09-06-16 Special HRA Agenda Packet AGENDA
Special Meeting
of the
Housing and Redevelopment Authority
Golden Valley City Hall
7800 Golden Valley Road
Council Chamber
September 6, 2016
5:30 pm
Paqes
1. Roll Call
2. Brookview Community Center Financing: 2-114
Lease Revenue Bonds; Authorizing the Issuance, Establishing
Sale Parameters, Prescribing the Form and Details and
Providing for the Payment 16-05
3. Golden Hills Redevelopment Area: 115-121
Second Amendment to Private Development Agreement for
Global One Golden Valley, LLC, and 394 Associates, LLP
4. Adjournment
This document is available in alternate formats upon a 72-hour request. Please call
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may include large print, electronic, Braille,autliocassette,etc.
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763-593-8002/763-593-8109{fax)
Executive Summary For Action
Golden Valley Special Housing and Redevelopment Authority Meeting
September 6, 2016
Agenda Item
2. Brookview Community Center Financing
Prepared By
Sue Virnig, Finance Director
Summary
The Golden Valley Housing and Redevelopment Authority(HRA) will need to consider the
following resolution that will provide for the redevelopment of certain land in the City and the
construction of the new community center. This includes the approval of a lease-purchase
agreement, ground lease, trust indenture, and authorization for sale of bonds.
This resolution also allows the HRA Chair and HRA to approve the sale of the Bonds prior to
December 31, 2016 in an amount not to exceed $18,500,000, provided the true interest costs for
the Bonds so sold does not exceed 3.5% per annum.
Attachments
• Resolution Relating to Lease Revenue Bonds;Authorizing the Issuance, Establishing Sale
Parameters, Prescribing the Form and Details and Providing for the Payment Thereof
(5 pages)
• Lease-Purchase Agreement by and between the Golden Valley Housing and Redevelopment
Authority and the City of Golden Valley (36 pages)
• Ground Lease by and between the City of Golden Valley and the Golden Valley Housing and
Redevelopment Authority (16 pages)
� Trust Indenture by and between Golden Valley Housing and Redevelopment Authority and US
Bank National Association (55 pages)
Recommended Action
Motion to adopt Resolution Relating to Lease Revenue Bonds; Authorizing the Issuance,
Establishing Sale Parameters, Prescribing the Form and Details and Providing for the Payment
Thereof.
Resolution 16-05 September 6, 2016
Commissioner Harris introduced the following resolution and moved its adoption:
RESOLUTION RELATING TO LEASE REVENUE BONDS; AUTHORIZING THE
ISSUANCE, ESTABLISHING SALE PARAMETERS, PRESCRIBING THE FORM
AND DETAILS AND PROVIDING FOR THE PAYMENT THEREOF
WHEREAS, the Housing and Redevelopment Authority of the City of Golden Valley,
Minnesota (the "Authority") is authorized by Minnesota Statutes, Section 469.012,
subdivision 1(h), to undertake redevelopment projects; and
WHEREAS, the Authority is authorized by said section and Section 471.64 to make
any of its land in a redevelopment project available for use by public agencies by sale,
lease or otherwise; and
WHEREAS, the City of Golden Valley, Minnesota (the "City") and the Authority have
determined that it is in the best interests of the City and its residents to provide for the
redevelopment of certain land in the City and the construction of a new community center
facility (the "Project"); and
WHEREAS, the City has agreed is to convey its interest in the real property
comprising the Project to the Authority and the Authority has agreed to issue its lease
revenue bonds (the "Bonds") pursuant to Minnesota Statutes, Section 469.033, for the
purpose of financing all or a portion of the costs of the Project; and
WHEREAS, the City will lease-purchase the Project back from the Authority, as
improved, pursuant to Minnesota Statutes, Section 465.71, in exchange for rental
payments; and
WHEREAS, the Bonds will be payable from such rental payments received by the
Authority from the City.
NOW, THEREFORE, BE IT RESOLVED by the Board of Commissioners (the
"Board") of the, as follows:
SECTION 1. AUTHORIZATION AND SALE.
