 7.04, 7.09 and 9.05) shall be applied
in accordance with the provisions of the Indenture. All other amounts shall
be paid directly to the Issuer.
SECTION 9.04. Nonexclusive Remedies. No remedy herein conferred upon or
reserved to the Issuer or Trustee is intended to be exclusive of any other
available remedy or remedies, but each and every such remedy shall be
cumulative and shall be in addition to every other remedy given under this
Agreement or now or hereafter existing at law or in equity or by statute. No
delay or omission to exercise any right or power accruing upon any Event of
Default shall impair any such right or power or shall be construed to be a
waiver thereof, but any such right and power may be exercised from time to
time and as often as may be deemed expedient. In order to entitle the Issuer
(or the Trustee) to exercise any remedy reserved to it in this Article, it
shall not be necessary to give any notice, other than such notice as may be
herein expressly required or be required by law.
SECTION 9.05. Attorneys' Fees and Expenses. If an Event of Default shall
exist under this Agreement and the Issuer or the Trustee should employ
attorneys or incur other expenses for the collection of any amounts due
hereunder, or the enforcement of performance of any obligation or agreement
on the part of the Company, the Company will upon demand pay to the Issuer
or the Trustee the reasonable fees of such attorneys and such other expenses
so incurred.
SECTION 9.06. Effect of Waiver. In the event any agreement contained in
this Agreement should be breached by either party and thereafter waived by
the other party, such waiver shall be limited to the particular breach so
waived and shall not be deemed to waive any other breach hereunder.
SECTION 9.07. Waiver of Stay or Extension. The Company covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon,
or plead, or in any manner whatsoever claim or take the benefit or advantage
of, any appraisement, valuation, stay, or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the _
performance of this Agreement; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Issuer or the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
SECTION 9.08. Issuer May File Proofs of Claim. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
-33-
the Company or the property of the Company, the Trustee or the Issuer with
the prior consent of the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(a) to file and prove a claim and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the
Issuer and the Trustee (for themselves and on behalf of Bondholders)
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Issuer and Trustee, their agents and
counsel) allowed in such judicial proceeding, and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same.
SECTION 9.09. Restoration of Positions. If the Issuer or the Trustee have
instituted any proceeding to enforce any right or remedy under this
Agreement, and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Issuer or the Trustee, then
and in every such case the Company and the Issuer shall, subject to any
determination in the proceeding, be restored to the positions they held prior
to commencement of such proceedings, and thereafter all rights and remedies
of the Issuer shall continue as though no such proceeding had been
instituted.
SECTION 9.10. Suits to Protect the Project. If the Company shall fail to do
so after thirty (30) days prior written notice from the Issuer or the Trustee,
the Issuer shall have power to institute and to maintain such proceedings as
it may deem expedient to prevent any impairment of the Project or any
portion thereof, by any acts which may be unlawful or in violation of this
Agreement, and such suits and proceedings as the Issuer may deem expedient
to protect its interest in the Project or any portion thereof, including power
to institute and maintain proceedings to restrain the enforcement of or
compliance with, any governmental enactment rule or order that may be
unconstitutional or otherwise invalid, if the enforcement of, or compliance
with, such enactment, rule or order would impair or adversely affect the
Project or be prejudicial to the interest of the Bondholders.
SECTION9.11. Performance by Third Parties. The Issuer may permit third
parties to perform any and all acts or take such action as may be necessary
for and on behalf of the Company to cure any Event of Default hereunder.
The acceptance by the Issuer or the Trustee of any such performance by
third parties shall not in any way diminish or absolve the Company of primary
liability hereunder.
SECTION 9.12. Exercise of the Issuer's Remedies by Trustee. Whenever any
Event of Default shall have happened and be subsisting the Trustee may, but
except as otherwise provided in the Indenture shall not be obliged to,
exercise any or all of the rights of the Issuer under this Article IX, without
notice to the Issuer.
SECTION 9.13. Non-Recourse Obligation. It is recognized that the Loan,
payments pursuant to Section 4.02 of this Agreement, the Mortgage and the
Assignment of Leases and Rents are non-recourse obligations as to all parties
-34-
other than the Company. Except as provided in the last sentence of this
Section 9.13, neither the general or limited partners in or shareholders of
any such general partners, nor the assets of any such partners, nor of any
person other than the Company directly or indirectly controlling, controlled
by, or under direct or indirect common control with a general partner, shall
be liable with respect to any of the obligations of the Company hereunder
(including, without limitation, the payments pursuant to Section 4.02 of this
Agreement), the Mortgage or the Assignment of Leases and Rents, or any
other agreement related thereto or for any of the Basic Payments. The
remedies available to the Issuer and the Trustee upon an Event of Default
insofar as ' they relate to such obligations or the payment of any Basic
Payments are limited to the rights and remedies against any of the assets of
the Company, including without limitation, the Mortgaged Property, the rents,
issues and profits from the Mortgaged Property and such other security to
secure the repayment of the Loan as is given the Issuer or Trustee under the
Mortgage, the Assignment of Leases and Rents and the Guaranty. Any money
judgment arising out of any such agreements with respect to the Basic
Payments shall be collected and collectible only out of the assets of the
Company and no person shall have the right to institute or enforce an action
suit, claim or demand, in law or in equity, against any of the general
partners or such other persons described above (except pursuant to the
Guaranty), on account of any deficiency thereunder; provided, however, that
nothing herein shall be deemed to relieve the Company from personal liability
for the performance of any obligation of the Company hereunder, including
payment of Basic Payments, Additional Charges and other amounts.
Notwithstanding anything to the contrary contained herein, the obligations of
the general partners and the Company to make payments to the Issuer under
Sections 4.02(b), (e) and (f), 7.04 and 9.05 of this Agreement are recourse
obligations and the Company and the general partners shall have personal
liability therefor.
ARTICLE X.
GENERAL
SECTION 10.01. Amounts Remaining in Funds. Except during the
continuance of an Event of Default, any amounts remaining in the Funds
created under Article V of the Indenture upon expiration or earlier
termination of this Agreement, as provided herein, and after adequate
provision has been made for payment in full of the Bonds, in accordance with
Article VII of the Indenture, any Additional Charges payable to the Trustee
and the Issuer, including Paying Agent's fees and expenses, and all other
amounts required to be paid under this agreement, the Indenture, the
Mortgage and the Assignment of Leases and Rents, shall forthwith be paid to
the Company by the Trustee.
SECTION 10.02. Notices. All notices, certificates or other communications
hereunder shall be sufficiently given and shall be deemed given when mailed
by first class mail, postage prepaid, with proper address as indicated below.
The Issuer, the Company, the Original Purchaser, and the Trustee may, by
written notice given by each of them to the others, designate any address or
addresses to which notices, certificates or other communications to them shall
be sent when required as contemplated by this agreement. All notices,
-35-
certificates and communications to each of them shall also be given to the
Original Purchaser and the Remarketing Agent.
To the Issuer: City of Oak Park Heights
14168 - 57th Street North
Oak Park Heights, MN 55082
Attn: City Administrator
To the Company: Oak Ridge Place Partnership, a
Minnesota Limited Partnership
, Minnesota
Attn:
To the Trustee: First Trust Company, Inc.
E-405 First National Bank Bldg.
St. Paul, MN 55101
Attn: Corporate Trust Department
To the Original
Purchase and
Remarketing Agent: Juran & Moody, Inc.
800 Minnesota Mutual Bldg.
400 North Robert Street
St. Paul, MN 55101
Attn: Originations and
Trading Department
SECTION 10.03. Binding Effect. This Agreement shall inure to the benefit
of and shall be binding upon the Issuer and the Company and their
respective successors and assigns.
SECTION 10.04. Severability. In the event any provisions of this Agreement
shall be held invalid or unenforceable by any court of competent jurisdiction,
such holding shall not invalidate or render unenforceable any other provision
hereof.
SECTION 10.05. Amendments, Changes, and Modifications. Except as
otherwise provided in this Agreement or in the Indenture, subsequent to the
issuance of the Bonds and before the lien of the Indenture is satisfied and
discharged in accordance with its terms, this Agreement may not be
effectively amended, changed, modified, altered or terminated without the
written consent of the Trustee.
SECTION 10.06. Execution Counterparts. This Agreement may be
simultaneously executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same instrument.
SECTION 10.07. Limitation on Issuer's Liability. No agreements or
provisions contained in this Agreement nor any agreement, covenant or
undertaking by the Issuer contained in any document executed by the Issuer
in connection with the Project shall give rise to any pecuniary liability of the
-36-
Issuer or a charge against its general credit or taxing powers, or shall
obligate the Issuer financially in any way except with respect to the Project
and the application of revenues therefrom and the proceeds of the Bonds. No
failure of the Issuer to comply with any term, condition, covenant or
agreement herein shall subject the Issuer to liability for any claim for
damages, costs or other financial or pecuniary charge except to the extent
that the same can be paid or recovered from the Project or revenues
therefrom or proceeds of the Bonds; and no execution of any claim, demand,
cause of action or judgment shall be levied upon or collected from the general
credit, general funds or taxing powers of the Issuer. Nothing herein shall
preclude a proper party in interest from seeking and obtaining specific
performance against the Issuer for any failure to comply with any term,
condition, covenant, or agreement herein; provided, however, that no costs,
expenses or other monetary relief shall be recoverable from the Issuer except
as may be payable from the Project of its revenues.
SECTION 10.08. Representations of Company. All representations made in
this Agreement by the Company are abased on the Company's independent
investigation of the facts and law and, accordingly, no such representations
are made in reliance upon any representations made or legal advice given by
the Issuer, its Bond Counsel, or any of its agents, officers or employees.
SECTION 10.09. Attorneys Fees and Costs. The Company shall reimburse
the Issuer, upon demand, for all costs and expenses, including without
limitation attorneys' fees, paid or incurred by the Issuer in connection with
(a) the discussion, negotiation, preparation, approval, execution and delivery
of the Bonds, the Loan Agreement, the Indenture, the Regulatory Agreement,
and the documents and instruments related hereto and thereto; (b) any
amendments or modifications to any of the foregoing documents, instruments
or agreements and the discussion, negotiation, preparation, approval,
execution and delivery of any and all documents necessary or desirable to
effect such amendments or modifications; and (c) the enforcement by the
Issuer during the term hereof or thereafter of any of the rights or remedies
of the Issuer hereunder or under the foregoing documents, or any document,
instrument or agreement related hereto or thereto, including, without
limitation, costs and expenses of collection in the Event of Default, whether
or not suit is filed with respect thereto.
SECTION 10.10. Release. The Company hereby acknowledges and agrees
that the Issuer shall not be liable to the Company, and hereby releases and
discharges the Issuer from any liability for any and all losses, costs,
expenses (including attorneys' fees), damages, judgments, claims and causes
of action, paid, incurred or sustained by the Company as a result of or
relating to any action, or failure or refusal to act, on the part of the Trustee
or any other third party with respect to this Loan Agreement, or the
documents and transactions related hereto or thereto or contemplated hereby
or thereby, including, without limitation, the exercise by the Trustee of any
of its rights or remedies pursuant hereto or thereto.
SECTION 10.11. Survivorship of Obligations. All obligations of the Company
under Sections 4.03(f), 7.04, 7.07, 7.08 and 10.09 shall survive payment of
the Bonds or earlier termination of this Agreement under Section 7.07 or
8.04.
-37-
IN WITNESS WHEREOF, the Issuer and the Company have caused this
Agreement to be executed by their duly authorized officers.
CITY OF OAK PARK HEIGHTS
By
Its Mayor
(SEAL)
By
Its City Administrator
OAK RIDGE PLACE PARTNERSHIP, a
MinnesotaaPartners hip
LW‘f%;k Q3.
By
Its General Partner
By
Its General Partner
-38-
EXHIBIT "A"
(insert legal descriptions)
EXHIBIT "B"
Definitions
Act: Minnesota Statutes, Chapters 462C, 462A and 475 as amended;
Additional Charges: the payments required by Section 4.03 of the Loan
Agreement;
Assignment of Leases and Rents: the Assignment of Leases and Rents to
be dated on or prior to the Remarketing Date, to be made by the
Company in favor of the Trustee with respect to the Project to secure the
Bonds, and any amendments or supplements thereto made in accordance
with the provisions hereof and thereof;
Bankruptcy Code: the United States Bankruptcy Reform Act of 1978, as
amended, or any similar or succeeding federal bankruptcy law;
Basic Payments: the payments required by Section 4.02 of the Loan
Agreement;
Bond Closing: the date on which there is delivery by the Issuer of and
payment for the Bonds;
Bond Counsel: the firm of Briggs and Morgan, P.A., of Minneapolis and
Saint Paul, Minnesota, or any other firm of nationally recognized bond
counsel experienced in tax exempt industrial revenue bond financing
selected by the Trustee and acceptable to the Issuer and the Company;
Bond Fund: the fund so designated in Section 5.03 for which the
principal of and interest and premium, if any, on the Bonds are payable;
Bond Register: the register maintained by the Trustee pursuant to
Section 2.10;
Bondholder or Holder: the person in whose name a Bond is registered in
the Bond Register;
Bonds: the $3,200,000 Multi-Family Housing Development Revenue Bonds,
Series 1985 (Oak Ridge Place Project) to be issued in fully registered
form without coupons by the Issuer pursuant to this Indenture;
Business Day: any day other than a Saturday, Sunday, legal holiday or
a day on which banking institutions in the city where the principal
corporate trust office of the Trustee is located are authorized by law or
executive order to close;
Code or Internal Revenue Code: the Internal Revenue Code of 1954, as
amended, and all applicable Treasury Regulations;
Collateral Security Documents: the Mortgage, the Assignment of Leases
and Rents, the Guaranty and any other assignments, collateral agent
agreement, mortgage, security agreement or guaranty heretofore or
B-1
hereafter made for the benefit and with the consent of the Trustee as
creditor to secure payment of the Bonds or the Loan;
Company. Oak Ridge Plan Partnership, a Minnesota Limited Partnership,
its successors and assigns, and any surviving, resulting or transferee or
other entity which may assume its obligations under the Loan Agreement;
Completion Date: the date determined in accordance with Section 3.06 of
the Loan Agreement;
Condemnation: the word "Condemnation" or phrase "eminent domain" as
used herein shall include the taking or requisition of governmental
authority or by a person, firm or corporation acting under governmental
authority and a conveyance made under threat of Condemnation, provided
such conveyance is made with the approval of the Trustee, which
approval shall not be unreasonably withheld, and "condemnation award"
shall mean payment for property condemned or conveyed under threat of
Condemnation;
Construction Fund: the fund so designated in Section 5.02 hereof, into
which shall be deposited all proceeds of the Bonds., except for accrued
interest to be deposited in the Bond Fund;
Cost, Cost of Project or Project Costs: the cost items enumerated in
it on 3.02 of the Loan Agreement;
Declaration: the declaration of restrictive covenants to be recorded
against the Project Premises on or prior to the Remarketing Date, to be
executed by the Company;
Determination of Taxability: this term shall have the meaning given it in
Section 7.08 of the Loan Agreement;
Disbursing Agreement: any agreement between the Company, the Trustee
and Title providing for the Disbursement of proceeds of the Bonds;
Discharge Date: the date on which all Outstanding Bonds are discharged
under Article Seven;
Event of Default: any of the events set forth in Section 8.01;
Facility: the approximately gross square foot, -story, -unit
apartment building to be located on the Project Premises, together with all
additions to, replacements of and substitutions for any of the foregoing
which may be made as permitted or required by the Mortgage;
Final Payment Date: the Maturity Date, Discharge Date or Purchase Date
on which all Outstanding Bonds either mature, are to be redeemed, are
discharged under Article VII, or are purchased under Section 5.06,
whichever date is earlier;
B-2
Guarantors:
heirs,
legal representatives and assigns and anysubstitutespermitted p suant
to the Guaranty; pursuant
Guaranty: collectively the operating deficit loan guaranty agreement and
the completion guaranty agreement to be dated on or prior to the
Remarketing Date, to be executed and delivered by the Guarantors in
favor of the Trustee, and any amendments or supplements thereto made in
accordance with the provisions hereof and thereof;
Holder or Bondholder: the person in whose name a Bond is registered in
the and Iregister;
Indenture: this Indenture of Trust by and between the Issuer and the
ru'�stee, as the same may from time to time be amended or supplemented
as herein provided;
Independent Accountant: a certified public accountant or firm of certified
public accountants registered and qualified to practice as such under the
laws of the State of Minnesota, and not regularly employed by the Issuer
or the Company, except to perform independent audits of the books and
records of either or both of them or other similar periodic reviews;
Independent Counsel: any attorney desi nated b the Trustee, duly
admitted to practice law before the highes g court of any state, who may
be counsel to the Company or the Issuer but who may not be an officer
or a full time employee of the Company or the Issuer;
Independent En ince;: an architect, engineer or architectural or
engineeringfirm designated by the Trustee, registered and
qualified
practice such profession under the laws of the State of Minnesota, and
not a full-time employee or officer of the Company or the Issuer;
'" Initial Holder:
Holdar othe First National Bank of Saint Paul, or any subsequent
outstanding Bonds prior to the Remarketing Date;
Internal Revenue Code or Code: the Internal Revenue Code of 1954, as
amended and all applicable T asury Regulations thereunder;
Issuer: the City of Oak Park Heights, Minnesota, its successors and
assigns;
Loan: the loan of Bond proceeds by the Issuer to the Company described
in Section 4.01 of the Loan Agreement;
Loan Agreement: the Loan Agreement of even date herewith by
between the Issuer and the Company, as the same may from timeto ime
be amended or supplemented as provided therein and in this Indenture; me
B-3
Mandatory Purchase Date: the Remarketing Date and December 1, 1995;
Maturity Date: the date on which principal of or interest or premium, if
any, on the Bonds is due, whether at maturity, on a scheduled interest
payment date, or upon redemption or acceleration, or otherwise;
Mortgage: the Mortgage and Security Agreement to be dated on or prior
to the Remarketing Date to be entered into be and between the Company
and the Trustee with respect to the Project, to secure the Bonds, and
any amendments or supplements thereto made in accordance with the
provisions hereof and thereof;
Mortgaged Property: the tangible properties, real, personal or mixed,
described in the Granting Clauses of the Mortgage, as they may at any
time exist;
Net Proceeds: with respect to any property insurance payment,
Condemnation award for or sale of any Mortgaged Property, the amount
remaining therefrom after payment of all expenses incurred by the
Company, the Trustee and the Issuer in the collection thereof;
Notice of Taxability: this term shall have the meaning set forth in
Section 7.08 of the Loan Agreement;
Original Purchaser: the bank, investment banker, bond dealer, or other
person who acts as underwriter or otherwise purchases the Bonds from
the Issuer on Bond Closing (Duran & Moody, Inc.) and any other bank
investment banker, bond dealer, or other person who remarkets the
Bonds;
Outstanding, Bonds: as of the date of determination, all Bonds
theretofore issued and delivered under this Indenture except:
(1) Bonds theretofore cancelled by the Trustee or Paying Agent or
delivered to the Trustee or Paying Agent cancelled or for
cancellation;
(2) Bonds for which payment or redemption moneys or securities
(as provided in Article VII) shall have been theretofore deposited
with the Trustee or Paying Agent in trust for the Holders of such
Bonds; provided, however, that if such Bonds are to be redeemed,
notice of such redemption shall have been duly given pursuant to
this Indenture or irrevocable action shall have been taken to call
such Bonds for redemption at a stated redemption date; and
(3) Bonds in exchange for or in lieu of which other Bonds shall
have been issued and delivered pursuant to this Indenture;
provided, however, that in determining whether the Holders of the
requisite principal amount of Outstanding Bonds have given any request,
demand, authorization, direction, notice, consent or waiver hereunder,
Bonds owned by the Issuer or the Company shall be disregarded and
deemed not to be Outstanding Bonds, except that in determining whether
B-4
the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent, or waiver, only Bonds
which the Trustee knows to be so owned shall be disregarded;
Paying Agent: the Trustee or any other entity designated pursuant to
this Indenture as the Agent of the Issuer and the Trustee to receive and
disburse the principal of and premium, if any, and interest on the
Bonds;
Payment Date: the Maturity Date, Purchase Date or Discharge Date, as
the case may be;
Permitted Encumbrances: the Permitted Encumbrances defined in the
Mortgage;
Petition in Bankruptcy: any petition filed to initiate a proceeding under
the Bankruptcy Code in which the Company is the debtor, whether such
petition is filed by or against the Company, or any other commencement
of a proceeding under any other applicable law concerning insolvency,
reorganization or bankruptcy as now or hereafter in effect;
Plans and Specifications: the plans and specifications for the acquisition,
construction and installation of the Facility, and any modifications thereof
and additions thereto made and filed in accordance with the provisions of
Section 3.01(1) of the Loan Agreement;
Pr�o'ecctt: the Project Premises and the Facility, including all Project
qE uipment, as they may at any time exist;
Project Equipment: any and all (i) fixtures or tangible personal property
now or hereafter attached or affixed to the Project Premises, (ii) other
tangible personal property now or hereafter located within or used in
connection with the Project Premises or the Facility and acquired, in
whole or in part, from Bond proceeds, and (iii) any additions to,
replacements of and substitutions for any of the foregoing which may be
permitted or required by the Mortgage or the Loan Agreement; but
excluding any property which is released or taken by Condemnation as
authorized or contemplated in the Mortgage;
Project Premises: the real estate described in Exhibit A attached hereto
together with all additions to, replacements of and substitutions for the
foregoing which may be made as permitted or required by the Mortgage,
but excluding any real estate released or taken by Condemnation as
authorized or contemplated in the Mortgage;
Project Supervisor: any one of: , who
shall have full authority to sign any certificate or statement of any kind
authorized by the Loan Agreement to be given by the Project Supervisor
to the Issuer or the Trustee, both of whom may rely on any certificate or
statement so signed as that of the Project Supervisor and shall not be
affected by any notice to the contrary; provided, however, that if the
original Project Supervisor, or any successor appointed hereunder, should
become unavailable, unable or unwilling to take any action or make any
B-5
certificate provided for in the Loan Agreement, a successor (who need
not be an architect or engineer) shall be appointed by the Company,
subject to acceptance by the Issuer and the Trustee, and if the Company
fails to make such designation within ten days following such event, the
Trustee may appoint as such successor any architect or engineer licensed
under the laws of the State of Minnesota;
Purchase Date: the date on which any Outstanding Bonds are purchased
pursuant to Section 5.06 hereof;
Purchase Fund: the fund so designated in Section 5.09 of the Indenture;
Record Date: with respect to any Payment Date for interest on the
Bonds, (i) the fifteenth (15th) day of the month (whether or not a
Business Day) next preceding such Payment Date or (ii) if the Issuer
shall be in default in payment of interest due on such Payment Date, a
special Record Date for the payment of such defaulted interest established
by notice mailed by the Trustee on behalf of the Issuer; notice of such
special Record Date shall be mailed not less than fifteen (15) days
preceding such special Record Date, to the Holder at the close of
business on the fifth (5th) Business Day preceding the date of mailing;
Redemption Fund: the fund so designated in Section 5.09 of the
Indenture into which shall be deposited Net Proceeds following restoration
of the Project;
Regulatory Agreement: the Regulatory Agreement, dated the date hereof,
executed by the Trustee, the Issuer and the Company with respect to the
Project;
Related Documents: the Loan Agreement, the Guaranty, the Regulatory
Agreement, the Mortgage, the Declaration, the Disbursing Agreement, the
Remarketing Agreement and the Assignment of Leases and Rents;
Remarketing Agent: Juran & Moody, Inc.;
Remarketing Agreement: that certain Remarketing Agreement dated as of
the date hereof by and between the Remarketing Agent and the Company;
Remarketing Date: , 1986;
Representative: the Mayor of the Issuer or a general partner of the
Company, or any other person at any time designated to act on behalf of
the Issuer or the Company, as the case may be, as evidenced by a
written certificate furnished to the other party and the Trustee
containing the specimen signature of such person and signed for the
Issuer by its Mayor or for the Company by a general partner thereof;
Reserve Fund: the separate fund established under Section 5.04 hereof
into which there shall be transferred from the Construction Fund on the
Remarketing Date an amount equal to the Reserve Requirement, and which
shall thereafter be maintained in the amount of the Reserve Requirement;
B-6
Reserve Requirements: an amount equal to the maximum interest due on
the Bonds during any subsequent month period;
Responsible Agent: any person duly authorized and designated by the
Trustee to act on its behalf in carrying out the applicable duties and
powers of the Trustee as set forth in this Indenture ,(any action required
by the Trustee under this Indenture may be taken by a Responsible
Agent);
Restricted Construction Funds: any Bond proceeds, including interest
thereon, which are required to be transferred on the Completion Date
from the Construction Fund to the Bond Fund and which the Trustee is
required under Section 5.03(2) to apply towards the prepayment or pro
rata payment of Bonds;
Restricted Obligations: obligations which are issued by the United States
Treasury and any other Permitted Investments investment in which will
not cause the Bonds to be federally guaranteed obligations, all within the
meaning of Section 103(h) of the Code;
SLGS: United States Treasury obligations - State and Local Government
Series, as provided for in the United States Treasury Regulation
31 CFR 344;
Title: such title insurance company as is selected by the Company and
acceptable to the Remarketing Agent;
Treasury Regulations: all proposed, temporary or permanent federal
income taxation regulations then in effect;
Trust Estate: the Trust Estate as defined and set forth in the Granting
Clauses hereof;
Trustee: First Trust Company, Inc., in St. Paul, Minnesota, and any
co-trustee or successor trustee appointed, qualified and then acting as
such under the provisions of this Indenture;
Unpaid Bonds: all Outstanding Bonds and any other Bonds which have
neither matured nor been cancelled under this Indenture.
