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Home My WebLink About1990 Ordinance No. 051amnwaoo.~ SEJUES CF 1990 B'i AU'llDUTlC COONCIL BILL 00, 54 INl'ROOOCED B'i 0:XJNCIL MfMBl!llCLAnc:N I\N amnwa APPROVING A SUPPLEMEm' 'IO A TRU:ll' INDDfflJRE RELATm; 'IO THE <X1I'STI\NDm; FLCI\Tm; RATE llEl-WID INDUS'!'!'_TAL JEVEUPMENl' REVENUE llCtlDS, SEJUES 1985, (SWEDISH H:lB I, LIT. PROJEX:T). WHEREI\S, the City of Englewood, Colorado, n political subdiviai.oo of the State of Colorado (the "City") has, pursuant to ordinance No, 80, 5erll!S of 1985, and that certain Trust Indenture dated as Of DeoadJer 1, 1985 (the "1985 Indenture"), between the City and First City, Texall - Houston, N.A. (forirerly known as First City National Ba,\'t of Houaton), a national banking association, as trustee (the "Trustee"), issued $8,500,000 aggregate principal am::iunt of its Floating Rate Demand Industrial Devel~nt Revenue Bonds, Series 1985 (&.ledish H:lB I, Ltd. Project) (the "Bonds"), as ,01>.horized by the County and Municipality Developnent Revenue Bond Act, Article 3, Title 29, Colorado Revised Statutes, as !lll!llded; and WHEREAS, an anbiguity may exist with respect to interpretatioo of certain provisions of the 1985 Indenture and the Bonds folla.ing certain events; and WHEREAS, pursuant to Section 901 of the 1985 Indenture, the Trus,tee is authorized to consent, without Bondholder approval, to any mrenatl!llt, change or irod.ification of the 1985 Indenture in oonnection with any changes to cure any arrbiguity, formal defect, anissioo or inconsistent provision in the 1985 Indenture ; and WHEREAS, on August 14, 1987, pursuant to that certain Loan l\greerent, dated as of Novem:ler 1, 1985, between the City and Swedish H:lB I, Ltd. (the "User"), the User cau..;ed The Mitsubishi Bank, Limited, acting through its Houston Agency (the "Bank"), to issue its Irrevocable Letter of Credit No. Gl'00031 , an Alternate CreJit Facility (as defined in Exhibit A to the 1985 Indenture), which expires on January 2 , 1991, unless extended or earlier User failed to give written notice to the Bondholders and the Trustee that it has cbtained an Alternate Credit Facility, an extension of the Letter of Credit or does not intend to replace or extend the Letter of Credit 60 days preceding the Autcrnatic Conversion Date (as defined in Exhibit A of the 1985 Indenture) as required by Section 703(c) of tr·, 1985 Indenture; and WHEREAS, such failure to give noti•. · was an unintentional oversight and the User had no intention to convert, and has no present intention of converting, the Bonds to a Fixed Rate and has caused the Bank to extend the expiration date of its Letter of Credit ; and WHEREAS, the User has received notice that the Trustee intends to execute a First Supplerrental Trust Indenture, ~ted as Novelltler 1, 1990, between the City and the Trust (the "First SUpplemental Indenture"), the Trustee has received an ~inion of Counsel satisfactory to it that such -l - s~lemental airenarent h permitted by Article IX of the 1985 Indenture and the Bank has consn,ted to such First SUpplemental Indenture to IICCCl!pliah ,-.,_ such -,,anent; and \,. l Wl!ERF.AS, there has bee.n pres~nted to the City Council of the City the propoaed form of the First Supplemental L ,denture . -. THEREFalE' BE IT = BY THE cxn CWNCIL CF THE CU.'Y CF mGLl!K.' )Cl I COI£IWlO' AS FOLLCMS : .~iec::ion 1. To clarify an ant>iguity in the 1985 Indenture, the form, terms iii'if"proiirsions of the First SUpplemental Indenture as filed with the City Clerk are hereby apptO';ed, and the City shall f!llter into the First SUpple,ental Indenture substantially in the form presented to this ireeting together with :JUCh formal rrodifications thereof as may be Jeered necessary or desirable by the City prior to the execution thereof. Section 2. The mayor is hereby authorized to execute and deliver the First Su)_ plerental Indenture and the City Clerk or any deputy clerk is hereby authorized and directed to affix the seal of the City to and to attest, the first Supplemental Indenture in substantially the form presented at this meeting. The officers of the City shall take all action which they deem necessary to carry out, give effect to and consurrmate the transactions conteiplated by this Ordinance . Section 3. !Ill action not inconsistent with the provisions of this Ordinance heretofore taken by the City or its offic-ers directed toward the execution of the Firs t SUpplemental Indenture is teret,y ratifi~, approved and ccnfinred. Section 4 . Except as arrended and supplerrented by the First Supplemental Indenture, the 