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HomeMy WebLinkAbout1993-106-07/06/1993-IDRBS OPERA HOUSE PROJECT RESOLUTION 93-106 OF THE COUNCIL OF THE CITY OF FORT COLLINS APPROVING THE FORMS OF A FIFTH SUPPLEMENTAL INDENTURE AND A FORBEARANCE AGREEMENT AND AUTHORIZING THE EXECUTION AND DELIVERY BY THE CITY OF THE FIFTH SUPPLEMENTAL INDENTURE AND OTHER DOCUMENTS NECESSARY IN CONNECTION THEREWITH RELATING TO THE CITY'S INDUSTRIAL DEVELOPMENT REVENUE BONDS (THE OPERA HOUSE PROJECT) , SERIES 1986, IN THE AGGREGATE PRINCIPAL AMOUNT OF $5,800,000 WHEREAS, pursuant to the Colorado County and Municipality Development Revenue Bond Act, Part 1 of Article 3 of Title 29, Colorado Revised Statutes, as amended, Ordinance No. 196, 1986, Resolution 87-183, Resolution 88-99 and Resolution 88-127, adopted and approved by the Council of the City of Fort Collins, Colorado (the "City") , and the Indenture of Trust, dated as of December 15, 1986, as supplemented by the First Supplemental Indenture of Trust, dated as of December 23, 1987, the Second Supplemental Indenture of Trust, dated as of June 23, 1988, the Third Supplemental Indenture of Trust, dated as of August 26, 1988, and the Fourth Supplemental Indenture of Trust, dated as of November 23, 1988 (collectively, the "Indenture") , between the City and Central Bank of Denver, as successor to United Bank of Fort Collins, National Association, as trustee, the City has heretofore issued its Industrial Development Revenue Bonds (The Opera House Project), Series 1986, in the aggregate principal amount of $5,800,000 (the "Bonds") and loaned the proceeds of the Bonds to Historical Opera House Properties, Ltd. , a Colorado limited partnership (the "Partnership") , for the purpose of financing the Opera Galleria (the "Project") ; and WHEREAS, all of the Bonds are or will be owned by Houlihan, Lokey, Howard & Zukin (the "Bondholder") ; and WHEREAS, the Bondholder and the Partnership have requested that certain provisions of the Indenture be supplemented by a Fifth Supplemental Indenture of Trust, dated as of June , 1993 (the "Fifth Supplemental Indenture") , between the City and Central Bank of Denver, or its successor in interest, as trustee (the "Trustee") , in order to make certain changes that will reduce the principal amounts of and the interest rates on the Bonds, shorten the maturity dates of the Bonds, modify the redemption dates and prices of the Bonds, eliminate and create funds for the security of the Bonds and alter the manner in which amounts in the Bond Fund (as defined in the Indenture) are to be applied; and WHEREAS, pursuant to Sections 11.02 and 11.03 of the Indenture, the City and Trustee may execute and deliver the Fifth Supplemental Indenture with the consent of the Bondholder and the Partnership; and WHEREAS, as conditions to the City's execution and delivery of the Fifth Supplemental Indenture, the Partnership will cause to be delivered to the City an opinion of nationally recognized bond counsel to the effect that the execution and delivery of the Fifth Supplemental Indenture will not adversely affect the tax treatment of interest on the Bonds, pay all property taxes due and owing with respect to the Project and by deposit in escrow, cause to be retired and delivered to the Trustee for cancellation, on a date to be determined by agreement, the City's Taxable Industrial Development Revenue Bonds (The Opera House Project), Series 1988, dated December 15, 1988, in the aggregate principal amount of $1,000,000; and WHEREAS, there have been filed with the City Clerk the forms of the Fifth Supplemental Indenture and a Forbearance Agreement, dated as of June , 1993 (the "Forbearance Agreement"), among the Partnership, the Trustee and the Bondholder; and WHEREAS, the City Council believes that its approval of the Fifth Supplemental Indenture and the Forbearance Agreement should be conditioned upon the satisfactory completion of negotiations among all affected parties regarding other pertinent matters pertaining to the Project. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the forms of the Fifth Supplemental Indenture and the Forbearance Agreement are hereby approved, subject to the satisfaction of the requirements and conditions described above and in Section 3 below. Upon satisfaction of said requirements and conditions, the Mayor and the City Clerk are hereby authorized and directed to execute the Fifth Supplemental Indenture and affix the seal of the City thereto, and the Mayor and the City Clerk are further authorized and directed to execute such other documents, instruments or certificates as are deemed necessary or desirable in order to effectuate the execution and delivery of the Fifth Supplemental Indenture. The Fifth Supplemental Indenture and the Forbearance Agreement are to be executed by the parties thereto in substantially the forms hereinabove approved, provided that such documents may be completed, corrected or revised as deemed necessary or convenient by the parties thereto in order to carry out or assist in carrying out the purposes of this Resolution. Section 2. That the approval hereby given to such documents includes the approval of such additional details therein as may be necessary and appropriate for their completion and such modifications thereof, deletions therefrom and additions thereto as may be approved by the City Attorney prior to the execution thereof. The execution of any instrument by the appropriate officers of the City herein authorized shall be conclusive evidence of the approval by the City of such instrument in accordance with the terms hereof. Section 3. That the approvals contained in Sections 1 and 2 of this Resolution are expressly contingent upon the City Council 's subsequent approval of an intergovernmental agreement to be executed by the City, the Downtown Development Authority, the Bondholder and all other parties having a recorded interest in the Project, which agreement shall address the level of tenant finish for the Project, the provision of adequate parking facilities for the Project, the level of tax revenues anticipated to be generated by the Project and such other matters as may be considered necessary, in the judgment of the City Manager and the City Attorney, to protect the interests of the City. In the event that such agreement has not been approved by the Council on or before August 3, 1993, this Resolution shall be null and void and of no effect whatsoever. Passed and adopted at a regular meeting of the Council of the City of Fort Collins held this 6th day of July, A.D. 1993. Orr ATTEST: City Clerk