B-7
NO. 1
'.- DRAFT NO.
CITY OF OAK PARK HEIGHTS, MINNESOTA
ISSUER
AND
FIRST T'R'UST
COMPANY, INC•
,rgUSTEE
INDENTURE OF TRUST
Dated: December 1, 1985
HOUSING DEVELOPMENT
MULTI-FAMILY SERIES 1985
$g,200,000gEVENUE BONACE PROJECT)(OAK RIDGE
s instrument was drafted by
Thi
BRIGGS a MORGAN,
PROFESSIONAL
ROFNaoASSOC
I
2200 First nal Bank
Bui
Building
Saint Paul, Minnesota 55101
r
li
TABLE OF CONTENTS
Page
1
PARTIES
1
RECITALS
2
GRANTING CLAUSES
ARTICLE I - Definitions, Exhibits and General Provisions 44
Section 1.01. Definitions 10
Section 1.02. Exhibits 10
Section 1.03. Rules of Interpretation
12
ARTICLE II - The Bonds 12
Section 2.01. Authorized Amount and Form of Bond 22
Section 2.02. Initial Issue 22
Section 2.03. Execution 23
Section 2.04. Authentication 23
Section 2.05. Delivery of Initial Issue 24
Section 2.06. Remarketing of Bonds 24
Section 2.07. Mutilated, Lost and Destroyed Bonds 24
Section 2.08. Ownership of Bonds
Section 2.09. Preparation of Definitive Bonds; 25
Temporary Bonds
Section 2.10. Registration, Transfer and Exchange 25
of Bonds 25
Section 2.11. Interest Rights Preserved 27
Section 2.12. Destruction of Bonds
ARTICLE III - Redemption or Purchase of Bonds 28
Before Maturity and Tax Premium 28
Section 3.01. Redemption and Tax Premium 30
Section 3.02. Notice of Redemption 30
Section 3.03. Cancellation
Section 3.04. Method of Redemption 30
30
Section 3.05. Mandatory Tender and Purchase of Bonds
1
ARTICLE IV - General Covenants 3232
Section 4.01. Payment of Principal, Premium and Interest 32
Section 4.02. Performance of and Authority for Covenants 32
Section 4.03. Instruments of Further Assurance 32
Section 4.04. Recording and Filing 33
Section 4.05. Books and Records 33
Section 4.06. Bondholders' Access to Bond Register 33
Section 4.07. Rights Under Loan Agreement
Section 4.08. Rights Under Collateral Security Documents 33
s
s
Page
ARTICLE V - Funds and Accounts 34
Section 5.01. Trust Funds Pledged and Assigned 34
to the Trustee
Section 5.02. Construction Fund 34
354
Section 5.03. Bond Fund 35
Section 5.04. Reserve Fund 36
Section 5.05. Property Insurance and Award Fund
Section 5.06. Purchase or Prepayment of Bonds at
Request of Company 39
409
Section 5.07. Deposit of Funds with Paying Agent
Section 5.08. Redemption Fund 41
Section 5.09. Purchase Fund 41
ARTICLE VI - Investments 4242
Section 6.01. Investments by Trustee 42
Section 6.02. Return on Investments 43
Section 6.03. Computation of Balances in Fund
Section 6.04. Preservation of Tax Exempt Status 43
of the Bonds
ARTICLE VII - Discharge of Lien 44
Section 7.01. Payment of Bonds; Satisfaction and
Discharge of Bonds and Obligation 44
to Bondholders 45
Section 7.02. Cancellation of Surrendered Bonds 45
Section 7.03. Payment of Bonds 45
Section 7.04. Application of Deposited Money 46
Section 7.05. Completion of Project 46
Section 7.06. Tax Call and Tax Premium
ARTICLE VIII - Default Provisions and Remedies 47
Section 8.01. Events of Default 47
Section 8.02. Acceleration 47
Section 8.03. Remedies 48
Section 8.04. Direction of Proceedings by Bondholders 48
Section 8.05. Waiver of Stay or Extension Laws 49
Section 8.06. Priority of Payment and Application 9
of Moneys 4 49
Section 8.07. Remedies Vested in Trustees 515
Section 8.08. Rights and Remedies of Holders 51
Section 8.09. Termination of Proceedings 52
Section 8.10. Waiver of an Event of Default 52
Section 8.11. Company and Guarantor as Agent of Issuer
W.IWI.WWWW —
,
P
. 54
54
56
Trustee Trustee 56
enges 57
Thetante of the es and Exp
ARTICLE IX 9.01• Acceptance
Chars 5?
Section Trustee's Holders of Default 57
Section 9.02. Trustee
.03• Notice totion by 5?
Section 9.04. Intervention
Trustee 5�
Section Successor Trustee 58
Section 9.05. Resignation 'T iyuatee stee
Section g•06' Removal of : cessoruccessor Tru
9.07 . Appointment ofTrustees 58
Section 9.08. b tTaxes
Section 9.09. Acceptance Y 58
Right of Trustee
Section g.10 and Other Charges Relying
Section protected in 59
g.11. Trustees tions Custodian °f 59
Section Upon Resolutions Paying Agent 61
Successor Trustee as
9.12. andFund61
SectionBond to Reporting 61
Co-Trustee Trustee as
Section g•13' Obligation to Tru Agent
g.14. Paying Trustee 63
Section 9.15. SuccesSOtion of the
Section g.16. Confirms 63
Section Supplemental Indentures Not ReQairing
X - .01. Supplemental Indentures 63
Supplemental airing Consent 64
ARTICLE 10.01• Bondhol ere Req
Section Consent
n al Indere
10.02• Supplemental
upp 3
Section of Holders 66
Section 10.03. Rights of Trustee
Documents Consent 66
Related Bondholder
dments to Requiring older Consent 68
_ Amen Amendments Not Bondh
66
ARTICLE oX11.0 2 Amendments Requiring 68
Section 11.02. Amen 68
Section provisions 68
Miscellaneous f Holders 71
rs
ARTICLE on - Consent oder Indenture 71
.O1• un Bondh�ure
Section 12 .02. Bights 72
Section 12 .03. Meetings of
Section 12.04. Severability 12
Section .05. Notices arts Issuer and 12
Section 12 .06. Counterparts Liability
P oyeesf and Agents ?3
Section 12.0? . Limitation of Funds
Section its Officers. 73
Amounts Remaining
T Taxability Section 12.08• Amo
Section 12.Og• Determination
SIGNATURES of Project Premises
Exhibit A
Legal Description
ARTICLE I.
DEFINITIONS, EXHIBITS AND GENERAL PROVISIONS
SECTION 1.01. Definitions. In this Indenture the following terms have the
following meanings unless the context hereof clearly requires otherwise, and
any other terms defined in the Loan Agreement or the Collateral Security
Documents shall have the same meanings when used herein as assigned them in
the Loan Agreement or Mortgage unless the context or use thereof indicates
another or different meaning or intent:
Act: Minnesota Statutes, Chapters 462C, 426A and 475, as amended;
Additional Charges: the payments required by Section 4.03 of the Loan
Agreement;
Assignment of Leases and Rents: the Assignment of Leases and Rents to
be dated on or prior to the Remarketing Date, to be made by the
Company in favor of the Trustee with respect to the Project to secure the
Bonds, and any amendments or supplements thereto made in accordance
with the provisions hereof and thereof;
Bankruptcy Code: the United States Bankruptcy Reform Act of 1978, as
amended, or any similar or succeeding federal bankruptcy law;
Basic Payments: the payments required by Section 4.02 of the Loan
Agreement;
Bond Closing: the date on which there is delivery by the Issuer of and
payment for the Bonds;
Bond Counsel: the firm of Briggs and Morgan, of Minneapolis and Saint
Paul, Minnesota, or any other firm of nationally recognized bond counsel
experienced in tax exempt industrial revenue bond financing selected by
the Trustee and acceptable to the Issuer and the Company;
Bond -Fund: the fund so designated in Section 5.03 for which the
principal of and interest and premium, if any, on the Bonds are payable;
Bond Register: the register maintained by the Trustee pursuant to
Section 2.10;
Bondholder or Holder: the person in whose name a Bond is registered in
the Bond Register;
Bonds: the $3,200,000 Multi-Family Housing Development Revenue Bonds,
Series 1985 (Oak Ridge Place Project) to be issued in fully registered
form without coupons by the Issuer pursuant to this Indenture;
Business Day: any day other than a Saturday, Sunday, legal holiday or
a day on which banking institutions in the city where the principal
corporate trust office of the Trustee is located are authorized by law or
executive order to close;
-4-
Code or Internal Revenue Code: the Internal Revenue Code of 1954, as
amended, and all applicable Treasury Regulations;
Collateral Secu.r-i-t —Documents: the Mortgage, the Assignment of Leases
and Rents, and any other assignments, collateral agent agreement,
mortgage, security agreement or guaranty heretofore or hereafter made
for the benefit and with the consent of the Trustee as creditor to secure
payment of the Bonds or the Loan;
Com an . Margaret Place Limited Partnership, a Minnesota limited
partnership, its successors and assigns, and any surviving, resulting or
transferee or other entity which may assume its obligations under the
Loan Agreement;
Completion Date: the date determined in accordance with Section 3.06 of
the Loan Agreement;
Condemnation: the word "Condemnation" or phrase "eminent domain" as
usedh— shall include the taking or requisition of governmental
authority or by a person, firm or corporation acting under
,
authority and a conveyance made under threat of Condemnation, p ovided
such conveyance is made with the approval of the Trustee, which
approval shall not be unreasonably withheld, and "condemnation award"
shall mean payment for property condemned or conveyed under threat of
Condemnation;
Construction Fund: the fund so designated in Section 5.02 hereof, into
which shall be deposited all proceeds of the Bonds, except for accrued
interest to be deposited in the Bond Fund;
Cost, Cost of Project or Project Costs: the cost items enumerated in
NeTion 3.02 of the Loan Agreement;
Determination of Taxabilit : this term shall have the meaning given it in
Sectionthe Loan Agreement;
Disbursing Agreement: any agreement between the Company, the Trustee
and Title providing the Disbursement of proceeds of the Bonds;
Dischar --Date: the date on which all Outstanding Bonds are discharged
under Article even;
Event of Default: any of the events set forth in Section 8.01;
Fa_cilit,Y: the approximately gross square foot, -stor ,
unit apartment building to be located on the Project Pree im'ses, together
with all additions to, replacements of and substitutions for any of the
foregoing which may be made as permitted or required by the Mortgage;
Final•P.avment-.Date: the Maturity Date, Discharge Date or Purchase Date
on which all Outstanding Bonds either mature, are to be redeemed, are
discharged under Article VII, or are purchased under Section 5.06,
whichever date is earlier;
-5-
Guarantors:
legal representatives and assigns and any substitutes permitted pursuant
to the Guaranty;
Guaranty: collectively, the operating deficit loan guaranty agreement and
completion guarantee agreement to be dated on or
prior to
Remarketing Date, to be executed and delivered by the Guarantors t he in
favor of the Trustee, and any amendments or supplements thereto made in
accordance with the provisions hereof and thereof;
Holder or Bondholder: the person in whose name a Bond is registered in
the Bond Register;
Indenture: this Indenture of Trust by and between the Issuer and the
Trustee, as the same may from time to time be amended or supplemented
as herein provided;
Independent Accountant: a certified public accountant or firm of certified
public accountants registered and qualified to practice as such under the
laws of the State of Minnesota, and not regularly employed by the Issuer
or the Company, except to perform independent audits of the books and
records of either or both of them or other similar periodic reviews;
Independent Counsel: any attorney designated by the Trustee, duly
admitted to practice law before the highest court of any state, who may
be counsel to the Company or the Issuer but who may not be an officer
or a full time employee of the Company or the Issuer;
Independent Engineer: an architect, engineer or architectural or
engineering firm designated by the Trustee, registered and qualified to
practice such profession under the laws of the State of Minnesota, and
not a full-time employee or officer of the Company or the Issuer;
Initial- .Holder: The First National Bank of Saint Paul or any subsequent
Holder of all outstanding Bonds prior to the Remarketing Date;
Inter-nal.- Revenue Code or Code: the Internal Revenue Code of 1954, as
amended, and all applicable Treasury Regulations thereunder;
Investment Obligations:
Issuer: the City of Oak Park Heights, Minnesota, its successors and
assigns;
Loan: the loan of Bond proceeds by the Issuer to the Company described
inTection 4.01 of the Loan Agreement;
Loan- Agreement: the Loan Agreement of even date herewith by and
between the Issuer and the Company, as the same may from time to time
be amended or supplemented as provided therein and in this Indenture;
-6-
Mandatory Purchase Date: the Remarketing Date and December 1 1995.
Maturity Date: the date on which principal of or interest or
any, on the Bonds is due, whether at maturit any, if
payment date, or upon redemption or acceleration, or otherwise; interest
Mortgage: the Mortgage and Security Agreement to be dated on or prior
to t`marketing Date to be entered into be and between the Company
and the Trustee with respect to the Project, to secure the Bonds, and
any amendments or supplements thereto made in accordance with the
provisions hereof and thereof;
MortaQed Property: the tangible
described in the Granting Clauses of the asties, real, e they mixed,t
time exist; may any
Net Proceeds: with respect to an
Condemnation award for or sale of any yMortgaged Propertyproperty , theamount
remaining therefrom afteropayment,
Company, the Trustee and the Issuer inf the collection sth incurred by the
Notice .of Taxabilit this term shall have the meaning set forth in
e ti n 8 o the oan Agreement;
Original Purchaser: the bank, investment banker, bond dealer, or other
person who acts as underwriter or otherwise
the Issuer on Bond Closingpurchases the Bonds from
investment banker, bond ealer, or other person who, Inc.) and a remarkets
Bonds; s the
Outstanding Bonds: as of the date of determination, all Bonds
theretofore issued and delivered under this Indenture except:
(1) Bonds theretofore cancelled by the Trustee or Paying Agent or
delivered to the Trustee or Paying Agent cancelled or for
cancellation;
(2) Bonds for which payment or redemption moneys or securities
(as provided in Article VII) shall have been theretofore deposited
with the Trustee or Paying Agent in trust for the Holders of such
Bonds; provided, however, that if such Bonds are to be redeemed,
notice of such redemption shall have been duly
pursuant to
this Indenture or irrevocable action shall have b been ntaken to call
such Bonds for redemption at a stated redemption date; and
(3) Bonds in exchange for or in lieu of which other Bonds shall
have been issued and delivered pursuant to this Indenture;
provided, however, that in determining whether the Holders of the
requisite principal amount of Outstanding Bonds have given any request
demand, authorization, direction, notice, consent or waiver herunder,
Bonds owned by the Issuer or the Company shall be disregarded and
deemed not to be Outstanding Bonds, except that in determining whether
-7-
i
the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent, or waiver, only Bonds
which the Trustee knows to be so owned shall be disregarded;
Paying- Agent: the Trustee or any other entity designated pursuant to
this Indenture as the Agent of the Issuer and the Trustee to receive and
disburse the principal of and premium, if any, and interest on the
Bonds;
Payment Date: the Maturity Date, Purchase Date or Discharge Date, as
the case may be;
Permitted Encumbrances: the Permitted Encumbrances defined in the
Mortgage;
Petition in Bankruptcy: any petition filed to initiate a proceeding under
the Bankruptcy Code in which the Company is the debtor, whether such
petition is filed by or against the Company, or any other commencement
of a proceeding under any other applicable law concerning insolvency,
reorganization or bankruptcy as now or hereafter in effect;
Plans and Specifications: the plans and specifications for the acquisition,
construction and installation of the Facility, and any modifications thereof
and additions thereto made and filed in accordance with the provisions of
Section 3.01(1) of the Loan Agreement;
Project: the Project Premises and the Facility, including all Project
Equipment, as they may at any time exist;
P-roject Eq-uipment: any and all (i) fixtures or tangible personal property
now or hereafter attached or affixed to the Project Premises, (ii) other
tangible personal property now or hereafter located within or used in
connection with the Project Premises or the Facility and acquired, in
whole or in part, from Bond proceeds, and (iii) any additions to,
replacements of and substitutions for any of the foregoing which may be
permitted or required by the Mortgage or the Loan Agreement; but
excluding any property which is released or taken by Condemnation as
authorized or contemplated in the Mortgage;
Project Premises: the real estate described in Exhibit A attached hereto
together with all additions to, replacements of and substitutions for the
foregoing which may be made as permitted or required by the Mortgage,
but excluding any real estate released or taken by Condemnation as
authorized or contemplated in the Mortgage;
Project Supervisor: any one of: , who
shall have full authority to sign any certificate or statement of any kind
authorized by the Loan Agreement to be given by the Project Supervisor
to the Issuer or the Trustee, both of whom may rely on any certificate or
statement so signed as that of the Project Supervisor and shall not be
affected by any notice to the contrary; provided, however, that if the
original Project Supervisor, or any successor appointed hereunder, should
become unavailable, unable or unwilling to take any action or make any
-8-
•
certificate provided for in the Loan Agreement, a successor (who need
not be an architect or engineer) shall be appointed by the Company,
subject to acceptance by the Issuer and the Trustee, and if the Company
fails to make such designation within ten days following such event, the
Trustee may appoint as such successor any architect or engineer licensed
under the laws of the State of Minnesota;
Purchase Date: the date on which any Outstanding Bonds are purchased
pursuant to Section 5.06 hereof;
Purchase--Fund: the fund so designated in Section 5.09 hereof;
Record Date: with respect to any Payment Date for interest on the
Bonds, (i) the fifteenth (15th) day of the month (whether or not a
Business Day) next preceding such Payment Date or (ii) if the Issuer
shall be in default in payment of interest due on such Payment Date, a
special Record Date for the payment of such defaulted interest established
by notice mailed by the Trustee on behalf of the Issuer; notice of such
special Record Date shall be mailed not less than fifteen (15) days
preceding such special Record Date, to the Holder at the close of
business on the fifth (5th) Business Day preceding the date of mailing;
Redemption Fund: the fund so designated in Section 5.09 hereof into
which shall be deposited Net Proceeds following restoration of the Project;
Regulatory_Agreement: the Regulatory Agreement, dated the date hereof,
executed by the Trustee, the Issuer and the Company with respect to the
Project;
Related Documents: the Loan Agreement, the Guaranty, the Regulatory
Agreement, the Mortgage and the Assignment of Leases and Rents, the
Declaration, the Disbursing Agreement, and the Remarketing Agreement;
Remarketing Agent: duran & Moody, Inc.;
Remarketing Agreement: that certain Remarketing Agreement dated as of
the date hereof by and between the Remarketing Agent and the Company;
Remarketing--Date: , 1986;
Representative: the Mayor of the Issuer or a general partner of the
Company, or any other person at any time designated to act on behalf of
the Issuer or the Company, as the case may be, as evidenced by a
written certificate furnished to the other party and the Trustee
containing the specimen signature of such person and signed for the
Issuer by its Mayor or for the Company by a general partner thereof;
Responsible-Agent: any person duly authorized and designated by the
Trustee to act on its behalf in carrying out the applicable duties and
powers of the Trustee as set forth in this Indenture (any action required
by the Trustee under this Indenture may be taken by a Responsible
Agent);
-9-
Restricted Construction Funds: any Bond proceeds, including interest
thereon, which are required to be transferred on the Completion Date
from the Construction Fund to the Bond Fund and which the Trustee is
required under Section 5.03(2) to apply towards the prepayment or pro
rata payment of Bonds;
Restricted Obligations: obligations which are issued by the United States
Treasury and any other Permitted Investments investment in which will
not cause the Bonds to be federally guaranteed obligations, all within the
meaning of Section 103(h) of the Code;
SLGS: United States Treasury obligations - State and Local Government
Series, as provided for in the United States Treasury Regulation
31 CFR 344;
Title: such title insurance company as is selected by the Company and
acceptable to the Remarketing Agent;
Treasury Regulations: all proposed, temporary or permanent federal
income taxation regulations then in effect;
Trust Estate: the Trust Estate as defined and set forth in the Granting
Clauses hereof;
Trustee: First Trust Company, Inc., in St. Paul, Minnesota, and any
co-trustee or successor trustee appointed, qualified and then acting as
such under the provisions of this Indenture;
Unpaid Bonds: all Outstanding Bonds and any other Bonds which have
neither matured nor been cancelled under this Indenture.