1985 Indenture shall remain in full force and effect as provided therein; and all acts, orders, resolutions, ordinances or parts thereof, of the City in conflict with this Ordinance are hereby repealed, except that this repealer shall not be construed so as to revive any act, order, resolution , or dinance, or part thereof, heretofore repealed. Section 5. If any paragraph, clause or provision of this Ordinance is judicWly adJudged invalid or unenforceable, such judgment shall not affect, inpair or invalidate the remaining paragraphs, clauses or provisions hi:reof, the intention being that the various paragraphs, clauses or provisions hereof are severable. Introduced, read in full, and passed on first reading CJ'l the 5th day of Novenber, 1990. -2 - C u Published as a Bill for an Ordinance Cl! the 8th ~ of llcMmtler, 1990. Read by title and pas ·ed on final reading Cl! the 19th day of NcMl1tler, 1990. i>Jblished by title as ordinance No. 6/, Series of 1990 , on the 22nd ~ "f Noventier, 1990. -· r-:_::;:: Susan Van , I, Patricia H. Crc,,,, City Clerk of the City of E>,glewood, Coloram, hereby certify that the ~ and foregoing is a true 0C4'Y of the Ordinance passed on final reading and published by title as ordinance No. '2L.., Serries of 1990. · a .. <i.:/✓ ~ ~H. Crow -3 - CITY OF ENGLEWOOD, COLORADO and FIRST CITY, TEXAS -HOUSTON, N.A. (formerly known as First City National Bank of Houston), AS TRUSTEE FIRST SUPPLEMENTAL TRUST INDENTURE DATED AS OF NOVEMBER 1, 1990 CITY OF ENGLEWOOD, COLORADO FLOATING RATE DEMAND INDUSTRIAL DEVELOPMENT REVENUE BONDS, SE RIES 1985 (SWEDISH MOB I, LTD. PROJECT) 0 THIS FIRST SUPPLEMENTAL TRUST INDENTURE dated .. of November 1, 1990, between City of Englewood, Colorado, e political subdivision of the State of Colorado ( the "City") , and First City, Texas -Houston, N.A. (formerly known as First City National Bank of Houston), a national banking association; as tru ■tee (the "Trustee"), amends and supplements that Trust Indenture dated a ■ of December 1, 1985 between the City and the Trustee (the '"1985 Indenture," this First Supplemental Trust Indenture and the 1985 Indenture, collectively, the "Indenture"). Capitalized terms used herein and not otherwise defined herein shall have the meaning ■ ascribed to them in the 1985 Indenture. WITNESS ETH: WHEREAS, the City has , pursuant to the 1985 Indenture, issued $8,500,000 aggregate principal amount of its Floating Rate Demand Industrial Development Revenue Bonds, Series 1985 (Swedish MOB I, Ltd. Project) (the "Bonds") I and WHEREAS, an ambiguity may exist with respect to interpretation of certain provisions of the 1985 Indenture and the Bonds following certain events; and WHEREAS, pursuant to Section 901 of the 1985 Indenture, the Trustee is authorized to consent, without Bondholder approval, ,,--..., to any amendment, change or modification of the 1985 Indenture in connection with any changes to cure any ambiguity, formal defe~t, omission or inconsistent provision in the 1985 Indenture; and WHEREAS, on August 14, 1987, the User caused The Mitsubishi Bank, Limited, acting through its Houston Agency (the "Bank"), to issue its Irrevocable Letter of Credit No. GT00031, an Alternate Credit Facility (as defined in Exhibit A to the 1985 Indenture), whi ch expires on January 2, 1991, unless extended or earlier terminated pursuant to its terms; and WHEREAS, the User failed to give written notice to the Bondholders and the Trustee that it has obtained an Alternate Credit Facility, an extension of the Letter of Credit or does not intend to replace or extend the Letter of Credit 60 days preceding the Automatic Conversion Date (as defined in Exhibit A of the 1985 Indenture) as required by Section 703(c) of the 1985 Indenture; and WHEREAS, such failure to give notice was an unintentional overs ight and the User had no intention to convert, and has no present intention of converting, the Bonds to a Fixed Rate and has caused the Bank to extend the expiration date of its Letter of Credit; and WHEREAS, the User has received notice that the Trustee and the City intend to execute this First Supplemental Trust Indenture, the Trustee has received an Opinion of Counsel satisfactory to it that such supplement is permitted by Article IX -1- of the 1985 Indenture and tte Bank he ■ con ■ented to thia First I"""'\. Supplemental Trust Indenture to accomplish auch amendment, l I NOW THEREFORE, THIS FIRST SUPPLEMENTAL TRUST INDENTURE WITNESSETH: . Section 1. Extension of Expiration Date of Bank'• Letter of Credit, The Trustee acknowledges, by execution of thi ■ First Supplemental