1.01. Authorization. Pursuant to the foregoing authority, the Authority has the
power to lease the land comprising the Project pursuant to a Ground Lease between the
City, as lessor, and the Authority, as lessee (the "Ground Lease"), issue the Bonds in one
or more taxable or tax-exempt series to provide the funds necessary for the construction of
the Project, construct the improvements comprising the Project, and lease the Project to
the City pursuant to a Lease-Purchase Agreement between the Authority, as lessor, and
the City, as lessee (the "Lease"). The Bonds will be issued under this resolution and a
Trust Indenture between the Authority and U.S. Bank National Association (the "Indenture")
and principal and interest on the Bonds will be payable and secured solely by rental
payments to be made by the City pursuant to the Lease and pledged therefor under the
Indenture and funds held by the Trustee under the Indenture. The Bonds shall not
constitute or give rise to a pecuniary liability of the Authority or the City or a charge against
their general credit or taxing powers and shall not constitute a charge, lien, or
encumbrance, legal or equitable, upon any property of the Authority or the City, other than
the revenues pledged to the payment of the Bonds under the Indenture.
1.02. Sale of Bonds. The Authority has retained Springsted Incorporated
("Springsted"), an independent municipal advisor, to assist the Authority in connection with
a negotiated sale of the Bonds. Pursuant to the resolution of the Authority dated April 12,
2016, the Authority has selected Robert W. Baird & Co. Incorporated as underwriter for the
Bonds (the "Underwriter"). In consultation with Springsted, the Chair and Authority Director
of the Authority, or their authorized designees, are hereby authorized to approve the sale of
the Bonds to the Underwriter and execute a contract on the part of the Authority for the sale
of the Bonds prior to December 31, 2016, in an amount not to exceed $18,500,000.00,
provided the true interest costs for the Bonds so sold does not exceed 3.50% per annum.
SECTION 2. BOND TERMS: REGISTRATION; EXECUTION AND DELIVERY
2.01. Issuance of Bonds. For the purpose of(i) paying costs of the Project, and (ii)
paying costs of issuance of the Bonds, the Board hereby authorizes the issuance of the
Bonds. The sale and issuance of the Bonds shall be conclusive evidence of and shall
constitute full approval of such Bonds.
2.02. Terms of the Bonds. The Bonds shall be designated "Lease Revenue Bonds
(Community Center Project), Series 2016." The terms of the Bonds, including without
limitation, the date of original issue, interest payment dates, maturity dates and principal
amounts, interest rates, redemption provisions, and provisions for registration and
exchange shall be set forth in Articles II and III of the Indenture.
2.03. Execution, Authentication and Deliverv. The Bonds shall be executed by the
Authority, and authenticated and delivered by the Trustee, in accordance with the
applicable provisions of the Indenture.
2.04. Form of Bonds. The Bonds shall be printed in substantially the form set forth
in the Indenture.
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SECTION 3. APPROVAL OF GROUND LEASE, LEASE AND INDENTURE. The
forms of the Ground Lease, Lease and Indenture (the "Documents") attached as exhibits
hereto are hereby approved. The Chair and Authority Director, or their authorized
designees, are hereby authorized and directed to execute and deliver the Documents and
such other documents which are required to accomplish the issuance of the Bonds in the
name of and on behalf of the Authority with such variations, omissions, deletions and
insertions as the Chair and Authority Director, or their authorized designees, shall approve,
which approval shall be conclusively presumed by the execution and delivery of the
Documents.
SECTION 4. RENTAL PAYMENTS. Under the Lease, and subject to the right of
termination by the City at the end of each fiscal year of the City as provided in the Lease,
the City is to make rental payments to the Authority sufficient each year to pay the principal
of, premium, if any, and interest on the Bonds issued under this resolution and the
Indenture, and the City is to provide the cost of maintaining the Project in good repair, the
cost of keeping the Project properly insured, and any payments required for taxes and any
expenses incurred by the Authority in connection with the Project.
SECTION 5. AUTHENTICATION OF TRANSCRIPT. The officers of the Authority
are hereby authorized and directed to prepare and furnish to the Underwriter, and to
Dorsey & Whitney LLP, the attorneys rendering an opinion as to the legality thereof,
certified copies of all proceedings and records relating to the Bonds and such other
affidavits, certificates and information as may be required to show the facts relating to the
legality and marketability of the Bonds, as the same appear from the books and records in
their custody and control or as otherwise known to them, and all such certified copies,
affidavits and certificates, including any heretofore furnished, shall be deemed
representations of the Authority as to the correctness of all statements contained therein.