SECTION 1.02. Exhibits. The following Exhibit is attached to and by
reference made a part of this Indenture:
Exhibit A: Legal Description of the Project Premises.
SECTION 1.03. Rules of Interpretation.
(a) This Indenture shall be interpreted in accordance with and governed
by the laws of the State of Minnesota.
(b) The words "herein" and "hereof" and "hereunder" and words of
similar import, without reference to any particular section or subdivision,
refer to this Indenture as a whole rather than to any particular section
or subdivision of this Indenture.
(c) References in this Indenture to any particular article, section or
subdivision hereof are to the designated article, section or subdivision of
this Indenture as originally executed.
(d) All accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles; and all computations provided for herein shall be made in
-10-
accordance with generally accepted accounting principles consistently
applied and applied on the same basis as in prior years.
CO The Table of Contents and titles of articles and sections herein are
for convenience only and are not a part of this Indenture.
(f) Unless the context hereof clearly requires otherwise, the singular
shall include the plural and vice versa and the masculine shall include the
feminine and vice versa.
(g) Articles, sections, subsections and clauses mentioned by number
only are those so numbered which are contained in this Indenture.
(h) For purposes of this Indenture and the Loan Agreement, a Petition
in Bankruptcy shall be deemed dismissed only if either (a) the petition is
dismissed by order of a court of competent jurisdiction and no further
appeal rights exist from such order or (b) the Company notifies the
Trustee that such a dismissal has occurred.
-11-
ARTICLE II.
THE BONDS
SECTION 2.01. Authorized Amount and Form of Bond. Bonds secured by this
Indenture shall be issued in fully registered form without coupons and in
substantially the form set forth herein with such appropriate variations,
omissions and insertions as are permitted or required by this Indenture,and in
accordance with the further provisions of this Article II. The total principal
amount of Bonds that may be outstanding hereunder is expressly limited to
$3,200,000 unless duplicate Bonds are issued as provided in Section 2.07.
Portions of the text of the Bonds may be printed on the back of the Bonds to
permit the printing of Bonds of a size which can be registered by machine. If
a portion of the text of the Bond is to be printed on the back of the Bond,
the face of the Bond shall contain a provision in substantially the following
form:
"REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS
BOND WHICH ARE SET FORTH ON THE REVERSE HEREOF, AND SUCH
PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF
SET FORTH HERE."
Additionally, at the request of the Trustee the following notation may appear
at an appropriate location on the Bonds to facilitate registration of the Bonds:
"The following abbreviations, when used in the inscription on the face of
this Bond, shall be construed as though they were written out in full:
TEN COM - as tenants in common
TEN ENT - as tenants by entireties
JT TEN - as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN ACT - under Uniform Gifts to Minors Act.
Additional abbreviations may also be used though not in the above list."
The Bonds, together with the Trustee's Certificate of Authentication, the form
of Assignment and the registration information thereon, shall be in
substantially the following form:
-12-
UNITED STATES OF AMERICA
STATE OF MINNESOTA
COUNTY OF WASHINGTON
CITY OF OAK PARK HEIGHTS, MINNESOTA
No. R
MULTI-FAMILY HOUSING DEVELOPMENT REVENUE BOND,
SERIES 1985
(OAK RIDGE PLACE PROJECT)
Nominal Date Mandatory
Interest of Original Maturity Purchase
Rate ' Issue -. Date - Date CUSI.P
% per annum 12-1-85 12-1-
1. KNOW ALL PERSON BY THESE PRESENTS that the City of Oak Park
Heights, in the County of Washington and State of Minnesota (the "Issuer"),
for value received, promises to pay
or registered assigns, but only from the Multi-
Family Housing Development Revenue Bond Fund, Series 1985 (Oak Ridge Place
Project) (the "Bond Fund") and upon presentation and surrender hereof at the
principal corporate trust office of the Trustee named below, the principal sum
of DOLLARS on the date set forth above, or, if this Bond is
prepayable as stated below, on a prior date on which it shall have been duly
called for redemption, and to pay interest on said principal sum to the Record
Date Holder hereof, as defined below, solely from the Bond Fund, until the
principal sum is paid or discharged, at the interest rate as specified above
(calculated on the basis of a 360-day year of twelve 30-day months). Prior to
the Remarketing Date (as defined in the Indenture hereinafter referred to)
interest shall be payable monthly on the first day of each month. Interest
shall also be payable on the Remarketing Date. After the Remarketing Date,
interest shall be payable semiannually on June 1 and December 1 of each year
(each , an "Interest Payment Date"). In all cases interest shall accrue and be
payable from the most recent Interest Payment Date to which interest has been
paid or provided for. The "Record Date Holder" is the person in whose name
this Bond is registered in the Bond Register maintained by the Trustee named
below or its successor in trust (the "Registered Holder" or "Holder" hereof)
either (i) at the close of business on the fifteenth (15th) day of the month
(whether or not a business day) next preceding each Interest Payment Date
(the "Record Date"), irrespective of any transfer or exchange of this Bond
subsequent to such Record Date and prior to such Interest Payment Date, or
(ii) if the Issuer shall be in default in payment of interest due on such
Interest Payment Date, at the close of business on a date (the "Special Record
Date") for the payment of such defaulted interest established by notice mailed
by the Trustee on behalf of the Issuer. Notice of the Special Record Date
shall be mailed not less than fifteen (15) days preceding the Special Record
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Date, to the Registered Holder at the close of business on the fifth (5th) day
preceding the date of mailing. Interest shall be payable by check or draft
mailed to the Registered Holder at his address as it appears on the Bond
Register on the Record Date or the Special Record Date, as the case may be,
except as otherwise provided in the Indenture; provided, however, any Holder
of Bonds in an aggregate principal amount equal to or greater than $500,000
may elect, upon written notice to the Paying Agent (accompanied by proper
wire instructions), to be paid the interest on such Bonds payable on any
Interest Payment Date by wire transfer in federal funds to any bank in the
United States specified in such notice. The principal of and interest and
premium, if any, on this Bond are payable in lawful money of the United
States of America.
2. This Bond is one of an issue in the aggregate principal amount of
$3,200,000, all of like nominal date of original issue and tenor except as to
serial number, issued in accordance with an Indenture of Trust, dated as of
December 1, 1985 (the "Indenture"), duly executed and delivered by the
Issuer to First Trust Company, Inc., in St. Paul, Minnesota (the "Trustee"),
setting forth the terms upon which such Bonds are issued. The Bonds of this
series are issued by the Issuer for the purpose of making a loan of the
proceeds thereof (the "Loan") to Oak Ridge Place Partnership, a Minnesota
Limited Partnership (the "Company") under the provisions of a Loan
Agreement, dated as of December 1, 1985, by and between the Issuer and the
Company (the "Loan Agreement"), to provide financing for a project within the
meaning of Minnesota Statutes, Chapter 462C, consisting of the acquisition of
real estate located in the City of Oak Park Heights, Minnesota (the "City"),
and the construction and installation thereon of a multi-family elderly
residential rental facility (the "Project"). The Company has agreed under the
Loan Agreement to repay the Loan, together with interest thereon, in amounts
and at times sufficient to pay the principal of, premium, if any, and interest
on the Bonds as the same shall become due and payable (the "Basic
Payments"). The obligation of the Company to make Basic Payments, however,
is a non-recourse obligation with respect to the general partners in the
Company which imposes no personal pecuniary liability on any of its general
partners or any of their respective assets other than, following the
Remarketing Date, pursuant to a separate guaranty. Pursuant to the
Indenture, the Issuer has assigned and pledged to the Trustee, for the equal
and ratable benefit of the Holders of the Bonds, the Basic Payments due under
the Loan Agreement and on the Remarketing Date cause to be funded a
Reserve Fund in the amount of months' interest to further secure
payment of the Bonds and interest thereon. Pursuant to a Mortgage and
Security Agreement to be executed and delivered by the Company on or prior
to the Remarketing Date (the "Mortgage"), will grant to the Trustee, for the
equal and ratable benefit of the Holders of the Bonds, a mortgage lien on and
a security interest in the Project- to secure the repayment of the Loan. In
addition the Loan has been secured by a pledge by the Issuer of all sums held
by the Trustee in the Funds created pursuant to the Indenture. From and
after the Remarketing Date, the Loan will also be secured by an assignment of
leases and rents with respect to the Project, by an operating deficit loan
guaranty agreement and by a completion guaranty both to be given by certain
individuals to the Trustee, which guaranties are subject to release under
certain conditions specified therein (collectively the "Collateral Security
Documents"). Reference is hereby made to the Loan Agreement, Mortgage,
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Collateral Security Documents and Indenture, including all indentures
supplemental thereto, for a description of the property encumbered and
assigned, the provisions, among others, with respect to the nature and extent
of the security, the rights of the Issuer, and the rights, duties and
obligations of the Company, the Trustee and the Holders of the Bonds and the
terms upon which the Bonds are issued and secured.
3. The Bonds of this series are subject to prepayment and redemption or
purchase as follows:
(a) Optional Prepayment. All Bonds maturing after December 1, 1993,
are subject to redemption and prepayment upon request by the Company
to the Trustee on December 1, 1993, and on any Interest Payment Date
thereafter until December 1, 1995, in whole or in part, and if in part in
principal increments thereof of $5,000 and by lot, at their principal
amount plus accrued interest and a premium expressed as a percentage of
principal amount, set forth in the following table for the designated
redemption dates:
Redemption Date Premium
December 1, 1993 and June 1, 1994 2%
December 1, 1994 and June 1, 1995 1%
December 1, 1995 None
All Bonds maturing after December 1, 2005, are subject to redemption and
prepayment upon request by the Company to the Trustee on December 1,
2005, and on any Interest Payment Date thereafter, in whole or in part,
and if in part in principal increments thereof of $5,000 and by lot, at
their principal amount plus accrued interest and a premium expressed as
a percentage of principal amount, set forth in the following table for the
designated redemption dates:
Redemption Date Premium
December 1, 2003 and June 1, 2004 2%
December 1, 2004 and June 1, 2005 1%
December 1, 2005 and thereafter None
(b) Calamity-Prepayment. All Bonds shall be called for redemption and
prepayment on any Interest Payment Date at par and accrued interest
without premium if the Company exercises its right to terminate the Loan
Agreement either in the event of damage to or destruction or
Condemnation of the Project or any part thereof as provided in
clauses (B) or (C) of Section 8.04(1) of the Loan Agreement, or in the
event of changes in the Constitution or laws of the United States of
America or in the State of Minnesota as provided in clause (D) of
Section 8.04(1) of the Loan Agreement. Bonds shall also be called for
redemption in inverse order of their maturity and by lot within any
maturity, to the extent Net Proceeds (as defined in the Indenture) remain
after restoration and rebuilding of the Project if the Company elects to
rebuild or restore the Project after damage, destruction or condemnation.
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(c) Determination of Taxability. If a "Determination of Taxability" (as
defined in the Loan Agreement) occurs, and the Company provides for
prepayment of the Bonds as required in Section 7.08 of the Loan
Agreement, all Bonds shall be called for redemption and prepayment on
the first day of the then next succeeding month for which proper notice
of call can be given at par and accrued interest, plus a premium for each
Bond called prior to maturity equal to - •
(d) On the Remarketing Date, the holder hereof shall tender this Bond
to the Trustee for purchase on behalf of the Company, and the Trustee
shall purchase this Bond on behalf of the Company (but solely from
amounts on deposit in the Purchase Fund established by the Indenture),
at a purchase price equal to the principal amount hereof.
(e) On December 1, 1995, the holder hereof shall tender this Bond to
the Trustee for purchase on behalf of the Company, and the Trustee
shall purchase this Bond on behalf of the Company (but solely from
amounts on deposit in the Purchase Fund established by the Indenture),
at a purchase price equal to the principal amount hereof.
4. In the event of optional redemption by lot, the Trustee shall assign to
each Bond then Outstanding (as defined in the Indenture) a distinctive number
for each $5,000 of the principal amount of such Bond. The Trustee shall then
select by lot, using such method of selection as it shall deem proper in its
discretion, from the numbers so assigned to such Bonds, as many numbers as,
at $5,000 for each number, shall equal the principal amount of such Bonds to
be redeemed. The Bonds to be redeemed shall be the Bonds to which were
assigned numbers so selected; provided, however, that only so much of the
principal amount of such Bond of a denomination of more than $5,000 shall be
redeemed as shall equal $5,000 for each number assigned to it and so selected.
If a Bond may be redeemed only in part, it shall be surrendered to the
Trustee (with, if the Issuer or the Trustee so requires, a written instrument
of transfer in form satisfactory to the Issuer and the Trustee duly executed
by the Holder thereof or his attorney duly authorized in writing) and the
Issuer shall execute and the Trustee shall authenticate and deliver to the
Holder of such Bond, without service charge, a new Bond or Bonds of the
same series, of any authorized denomination or denominations, as requested by
such Holder, having the same stated maturity and interest rate of any
authorized denomination or denominations in aggregate principal amount equal
to and in exchange for the unredeemed portion of the principal of the Bond so
surrendered.
5. If the date for payment of the principal of, premium, if any, or interest
on this Bond shall be a Saturday, Sunday, legal holiday or a day on which
banking institutions in the city where the principal corporate trust office of
the Trustee is located are authorized by law or executive order to close, then
the date for such payment shall be the next succeeding day which is not a
Saturday, Sunday, legal holiday or a day on which such banking institutions
are authorized to close, and payment on such date shall have the same force
and effect as if made on the nominal date of payment.
6. Notice of redemption shall, if required by law, be published at least once
before the redemption date in a daily or weekly financial journal or newspaper
-16-
of general circulation in Minneapolis or Saint Paul, Minnesota, and shall be
mailed to each Holder of a Bond to be redeemed but, if published notice is
given, no defect in or failure to give such mailed notice of redemption shall
affect the validity of the proceedings for redemption of any Bond. All Bonds
so called for redemption, provided funds for their redemption have been duly
deposited, will cease to bear interest on the specified redemption date and
(except for the purpose of the payment) shall no longer be protected by the
Indenture and shall not be deemed Outstanding under the Indenture, and shall
thereafter be payable solely from the funds provided for payment.
7. This Bond and the series of which it forms a part are issued pursuant to
and in full compliance with the Constitution and laws of the State of Minnesota,
particularly Minnesota Statutes, Chapter 462C, as amended, and pursuant to
resolutions adopted and approved by the Issuer, which resolutions authorized
the Project and the execution and delivery of the Indenture, and the issuance
of the Bonds as special, limited obligations payable solely from revenues
derived from the Loan Agreement except that under certain circumstances the
Bonds may be payable from Bond proceeds, insurance proceeds, Condemnation
proceeds, and the proceeds of security given for the Loan. The Loan
repayments under the Loan Agreement are scheduled to be sufficient to pay
the principal of, premium, if any, and interest on the Bonds as the same
become due and payable and are to be paid to the Trustee for the account of
the Issuer and credited to the Bond Fund as a special trust fund account
created by the Issuer and have been and are hereby pledged for that
purpose. The Bonds and the interest due thereon do not and shall never
constitute a general indebtedness of the Issuer within the meaning of any state
constitutional or statutory provision and do not and shall not constitute or
give rise to a pecuniary liability or moral obligation of the Issuer, the State of
Minnesota or any of its political subdivisions, or a charge against their general
credit or taxing powers, or to the extent permitted by law, any pecuniary
liability of any officer, employee or agent of the Issuer.
8. The Registered Holder of this Bond shall have no right to enforce the
provisions of the Indenture or to institute action to enforce the covenants
therein, or to take any action with respect to any Event of Default under the
Indenture, or to institute, appear in or defend any suit or other proceedings
with respect thereto, except as provided in the Indenture. Modifications or
alterations of the Indenture, or of any indenture supplemental thereto, may be
made only to the extent and in the circumstances permitted by the Indenture.
9. With the consent of the Issuer, the Company, and the Trustee, as
appropriate, and to the extent permitted by and as provided in the Indenture,
the terms and provisions of the Indenture, the Loan Agreement or any other
instrument supplemental thereto, may be modified or altered by the consent of
the Registered Holders of at least 51$ in aggregate principal amount of the
Bonds then Outstanding thereunder.
10. The Indenture also contains provisions permitting Holders of a majority in
aggregate principal amount of the Bonds at the time Outstanding, on behalf of
all the Holders of all the Bonds and with the consent of the Issuer, to waive
compliance by the Issuer with certain provisions, of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent
or waiver by the Registered Holder of this Bond shall be conclusive and
-17-
binding upon such Registered Holder and on all future Registered Holders of
this Bond and of any Bond issued in lieu hereof whether or not notation of
such consent or waiver is made upon this Bond.
11. The Bonds are issued as fully registered Bonds in the denomination of
$5,000 or any whole multiple thereof. The Bonds are interchangeable for one
or more Bonds in authorized denominations upon surrender thereof by the
Holder at the principal office of the Trustee, in the manner and subject to the
limitations provided in the Indenture.
additionalpaying agentsmay The Issuer, the Trustee and any
deem and treat the Registered Holder hereof as
the absolute owner hereof (whether or not this Bond shall be overdue) for the
purpose of receiving payment of or on account of
hereof
(except as otherwise hereinabove provided with respect l oathe Re Dateinterest
Special Record Date) due hereon and for all other purposes, and the Issuer,
the Trustee and any additional paying agents shall not be affected by any
notice to the contrary.
12. Subject to the limitations provided in the Indenture,
Bond is
transferable by the Registered Holder hereof upon surrenderhis of this Bondonly
transfer at the principal corporate trust office of the Trustee, duly endorsed
or accompanied by a written instrument or instruments of transfer in the form
printed on this Bond or in another form satisfactory to the Trustee and
executed and with guaranty of signature by the Registered Holder hereof or
his attorney duly authorized in writing, containing written instructions as to
the details of the transfer of the Bond, along with the social security number
or federal employer identification number of such transferee and, if such
transferee is a trust, the name and social security or federal employer
identification numbers of the settlor and beneficiaries of the trust, the date of
trust and the name of the trustee. Thereupon the Issuer shall execute (if
necessary) and the Trustee shall authenticate and deliver, in exchange for
this Bond, one or more new Bonds in the name of the transferee, of an
authorized denomination or denominations, in aggregate principal amount equal
to the principal amount of this Bond, of the same maturity, and bearing
interest at the same.
13. No service charge shall be made to the Registered Holder for any
registration, transfer or exchange hereinbefore referred to, but the Trustee
may require payment of a sum sufficient to cover any tax, fee or other
governmental charge that may be imposed in connection with any transfer or
exchange of Bonds, other than exchanges expressly provided in the Indenture
to be made without charge to Holders of the Bonds.
14. IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all act
conditions and things required to exist, to haos'
precedent to and in the execution and delivery ofnthe and ndentureepa anded
issuance of this Bond do exist, have happened
due time, form and manner, as required law, and and h tandethe issuance obeen f tin
his
Bond and the series of which it forms a part, together with all other
obligations of the Issuer, does not exceed or violate any constitutional or
statutory limitation.
-18-
15. This Bond shall not be valid or become obligatory for any purpose or be
entitled to any security or benefit under the Indenture unless the Certificate
of Authentication hereon shall have been executed by the Trustee.
IN WITNESS WHEREOF, the City of Oak Park Heights, Washington County,
Minnesota, by its governing body, has caused this Bond to be executed in its
name by the facsimile signature of its Mayor and its Administrator and by the
manual signature of a Responsible Agent of the Trustee acting as
authenticating agent, and has caused this Bond to be sealed with a facsimile of
its official seal printed hereon.
Date of Registration:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This Bond is one of the
Bonds described in the
within mentioned
Indenture.
First Trust Company, Inc.
Trustee
By
Responsible Agent
CITY OF OAK PARK HEIGHTS
By f icsimile _.-.....•
.. ..
Mayor
(Facsimile Seal)
By facsimile
City Administrator
-19-
ASSIGNMENT
For value received, the undersigned hereby sells, assigns and transfers unto
the within Bond and does hereby
irrevocably constitute and appoint attorney to
transfer the Bond on the books kept for the registration thereof, with full
power of substitution in the premises.
Dated:
Notice: The assignor's signature to this assignment must correspond
with the name as it appears upon the face of the within Bond in
every particular, without alteration or any change whatever.
Signature Guaranteed:
Signature(s) must be guaranteed by a national bank or trust company or by a
brokerage firm having a membership in one of the major stock exchanges.
The Trustee will not effect transfer of this Bond unless the information
concerning the transferee requested below is provided.
Name and Address: .. __.._ _ ._....
(Include information for all joint owners if the
Bond is held by joint account)
Insert social security or
other identifying number
of Transferee
-20-
SECTION 2.02. Initial Issue. The Bonds shall be initially issued in the
aggregate principal amount of $3,200,000 and shall:
(a) be dated the date of their registration as provided in Section 2.02(j)
and shall bear a nominal date of original issue of December 1, 1985.
(b) be issued and delivered to the Original Purchaser as fully registered
Bonds, in the denominations of $5,000 or any whole multiple thereof, and
be numbered sequentially R-1 upwards;
(c) Mature on December 1 in each of the following years as follows:
Principal
Year Amount
(d) The Bonds shall initially bear interest until the Remarketing Date, at
the initial rate of interest of
Mandatory Purchase Date, the'inter srate
t ercent halle ben adjustedn to eacha
weighted average annual interest rate (the "Adjusted Rate") to be
determined by the Remarketing Agent on or
prior
each
Purchase Date. The Adjusted Rate determined on each Mandatory
Purchase Date shall be an annual interest rate which (i) is not less than
eighty percent (80$) nor more than one hundred twent
of
prior to the date of such determination, and ercent (u)$will ,
in the opinion of the Remarketing Agent, allow the Bonds to be sold at a
price closest to par.
(e) interest shall be payable: monthly on the first (1st) day of each
calendar month prior to the Remarketing Date; on the Remarketing Date;
and semiannually on each June 1 and December 1 after the Remarketing
Date;
(f) in all cases interest shall accrue and be
Payment Date to which interest has been payable from the most recent
Indenture; paid or provided for under this
-21-
(g) if a payment of defaulted interest is to be made, the Trustee shall
establish the time of such payment as provided herein and shall establish
the associated special Record Date therefor as provided in the definition
of "Record Date";
(h) be payable in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and
private debts, at the principal trust office of the Trustee acting as the
Paying Agent, or a duly appointed successor Paying Agent, except that
interest on the Bonds will be payable by check or draft mailed by the
Trustee to the Holders of such Bonds on the applicable Record Date (the
"Record Date Holders" as defined in the Bond) at the last addresses
thereof as shown in the Bond Register on the applicable Record Date
(provided, however, that any Holder of Bonds in aggregate principal
amount equal to or greater than $500,000 may elect, upon written notice
to the Paying Agent (accompanied by proper instructions), to be paid the
interest on such Bonds payable on any Interest Payment Date by wire
transfer in federal funds to any bank in the United States specified in
such notice), and principal of and any premium on any Bonds shall be
payable at the principal office of the Trustee; and
(i) be subject to redemption and purchase upon the terms and conditions
and at the prices specified in Article III hereof.