Trust Indenture, that the User has given timely notice thet the expiration date of the Bank's Letter of Credit ha ■ been extended to August 30, 1991, unless extended or earlier terminated pursuant to the terms of the Letter of Credit. The Bond ■ ■hall continue to bear interest at a variable rate. Section 2. Clarification of Ambiguity. Notwithstanding anything else in the Bonda, the 1985 Indenture or the other Financing Documents to the contrary, following the circumstances providing for a Mandatory Redemption relating to Conversion as described in paragraph 9(d) of the Bonda, when such Bonda have not been redeemed nor notice of redemption been given and therefore, the Bonds remain Outstanding, then for all purposes the Bonda shall remain Variable Rate Bonds. Section 3. ~-The Trustee shall, as of the date hereof, provide notice of this First Supplemental Trust Indenture to the Remarketing Agent, Tender Agent and S&P pursuant to Section 901 of the 1985 Indenture. Pursuant to Section 703(c) of the 1985 c Indenture, the Trustee shall also, on behalf of the User, give ' notice to the Bondholders of the extension of the expiration date of the Alternate Credit Facility. Section 4. Ratification. This First Supplemental Trust Indenture s upplem e nts and amends the 1985 Indenture; however, except as s upplemented and amended hereby, the 1985 Indenture shall remain in full for ce an d effect as provided therein. -2- I '-...., IN WITNESS WBBRBOF , the City and the Tru ■tee have cau ■ed thi• Fir ■t Supplemental Tru ■t Indenture to be executed in their re ■pective name ■ and have cau ■ed their reepective seal ■ to be hereunto affixed and to be attested by their duly authorized officer ■, all a ■ of the date fir ■t above written. Attest: B~~J/~ City Clerk (SEAL) Attest: BY--------~----Corporate Trust Officer CITY OF ENGLEWOOD, COLORADO FIRST CITY, TEXAS -HOUSTON, N.A. (formerly known as First City National Bank of Bouston) By•=-..,....----,,-,----,----,--,.,,..,--Vice President and Trust Officer -3- CONSENT OP BAN1t The Mitsubishi Bank, Limited, acting through it• Bou ■ton Ag■ncy, hereby con ■enta to the execution and d ■livery of thi• Pir•t Supplemental Tru•t Indenture pur ■uant to the provi•ion• of Section 904 of the 1985 Indenture . Dated thia __ day of ___________ , 1990, THE MITSUBISHI BANK, LIMITED, acting through it• Houston Agency By Ti~tl~e::------------- -4- ACKNOIILEDGEMBNT OF NOTICE BY USER Swedi ■h MOB I, Ltd., a Colorado limited partnerahip, hereby acknowledge• receipt of notice of execution end delivery of thi ■ Fir■t Supplemental Truat Indenture pur ■uant to the provi•ion• of Section 903 of the 1985 Indenture. Dated this __ day of ------' 1990. SWEDISH MOB I, LTD, BY,.,.----,---:----,,--------Managing General Partner -5- \J COUNCIL COIINIINICHION AOINDA ITIN luaJICT November S, 1990 11 Ii) INITIATID BY Rick DeWi i:t , City Attorney STAPP IOURCI Rick DeWitt, City Attorney IIIUI/ ACTION PROPOHD Swadi ■h HOB I, Ltd. Project .. Bond ■ Serie ■ of 1985 . The Latter of Credit iBsued by the Mitsubishi Bank, Limited, acting through it ■ Hou ■ton Agency, expire ■ on January 2, 1991, unle ■s extended or earlier terminated pur ■uant to ite term■• By its terms the Letter of Credit can terminate on the date which is 98 days following the Conversion Date. (Conversion Date i• defined to include the Automatic Conversion Date). If you walk through the calendar, an Automatic Conver ■ion Date may technically have occurred on August 2, 1990 bacau ■a the Ueer did not give the proper notices to the parties of the extension of the Letter of Credit. The User has a good working relationahip with the Bank and in the summer discuaaiona were well underway to extend the Letter of Credit. Just about the time the User had negotiated the extension of the Letter of Credit the partie ■ discovered that the notice provisions of Appendix A had not been complied with, The Trustee was shortly thereafter notified of the problem. The Trustee is not treating the Bonds as though they had converted to a fixed rate, The Bonda continue to be marketed at a variable rate . The partiea are very anxiou ■ to confirm through the Supplemental Indenture that the Letter of Credit• a termination date has been extended . The parties seek to extend the termination date with a letter of credit. It ii to their advantage to extend this date, there le no effect on Englewood , PRIVIOUS COUNCIL ACTION Ordinance No . 80, Series of 1985 passed on November 18, 1985 . STAPP ANALY8l8 See above . IIACKOIIOUIID Ordinance wa ■ adopted in 1985 by Ordinance No. BO, series of 1985 . ~ No COit to the City. C