SECTION 6. OFFICIAL STATEMENT. Springsted and/or the Underwriter are
hereby authorized and directed to prepare and distribute, on behalf of the Authority, a
Preliminary Official Statement relating to the Bonds and a supplement to the Preliminary
Official Statement, or a final Official Statement (together with the Preliminary Official
Statement, the "Official Statement"), listing the offering price, the interest rates, selling
compensation, delivery date, the underwriters and such other information relating to the
Bonds required to be included in the Official Statement by Rule 15c2-12 adopted by the
Securities and Exchange Commission under the Securities Act of 1934. Within seven
business days from the date the Bonds are sold, the Authority shall deliver to the purchaser
sufficient copies of the Official Statement. The officers of the Authority are hereby
authorized and directed to review such Official Statement and to execute such certificates
as may be appropriate concerning the accuracy, completeness and sufficiency thereof, the
execution of which shall constitute full approval of such.
SECTION 7. TAX MATTERS.
7.01. General Tax Covenant. The Authority agrees with the owners from time to
time of the Bonds that it will not take, or permit to be taken by any of its officers, employees
or agents, any action that would cause interest on the Bonds to become includable in gross
income of the recipient under the Internal Revenue Code of 1986, as amended (the "Code")
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and applicable Treasury Regulations (the "Regulations"), and agrees to take any and all
actions within its powers to ensure that the interest on the Bonds will not become
includable in gross income of the recipient under the Code and the Regulations. All
proceeds of the Bonds deposited in the Project Fund established pursuant to the Indenture
will be expended solely for the payment of the costs of the Project as set forth in the
Indenture. So long as any Bonds are outstanding, the Authority shall not enter into any
contract for the sale of all or a portion of the Project financed by such Bonds or enter into
any lease, management contract, use agreement or other agreement with any non-
governmental person relating to the use of all or a portion of the Project financed by such
Bonds or security for the payment of such Bonds which might cause such Bonds to be
considered "private activity bonds" or "private loan bonds" pursuant to Section 141 of the
Code.
7.02. Certification. The Chair and Authority Director, being the officers of the
Authority charged with the responsibility for issuing the Bonds pursuant to this resolution,
are authorized and directed to execute and deliver to the purchaser a certificate in
accordance with Section 148 of the Code, and applicable Regulations, stating the facts,
estimates and circumstances in existence on the date of issue and delivery of the Bonds
which make it reasonable to expect that the proceeds of the Bonds will not be used in a
manner that would cause the Bonds to be "arbitrage bonds" within the meaning of the Code
and Regutations.
7.03. Arbitraqe Rebate. The Authority acknowledges that the Bonds are subject to
the rebate requirements of Section 148(f) of the Code. The Authority and agrees to retain
such records, make such determinations, file such reports and documents and pay such
amounts at such times as are required under said Section 148(f) and applicable
Regulations to preserve the exclusion of interest on such Bonds from gross income for
federal income tax purposes.
7.04. Reimbursement. The Authority certifies that the proceeds of the Bonds will
not be used by the Authority to reimburse itself for any expenditure with respect to the
Project which the Authority paid or will have paid more than 60 days prior to the issuance of
the Bonds, except to the extent the Authority has complied with the provisions of
Section 1.150-2 of the Regulations by declaring its official intent to do so.
SECTION 8. AUTHORIZATION OF PAYMENT OF CERTAIN COSTS OF
ISSUANCE. The Authority authorizes the Trustee to pay costs of issuance of the Bonds as
set forth in the Indenture.
Steven T Schmidgall, Chair
ATTEST:
Timothy J. Cruikshank, Executive Director
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The motion for the adoption of the foregoing resolution was seconded by Commissioner
upon a vote being taken thereon, the following voted in favor thereof:
and the following voted against the same
whereupon said resolution was declared duly passed and adopted, signed by the Chair and
the signature attested by the Executive Director.