Notwithstanding the foregoing, if the date for payment of the principal of,
premium, if any, or interest on any Bonds shall be a day which is not a
Business Day, then the date for such payment shall be the next succeeding
day which is a Business Day, and payment on such later date shall have the
same force and effect as if made on the nominal date of payment.
SECTION 2.03. Execution. The Bonds shall be executed on behalf of the
Issuer by the signature of its Mayor and the signature of its City
Administrator and be sealed with the seal of the Issuer; provided, however,
that the seal of the Issuer may be a printed facsimile; provided further,
however, that all of such signatures may be printed facsimiles, in which event
the Bonds shall also be executed manually by the Trustee as authenticating
agent as provided in Section 2.04 and Minnesota Statutes Section 475.55. In
the event of disability or resignation or other absence of any such officer, the
Bonds may be signed by the manual or facsimile signature of that officer who
may act on behalf of such absent or disabled officer. In case any such officer
whose signature or facsimile of whose signature shall appear on the Bonds
shall cease to be such officer before the delivery of the Bonds, such signature
or facsimile shall nevertheless be valid and sufficient for all purposes, the
same as if he had remained in office until delivery.
SECTION 2.04. Authentication. No Bond shall be valid or obligatory for any
purpose or be entitled to any security or benefit under this Indenture unless
a Certificate of Authentication on such Bond, substantially in the form
hereinabove set forth, shall have been duly executed manually by a
Responsible Agent. Certificates of Authentication on different Bonds need not
be signed by the same person. The Trustee shall authenticate the signatures
of officers of the Issuer on each Bond by execution of the Certificate of
Authentication on the Bonds; and the executed Certificate of Authentication on
-22-
each Bond shall be conclusive evidence that it has been authenticated and
delivered under this Indenture.
SECTION 2.05. Delivery of Initial Issue. Upon the execution and delivery of
this Indenture the Issuer shall execute and deliver to the Trustee, and the
Trustee shall authenticate the Bonds in the aggregate amount of $3,200,000,
and the Trustee shall deliver the Bonds to the Original Purchaser at such time
or times as may be directed by the Issuer after filing with the Trustee the
following:
(a) original executed counterparts of the Loan Agreement, the
Regulatory Agreement, the Remarketing Agreement, and this Indenture;
(b) a copy, duly certified by the Issuer's City Administrator or his
assistant, of the resolutions adopted and approved by the governing body
of the Issuer, authorizing the Project and the execution and delivery of
this Indenture and the Loan Agreement and the issuance of the Bonds;
(c) a request and authorization (which may be a part of a certificate of
the Issuer) to the Trustee on behalf of the Issuer, signed by its Mayor
and City Administrator, to deliver the Bonds to the Original Purchaser
therein identified upon payment to the Trustee for the account of the
Issuer of a specified sum plus accrued interest;
(d) the opinion of the Company's attorney in the form required by Bond
Counsel;
(e) the opinion of the Issuer's attorney in the form required by Bond
Counsel;
(f) the opinion of Bond Counsel approving the legality of the Bonds
issued pursuant to this Indenture; and
(g) any other documents or opinions which Bond Counsel may reasonably
require for purposes of rendering its opinion required under subsection
(f) of this Section.
SECTION 2.06. Remarketing of Bonds. On the Remarketing Date, and as a
condition to the remarketing of the Bonds, original executed copies of the
Mortgage, the Assignment of Leases and Rents, the Declaration and the
Guaranty shall have been filed with the Trustee and the City Administrator of
the Issuer.
SECTION 2.07. Mutilated, Lost and Destroyed --Bonds. In case any Bond
issued hereunder shall become mutilated or be destroyed or lost, the Issuer
shall, if not then prohibited by law, cause to be executed, and the Trustee
shall authenticate and deliver, a new Bond of like amount, number, maturity
date and tenor in exchange and substitution for and upon cancellation of any
such mutilated Bond, or in lieu of and in substitution for any such Bond
destroyed or lost, upon the Holder's paying the reasonable expenses and
charges of the Trustee and Issuer and, in the case of a Bond destroyed or
lost, his filing with the Trustee evidence satisfactory to the Trustee that such
Bond was destroyed or lost, and of his ownership thereof, and furnishing the
-23-
Issuer and the Trustee with indemnity satisfactory to them. If the mutilated,
destroyed or lost Bond has already matured or been called for redemption in
accordance with its terms, it shall not be necessary to issue a new Bond prior
to payment.
SECTION 2.08. Ownership of Bonds. The Issuer, Trustee and Paying Agent
may deem and treat the Holder of any Bond, whether or not such Bond shall
be overdue, as the absolute owner of such Bond for the purpose of receiving
payment thereof (subject to the provisions of Section 2.02(c) as to payment of
interest) and for all other purposes whatsoever, and the Issuer (or any agent
thereof), Trustee and Paying Agent shall not be affected by any notice to the
contrary.
SECTION 2.09. Preparation of Definitive Bonds; •.Temporary- .Bonds. The
definitive Bonds shall be lithographed or printed on steel engraved borders.
Until the definitive Bonds are prepared, the Issuer may execute, in the same
manner as is provided in Section 2.04 (except that th manual signatures and a
manual seal may be used), and deliver, in lieu of definitive Bonds, but subject
to the same provisions, limitations and conditions as the definitive Bonds,
except as to the denominations thereof, one or more temporary Bonds (which
shall be registered as to principal and interest), substantially of the tenor of
the definitive Bonds, in any denominations authorized by the Issuer, and with
such omissions, insertions and variations as may be appropriate to temporary
Bonds. The Issuer shall prepare and execute and, upon the surrender of
such temporary Bonds deliver in exchange therefor, at the principal corporate
trust office of the Trustee, definitive Bonds of the same aggregate principal
amount as the temporary Bonds surrendered. Until so exchanged, the
temporary Bonds surrendered in exchange for a definitive Bond or Bonds shall
be forthwith cancelled by the Trustee.
SECTION 2.10. Registration, -Transfer and-.Exchange of Bonds.
(a) The Issuer will cause to be kept at the principal corporate trust
office of the Trustee a Bond Register in which, subject to such
reasonable regulations as the Trustee may prescribe, the Issuer shall
provide for the registration of Bonds and the registration of transfers of
Bonds; and the Trustee is hereby appointed "Bond Registrar" for the
purpose of registering the Bonds and transfers of the Bonds as herein
provided. The Bond Register shall contain a record of every Bond at
any time authenticated hereunder, together with the name and address of
the Holder thereof, the date of authentication, the date of transfer or
payment, and such other matters as are appropriate for the Bond
Register in the estimation of the Trustee.
(b) Upon surrender or transfer of any Bond at the principal corporate
trust office of the Trustee, the Issuer shall execute (if necessary), and
the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Bonds of any authorized
denomination or denominations of a like aggregate principal amount,
having the same stated maturity and interest rate, as requested by the
transferor.
-24-
(c) At the option of the Holder, Bonds may be exchanged for other
Bonds of any authorized denomination or denominations of a like aggregate
principal amount, upon surrender of the Bonds to be exchanged
at
if the
the
principal corporate trust office of the Trustee, and upon payment,
Issuer shall so require, of the taxes, if any, hereinafter referred to.
Whenever any Bonds are so surrendered for exchange, the Issuer shall
execute, and the Trustee shall authenticate and deliver, the Bonds which
the Holder making the exchange is entitled to receive.
for
n All BoInddsere surrendered
rer shall e be pon any p promptly exchange
cancell d or bythetransfer
Trusteed and
in this Indent
thereafter disposed of as directed by the Issuer.
(e) All Bonds delivered in exchange for or upon transfer of Bonds shall
be valid special obligations of the Issuer evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Bonds
surrendered for such exchange or transfer.
(f) Transfer of a Bond may be made on the Issuer's books by the
registered owner in person or by the registered owner's attorney duly
authorized in writing. Every Bond presented or surrendered for transfer
or exchange shall (if so required by the Issuer or the Trustee) be duly
endorsed or be accompanied by a written instrument or instruments of
transfer, in the form printed on the Bond or in another form satisfactory
to the Trustee, duly executed and with guaranty of signature by the
Holder thereof or his attorney duly authorized in writing and shall
include written instructions as to the details of the transfer of the Bond.
(g) No service charge shall be made to the Holder for any registration,
transfer or exchange, but the Trustee may require payment of a sum
sufficient to cover any tax, fee or other governmental charge that may be
imposed in connection with any transfer or exchange of Bonds, other than
exchanges expressly provided in this Indenture to be made without
expense or without charge to Bondholders.
(h) Subject to the provisions of subsection (i) below,te toTrustee
transfers
Bond Registrar shall endeavor to comply with rules applicable
withagents registered the
72-hour "turnaround" standardu establishedforthee Commission transfer of registered
72
-hour
securities.
(i) The Trustee shall not be required (i) to transfer or exchange any
Bond during a period beginning at the opening of business 10 days
before the day of the first publication or the mailing (if there is no
publication) of a notice of redemption of Bonds under this Indenture and
ending at the close of business on the day of such publication or mailing,
or (ii) to transfer or exchange any Bond so selected for redemption in
whole or in part.
(j) The Bond Registrar shall insert in each Bond the date of registration
which, for purposes of delivering the original Bonds to the Original
Purchaser, shall be December 1, 1985, the date of original issue, and
which for all other events shall be the last interest payment date
-25-
preceding the date of authentication to which interest on the Bond has
been paid or made available for payment, unless the date of authentication
is an interest payment date to which interest has been paid or made
available for payment, in which case the Bond shall be dated as of the
date of authentication. Each Bond shall be so dated that neither gain nor
loss in interest shall result from any transfers, exchange or substitution
provided for herein.
SECTION 2.11. Interest Rights Preserved. Each Bond delivered upon
transfer of or in exchange for or in lieu of any other Bond shall carry all the
rights to interest accrued and unpaid, and to accrue, which were carried by
such other Bond.
SECTION 2.12. Destruction of Bonds. Whenever any Outstanding Bond shall
be delivered to the Trustee for cancellation pursuant to this Indenture, upon
payment of the principal amount and interest represented thereby or for
replacement pursuant to Section 2.07 or transfer pursuant to Section 2.10,
such Bond shall be cancelled and destroyed by the Trustee and counterparts
of a certificate of destruction evidencing such destruction shall be furnished
by the Trustee to the Issuer.
-26-
ARTICLE III.
REDEMPTION OR PURCHASE OF BONDS BEFORE MATURITY AND TAX
PREMIUM
SECTION 3.01. Redemption and Tax Premium. Subject to the provisions of
Sections 3.02 and 3.04 and, if applicable, 7.06:
(a) Calamity Redemption. In the event of (A) damage to or destruction
of the Project or any part thereof or Condemnation of the Project or any
part thereof to the extent provided in Section 8.04(a)(2) or (3) of the
Loan Agreement, or in the event of any changes in the Constitution or
laws of the United States of America or the State of Minnesota as
provided in Section 8.04(a)(4) of the Loan Agreement and (B) termination
of the Loan Agreement upon the occurrence of one of those events as
provided in said Section 8.04, or (C) if the Company chooses to rebuild
or restore, to the extent Net Proceeds remain after such rebuilding or
restoration, all Bonds, or so many thereof as may be redeemed from such
excess Net Proceeds, shall be redeemed by the Issuer, in the inverse
order of their maturities and by lot within any maturity, on the then next
succeeding interest payment date, or if timely notice of call cannot be
given before such date, on the next succeeding interest payment date, at
100% of the principal amount to be redeemed, without any premium, plus
accrued interest to the redemption date.
(b) Tax Redemption and Tax Premium. If (A) a Determination of
Taxability occurs and (B) the Company provides for prepayment of the
Bonds as required in Section 7.08 of the Loan Agreement, all Bonds shall
be redeemed by the Issuer on the first day of the then next succeeding
month for which timely notice of call can be given at 100% of the principal
amount to be redeemed plus accrued interest to the redemption date and a
premium for each Bond called prior to maturity equal to
(c) Optional Redemption. All Bonds maturing after December 1, 1993 are
subject to optional redemption and prepayment, upon request by the
Company to the Trustee, on December 1, 1993, and any interest payment
date thereafter, in whole or in part, and if in part in principal
increments thereof of $5,000 and by lot, at their principal amount plus
accrued interest an a premium, expressed as a percentage of principal
amount, set forth in the following table or the designated redemption
dates:
Redemption Date Premium
December .1, 1993 and June 1, 1994 2%
December 1, 1994 and June 1, 1995 1%
December 1, 1995 None
All Bonds maturing after December 1, 2003 are subject to optional
redemption and prepayment, upon request by the Company to the
Trustee, on December 1, 2003, and any interest payment date thereafter,
in whole or in part, and if in part in principal increments thereof of
-27-
$5,000 and by lot, at their principal amount plus accrued interest an a
premium, expressed as a percentage of principal amount, set forth in the
following table or the designated redemption dates:
Redemption Date Premium
.__.---
December 1, 2003 and June 1, 2004 2%
December 1, 2004 and June 1, 2005 1%
December 1, 2005 and thereafter None
(d) Except as provided in this Section 3.01, Section 5.06 and in Section
8.02, the Bonds shall not be subject to redemption prior to their stated
maturity date.
SECTION 3.02. Notice of Redemption. To effect the redemption of the Bond
under Section 3.01, the Trustee shall promptly give notice within the time, in
the manner and with the effect provided by this Section 3.02. Notice of
redemption shall be mailed by certified or registered mail (or by regular mail if
published notice is also given) not less than twenty (20) days prior to the
redemption date by the Trustee to the Paying Agent and the Holders of Bonds
to be redeemed. If and to the extent that the laws of the State of Minnesota
at the time of redemption require that publication is necessary to properly
redeem obligations, notice of redemption shall also be published at least once
at lease 15 days prior to the date fixed for redemption in a daily or weekly
financial journal or newspaper of general circulation in Minneapolis
erfective Saint
Paul, Minnesota. Published notice, if given, shall however,
without such mailed notice and no defect in or failure to give mailed notice
shall affect the validity of the proceedings for redemption of any Bond.
Such
notice shall state the subsection under Section 3.01 pursuant to which the
Bonds are being called for redemption, and unless all Outstanding Bonds are
to be redeemed, each such notice shall refer to the Bonds to be redeemed by
their numbers and maturities and the date on which and the place where they
shall be presented for redemption. On or before the date fixed for
redemption, funds sufficient to redeem such Bonds, including accrued interest
thereon to the redemption date and any premium, shall be deposited with the
Paying Agent. The Bonds thus called shall not, on or after the specified
redemption date, bear any interest and, except for the purpose of payment,
shall not be entitled to the lien of the Indenture and the Collateral Security
Documents or the benefits of the Loan Agreement.
SECTION 3.03. Cancellation. All Bonds which have been redeemed shall be
cancelled by the Trustee as provided in Section 2.12 and shall not be
reissued.
SECTION 3.04. Method of Redemption.
(a) To effect the redemption of the Bonds under subsections (a) or (c)
of Section 3.01, the Company, at least 30 days before the redemption
date, shall notify the Issuer and Trustee of its intention to effect such
redemption and shall provide the Trustee with funds sufficient for such
purpose; and to effect the redemption of the Bonds under subsection (b)
Seion 3 the
ty and shall notify
deposit Issuer
the Trustee theTrustee
of a
sums
Determination ofTaxability
-28-
deposited pursuant to Section 7.08 of the Loan
required to be so P
Agreement. day preceding any
lot,
b) The Trustee, on or before the twentieth (20th)be termines to be fair
( redemption date shall, if the Bonds are to de redeemed by
specified lot.
and
pr selectionite, in
hsuch
m Y include random selection by
and apprOPriate,
' l redemption of Bonds under subsection (c) of
of
Se To effect the partial prior s
after receipt by the Trustee of notice fromhe Trustee,Company,
o
provided
3. 1 herein, (RDG - wrong cite in orig
giving
iv ngen fp tion, shall assign to each Bond
ond then
ofsuchding a
distinctiveinotice of redemption, principal
lot, using such method of selection to such
$5,000 of the
number then r each selectby
from the numbers so assigned The Trustee shall shall equal the
shall deem proper in its discretion, Bonds redeemed
pr
Bonds, as many numbers as, at $5,000 bfe r r de number,
amber'lnverse order of
principal
amount of such Bonds to be redeemed in
3.01(a)(3) shall only in the manner set forth in this
maturity too Section to ithin any maturity
maturity and bythat only so much of
Bonds to be redeemed shall beverhe Bonds to which weren
subsection• The rovided, how
theass
igned principal
s so selected;
P of a denomination of more es to
prishall amount redeemed each such eqBond 5 000 or each numbr assigned
be
$5,and shall be ed. If as shall may be redeemed only in part, Trustee shallat soe
it surrendered so selected. If a Bond if the Issuer or the to the
requires, to the Trustee (with, or his
ed by the Holder thereof and the
a written instrument of transfer
t nsfer in form satisfactory ut
exec
Issuer and the
Trustee duly and the Issuer shall exec
Trustee shallduly authorized authenticate in writing) of any
and deliver to the Holder of such
ee
Bond,
without as requested a such Holder,
service charge, a new Bond or Bonds of the same series,authorized
without
and interest rate of any r for
authorized denomination tated �,a denominations,
anon , u� to and in exchange having the re ate principal amount eq
denomination n portion of the principal of the Bond so surrendered.
the unredeemed p
(d) As soon as Bonds are called for redemptionpursuant to this
bed for no other
Article III, sums
in the Bond Fund sufficient ne and effect
app such redemption tioun
shalllt
be irrevocably set aside for such Pure on an Event of De a
purpose under this Indenture, provided that up
such sums shall be applied as provided in Section 8.06.
Bonds. On each
Tender and Purchase of
3.05. Mandator tender its Bonds to the
purchaser price
SECTION each Holder sh an at a
Mandatory Purchaseh Date,
for purchase by the Trustee on behalf of the Comp
equal to par. shall purchase all of the Bonds
on behalf of the Company, purchase priceaequal to par,
The Trustee, acting Purchase Date at a sited the
solely from the monies deposited
e
so tendered on the Mandatory
shall be payable
which purchase priceur ose in the Purchase
nd ase F sndtenreran foro
Company with the Trustee for such n Agreement. Any Mandatory
Section 4.02(a)(4nevertheless arcane to
bear interest after their d monies
Purchase shall no longer be deemed outstanding P
Purchase Date and shall
-29-
sufficient to purchase all Outstanding Bonds on the Mandatory Purchase Date
are on deposit in the Purchase Fund on such date.
-30-
ARTICLE IV.
GENERAL COVENANTS
SECTION 4.01. Payment of Principal, Premium and Interest. Solely from the
moneys derived from the Loan Agreement (other than to the extent payable
from proceeds of the Bonds, temporary investments, or amounts recovered
under the Collateral Security Documents), the Issuer will duly and punctually
pay the principal of, premium, if any, and interest on the Bonds in
accordance with the terms of the Bonds and this Indenture. Moneys derived
from the Loan Agreement include all moneys derived from the Granting Clauses
set forth herein, including, but not limited to, Basic Payment under the Loan
Agreement, and trust funds deposited in the funds and accounts established
under Article V herein to the extent and in the manner provided in said
Article. Nothing in the Bonds or in this Indenture shall be considered as
assigning or pledging funds or assets of the Issuer other than those covered
by the Granting Clauses set forth herein.
SECTION 4.02. 'Performance of and Authority for Covenants. The Issuer,
subject to the provisions of Section 12.07 hereof, covenants that it will
faithfully perform at all times any and all of its covenants, undertakings,
stipulations and provisions contained in this Indenture, in any and every Bond
executed, authenticated and delivered hereunder and in all proceedings of its
governing body pertaining thereto; that it is duly authorized under the
Constitution and laws of the State of Minnesota, including particularly and
without limitation the Act, to issue the Bonds authorized hereby, to execute
this Indenture, to loan the Bond proceeds to the Company and to assign and
pledge the payments from the Loan Agreement in the manner and to the extent
herein set forth; that all action on its part for the issuance of the Bonds and
the execution and delivery of this Indenture has been duly and effectively
taken; and that the Bonds in the hands of the Holders thereof are and will be
valid and enforceable obligations of the Issuer according to the terms thereof.
SECTION 4.03. Instruments of Further Assurance. The Issuer, subject to
the provisions of Section 12.07 hereof, covenants that is has not made, done,
executed or suffered, and will not make, do, execute or suffer, any act or
thing whereby its interest in the Loan Agreement or any part thereof is now
or at any time hereafter impaired, changed or encumbered in any manner
whatsoever, except as may be expressly permitted herein; and that it will do,
execute, acknowledge and deliver or cause to be done, executed, acknowledged
and delivered, such instruments supplemental hereto and such further acts,
instruments and transfers as the Trustee may reasonably require for the
better assuring, transferring, pledging, assigning and confirming unto the
Trustee all and singular the sums assigned and pledged hereby to the payment
of the principal of and interest and premium, if any, on the Bonds.
SECTION 4.04. Recording and Filing. The Trustee covenants that solely from
available Additional Charges it will cause the Mortgage, the Assignment of
Leases and Rents, this Indenture, the Declaration all supplements thereto and
all related financing statements, to be kept, recorded and filed in such manner
in such places as may be required by law in order to preserve and protect
fully the security of the Holders of the Bonds and the rights of the Trustee
hereunder and under any other instruments aforesaid.
-31-
SECTION 4.05. Books and Records. The Trustee covenants that so long as
any Outstanding Bonds issued hereunder and secured by this Indenture shall
be unpaid, the Trustee will keep proper books of records and accounts, in
which full, true and correct entries will be made of all its financial dealings or
transactions in relation to the Project and the payments derived from the Loan
Agreement, this Indenture, and the Collateral Security Documents. At
reasonable times and under reasonable regulations established by the Trustee,
such books shall be open to the inspection by Holders and such accountants or
other agencies as the Trustee may from time to time designate.
SECTION 4.06. Bondholders' Access to Bond Register. At reasonable times
and under reasonable regulations established by the Trustee, the Bond
Register or a copy thereof may be inspected and copied by Holders (or a
designated representative thereof) of ten percent (10$) or more in principal
amount of the then Outstanding Bonds, such authority of any such designated
representative to be evidenced to the satisfaction of the Trustee. Except as
otherwise may be provided by law, the Bond Register shall not be deemed a
public record and shall not be made available for inspection by the public,
unless and until notice to the contrary is given to the Trustee by the Issuer.
SECTION 4.07. Rights Under Loan Agreement. The Loan Agreement sets
forth covenants and obligations of the Issuer and the Company, and reference
is hereby made to the same for a detailed statement of said covenants and
obligations. The Issuer agrees to cooperate in the enforcement of all
covenants and obligations of the Company under the Loan Agreement and
agrees that the Trustee in its name or in the name of the Issuer may enforce
all rights of the Issuer and all obligations of the Company under and pursuant
to the Loan Agreement and on behalf of the Holders, whether or not the
Issuer has undertaken to enforce such right and obligations.
SECTION 4.08. Rights Under Collateral Security Documents.
(a) The Issuer acknowledges that it is not a party to the Collateral
Security Documents and that such instruments further secure payment of
the Bonds and interest thereon, and reference is hereby made to the
same for a detailed statement of the obligations of the parties thereto.
The Issuer therefore agrees that, unless specifically prohibited under this
Indenture, the Trustee in its name may enforce all obligations under and
pursuant to such instruments and as herein provided, on behalf of the
Holders and without the consent of the Issuer.
(b) Subject to the terms hereof and of the Mortgage, until the
happening of an Event of Default hereunder, the Company shall be
permitted to possess, use and enjoy the Mortgaged Property and to
receive and use the issues and profits of the Mortgaged Property. The
Company is authorized under the Mortgage to grant and enter into
easements and to obtain releases of certain Mortgaged Property from the
Mortgage under the conditions set forth in the Mortgage; and pursuant to
the provisions of the Mortgage the Trustee is authorized to execute the
necessary instruments to grant such easements and to evidence the
release of such Mortgaged Property.
-32-
ARTICLE V.
FUNDS AND ACCOUNTS
SECTION 5.01. Trust Funds Pledged and Assigned to the Trustee.
(a) The proceeds of the Bonds and all payments, revenues and income
receivable by the Issuer under the Loan Agreement and pledged and
assigned by this Indenture to the Trustee, together with the balance of
the Trust Estate, are to be paid directly to the Trustee and, subject to
the provisions of Section 8.06, deposited by it in the Funds described in
this Article V. and held in trust for the purposes set forth herein, and
shall not be subject to any lien, levy, garnishment or attachment by any
creditor of the Issuer or the Company or shall they be subject to any
assignment or hypothecation by the Company. The Trustee shall at all
times maintain accurate records of deposits into such funds and the
sources and timing of such deposits.
(b) Un the date of Bond Closing, the proceeds of the Bonds, except for
accrued interest thereon which shall be deposited in the Bond Fund, shall
be deposited in the Construction Fund and shall be disbursed by the
Trustee in the manner set forth herein and in the Loan Agreement.
SECTION 5.02. Construction Fund.
(a) There is hereby created the Multi-Family Housing Development
Revenue Construction Fund, Series 1985 (Oak Ridge Place Project), also
referred to herein as the Construction Fund. All of the proceeds of the
Bonds, except for accrued interest thereon to be deposited in the Bond
Fund, shall be deposited in the Construction Fund and shall be disbursed
by the Trustee from the Construction Fund in accordance with the
applicable provisions of Article 3 of the Loan Agreement. Until the
Completion Date, the Trustee shall, on each interest payment date,
transfer from the Construction Fund (to the extent of moneys available
therein) to the Bond Fund an amount sufficient to pay the principal of
and interest on the Bonds due on such interest payment date, and no
direction from the Issuer or Company shall be required therefor.
(b) Any funds deposited in the Construction Fund .by the Company shall
be disbursed before any Bond proceeds, including any earnings thereon,
shall be disbursed. Any sums deposited in the Construction Fund for
payment of interest on the Bonds prior to Completion of the Project shall
only be used for payment of interest, provided that on the Completion
Date such amounts may be used to pay any remaining Project Costs.
(c) Any interest earned on sums held in the Reserve Fund prior to the
Completion Date shall be transferred to the Construction Fund.
(d) Any sums remaining in the Construction Fund on the date which is
three years following the Bond Closing shall be immediately invested at a
yield which does not exceed the yield on the Bonds unless the Trustee
has first received an opinion of Bond Counsel that the continued
-33-
investment of such sums at a yield other than the yield on the Bonds will
not impair the tax exempt status of the Bonds.
(e) Any sums in the Construction Fund in excess of any amount
required to pay all Costs of the Project shall be transferred to the Bond
Fund at the time or times and in the manner provided in Article 3 of the
Loan Agreement.
(f) Notwithstanding anything to the contrary contained herein, prior to
the Remarketing Date, the Trustee shall not make any disbursement from
the Construction Fund without the prior written consent of the Initial
Holder unless the Company theretofore delivers to the Trustee an
irrevocable letter of credit in a face amount equal to such disbursement
plus the aggregate amount of all disbursements theretofore made from the
Construction Fund, which letter of credit shall be in form and substance
and be issued by a financial institution acceptable to the Initial Holder.
SECTION 5.03. Bond Fund.
(a) There is hereby created the Multi-Family Housing Development
Revenue Bond Fund, Series 1985 (Oak Ridge Place Project), also referred
to herein as the Bond Fund. The Issuer shall deposit in the Bond Fund
all interest which has accrued on the Bonds from their nominal date of
issue to the date of the Bond Closing. Thereafter the Issuer shall
deposit in the Bond Fund, upon receipt or upon becoming subject to
transfer to the Bond Fund, as the case may be:
(1) each of the Basic Payments (whether paid when due or as
prepayments) required by Section 4.02 of the Loan Agreement (other
than Basic Payment required to be added to or to restore the
Reserve Fund) and any interest thereon not paid when due;
(2) any payments made by the Company to purchase or prepay the
Bonds;
(3) any sums in the Construction Fund transferred to the Bond
Fund as provided in Section 5.02(e);
(4) any payments made by the Company under Section 8.02 and
8.04 of the Loan Agreement; and
(5) all other sums required by the Loan Agreement, the Collateral
Security Documents or this Indenture to be paid into the Bond Fund
or otherwise intended to pay any principal, premium or interest due
on the Bonds.
(b) Moneys in the Bond Fund shall be used and withdrawn by the
Trustee solely to pay the interest on Bonds as they become due and
payable, including accrued interest on any Bonds redeemed before
maturity pursuant to this Indenture and including interest accruing on
any Bond after its stated maturity, if not then paid or redeemed, and, to
the extent that payment of such interest is lawful, interest upon overdue
installments of interest at the rate borne by the Bonds; to pay the
-34-
principal amount of the Bonds at their respective stated maturities; to
redeem and prepay Bonds in accordance with Article III and to pay any
penalty or premium due thereon; to discharge all Outstanding Bonds as
provided in Article VII; or to purchase Bonds tehat extent and in the
manner required under Section 5.06 hereof, provided
(1) In no event shall regularly scheduled Basic Payments deposited
in the Bond Fund be deemed available to purchase or prepay Bonds
unless the Trustee ridetermines such intended sums not
required
to pay the debt service on the Bondsunder the Loan
Agreement to be paid from such Basic Payments.
(2) Any Restricted Construction funds transferred to the Bond
Fund as provided in Section 5.02(e) shall be used by the Trustee
(a) to redeem the largest number of Bonds callable, without premium
or penalty, under the terms of this Indenture at the first
opportunity or (b) to pay that portion of the annual principal due
on the Bonds in an amount that bears the same ratio to the annual
principal due that the total of such surplus construction funds bear
to the face amount of the Bonds; and such funds transferred to the
Bond Fund shall not be invested by the Trustee to produce a yield
greater than the yield on the Bonds, as required by Internal
Revenue Service Revenue Procedure 79-5, Revenue Procedure 81-22
and 26 CFR 601.201 (and anysubsequent hatif thedments,Trusteemreceiv recns
eives or replacements thereof); provided
opinion of Bond Counsel that the exemption from federal income
taxation of interest on the Bonds will not be jeopardized,
the funds
may be invested at a yield greater than the yield on the Bonds or
the balance may be applied to meet current debt service
requirements and accordingly become a part of the balance in the
Bond Fund which may be credited against current installments of
Basic Payments as provided in Section 4.02(1) of the Loan
Agreement.
(c) If at any time the balance in the Bond Fund exceeds the sum of (a)
15% of minus any sums held in the Reserve Fund and the
Redemption Fund and (b) the total amount of principal and interest to be
paid on the Bonds in the then current Bond year plus 1/12th of the total
amount of principal and interest paid and to be paid on the Bonds in the
current Bond year, the excess over such amount shall be invested only to
the extent and within the limitations permitted by Section 103(c) of the
Code and applicable regulations.
(d) Any moneys escrowed to discharge Bonds under Article VII shall be
deemed to be held in a subaccount of the Bond Fund and available solely
to pay the debt service on the Bonds so discharged.
SECTION 5.04. Reserve Fund.
(a) There is hereby created the Multi-Family Housing Development
Revenue Reserve Fund, Series 1985 (Oak Ridge Place Project),
also
Remarketing
e the
referred herein as t transfer to the theReserve Reservers Fund from the tthe Co structionFund
Trustee shall
-35-
an amount equal to the Reserve Requirement. Thereafter, the Trustee
Fund any other
neys paid
the
shall deposit in the
Agreement,Reserve the Mortgage or his Indenture oTrustee
for credit or
under the Loa g
transfer to the Reserve Fund.
(b) Subject to the provisions of Section 8.06, amounts on hand in the
Reserve Fund shall be transferred by the Trustee to the Bond Fund if,
on any Maturity Date, the amount then on hand in the Bond Fund is not
sufficient to pay the principal, premium, if any, and interest then due
whether at maturity i interest st ear edr upon tl
on or by acceleration. Prior to the
Completion Date any on sums in the Reserve Fund shall
be transferred to the Construction Fund.
(c) )
Subject to
used the provisions
cures in subsection any deficit in thedBond below, sums
Fund
Fund not as provided
Reserve
in subsection (b) shall be held in the Reserve Fund in trust to be
applied toward payment of the final installments of principal and accrued
interest to become due on the Bonds or toward discharge of all
Outstanding Bonds as provided in Article VII; provided that any interest
earned on sums in the Reserve Fund prior to the Completion Date shall be
credited to the Construction Fund; and provided further that any other
sums (including interest earnings) in the Reserve Fund in excess of the
Reserve Requirement shall be transferred to the Bond Fund and either
applied towards the makepayment or current payments of se of Bonds pursuant
5.06 or used to of princ pal orinterest on the
Bonds.
(d) If at any time the balance in the Reserve Fund exceeds 15% of the
purchase price of the Bonds paid by the Original Purchaser minus the
amounts in the Redemption Fund, the excess over such amount shall be
invested only to the extent and within the limitations permitted by Section
103(c) of the Code.
SECTION 5.05. Property Insurance and Award Fund.
(a) There is hereby created the Multi-Family Housing Development
Revenue Property Insurance and Award Fund, Series 1985 (Oak Ridge
Place Project), also referred to herein as the Property Insurance and
Award Fund. The process of propertyexcess insurance
ef on$25,000,eord Mortgagedd
Property forthcoming from all claims
in Condemnation award with respect to the Mortgaged Property are,
pursuant to the Mortgage, to be paid to the Trustee. The Trustee shall
deposit all such insurance proceeds and Condemnation awards received
and any sums received under Section 5.05(d)(4) in the Property
Insurance and Award Fund, shall use and withdraw money in this fund
only for the purposes and upon the conditions stated in th
s Siection
5.05.
Prior to the Completion Date the proceeds of any property
e on
the Mortgaged Property shall be with Articleposite3 of Construction in the Fund and
disbursed in accordancethe Loan Agreement.
(b) The Trustee shall first deduct from the Condemnation award or
insurance proceeds and pay to the Company, the Trustee and the Issuer
any costs incurred by each of them in connection with the condemnation
-36-
proceedings or the collection of the insurance. The amount remaining
after such payment is referred to in this Section as the "Net Proceeds".
(c) In the event that the conditions in either clause (B) or (C) of
Section 8.04(1) of the Loan Agreement should occur, the Company has the
option under Section 8.04 of the Loan Agreement to prepay the Loan. If
the Company exercises this option, under the provisions of Article III
hereof, the Net Proceeds shall be credited to the Bond Fund and all
Bonds shall be redeemed on the next succeeding interest payment date
after which a timely deposit to effect redemption is made, and a timely
notice of call may be given, at the principal amount thereof plus interest
accruing to such redemption date. Upon the exercise of such option by
the Company, and upon receipt of an Opinion of Independent Counsel
stating that all steps have been taken as required in Article VII of this
Indenture for the exercise of such option, the redemption of all
Outstanding Bonds and the satisfaction and discharge of this Indenture,
together with duplicate originals of all documents on which such opinion
of Independent Counsel is based, the Trustee shall use and apply the Net
Proceeds, with all other funds in its hands not required for compensation
and reimbursement of the Trustee, to the redemption and payment of all
Outstanding Bonds and interest accrued thereon.
(d) If the conditions for prepayment of the Loan under Section
8.04(1)(B)-(ll) of the Loan Agreement do not exist or the prepayment
option is not exercised, the Company is required under the Mortgage and
the Loan Agreement to restore the Mortgaged Property after any such
casualty or Condemnation. If the cost of restoration exceeds $25,000, the
following items shall be deposited with the Trustee before any
disbursement is made from the Property Insurance and Award Fund to
pay such cost:
(1) plans and specifications for restoration of the Mortgaged
Property;
(2) all applicable building permits;
(3) either
(i) a contract or contracts for the furnishing of all work and
materials required for restoration in accordance with the plans
and specifications, with payment and performance bond or
bonds (if requested by the Trustee) in aggregate amount equal
to the total cost of restoration under the contract or contracts,
conditioned for the completion thereof in accordance with the
plans and specifications and for the payment of all claims for
labor and materials to be incorporated in the Mortgaged
Property in the course of restoration, or
(ii) a certificate of Representative of the Company stating that
restoration has been substantially completed in accordance with
the plans and specifications and stating that all costs thereof
have been paid, with the exception of ten percent (10$) of the
-37-
amount payable under any contract not certified as finally
completed; and
(4) cash or a certified check for any amount by which the total
unpaid cost of restoration, as then ascertained or estimated, exceeds
the balance then on hand in the Property Insurance and Award Fund
and, if applicable, the Construction Fund.
(e) After compliance with Subsection (4) above, where applicable, the
Trustee shall disburse money from the Property Insurance and Award
Fund to or upon the order of the Company in payment of the costs of
restoration, subject, however, to the same requirements for documentation
as are set forth in Section 3.05 of the Loan Agreement for the payment of
Project Costs out of the Construction Fund, provided that not more than
ninety percent (90%) of the total cost of the restoration certified for
payment shall be disbursed until receipt by the Trustee of an Opinion of
Independent Counsel stating that all flings and other steps necessary to
perfect the lien created by the Mortgage in all property, real, personal
or mixed, which constitutes part of the Mortgaged Property as a result of
such restoration, as against third party creditors of or purchasers for
value from the Company, have been completed, and that the lien of the
Mortgage is subject to no liens and encumbrances of record except
Permitted Encumbrances. In the event that the restoration of the
Mortgaged Property to substantially the condition existing before a taking
by eminent domain would require the acquisition of land or rights or
interest in land additional to or in substitution for any part of all of that
described in Exhibit A, the cost thereof may be added to the cost of
restoration to be reimbursed to the Company under the provisions of this
Section 5.05.
(f) The balance of Net Proceeds remaining after restoration of the
Project as hereinabove provided shall be paid into the Redemption Fund.
(g) If the Company should within a reasonable period of time fail to
restore the Project or elect to prepay the Loan as hereinabove provided,
any Net Proceeds remaining in the Property Insurance and Award Fund
shall be retained in such Fund for the purposes set forth in this Section
5.05, provided that the Trustee may also use such Net Proceeds to make
any advances authorized to be made under Section 5.04 of the Loan
Agreement.
SECTION 5.06. Purchase or Prepayment of Bonds at Request of Company.
Pursuant to written request from a Representative of the Company, and upon
deposit by the Company in the Bond Fund of sums in excess of regularly
scheduled Basic Payments and other payments then and theretofore required to
be so deposited, which, together with any other available funds in the Bond
Fund requested to be so used by said Representative, are sufficient to prepay
under Section 3.01(a) or (c) or purchase one or more Bonds, as provided in
Section 8.02 of the Loan Agreement, the Trustee shall endeavor to prepay in
accordance with their terms and the provisions of Section 3.02 and 3.04 or
purchase on terms satisfactory to the Company, as the case may be, so many
of the Bond as the sum deposited and any other available funds will permit.
All Bonds purchased by the Trustee pursuant to this Section 5.06 shall be
-38-
cancelled as soon as received unless otherwise directed in the request of the
Company Representative.
SECTION 5.07. Deposit of Funds with Paying Agent.
(a) The Trustee shall transfer and reit sums from the terest and principal date and
ond Fund to
the Paying Agent in advance of each in
redemption date, from the balance then on hand in the Bond Fund,
sufficient to pay all principal, interest and redemption premiums then due
on the Bonds. The Paying Agent shall hold in trust for the benefit of
the Holders of such Bonds dis disposed of as hereinsferred to provided, it until paid to
such Holders or otherwisep
(b) Interest on each Bond including accrued interest to the
o ateduee f
deposit and interest, to the extent permitted by
law, oninstallments of interest at the rate borne by such Bond, (a) shall cease
on its Maturity Date, or on any prior date on which it shall have been
duly called for redemption as herein provided, provided that funds
sufficient for the payment thereof with accrued interest and any
redemption premium have been deposited with the Paying Agent on or
before the Maturity Date or redemption date, as the case may be, and in
the case of redemption, that the requirementsArticle
maturity I have been
en
complied with, or (b) shall cease on any date after
hts
such deposit has ebeen onds or under thislIndenter urehave no except torreceivether g the
with respect to th
payment so deposited.
(c) If any Bond is not presented for payment when due and funds
sufficient to pay such Bond shall have been paid to the Trusment of e (or other
ther
Paying Agent, if any): (i) all liability of the Issuer for pay
Bond shall forthwith cease, (ii) such Bond shall forthwith cease to be
entitled to any lien, benefit or security under this Indenture and the
Collateral Security Documents, and the Holder of such Bond shall
forthwith have no rights in respect thereof except
o f raeceive
afterpayment
tereof, and (iii) the Trustee (or other PayingAgent,
our
years and eleven months from the date on which the Bond wth spect any to
Aifgent,
amount was paid to the Trustee (or other Paying
shall, if and to the extent permitted by law, be paid by the Trustee (or
other Paying Agent, if any) to the Company and shall be discharged from
the trust and all liability of the Paying Agent or the Trustee with respect
to such trust money shall cease; andthe
payment, and theders shall ompany
er be
shall
entitled to look only to the Company for
not be liable for any interest thereon.
(d) If there is any Paying Agent who is not the Trustee, the Trustee
will cause such Paying Agent to execute and deliver to it an instrument
in which such Paying Agent shall agree with the Trustee, subject to the
provisions of the Section 5.07, that such Paying Agent will:
(1) hold all sums held by it for the payment of principal of (and
premium, if any) or interest on Bonds in trust for the benefit of the
Holders of such Bonds until such sums shall be paid to such Holders
or otherwise disposed of as herein provided; and
-39-
(2) at any time during the continuance of any default in the making
of any such payment of principal (and premium, if any) or interest,
upon the written request of the Trustee forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Trustee, acting as Paying Agent, shall also be bound by the terms
of the foregoing requirements.
SECTION 5.08. Redemption Fund.
(a) There is hereby created a Redemption Fund. The Trustee shall
deposit in the Redemption Fund, forthwith upon receipt thereof, any
balance of excess Net Proceeds as determined under Section 5.05(f).
(b) Sums in the Redemption Fund shall not be used to cure any deficit
in the Bond Fund but shall be held in the Redemption Fund in trust to
be applied toward payment of the final installments of principal and
accrued interest to become due on the Bonds, toward discharge of
Outstanding Bonds as provided in Article VII or upon transfer to the
Bond Fund, toward redemption of Bonds pursuant to Section 3.01(a)(3)
or 3.01(c) in inverse order of their maturity or toward purchase of
Outstanding Bonds in inverse order of their maturity.
(c) If at any time the balance in the Redemption Fund exceeds 15% of
the purchase price of the Bonds paid by the Original Purchaser of the
Bonds, the excess over such amount shall be invested only to the extent
and within the limitations permitted by Section 103(c) of the Code and
applicable regulations.
Section 5.09. Purchase Fund.
There shall be deposited in the Purchase Fund all moneys received by the
Trustee from the Company pursuant to Section 4.02(a)(4) of the Loan
Agreement to effect purchase of the Bonds pursuant to Section 3.05
hereof. The Trustee shall apply the amounts on deposit in the Purchase
Fund to the purchase of the Bonds tendered for purchase by the Holder
thereof on the respective Mandatory Date.
Monies in the Purchase Fund may be invested by the Trustee in
Investment Obligations for periods not greater than one (1) day pending
application to the purchase of Bonds. Upon the occurrence of any Event
of Default resulting in an acceleration of the Bonds, all moneys in the
Purchase Fund shall be transferred to the Bond Fund if not theretofore
used to purchase Bonds as required by Section 3.05 hereof.
-40-
ARTICLE VI.
INVESTMENTS
SECTION 6.01. Investments by Trustee.
(a) Except during the continuance of an Event of Default, and subject to
the provisions of Section 6.02, moneys held for the credit of the Funds
established by Article V shall be held by the Trustee as required by law
and shall at the written request, or verbal request confirmed in writing,
of the Representative of the Company, to the extent practicable and
permitted by the Act, be invested as received and reinvested by the
Trustee in such securities as are authorized by law (including
investments in securities authorized by Minnesota Statutes, Section
471.56, through a common trust fund or similar fund maintained by a
bank exclusively for the collective investment and reinvestment of moneys
contributed thereto by the bank in its capacity as trustee, certificates of
deposit, and repurchase agreements). Subject to Minnesota Statutes,
Section 471.56 and 475.66, as to the investment of sums (other than Bond
proceeds) held in the Bond Fund, the type, amount and maturity of such
investments shall be as specified by the Representative of the Company,
subject to the approval of the Trustee and, prior to the Remarketing
Date, the Initial Holder; provided that (i) sums in the Bond Fund may in
any event only be invested in securities which mature or are subject to
redemption or repurchase at the option of the Trustee on or prior to the
date or dates on which the Trustee anticipates that cash funds will be
required, and (ii) any sums in the Reserve Fund in excess of a
"reasonably required reserve" for arbitrage purposes may only be
invested at a yield not greater than the yield on the Bonds.
(b) The Trustee shall sell and reduce to cash funds a sufficient portion
of investment under the provisions of this Section whenever the cash
balance in the fund for which the investment was made is insufficient for
its current requirements. Securities so purchased as an investment of
money shall be held by the Trustee, shall be registered in the name of
the Trustee if registration is required, and shall be deemed at all times a
part of the applicable Fund, and the interest accruing thereon and any
profit realized from such investments shall be credited to the Fund from
which the investment was made, subject to any transfer to another Fund
as herein provided. Any loss resulting from such investment shall be
charged to the Fund from which the investment was made.
(c) The Trustee may purchase from or sell to itself, or through any
affiliated company, as principal or agent, securities herein authorized so
long as such purchase or sale is at fair market value.
SECTION 6.02. Return on Investments.
(a) The Trustee will not use the proceeds of the Bonds or other sums
pledged to the payment of the Bonds, directly or indirectly, to acquire
any securities or obligations the acquisition of which would cause any of
the Bonds to be an "arbitrage bond" as defined in Section 103(c) of the
Internal Revenue Code and any applicable regulations thereunder, and for
-41-
this purpose the Trustee, in order to restrict yield on investments, may
invest in SLGS (and accordingly is hereby authorized to act as
ent of n
the Issuer for such purpose). The Trustee shall be fully protected
relying on an opinion of Bond Counsel with respect to whether the
acquisition of any securities or obligations would have the effect
prohibited by this Section.
(b) The Trustee
invest
the yield on the BondConstruction Funds to
produce a yield greater than
(c) The provisions of this Section 6.02 shall survive discharge and
release of the Indenture.
SECTION 6.03. Computation of Balances in Fund.
(a) In computing the assets of any fund established hereunder,
investments and accrued but unpaid interest thereon shall be deemed a
part thereof, and such investments, other than in the Reserve Fund,
shall be valued at par value, or at the redemption price thereof, if then
redeemable at the option of the holder; provided that in any event for
purposes of determining whether any balance in a Fund may only be
invested at a restricted yield to comply with Section 103(c) of the Code
and the Federal arbitrage regulations, any investments in the Fund shall
be valued at their par value or the price at which they were purchased,
whichever is the greater.
(b) In computing the amount in the Reserve Fund for purposes of
determining whether the Reserve Requirement has been satisfied,
obligations purchased as an investment of moneys therein shall be valued
at par if purchased at par or at amortized value if purchased
atoother
than par. Amortized value means the value as of any g'
by dividing the premium or discount at which such
obligation
on swch an
purchased by the number of remaining interest payment
datesobligation after purchase, by multiplying that amount by the number of
interest payment dates that have occurred between the purchase date and
the date of valuation and deducting the amount calculated from the
purchase price if the obligation was purchased at a premium and adding
the amounthus adiscount. Valuation of the Reserve Fund shall be obligation
purchasedhaled at amade on
the last day of each calendar year.
SECTION 6.04. Preservation of Tax Exempt Status of the Bonds.
(a) In order to preserve the tax exempt status of the Bonds,
the Issuer
and the Trustee covenant that they shall take such actions as are
required and within their reasonable control to prevent the interest on
the Bonds from becoming taxable for federal income tax purposes for the
owners thereof (other
thereto"than
with n the owner
meaningis a of Section 10"substantialb) sof" the
or
"relate
d perso
Code).
-42-
ARTICLE VII.
DISCHARGE OF LIEN
SECTION 7.01. Payment of Bonds; Satisfaction and Discharge of Bonds and
Obligation to Bondholders. Whenever the conditions specified in either clause
(1) or clause (2) of the following subsection (a) and the conditions specified
in the following subsections (b), (c) and (d), to the extent applicable, shall
exist, namely:
(a) either
(1) all Bonds have been cancelled by the Trustee or delivered to
the Trustee for cancellation, excluding, however,
(i) Bonds for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Paying Agent or Trustee and thereafter repaid to the company
or discharged from such trust, as provided in Section 5.07
hereof, and
(ii) Bonds alleged to have been destroyed, lost or stolen which
have been replaced or paid as provided in Section 2.07 hereof,
and (1) which, prior to the satisfaction and discharge of this
Indenture as hereinafter provided, have not been presented to
the Paying Agent or the Trustee with a claim of ownership and
enforceability by the Holder thereof, or (2) whose enforceability
by the Holder thereof has been determined adversely to the
Holder by a court of competent jurisdiction or other competent
tribunal; or
(2) the Issuer or the Company has deposited or caused to be
deposited as trust funds:
(i) with the Paying Agent under Section 5.07 cash which shall
be sufficient, or
(ii) with the Trustee cash and/or Restricted Obligations, which
do not permit the redemption thereof at the option of the issuer
thereof, the principal of, premium, if any, and interest on
which when due (or upon the redemption thereof at the option
of the holder), will, without reinvestment, provide cash which
together with the cash, if any, deposited with the Trustee at
the same time, shall be sufficient,
to pay and discharge the entire indebtedness on Bonds not
theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation by the payment of interest on and principal (and
premium, if any) of the Bonds which have become due and payable
or which shall become due at their stated maturity or redemption
date, as the case may be, and which are to be discharged under the
provisions hereof, and has made arrangements satisfactory to the
Trustee for the giving of notice of redemption, if any, by the
-43-
Trustee in the name, and at the expense, of the Company in the
same manner as is provided by Section 3.02 hereof; and
(3) the Issuer or the Company has paid, caused to be paid or made
arrangements satisfactory to the Trustee for the payment of all other
sums payable hereunder and under the Loan Agreement and the
Collateral Security Agreement by the Trustee or the Company until
the Bonds are so paid; and
(4) the Company has delivered to the Trustee a report of an
Independent Accountant stating that the payment to be made on the
security referred to in clause (2) of subsection (a) above will be
sufficient to pay when due the principal of, premium, if any, and
interest to be defeased;
then, except as otherwise provided in Sections 4.09, 6.02, 7.05, and
7.06, the rights of the Bondholders shall be limited to the cash or
cash and securities deposited as provided in clause (1) or (2)
above, and upon the Company's request the rights and interest
hereby granted or granted by the Loan Agreement and the Collateral
Security Documents to or for the benefit of the Trustee or
Bondholders shall cease, terminate and become null and void, and
the Issuer and the Trustee shall, at the expense of the Company,
execute and deliver such instruments of satisfaction and transfer as
may be necessary, and forthwith the estate, right, title and interest
of the Trustee in and to all of the Project and in and to all rights
under the Loan Agreement, this Indenture and the Collateral
Security Documents (except the moneys or securities or both
deposited as required above and except as may otherwise be
provided in Section 4.09, 6.02, 7.05, and 7.06) shall thereupon be
discharged and satisfied; except that in any event the obligations of
the Company under Section 7.04, 7.07, 7.08 and 10.11 of the Loan
Agreement shall survive.
SECTION 7.02. Cancellation of Surrendered Bonds. The Issuer or Company
may at any time surrender to the Trustee for cancellation by the Trustee any
Bonds previously authenticated and delivered hereunder which the Issuer or
Company acquired in any manner whatsoever, and such Bonds, upon such
surrender and cancellation, shall be deemed to be paid and retired.
SECTION 7.03. Payment of Bonds. Any Bonds shall be deemed paid if the
conditions set forth in clause (1) or (2) of subsection (a) of Section 7.01 and,
if clause (2) is applicable and securities are deposited in trust, subsections
(d) and (e) of Section 7.01, have been satisfied with respect thereto even
though other Bonds may remain Outstanding.
SECTION 7.04. Application of Deposited Money. All money, obligations and
income thereon deposited with the Trustee pursuant to Section 7.01 for the
purpose of paying the principal, premium, if any, and interest on Bonds shall
be applied by the Trustee solely for such purpose.
-44-
SECTION 7.05. Completion of Project.
(a) If (a) provision should be made under this Article VII for discharge
of the Bonds prior to the Completion Date, (b) the Project has not been
abandoned, (c) proceeds of the Bonds (including interest thereon) not
applied towards payment of the Bonds remain in the Construction Fund,
and (d) provision is not otherwise made for disposition of such Bond
proceeds in a separate agreement to which the Issuer is a party, then the
Trustee shall continue to administer the Construction Fund for purposes
of applying such proceeds towards payment of Project Costs as provided
in the Indenture until such Bond proceeds are exhausted or the Project is
completed, whereupon any surplus Bond proceeds in the Construction
Fund shall be remitted to the Company.
(b) The provisions of this Section 7.05 shall survive the release and
discharge of this Indenture.
SECTION 7.06. Tax Call and Premium. Notwithstanding any provision herein
to the contrary if (1) the Bonds have been discharged under Section 7.01, (2)
any principal thereof has not become due and payable, and (3) the Company
provides for the prepayment of the Bonds under Section 7.08 of the Loan
Agreement the Trustee shall undertake to prepay the Bonds and pay the
premium under Section 3.01(b) if a Determination of Taxability should occur,
and this obligation of the Trustee shall survive release and discharge of this
Indenture.
-45-
ARTICLE VIII.
DEFAULT PROVISION AND REMEDIES
SECTION 8.01. Events of Default. Subject to the provisions of Section 8.11,
any of the following events is hereby defined as and declared to be and to
constitute an Event of Default (whatever the reason for such an Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or government body):
(a) If default shall be made in the due and punctual payment of any
interest on any Outstanding Bond hereby secured; or
(b) If default shall be made in the due and punctual payment of the
principal of any Outstanding Bond hereby secured, whether at the stated
maturity thereof or at the date fixed for redemption thereof, or upon the
maturity thereof by declaration, plus redemption premium, if any; or
(c) If default shall be made in the due and punctual payment of any
other moneys required to be paid to the Trustee under the provisions
hereof and such default shall have continued for a period of thirty (30)
days after written notice thereof, specifying such default, shall have
been given by the Trustee to the Issuer, the Guarantors and the
Company, or to the Issuer, the Guarantors, the Company and the Trustee
by the Holders of not less than twenty-five percent (25%) in aggregate
principal amount of the then Outstanding Bonds; or
(d) If default shall be made in the performance or observance of any
other of the covenants, agreements or conditions on the part of the
Issuer contained in this Indenture or in the Bonds, and such default
shall have continued for a period of thirty (30) days after written notice
thereof given in the manner provided in clause (c) above; or
(e) If an Event of Default as defined in the Loan Agreement or any of
the Collateral Security Documents has occurred and is continuing; or
(f) If any Bond is not purchased as and when required by Section 3.05
hereof.
SECTION 8.02. Acceleration. Upon the occurrence and continuance of an
Event of Default, the Trustee may by notice in writing delivered to the
Issuer, the Guarantors and the Company declare the principal of all of the
then Unpaid Bonds and the interest accrued thereon immediately due and
payable, and such principal and interest shall thereupon become and be
immediately due and payable at the place of payment provided in the Bonds,
anything in this Indenture or in the Bonds to the contrary notwithstanding.
The Trustee shall give notice of acceleration to Bondholders in the same
manner as notice of redemption is given under Section 3.02 (except that such
notice shall be given immediately) stating the accelerated date upon which the
Bonds are due and payable, provided that the Trustee shall not be required to
delay the effective date of acceleration until such notice is given; provided
that if the Event of Default is due to an "Event of Default" under Section
-46-
10.01(1) of the Loan Agreement because of a failure to make any payment due
under Section 7.08(2) of the Loan Agreement, there shall also be due and
payable on the Bonds a premium per Bond equal to the premium due under
Section 3.01(b) hereof.
SECTION 8.03. Remedies.
(a) Upon the occurrence and continuance of an Event of Default, the
Trustee may proceed to pursue any available remedy by suit at law or in
equity to enforce all rights of the Bondholders, including without
limitation the right to the payment of the principal or premium, if any,
and interest on the then Outstanding Bond and the Trustee's rights
under the Collateral Security Documents. Upon the occurrence and
continuance of an Event of Default under the Loan Agreement, the
Trustee may also enforce any and all right of the Issuer thereunder.
(b) If any Event of Default shall have occurred and be continuing, and
if it shall have been requested so to do by the Holders of twenty-five
percent (25$) in aggregate principal amount of the then Outstanding
Bonds, and if it shall have received an indemnity bond as provided in
Section 9.01 hereof, the Trustee shall be obliged to exercise such rights
and powers conferred on the Trustee by this Section and Section 8.02
and under the Collateral Security Documents, as the Trustee (being
advised by Independent Counsel), shall deem most expedient in the
interest of the Bondholders; provided, however, that the Trustee shall
have the right to decline to comply with any such request if the Trustee
shall be advised by Independent Counsel that the action so requested may
not lawfully be taken or if the Trustee in good faith shall determine that
such action would be unjustly prejudicial to the Bondholders not parties
to such request.
(c) No remedy by the terms of this Indenture conferred upon or
reserved to the Trustee (or to the Bondholders) is intended to be
exclusive of any other remedy, but each and every such remedy shall be
cumulative and shall be in addition to any other remedy (i) given to the
Trustee or to the Holders hereunder or (ii) now or hereafter existing at
law or in equity or by statute.
(d) No delay or omission to exercise any right or power accruing upon
any Event of Default shall impair any such right or power or shall be
construed to be a waiver of any such Event of Default, or acquiescence
therein; and every such right and power may be exercised from time to
time and as often as may be deemed expedient.
(e) No waiver of any Event of Default hereunder, whether by the
Trustee or by the Holders, shall extend to or shall affect any subsequent
Event of Default or impair any rights or remedies consequent thereon.
SECTION 8.04. Direction of Proceedings By Bondholders. The Holders of a
majority in aggregate principal amount of the then Outstanding Bonds shall
have the right, at any time, by an instrument or instruments in writing
executed and delivered to the Trustee, to direct the method and place of
conducting all proceedings to be taken in connection with the enforcement of
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the terms and conditions of this Indenture, the Loan Agreement, and the
Collateral Security Documents or for the appointment of a receiver or any
other proceedings hereunder; provided, that such direction shall not be
otherwise than in accordance with the provisions of law and of this Indenture.
SECTION 8.05. Waiver of Stay or Extension Laws. Upon the occurrence of an
Event of Default, to the extent that such rights may then lawfully be waived,
neither the Issuer nor anyone claiming through it or under it shall or will set
up, claim, or seek to take advantage of any appraisement, valuation, stay,
extension or redemption laws now or hereafter in force, in order to prevent or
hinder the enforcement of this Indenture, but the Issuer, for itself and all
who may claim through or under it, hereby waives to the extent that it
lawfully may do so the benefit of all such laws and all right of appraisement
and redemption to which it may be entitled under the laws of the State of
Minnesota.
SECTION 8.06. Priority of Payment and Application of Moneys. All Bonds
issued hereunder and secured hereby shall be equally and ratably secured by
and payable from the Bond Fund, without priority of one Bond over any
other, except as otherwise expressly provided herein. Upon the occurrence of
an Event of Default, all moneys collected pursuant to action taken under the
Loan Agreement or the Collateral Security Documents (other than sums payable
directly to the Issuer under Section 9.03 of the Loan Agreement), after
payment of the costs, and expenses of the proceedings resulting in the
collection of such moneys (including any such costs and expenses incurred by
the Issuer) and of the expenses, liabilities and advances incurred or made by
the Trustee, and after any other prior application of such moneys has been
made as is required by law shall be deposited in such Fund or Funds
described in Article V as the Trustee deems appropriate; and all moneys in the
Bond Fund (and, at the discretion of the Trustee except when otherwise
required hereunder, any other Fund described in Article V), excluding
however any moneys held in trust for the payment of Bonds or interest
thereon which have matured or otherwise become payable prior to such Event
of Default, shall be applied as follows:
(a) Unless the principal of all the Bonds shall have become or shall have
been declared due and payable, all such moneys shall be applied:
FIRST: To the payment of the persons entitled thereto of all
installments of interest then due on the Bonds, in the order of the
maturity of the installments of such interest and, if the amount
available shall not be sufficient to pay in full any particular
installment, then to the payment ratably, according to the amounts
due on such installment, to the persons entitled thereto, without any
discrimination or privilege;
SECOND: To the payment of the persons entitled thereto of the
unpaid principal of and redemption premium, if any, on any of the
Bonds which shall have become due (other than Bonds which have
matured or have otherwise become payable prior to such Event of
Default and moneys for the payment of which are held in trust
pursuant to the provisions of this Indenture) in the order of their
due dates and, if the amount available shall not be sufficient to pay
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in full the unpaid principal and redemption premium, if any, on
Bond due on any particular due date, then to the payment ratably,
according to the amount of principal and premium, if any, due on
such date, to the persons entitled thereto, without any
discrimination or privilege; and
THIRD: to the payment of interest and premium, if any, on and the
principal of the Bonds, and to the redemption of Bonds, as
thereafter may from time to time become due, all in accordance with
the provisions of Article V of this Indenture.
(b) If the principal of all Bonds shall have become due or shall have
been declared due and payable, all such moneys shall be applied to the
payment of the principal, redemption premium, if any, and interest then
due and unpaid upon the Bonds, without preference or priority of
principal or any redemption premium over interest or of interest over
principal or any redemption premium, or of any installment of interest
over any other installment of interest, or of any Bond over any other
Bond, ratably, according to the amounts due respectively for principal
and interest, to the persons entitled thereto, without any discrimination
or privilege.
(c) If the principal of all the Bonds shall have been declared due and
payable, and if such declaration shall thereafter have been rescinded and
annulled under the provisions of this Article, then, subject to the
provisions of paragraph (b) of this Section in the event that the principal
of all the Bonds shall later become due or be declared due and payable,
the moneys shall be applied in accordance with the provisions of
paragraph (a) of this Section.
Whenever moneys are to be applied by the Trustee pursuant to the provisions
of this Section, such moneys shall be applied by it at such times, and from
time to time, as the Trustee shall determine, having due regard to the amount
of such moneys available for application and the likelihood of additional moneys
becoming available for such application in the future. Whenever the Trustee
shall apply such funds, it shall (i) fix the date (which shall be an interest
payment date unless it shall deem another date more suitable) upon which such
application is to be made and upon such date interest on the amounts of
principal to be paid on such date shall cease to accrue and (ii) on or before
such date set aside the moneys necessary to effect such application. The
Trustee shall give to the Bondholders mailed notice of the deposit with it of
any such moneys and of the fixing of any such date. Neither the Trustee nor
any Paying Agent shall be required to make payment to the Holder of anyt
Bond until such Bond shall be presented to the Trustee for appropriate
endorsement or for cancellation if fully paid.
Whenever all Bonds and interest thereon have been paid under the provisions
of this Section 8.06, and all expenses and charges of the Trustee and the
Issuer have been paid, any balance remaining shall be paid to the person
entitled to receive the same pursuant to Section 12.09.
SECTION 8.07. Remedies Vested in Trustee. All rights of action (including
the right to file proof of claims) under this Indenture or under any of the
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Bonds may be enforced by the Trustee without the possession of any of the
Bond or the production thereof in any trial or other proceedings relating
thereto, and any such suit or proceeding instituted by the Trustee shall be
brought in its name as Trustee without the necessity of joining as plaintiffs or
defendants any Holders of the Bonds, and any recovery or judgment shall be
for the equal benefit of the Holders of the Outstanding Bond to the extent and
in the manner provide herein. The Issuer and the Trustee hereby agree,
without in any way limiting the effect and scope thereof, that the pledge and
assignment hereunder to the Trustee of all rights included within the Trust
Estate shall constitute an agency appointment coupled with an interest on the
part of the Trustee which, for all purposes of this Indenture, shall be
irrevocable and shall survive and continue in full force and effect
notwithstanding the bankruptcy or insolvency of the Issuer or its default
hereunder or on the Bonds.
SECTION 8.08. Rights and Remedies of Holders. No Holder of any Bond shall
have any right to institute any suit, action or proceeding in equity or at law
for the enforcement of this Indenture, the Loan Agreement or the Collateral
Security Documents or for the execution of any trust hereof or any remedy
hereunder or thereunder or for the appointment of a receiver, unless: (i) a
default thereunder shall have become an Event of Default and the Holders of
twenty-five percent (25%) in aggregate principal amount of the Bonds then
Outstanding shall have made written request to the Trustee and shall have
offered it reasonable opportunity either to proceed to exercise the powers
hereunder granted or to institute such action, suit or proceeding in its own
name; (ii) such Holders shall have offered to indemnify the Trustee as
provided in Section 9.01; and (iii) the Trustee shall thereafter fail or refuse
to exercise within a reasonable period of time the remedies hereunder granted,
or to institute such action, suit or proceeding in its own name. Such
notification, request and offer of indemnity are hereby declared in every such
case at the option of the Trustee to be conditions precedent to the execution
of the powers and trusts of this Indenture, and to any action or cause of
action for the enforcement of this Indenture, the Loan Agreement or the
Collateral Security Documents, or for the appointment of a receiver or for any
other remedy hereunder; it being understood and intended that no one or more
Holders of the Bonds shall have any right in any manner whatsoever to affect,
disturb or prejudice the lien of this Indenture and the Collateral Security
Documents, by it, his or their action or to enforce any right thereunder
except in the manner herein provided, and that all proceedings at law or in
equity shall be instituted, had and maintained in the manner herein provided
and for the equal benefit of the Holders of all Bonds then Outstanding;
provided, however, that nothing herein shall be construed to preclude any
Bondholder from enforcing , or impair the right of any Bondholder to
enforce,the payment by the Trustee of principal of, and interest and premium,
if any, on any Bond of such Bondholder at or after its date of maturity, if
and to the extent that such payment is required to be made to such
Bondholder by the Trustee from available funds in accordance with the terms
hereof.
SECTION 8.09. Termination of Proceedings. In case the Trustee shall have
proceeded to enforce any right under this Indenture, the Loan Agreement, or
the Collateral Security Documents by the appointment of a receiver, by entry
and possession or otherwise, and such proceedings shall have been
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discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee, then and in every such case the Issuer and the
Trustee shall be restored to their former positions and rights hereunder with
respect to the property herein conveyed, and all rights, remedies and powers
of the Trustee shall continue as if no such proceedings had been taken.
SECTION 8.10. Waiver of an Event of Default. The Trustee may in its
discretion waive any Event of Default hereunder and its consequences and
rescind any declaration of acceleration of maturity or principal, and shall do so
upon written request of the Holders of (1) a majority in aggregate principal
amount of all the Bonds then Outstanding with respect to which default in the
payment of principal, premium, and interest, or any of them, exists, or (2) a
majority in aggregate principal amount of all the Bonds then Outstanding in
the case of any other Event of Default; provided, however, that there shall
not be waived (A) any Event of Default in the payment of the principal of or
premium on any Outstanding Bonds on the redemption date or at the date of
maturity specified therein or (B) any Event of Default in the payment when
due of the interest on any such Bonds, unless prior to such waiver all
arrearages of interest, with interest (to the extent permitted by law) at the
rate borne by the Bonds with respect to which such Event of Default shall
have occurred, and all arrearages of payments of principal and premium, if
any, with interest (to the extent permitted by law) at the rate borne by the
Bonds with respect to which such Event of Default shall have occurred, and
all expenses of the Trustee and Paying Agents in connection with such Event
of Default, shall have been paid or provided for. No such waiver or
rescission shall extend to any subsequent or other Events of Default, or impair
any right consequent thereon.
SECTION 8.11. Company and Guarantors as Agent of Issuer.
(a) Anything herein to the contrary notwithstanding, no default under
Section 8.01(c) or (d) of this Indenture shall constitute an Event of
Default until actual notice of such default by registered or certified mail
shall be given by the Trustee to the Issuer, the Guarantors and the
Company and the Trustee to the Issuer, the Guarantors and the Company
and the Issuer and the Company and Guarantors shall have had the time
permitted by the applicable subsection after receipt of such notice to
correct said default or cause said default to be corrected and the Issuer
or the Company or the Guarantors shall not have corrected said default
or caused said default to be corrected within said time; provided,
however, if said default occurs under Section 8.01(d) and is such that it
cannot be corrected within the time permitted by Section 8.01(d), it shall
not constitute an Event of Default if corrective action is instituted by the
Issuer or Company or Guarantors within said time and diligently pursued
until the default is corrected.
(b) With regard to any alleged default concerning which notice is given
to the Company and Guarantors under the provisions of this Section 8.11,
the Issuer agrees that the Company and Guarantors each shall have the
right to perform any covenant or obligation of the Issuer alleged in said
notice to constitute a default, in the name and stead of the Issuer with
full power to do any and all things and acts to the same extent that the
Issuer could do and perform any such things and acts and with power of
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substitution; provided that the Company or Guarantors, as the case may
be, shall give the Issuer notice of its intention so to perform on behalf of
the Issuer; and provided further that the Issuer may at any time, by a
writing addressed to the Company or Guarantors, as the case may be,
cancel, withdraw, limit or modify the appointment hereby made.
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ARTICLE IX.
THE TRUSTEE
SECTION 9.01. Acceptance of the Trustee. The Trustee, prior to the
occurrence of an Event of Default, undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture; and no implied
covenants or obligations should be read into this Indenture against the
Trustee. In case an Event of Default has occurred, the Trustee agrees to
perform such trusts as an ordinarily prudent trustee under a corporate
mortgage, but in any such event, only upon and subject to the following
express terms and conditions:
(a) The Trustee may execute any of the trusts or powers hereof and
perform any of its duties by or through attorneys, agents, receivers, or
employees, but shall be answerable for the conduct of the same in
accordance with the standard specified above, and shall be entitled to
advice of counsel concerning all matters of trust hereof and duties
hereunder, and may in all cases pay such reasonable compensation to any
attorney, agent, receiver or employee retained or employed by it in
connection herewith. The Trustee may act upon the written opinion or
written advice of any attorney, surveyor, engineer or accountant selected
by it in the exercise of such care, provided that the only legal advice or
opinion that the Trustee may rely upon for purposes of securing advice
or an opinion relating to the tax exempt status of the Bonds is given by
a firm of nationally recognized bond counsel experienced in tax exempt
industrial revenue bond financing. The Trustee shall not be responsible
for any loss or damage resulting from any action or nonaction in good
faith in reliance upon such opinion or advice.
(b) The Trustee shall not be responsible for any recital herein, or in
the Bonds (except with respect to the certificate of the Trustee endorsed
on the Bonds) or for the investment of moneys as herein provided,
except is provided in Section 6.02, or for insuring the Mortgaged
Property or collecting any insurance moneys, or for the validity of the
execution by the Issuer of this Indenture, or of any supplemental
indentures or instruments of further assurance, or for the sufficiency of
any security for the Bonds issued hereunder or intended to be secured
hereby, or for the value of title of the property herein conveyed, if any,
or otherwise as to the maintenance of the security hereof; except as
otherwise provided in Section 4.04 and except that in the event the
Trustee enters into possession of a part or all of the property conveyed
pursuant to any provisions of this Indenture or Collateral Security
Documents, it shall use due diligence in preserving such property. The
Trustee may, but shall be under no duty to, require of the Company full
information and advice as to the performance of the covenants, conditions
and agreements in the Loan Agreement, and Collateral Security
Documents, as to the condition of any Mortgaged Property and the
performance of all other obligations thereunder and shall use its best
efforts, but without any obligation, to advise the Issuer and the Company
of any impending Event of Default known to the Trustee.
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(c) The Trustee shall not be accountable for the use or application by
the Issuer or the Company of any of the Bonds or the proceeds thereof
(except as herein expressly provided) or for the use or application of
any money paid over by the Trustee in accordance with the provisions of
this Indenture or for the use and application of money received by any
Paying Agent. The Trustee may become the owner of Bonds secured
hereby with the same rights he would have if not Trustee.
(d) The Trustee shall be protected in acting upon any written notice,
order, requisition, request, consent, certificate, opinion (including an
opinion of Independent Counsel or Bond Counsel), affidavit, letter,
telegram or other paper or document reasonably believed by it to be
genuine and correct and to have been signed or sent by the proper
person or persons. Any action taken by the Trustee pursuant to this
Indenture upon the request or authority or consent of any person who at
the time of making such request or giving such authority or consent is
the Holder of any Bond, shall be conclusive and binding upon all future
Holders of the same Bond and upon Bonds issued in exchange therefor,
upon transfer thereof, or in place thereof.
(e) As to the existence or non-existence of any fact or as to the
sufficiency or authenticity of any instrument, paper or proceeding, the
Trustee shall be entitled to rely upon a certificate of the Issuer signed
by its City Administrator under the seal of the Issuer as sufficient
evidence of the facts stated therein as the same appear from the books
and records under the City Administrator's custody or control or are
otherwise known to him. The Trustee may accept a certificate of the City
Clerk of the Issuer under the seal of the Issuer to the effect that a
motion, resolution or ordinance in the form therein set forth has been
adopted by the governing body of the Issuer as conclusive evidence that
such motion, resolution or ordinance has been duly adopted, and is in
full force and effect, and may accept such motion, resolution or ordinance
as sufficient evidence of the facts stated therein and the necessity or
expediency of any particular dealing, transaction or action authorized or
approved thereby, but may at its discretion, secure such further
evidence deemed necessary or advisable, but shall in no case be bound to
secure the same.
(f) The Trustee shall not be answerable except for its negligence or
willful default.
(g) The Trustee shall not be personally liable for any debts contracted
or for damages to persons or to personal property injured or damaged, or
for salaries or nonfulfillment of contracts during any period in which it
may be in possession of or managing the real and tangible personal
property as in this Indenture provided.
(h) At any and all reasonable times, the Trustee, and its duly
authorized agents, attorneys, experts, engineers, accountants and
representatives, shall have the right fully to inspect any and all of the
property comprising the Mortgaged Property, including all books, papers
and records of the Issuer pertaining to the Mortgaged Property and the
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Bonds, and to take such memoranda from and with regard thereto as may
be desired.
(i) The Trustee shall not be required to give any bond or surety with
respect to the execution of said trusts and powers or otherwise in respect
to the premises.
(j) Notwithstanding anything elsewherein this Indenture contained, the
Trustee shall have the right, but shall not be required, to demand, with
respect to the authentication of any Bonds, the withdrawal of any cash,
the release of any property or any action whatsoever within the purview
of this Indenture, any showings, certificates, opinions (including opinions
of Independent Counsel), appraisals or other information, or corporate
action or evidence thereof, in addition to that by the terms hereof
required as a condition of such action by the Trustee, deemed desirable
for the purpose of establishing the right of the Issuer to the
authentication of any Bonds, the withdrawal of any cash, the release of
any property, or the taking of any other action by the Trustee.
•
(k) Before taking any action hereunder, the Trustee may require that it
be furnished an indemnity bond satisfactory to it for the reimbursement
of all expenses to which it may be put and to protect it against all
liability except liability which is adjudicated to have resulted from the
negligence or willful default of the Trustee, by reason of any action so
taken by the Trustee.
SECTION 9.02. Trustee's Fees, Charges and Expenses. The Trustee and any
Paying Agent shall be entitled to payment and/or reimbursement for reasonable
fees for services rendered hereunder and all advances, counsel fees and other
expenses reasonably and necessarily made or incurred by the Trustee in and
about the execution of the trusts created by this Indenture and in and about
the exercise and performance of the powers and duties of the Trustee
hereunder and for the reasonable and necessary costs and expenses incurred
in defending any liability in the premises of any character whatsoever (unless
such liability is adjudicatd to have resulted from the negligence or willful
default of the Trustee). In this regard the Issuer has made provisions in
Section 4.03 of the Loan Agreement for the payment of said fees, advances,
counsel fees, costs and expenses and reference is hereby made to said Loan
Agreement for the provisions to made; and the Issuer shall not otherwise be
liable for the payment of such sums. Upon an Event of Default, but only
upon an Event of Default, the Trustee shall have a first lien with right of
payment prior to payment on account of interest on or principal or premium, if
any, of any Bond and upon the money received by it hereunder or under the
Collateral Security Documents, for said fees, advances, counsel fees, costs and
expenses incurred by it.
SECTION 9.03. Notice to Holders of Default. The Trustee shall give to the
Bondholders and the Original Purchaser written notice of all Events of Default
known to the Trustee, within ninety (90) days after the occurrence of an
Event of Default; provided that, except in the case of an Event of Default in
the payment of the principal of or interest on any of the Bonds, the Trustee
shall be protected in withholding such notice if and so long as the Board of
Directors, the executive committee or a trust committee of directors or chief
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executive officer of the Trustee in good faith determine that the withholding of
such notice is in the interest of the Holders.
SECTION 9.04. Intervention by Trustee. In any judicial proceeding to which
the Issuer is a party and which in the opinion of the Trustee and its counsel
has a substantial bearing on the interest of Holders of Bonds, the Trustee may
intervene on behalf of Holders and shall do so if requested in writing by the
Holders of at least twenty-five percent (25$) of the aggregate principal amount
of Outstanding Bonds. The rights and obligations of the Trustee under this
Section are subject to the approval of a court of competent jurisdiction in the
premises.
SECTION 9.05. Successor Trustee. Any corporation, association or agency
into which the Trustee may be converted or merged, or with which it may be
consolidated, or to which it may sell or transfer its trust business and assets
as a whole or substantially as a whole, or any corporation or association
resulting from any such conversion, sale, merger, consolidation or transfer to
which it is a party, ipso facto, shall be and become successor trustee and
paying agent under this Indenture and vested with all of the title to the Trust
Estate, and all the trusts, powers, discretions, immunities, privileges and all
other matters as was its predecessor, without the execution or filing of any
instrument or any further act, deed or conveyance on the part of any of the
parties hereto anything herein to the contrary notwithstanding.
SECTION 9.06. Resignation by Trustee. The Trustee and any successor
trustee may at any time resign from the trusts hereby created by giving thirty
(30) days written notice to the Issuer, the Original Purchaser and the
Company and by first class mail to each Holder of Bonds as shown on the
Bond Register, and such resignation shall take effect at the end of such thirty
(30) days, or upon the earlier appointment of a successor trustee by the
Holders or by the Issuer. such notice to the Issuer, Original Purchaser and
the Company may be served personally or sent by registered mail.
SECTION 9.07. Removal of Trustee. The Trustee may be removed at any
time by an instrument or concurrent instruments in writing delivered to the
Trustee, to the Company and to the Issuer, and signed by the Holders of
majority in aggregate principal amount of then Outstanding Bonds.
SECTION 9.08. Appointment of Successor Trustee. In case the Trustee
hereunder shall resign or be removed, or be dissolved or shall be in course of
dissolution for liquidation, or otherwise become incapable of acting hereunder,
or in case it shall be taken under the control of any public officer or officers,
or of a receiver appointed by a court, a successor may be appointed by the
Holders of a majority in aggregate principal amount of the then Outstanding
Bonds, by an instrument or concurrent instruments in writing signed by such
Holders, or by their attorney-in-fact, duly authorized. Nevertheless, in case
of such vacancy the Issuer by resolution of its governing body may appoint a
temporary trustee to fill such vacancy until a successor trustee shall be
appointed by the Holders in the manner above provided; and any such
temporary trustee so appointed by the Issuer shall immediately and without
further act be superseded by the Trustee so appointed by such Holders.
Every such Trustee as appointed pursuant to the provision of this Section 9.08
shall be a trust company or bank having trust powers and having a reported
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capital and surplus not less than $10,000,000. if there be such an institution
willing, qualified and able to accept the trust upon reasonable or customary
terms.
SECTION 9.09. Acceptance by Successor Trustees.
Every successor Trustee
appointed hereunder shall execute, acknowledge and deliver to its predecessor,
to the Company and also to the Issuer, and instrument in writing accepting
such appointment hereunder, and thereupon such successor, without any
further act, deed or conveyance shall become fully vested with all the estates,
properties, rights, powers, trusts, duties and obligations of its predecessors
as Trustee and Paying Agent; but such predecessor shall, nevertheless, on
the written request of the Issuer, or of its successor Trustee, execute and
deliver an instrument transferring to such Successor Trustee all the estates,
properties, rights, powers and trust of such predecessor hereunder, and
every predecessor Trustee shall deliver all securities and moneys held by it as
Trustee hereunder to its successor. Should any instrument in writing from
the Issuer be required by any successor Trustee for more fully and certainly
vesting in such successor the estates, rights, powers and duties hereby
vested or intended to be vested in the predecessor trustee, any and all such
instruments in writing shall, on request, be executed, acknowledged and
delivered by the Issuer. The resignation of any Trustee and the instrument
or instruments removing any Trustee and appointing a successor hereunder,
together with all other instruments provided for in this Article, shall be
forthwith filed or recorded or both by the successor Trustee in each recording
office where the Indenture shall have been filed or recorded or both.
SECTION 9.10. Right of Trustee to Pay Taxes and Other Charges. In case
any tax, assessment or governmental or other charge upon any part of the
Project is not paid, to the extent, if any, that the same is legally payable, the
Trustee may pay such tax, assessment or governmental charge, without
prejudice, however, to any rights of the Trustee or the Bondholders
hereunder arising in consequence of such failure; and any amount at any time
so paid under this Section or Section 5.04 of the Loan Agreement or Section
5.02 of the Mortgage with interest thereon from the date of payment at the
rate established for such advances under Section 4.03(4) of the Loan
Agreement, shall be repaid to the Trustee upon demand out of Additional
Charges under the Loan Agreement, and shall become so much additional
indebtedness secured by the Indenture, and the same shall be given a
preference in payment over any of the Bonds, but the Trustee shall be under
no obligation to make such payment unless requested to do so in writing by
Holders of at least twenty-five percent (25%) of the aggregate principal amount
of the then Outstanding Bonds and shall have been
indemnity for the purpose of such provided with adequate
upon five (5) days' payment. Any such payment shall be made
occasioned by any such written written notice could thenotice to resComult the eforfeiture ss the �or
termination of any right.
Section 9.11. Trustees Protected in Relying Upon Resolutions. The
resolutions, orders, requisitions, opinions, certificates and other instruments
provided for in this Indenture may be accepted by the Trustee as conclusive
evidence of the facts and conclusions stated therein and shall be full warrant,
protection and authority to the Trustee.
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SECTION 9.12. Successor Trustee as Custodian of Bond Fund and Paying
Agent. In the event of a change in the office of trustee, the predecessor
trustee which has resigned or been removed shall cease to be custodian of the
funds prescribed in Article V and shall cease to act as the Paying Agent for
principal and interest on the Bonds, and the successor trustee shall be and
become such custodian and Paying Agent.
SECTION 9.13. Co-Trustee. At any time or times, for the purpose of
meeting any legal requirements of any jurisdiction in which any part of the
Trust Estate may at the time be located, the Issuer and the Trustee shall have
the power to appoint, and, upon the request of the Trustee or of the Holders
of at least fifty-one percent (51$) in aggregate principal amount of the then
Outstanding Bonds, the Issuer shall for such purpose join with the Trustee in
the execution, delivery and performance of all instruments and agreements
necessary or proper to appoint one or more persons approved by the Trustee
either to act as a co-trustee or co-trustees, jointly with the Trustee, of all or
any part of the Trust Estate, or to act as separate Trustee or separate
trustees of all or any part of the Trust Estate, and to vest in such person or
persons, in such capacity, such right to the Trust Estate or any part thereof,
and such rights, powers, duties, trusts or obligations as the Issuer and the
Trustee may consider necessary or desirable subject to the remaining
provisions of this Section 9.13.
If the Issuer shall not have joined in such appointment within fifteen (15) days
after the receipt by it of a request so to do, or in case an Event of Default
shall have occurred and be continuing, the Trustee alone shall have power to
make such appointment.
The Issuer shall execute, acknowledge and deliver all such instruments as may
be required by any such co-trustee or separate Trustee for more fully
confirming such title, rights, powers, trusts, duties and obligations to such
co-trustee or separate trustee.
Every co-trustee or separate trustee shall, to the extent permitted by law but
to such extent only, be appointed subject to the following terms, namely:
(a) The Bonds shall be authenticated and delivered, and all rights,
powers, trusts, duties and obligations by this Indenture conferred upon
the Trustee in respect of the custody, control or management of moneys,
papers, securities and other personal property shall be exercised solely
by the Trustee.
(b) All rights, powers, trusts, duties and obligations conferred or
imposed upon the trustees shall be conferred or imposed upon and
exercised or performed by the Trustee, or by the Trustee and such co-
trustee or co-trustees or separate trustee or separate trustees jointly, as
shall be provided in the instrument appointing such co-trustees, except
to the extent that, under the law of any jurisdiction in which any
particular act or acts are to be performed, the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event
such act or acts shall be performed by such co-trustee or co-trustees or
separate trustee or separate trustees.
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(c) Any request in writing by the Trustee to ay co-trustee or separate
trustee to take or to refrain from taking any action hereunder shall be
sufficient warrant for the taking, or the refraining from taking, of such
action by such co-trustee or separate trustee.
(d) Any co-trustee or separate trustee may delegate to the Trustee the
exercise of any right, power, trust, duty or obligation, discretionary or
otherwise.
(e) The Trustee at any time, by an instrument in writing, with the
concurrence of the Issuer, may accept the resignation of or remove any
co-trustee or separate trustee appointed under this Section 9.13, and, in
case of a continuing Event of Default the Trustee shall have power to
accept the resignation of, or remove, any such co-trustee or separate
trustee without the concurrence of the Issuer. Upon the request of the
Trustee the Issuer shall join with the Trustee in the execution, delivery
and performance of all instruments and agreements necessary or proper to
effectuate such resignation or removal. A successor to any co-trustee or
separate trustee so resigned or removed may be appointed in the manner
provided in this Section 9.13.
(f) No trustee hereunder shall be personally liable by reason of any act
or omission of any other trustee hereunder.
(g) Any demand, request, direction, appointment, removal, notice,
consent, waiver or other action in writing delivered to the Trustee shall
be deemed to have been delivered to each co-trustee or separate trustee.
(h) Any moneys, papers, securities or other items of personal property
received by any such co-trustee or separate trustee hereunder shall
forthwith, so far as may be permitted by law, be turned over to the
Trustee.
Upon the acceptance in writing of such appointment by any such co-trustee or
separate trustee, it or he shall be vested with such interest in and to the
Trust Estate or any part thereof, and with such rights, powers duties or
obligations, as shall be specified in the instrument of appointment jointly with
the Trustee (except insofar as local law makes it necessary for any such co-
trustee or separate trustee to act alone) subject to all the terms of this
Indenture. Every such acceptance shall be filed with the Trustee. Any co-
trustee or separate trustee may, at any time by an instrument in writing,
constitute the Trustee its or his attorney-in-fact and agent, with full power
and authority to do all acts and things and to exercise all discretion on its or
his behalf and in its or his name.
In case any co-trustee or separate trustee shall die, become incapable of
acting, resign or be removed, the title to the Trust Estate and all rights,
powers, trusts, duties and obligations of said co-trustee or separate trustee
shall, so far as permitted by law, vest in and be exercised by the Trustee
unless and until a successor co-trustee or separate trustee shall be appointed
in the manner herein provided.
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SECTION 9.14. Obligation to Trustee as to Reporting. The Trustee shall
cause to be filed any reports lawfully required by any public agency to be
filed under the Minnesota Securities Law or any other applicable security laws
and any other reports lawfully required by any public agency to be filed
under the Act or any other applicable state law. For this purpose the Trustee
is entitled to require the company to cause to be furnished to the Trustee
whatever information is necessary to comply with such reporting requirements
at the Company's sole expense.
SECTION 9.15. Successor Paying Agent. The provisions of Section 9.05
through 9.09 with respect to removal, resignation and appointment of a
successor trustee shall be equally applicable to resignation, removal and
appointment of a successor to the Paying Agent. The Trustee shall be eligible
for appointment as successor to the Paying Agent.
SECTION 9.16. Confirmation of the Trustee.
(a) At any time while Bonds remain Outstanding under this Indenture
and in any of the following circumstances, to the extent permitted by
law, to-wit:
(1) The Trustee is in doubt as to whether or not the Indenture or
any Related Document or instrument requires Bondholders' consent
or the consent of the Company, the Guarantor, any other guarantor,
or the Issuer in connection with any proposed action;
(2) The Trustee has substantial doubt as to whether its consent to
a proposed action, although authorized, should in the particular
circumstances be given;
(3) The Trustee's consent is sought or deemed necessary in
connection with a proposed action which is not specifically dealt with
or contemplated by the Indenture or any other Related Document, or
it is unclear whether the Indenture or other Related Document is
intended to deal with the proposed action;
(4) There is a disagreement between any of the parties to the
Indenture or any other Related Document as to whether a proposed
action may be taken or is required to be taken;
(5) There appears to be a conflict, ambiguity or inconsistency
between or among the provisions of the Indenture and any other
Related Document other than as provided for in Section 10.01 and
11.01 hereof;
(6) Bondholders' consent is required by this Indenture or Related
Document but consent cannot be obtained because:
(i) it is not possible to comply with requirements of this
Indenture or any other Related Document as to the notice to be
given to Bondholders with respect to the proposed matter
requiring consent, or
-60-
e
requisite number of Bondholders (the quorum) t
Bondho11111111111111111111.11111.111111.11..........m.-
lders,, h
(ii) if action is to be taken at a meeting of Bonhe
to
present at a meeting
necessary
in order for a proposed action to be taken
or any adjourned meeting;
was not present at such meeting
(7) The
Trustee wishes to depart from the procedures set forth in
purposes of calling or conducting a meeting of the
Section 12.03 for p P
Bondholders;
be necessary to determine a
o
in which it shall other Related
question in any other eventuality to the Company or
rising under or construe this Indenture
eelssuern
and upon requestBonds omp shall,
o
Document, the Trustee may,e in principal amount of Outstanding
the Holders c 25% or with the provisions of Minnesota Statutes, Section 501.33
proceed in accordance
through 501.38, as amended.
amend es
If Bondholder's consent cannot be obtained ta t because
j jurisdiction mayamend
describedor
uin (a)(7)oaagore a rt of IndentureP or any Related Document upon
supplement the Loan Agreementtherefor.
proper showing of the necessity interpreting the Indenture and any other Related
and
(b) In construing be to ascertain and effectuate the
Document, the objective shall alwayspossible and appropriate, and to the
intention of the parties. So far as P rovisions of the Indenture or
les ofo statutory
extenththat it Relateds not Documents,onwith pain p645.19tutr and construction45.20,
the cther 645.17, 645.18,
Minnesotanatitutes, asnamens ded, •shall be applied in the interpretation and
uStatutes,
construction of the Indenture and other Related Documents for actions
The Trustee or successor Trustee shall not be answerable
(c) final order of the court. The Trusteeor
taken in compliance with any actiond
successor Trustee shall not be entitled to require
toataking many
pursuant to Secfinaltion order.of,theucourtsio
n directed by
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ARTICLE X.
SUPPLEMENTAL INDENTURES
SECTION 10.01. Supplemental Indentures Not Requiring Consent of
Bondholders. The Issuer and the Trustee may, from time to time and at any
tune, without the consent of, or notice to, any of the Holders (except, prior
to the Remarketing Date, the Initial Holder), and when so required by this
Indenture shall, enter into an indenture or indentures supplemental to this
Indenture as shall not be inconsistent with the terms and provisions hereof
(which supplemental indenture or indentures shall thereafter form a part
hereof), so as to thereby (1) cure any ambiguity or formal defect or omission
in this Indenture or in any supplemental indenture, (2) grant to or confer
upon the Trustee for the benefit of the Holders any additional rights,
remedies, powers, authority or security that may lawfully be granted to or
conferred upon the Holders or the Trustee, (3) more precisely identify the
Trust Estate, or any other property which may become a part of the Trust
Estate, (4) subject to the lien and pledge of this Indenture additional
revenues, properties or collateral, (5) evidence the appointment of a separate
trustee or a co-trustee or the succession of a new Trustee and/or Paying
Agent hereunder, (6) modify, eliminate and/or add to the provisions of this
Indenture to such extent as shall be necessary to prevent any interest on the
Bonds from becoming taxable under the Federal income tax laws or to effect
the qualification of this Indenture under the Trust Indenture Act of 1939, as
then amended, or under any similar Federal statute hereafter enacted, and to
add to this Indenture such other provisions as may be expressly permitted by
said Trust Indenture Act of 1939, excluding however the provisions referred
to in Section 316(a)(2) of said Trust Indenture Act of 1939, (7) make any
other change which is required by any provision of this Indenture or which is
deemed by the Trustee necessary to reconcile the Indenture with the Related
Documents, or any amendments thereto, or (8) make any other change which
in the judgment of the Trustee is necessary or desirable and will not materially
prejudice any non-consenting Holder of a Bond.
SECTION 10.02. Supplemental Indentures Requiring Consent of Holders.
Exclusive of supplemental indentures covered by Section 10.01 hereof and
subject to the terms and provisions contained in this Section, and not
otherwise, the Trustee, upon receipt of an instrument evidencing the consent
to the below-mentioned supplemental indenture by the Holders of not less than
fifty-one percent (51$) of the aggregate principal amount of the then
Outstanding Bonds, shall join with the Issuer in the execution of such other
indenture or indentures supplemental hereto as shall be deemed necessary and
desirable for the purpose of modifying, altering, amending, adding to or
rescinding, in any particular, any of the terms or provisions contained in this
Indenture or in any supplemental indenture; provided, however, that nothing
herein contained shall permit or be construed as permitting (1) an extension of
the maturity of the principal or of the interest on any Bond issued hereunder,
or (2) a reduction in the principal amount of any Bond or the rate of interest
thereon, or (3) a privilege or priority of any Bond or Bonds over any other
Bond or Bonds except as may be otherwise expressly provided herein, or (4)
a reduction in the aggregate principal amount of the Bonds required for
consent to such supplemental indenture, or (5) modifying any of the provisions
of this Section without the consent of the Holders of one hundred percent
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(100%) of the principal amount of all Bonds adversely affected thereby ("100%
Bondholders' Consent").
If at any time the Issuer shall request the Trustee to enter into any such
supplemental indenture for any of the purposes of this Section which does not
require 100% Bondholders' Consent, the Trustee shall, upon being satisfactorily
indemnified with respect to expenses, cause notice of the proposed execution
of such supplemental indenture to be mailed by first class mail, postage
prepaid, to the Holders of the Bonds at the addresses shown on the Bond
Register. Such notice shall briefly set forth the nature of the proposed
supplemental indenture and shall state that copies thereof are on file at the
principal office of the Trustee for inspection by all Bondholders. The Trustee
shall not, however, be subject to any liability to any Bondholder by reason of
its failure to mail such notice to any particular Bondholder if notice was
generally mailed to Bondholders, and any such failure shall not affect the
validity of such supplemental indenture when consented to and approved as
provided in this Section. If the Holders of not less than fifty-one percent
(51%) in aggregate principal amount of the then Outstanding Bonds at the time
of the execution of any such supplemental indenture shall have consented to
and approved the execution thereof as herein provided, no Holder of any Bond
shall have any right to object to any of the terms and provisions contained
herein or the operation thereof, or in any manner to question the propriety of
the execution thereof, or to enjoin or restrain the Trustee or the Issuer from
execution the same or from taking any action pursuant to the provisions
thereof. Upon the execution of any such supplemental indenture as in this
Section permitted and provided, this Indenture shall be and is deemed to be
modified and amended in accordance herewith.
Anything herein to the contrary notwithstanding, a supplemental indenture
under this Article Ten which adversely affects the right of the Company or
the Guarantor under the Loan Agreement or the Collateral Security Documents
shall not become effective unless and until the Company or Guarantor, as the
case may be, shall have consented (either in writing or by inaction as
provided below) to the execution and delivery of such supplemental indenture.
In this regard, the Trustee shall cause notice of the proposed execution and
delivery of any such supplemental indenture, together with a copy of the
proposed supplemental indenture, to be mailed by certified or registered mail
to the Company or Guarantor at least fifteen (15) days prior to the proposed
date of execution and delivery of any such supplemental indenture. The
Company or Guarantor shall be deemed to have consented to the execution and
delivery of any such supplemental indenture if the Trustee does not receive a
letter signed by a Representative of the Company of protest or objection
thereto on or before 4:30 o'clock P.M., Central Standard or Central Daylight
time, whichever is then in effect, of the fifteenth day after the mailing of said
notice and a copy of the proposed supplemental indenture to the Company or
Guarantor unless such fifteenth day falls on a Sunday or legal holiday, in
which event the letter of objection must be received on the next succeeding
business day.
SECTION 10.03. Rights of Trustee. If, in the opinion of the Trustee, any
supplemental indenture provided for in this Article affects the rights, duties
or immunities of the Trustee under this Indenture or otherwise, the Trustee
may, in its discretion, decline to execute such supplemental indenture, except
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to the extent that this may be required in the case of a supplemental
indenture entered into under Section 10.01. The Trustee shall be entitled to
receive, and shall be fully protected in relying upon, an opinion of
Independent Counsel as conclusive evidence that any such supplemental
indenture conforms to the requirements of this Indenture.
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ARTICLE XI.
AMENDMENTS TO RELATED DOCUMENTS
SECTION 11.01. Amendments Not Requiring Bondholder Consent. The Issuer
and/or the Trustee may, without the consent of or notice to the Bondholders,
but, prior to the Remarketing Date, with the consent of the Initial Holder,
consent to any amendment, change or modification of any of the Related
Documents:
(a) which may be required or permitted without Bondholder consent by
the provisions of the Related Documents or this Indenture;
(b) for the purpose of curing any ambiguity or formal defect or
omission;
(c) in connection with additional land, equipment or improvements which
may be acquired and which constitute a part of the Mortgaged Property,
so as to (A) more precisely identify the same, or (B) substitute or add
additional land or additional equipment, or (C) sell or remove such land
or equipment, all as provided in he Mortgage;
(d) to reconcile any Related Documents with any amendment or
supplement to the Indenture; or
(e) to effect any other change in a Related Document which, in the
judgment of the Trustee, will not materially prejudice any non-consenting
Holder of a Bond;
SECTION 11.02. Amendments Requiring Bondholder Consent. Except for (a)
amendments, changes or modifications as provided in Section 11.01, and (b)
amendments, changes or modifications permitted by any Related Document,
neither the Issuer nor the Trustee shall consent to any other amendment,
change or modification of any Related Document, without the giving of notice
and the written approval or consent of the Holders of not less than fifty-one
percent (51%) in aggregate principal amount of the Bonds then Outstanding
given and procured as provided in this Section; provided that in no event
shall such amendment, change or modification relieve the Company or the
Guarantors, as the case may be, of the obligation under any Related
Documents to make when and as due any payments required for the payment of
principal, interest and any premium due or to become due on the Bonds unless
the consent of the Holders of all Bonds adversely affected thereby is first
secured. If at any time the Issuer and the Company shall request the consent
of the Trustee to any such proposed amendment, change or modification of any
Related Documents to which the Issuer is a party or the Company shall request
the consent of the Trustee to any such proposed amendment, change or
modification of any other Related Document to which the Issuer is not a party,
the Trustee shall, upon being satisfactorily indemnified with respect to
expenses, cause notice of such proposed amendment, change or modification to
be given in the same manner as provided in Section 10.02 hereof with respect
to supplemental indentures. Such notice shall briefly set forth the nature of
such proposed amendment, change or modification and shall state that copies of
the instrument embodying the same are on file at the principal office of the
-65-
Trustee for inspection by all Holders. The Trustee shall not, however, be
subject to any liability to any Holder by reason of its failure to mail such
notice to any particular Bondholder if notice was generally mailed to
Bondholders, and any such failure shall not affect the validity of such
amendment, change or modification when consented to and approved as
provided in this Section. If the Holders of not less than fifty-one percent
(51%) in aggregate principal amount of the Bonds then Outstanding at the time
of the execution of any such amendment shall consent to the execution thereof
as herein provided, no Holder of any Bond shall have any right to object to
any of the terms and provisions contained therein, or the operation thereof, or
in any manner to question the propriety of the execution thereof, or to enjoin
or restrain the Trustee or the Issuer from executing the same or from taking
any action pursuant to the provisions thereof. Upon the execution of any
such amendment, the applicable Related Document thereby amended shall be
deemed to be modified and amended in accordance therewith. Nothing in this
Section contained shall permit or be construed as permitting any reduction in
the payments required to be made by Sections 4.02 or 4.03 of the Loan
Agreement or permitting a reduction or change in the stated maturities of the
Bonds.
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ARTICLE XII.
MISCELLANEOUS PROVISIONS
SECTION 12.01. Consent of Holders. Any consent, request, direction,
approval, objection or other instrument required by this Indenture to be
signed and executed by the Holders may be in any number of concurrent
writings of similar tenor and must be signed or executed by such Holders in
person or by agent appointed in writing. Proof of the execution of any such
consent, request, direction, approval, objection or other instrument or of the
writing appointing any such agent and of the ownership of Bonds, if made in
the following manner, shall be sufficient for any of the purposes of this
Indenture, and shall be conclusive in favor of the Trustee with regard to any
action taken by it under such request or other instrument, namely:
(a) The fact and date of the execution by any person of any such
writing may be proved by the certificate of any officer in any jurisdiction
who by law has power to take acknowledgments within such jurisdiction
that the person signing such writing acknowledged before him the
execution thereof, or by an affidavit of any witness to such execution.
(b) The fact of the ownership by any person of Bonds and the amounts
and numbers of such Bonds, and the date of the holding of the same,
may be proved only by reference to the Bond Register.
SECTION 12.02. Rights Under Indenture. With the exception of rights herein
expressly conferred, nothing expressed or mentioned in or to be implied from
this Indenture or the Bonds is intended or shall be construed to give any
person or company other than the parties hereto, and the Bondholders, any
legal or equitable right, remedy, or claim under or in respect to this
Indenture or any covenants, conditions and provisions herein contained; this
Indenture and all of the covenants, conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of the parties
hereto and the Holders of the Bonds hereby secured as herein provided.
SECTION 12.03. Meetings of Bondholders.
(a) A meeting of Bondholders may be called at any time and from time to
time pursuant to this Section to facilitate any of the following purposes:
(1) to give any notice to the Issuer, the Company or the Trustee,
or to give any directions to the Trustee, or to consent to the
waiving of any default under this Indenture, or to take any other
action authorized to be taken by the Bondholders under this
Indenture;
(2) to remove the Trustee or to appoint a successor trustee
pursuant to Sections 9.07 and 9.08 of this Indenture;
(3) to consent to the execution of a supplemental indenture
pursuant to Section 10.02 hereof, or to consent to the execution of
an amendment, change or modification of the Loan Agreement, and
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Collateral Security Documents, or any of them, pursuant to Section
11.02 hereof; or byor on behalf
take any •• d aggregate principal amount of the
to other action tauthorized to be taken Indenture or under
(4) s eci of this
of the Holdersnany of a other provision
Bonds
applicable law•
(b) lace or places as the
Meetings of Bondholders may be held at such p
Meeting failure to act, the Bondholders calling the
Trustee o time to in case of its time determine.
meeting, shall from of Bondholders to be
at any time call a meeting determine.
held
The Trustee may lace as the Trustee shalland the
of Bondholders setting forth the time
held at such time and at such P terms the action to e
Notice of every meeting general proposedmail, be
• and in first class
place such meeting shall be mailed by
taken at such eting, address o the thetee
Bond
f
Holders of the Bonds at the shown on shah
Register and the Original Purchaser. Any defect therein to the or any of any such
o
particular Bondholder,
mail however,w notieeinoanyway impair or affect
thelvalidity In the event that
mailed to res. amount of the
not, generally p
meeting if s of was g in aggregatea f meeting e
the Holders of s leastall10%requested the Trustee to call
Outstanding Bonds shall have reu st setting forth in reasonable detail the
f
O written req and the Trustee shall
0 days
the Bondholders by of notice of such meetinghewithin
t
action proposed to betaken
mailingat the meeting, y deiermine the
have accomplished request, then such Bondholderssuch meeting to take
after receipt of such and may suing notice e
time and the place for such meetinga) of this Section by giving
(c)•
any action authorized in paragraph f
revisions of this paragraph
such meeting in accordance with the p trace shall
meeting of Bondholders, a person
by
or a person
be(dHolderTo be entitled one orto vote Bonds any such Bondholder.appointedby
as proxy for a Bondholder by speak at anyk
be a of one or emote Outstanding•present or to c
Theainstrument in writing be entitled to s nentitled to pat such
only persons who shall be the p the Trustee,
meeting and
Bondholders shall and any representatives of
meeting an suer, and theirl counsel.
Company. Is Indenture, the Trustee
(e)
other provision of this deem advisable for any
may make such reasonable any regulations as it may of Bonds and
make such to proof of the ownership andn duties
meeting appointment
Bondholders o regardand to the appointmentproxies,
ointment of proxies and in reg and examination of
of the pap the submissio ri nt to amin and fuck deem
oinspectors of votes, meeting as it shall certificates and other evidence t the the byany such
the conduct of permitted or required
matterspconcerningbe proved in a
te. Except as otherwiseofBondstheappointment manner any
appropriate. the ownership of shall
regulations,
manner specified in said Section
witonssed or
specified in Section 12.01 of this Indenture and the
be proved in the the proxy proxy shall signature of the person executing
having the
-68-
guaranteed by any bank, banker or trust company authorized by said
Section to certify to the ownership of Bonds.
(1) The Trustee or, if the Bondholders have called the meeting,
the Bondholders shall, by an instrument in writing, appoint a
temporary chairperson of the meeting. A permanent chairperson and
a permanent secretary of the meeting shall be elected by vote of the
Holders of a majority of the Bonds represented at the meeting and
entitled to vote.
(2) At any meeting such Bondholder or proxy shall be entitled to
one vote for each $5,000 of principal amount of Outstanding Bonds
owned or represented by him or her; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Bond
challenged as not Outstanding and ruled by the chairperson of the
meeting to be not Outstanding. The chairperson of the meeting shall
have no right to vote, except as a Bondholder or proxy.
(3) At any meeting of Bondholders, the presence of persons owning
or representing Bonds in an aggregate principal amount sufficient
under the appropriate provision of this Indenture to take action
upon the business of the transaction of which such meeting was
called shall constitute a quorum. Any meeting of Bondholders duly
called pursuant to this Section may be adjourned from time to time
by vote of the Holders (or proxies for the Holders) of a majority of
the Bonds represented at the meeting and entitled to vote, whether
or not a quorum shall be present; and the meeting may be held as
so adjourned without further notice.
(f) The vote upon any resolution submitted to any meeting of
Bondholders shall be by written ballots on which shall be subscribed the
signatures of the Bondholders or of their proxies and the number or
numbers of the Bonds Outstanding held or represented by them. The
permanent chairperson of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting.
A record, at least in duplicate, of the proceedings of each meeting of
Bondholders shall be prepared by the secretary of the meeting. The
original reports of the inspectors of votes on any vote by ballot taken at
such meeting, and affidavits by one or more persons having knowledge of
the facts setting forth a copy of the notice of the meeting and showing
that said notice was published or mailed as provided in this Section shall
be verified by the affidavits of their permanent chairperson and secretary
of the meeting and one such copy shall be delivered to the Issuer,
another to the Company and another to the Trustee to be preserved by
the Trustee, which copy shall have attached thereto the ballots voted at
the meeting. Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
(g) At any time prior to the preparation of the record of the meeting in
accordance with the terms of this Section for delivery to the Trustee
evidencing the taking of any action by the Holders of the percentage in
-69-
aggregate principal amount of the Bonds specified in this Indenture in
connection with such action, any Holder of a Bond the number of which is
included in the Bonds, the Holders of which have consented to such
action, may, by filing written notice with the Trustee at its principal
corporate trust office and upon proof of holding as provided in Section
12.01 of this Indenture, revoke such consent so far as it concerns such
Bond. Except as aforesaid, any such consent given by the Holder of any
Bond shall be conclusive and binding upon such Holder and upon all
future Holders and owners of such Bond and of any Bond issued in
exchange therefor, upon transfer thereof, or in lieu thereof, irrespective
of whether or not any notation in regard thereto is made upon such
Bond. Any action taken by the Holders of the percentage in aggregate
principal amount of the Bonds specified in this Indenture in connection
with such action shall be conclusively binding upon the Issuer, the
Company, the Trustee and the Holders of all the Bonds.
(h) Nothing in this Section 12.03 is intended to limit or prevent the
Trustee from taking any action permitted under Section 9.16 of this
Indenture, including but not limited to the Trustee's right to apply to a
court of competent jurisdiction for confirmation of appointment, or for
instructions in accordance with the provisions of Minnesota Statutes,
Sections 501.33 through 501.38, as amended.
SECTION 12.04. Severability. If any provision of this Indenture shall be
held or deemed to be or shall, in fact, be inoperative or unenforceable as
applied in any particular case in any jurisdiction or jurisdictions or in all
jurisdictions or in all cases because it conflicts with any provisions of any
constitution or statute or rule of public policy, or for any other reason, such
circumstances shall not have the effect of rendering the provision in question
inoperative or unenforceable in any other case or circumstance, or of
rendering any other provisions herein contained invalid, inoperative or
unenforceable to any extent whatever.
The invalidity of any one or more phrases, sentences, clauses or paragraphs
in this Indenture contained shall not affect the remaining portions of this
Indenture or any part thereof.
SECTION 12.05. Notices. All notices, certificates or other communications
hereunder shall be in writing (except as otherwise expressly provided herein)
and shall be sufficiently given and shall be deemed given when mailed by first
class mail, postage prepaid, with proper address as indicated below. The
Issuer, the Company, the Guarantor, the Bondholders, the Original Purchaser
and the Trustee may, by written notice given by each to the others, designate
any address or addresses to which notices, certificates or other communications
to them shall be sent when required as contemplated by this Indenture. Until
otherwise provided by the respective parties, all notices, certificates and
communications to each of them shall be also sent to the Original Purchaser
and shall be addressed as follows:
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To the Issuer: City of Oak Park Heights
14168 - 57th. Street North
Oak Park Heights, Minnesota 55082
To the Company: Oak Ridge Place Partnership,
a Minnesota Limited Partnership
, Minnesota
To the Trustee: First Trust Company, Inc.
332 Minnesota Street
St. Paul, Minnesota 55101
Attn: Corporate Trust Department
To the Original
Purchaser: Juran & Moody, Inc.
800 Minnesota Mutual Building
400 North Robert Street
St. Paul, Minnesota 55101
Attn: Originations and
Trading Department
To the Guarantors:
To the Bondholders: As specified variously herein.
SECTION 12.06. Counterparts. This Indenture may be simultaneously
executed in several counterparts, each of which shall be an original and all of
which shall constitute but one and the same instrument.
SECTION 12.07. Limitation of Liability of Issuer and its Officers, Employees
and Agents. To the extent permitted by law, no provision, covenant or
agreement contained in this Indenture or the Bonds, or any obligation herein
or therein imposed upon the Issuer, or the breach thereof, shall constitute or
give rise to or impose upon the Issuer or any of its officers, employees or
agents a pecuniary liability or a charge upon the Issuer's general credit or
taxing powers. In making the agreements, provisions and covenants set forth
in this Indenture, the Issuer has not obligated itself except with respect to
the Loan Agreement and the application of the revenues therefrom as
hereinabove provided.
SECTION 12.08. Amounts Remaining in Funds. Upon expiration or sooner
termination of the Loan Agreement as provided therein and after adequate
provision has been made to discharge the Bonds in accordance with Article VII
and make all other payments required hereunder and under the Loan
Agreement and Collateral Security Documents, the Trustee forthwith shall pay
all remaining amounts in the Funds established in Article V hereof to the
Company.
-71-
SECTION 12.09. Determination of Taxability. If any action is commenced
which questions the exemption of interest on the Bonds from federal income
taxation or which might result in a Determination of Taxability and if
requested by the Company or Issuer and if the costs of such contest, as
estimated by the Trustee, are deposited by the Company with the Trustee in
advance, the Trustee hereby covenants that it will contest such action or
Determination of Taxability in accordance with the terms of the Loan
Agreement. All costs of such contest shall be borne by the Company.
IN WITNESS WHEREOF, the Issuer has caused these presents to be signed in
its name on its behalf by its Mayor and City Administrator and has caused its
corporate seal to be hereunto affixed, and to evidence its acceptance of the
trusts hereby created the Trustee has caused these presents to be signed in
its name and behalf by its duly authorized officers, and has caused its official
seal to be hereunto affixed, all as of the 1st day of December, 1985.
CITY OF OAK PARK HEIGHTS,
MINNESOTA
By:
Mayor
By:
City Administrator
FIRST TRUST COMPANY, INC.
As Trustee
By:
Its:
(Seal) By:
Its:
Indenture of Trust dated as of December 1, 1985 by and between the City of
Oak Park Heights, Minnesota, and First Trust Company, Inc.
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r
V
EXHIBIT A
(Legal Description of Project Premises)
OPPENHEIMER WOLFF&DONNELLY
Plaza VII Brussels
45 South Seventh Street Chicago
Suite 3400 London
Minneapolis,MN 55402 Minneapolis
(612)344-9300 New York
Telex:701605 Paris
FAX:(612)344-9376 St.Paul
Washington,D.C.
October 17, 1990
Ms. La Vonne Wilson
City of Oak Park Heights
14168 - 57th Street North
Box 2007
Oak Park Heights, MN 55082
Re: Oak Ridge Place Project
Dear La Vonne:
The bonds in the matter were redeemed on March 22, 1990. The
Ramsey County District Court approved the sale of the premises and
the application of the proceeds from the sale to the bond
redemption in August 1989 . Please let me know if you need any
additional information with respect to the bonds.
Sincerely,
OPPENHEIMER WOLFF,t & DONNELLY
Mar E. Senk s C(
MES:cau
cc: James A. Ehrenberg
Craig Currie