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Draft(8/31/16)
LEASE-PURCHASE AGREEMENT
by and between
HOUSING AND REDEVELOPMENT AUTHORITY OF THE CITY OF GOLDEN
VALLEY,MINNESOTA
as Lessor
and the
CITY OF GOLDEN VALLEY, MINNESOTA
as Lessee
Dated as of October 1, 2016
Relating to:
LEASE REVENUE BONDS (COMMUNITY CENTER PROJECT), SERIES 2016
This inshument drafted by:
Dorsey&Whitney LLP
Suite 1500
50 South Sixth Street
Minneapolis, Minnesota 55402
(612) 340-2600
Draft(8/3 U16)
TABLE OF CONTENTS
Pa�e
ARTICLE I DEFINITIONS AND EXHIBITS................................................................................2
Section1.1. Definitions................................................................................................................2
Section1.2. Exhibits....................................................................................................................4
ARTICLE II REPRESENTATIONS AND COVENANTS OF THE CITY AND THE
AUTHORITY..................................................................................................................................5
Section 2.1. Representations and Covenants of the City.............................................................5
Section 2.2. Representations and Covenants of the Authority.....................................................6
ARTICLE III LEASE OF PROJECT..............................................................................................8
Section3.1. Lease........................................................................................................................8
Section 3.2. Possession and Enjoyment.......................................................................................8
Section 3.3. City to Act as Agent; Acquisition and Construction of Project; Authority Access
to Project 8
Section3.4. Project Costs. ...........................................................................................................8
ARTICLEIV LEASE TERM..........................................................................................................9
Section4.1. Lease Term...............................................................................................................9
Section 4.2. Termination of Lease Term .....................................................................................9
ARTICLE V RENTAL PAYMENTS; FEES AND EXPENSES..................................................10
Section5.1. Rental Payrnents.....................................................................................................10
Section 5.2. Rental Payrnents to be Unconditional....................................................................10
Section 5.3. Current Expense.....................................................................................................10
Section 5.4. Nonappropriation; Termination of Lease...............................................................1 l
Section 5.5. Intent to Continue Lease-Purchase Payments; Appropriations .............................11
Section 5.6. Effect of Termination.............................................................................................l l
Section5.7. Additional Rent......................................................................................................1 l
ARTICLE VI USE OF THE PROJECT; TAXES, INSURANCE AND NEGLIGENCE............13
Section6.1. Use; Permits...........................................................................................................13
Section 6.2. Maintenance of Project by the City.......................................................................13
Section 6.3. Taxes, Other Governmental Charges and Utility Charges.....................................13
Section 6.4. Liability Insurance.................................................................................................13
Section6.5. Negligence.............................................................................................................14
Section 6.6. Property Insurance.................................................................................................14
Section 6.7. Worker's Compensation Insurance........................................................................14
Section 6.8. Other Insurance and Requirements for All Insurance............................................14
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Section6.9. Advances................................................................................................................15
Section6.10. Liens.......................................................................................................................15
Section 6.11. Financial Statements..............................................................................................15
Section6.12. Arbitrage Rebate....................................................................................................15
ARTICLE VII DAMAGE, DESTRUCTION AND CONDEMNATION; USE OF NET
PROCEEDS...................................................................................................................................16
Section 7.1. Damage, Destruction and Condemnation..............................................................16
Section 7.2. Insufficiency of Net Proceeds................................................................................16
Section 7.3. Cooperation of Authority.......................................................................................16
Section 7.4. Destruction or Condemnation of Other Property Owned by City.........................16
ARTICLE VIII CITY'S PROJECT; REPAIRS; WARRANTIES; DISCLAIMER......................17
Section 8.1. Installation of City's Equipment............................................................................17
Section 8.2. Installation and Maintenance of Project................................................................17
Section 8.3. Modification of Project..........................................................................................17
Section8.4. Warranties..............................................................................................................17
Section 8.5. Disclaimer of Warranties.......................................................................................18
ARTICLE IX ASSIGNMENT AND SUBLEASING...................................................................19
Section 9.1. Delegation and Assignment by Authority..............................................................19
Section 9.2. Delegation and Assignment and Subleasing by City.............................................19
ARTICLE X EVENTS OF DEFAULT AND REMEDIES ..........................................................20
Section 10.1. Events of Default Defined .....................................................................................20
Section 10.2. Remedies on Default..............................................................................................21
Section 10.3. Surrender of Project...............................................................................................21
Section10.4. Delay; Notice.........................................................................................................21
Section 10.5. No Remedy Exclusive............................................................................................21
Section 10.6. Agreement to Pay Attorneys' Fees and Expenses .................................................21
Section 10.7. No Additional Waiver Implied by One Waiver.....................................................22
ARTICLEXI TITLE .....................................................................................................................23
Section11.1. Title........................................................................................................................23
Section11.2. Security Interest.....................................................................................................23
Section 11.3. Purchase of Project ................................................................................................23
Section 11.4. Personal Property...................................................................................................24
ARTICLE XII ADMINISTRATNE PROVISIONS ....................................................................25
Section12.1. Notices...................................................................................................................25
Section12.2. Binding Effect........................................................................................................25
Section12.3. Severability............................................................................................................25
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Section 12.4. Amendments, Changes and Modifications............................................................25
Section 12.5. Further Assurances and Corrective Instruments....................................................25
Section 12.6. Execution Counterparts..........................................................................................25
Section12.7. Applicable Law......................................................................................................25
Section12.8. Captions.................................................................................................................25
EXHIBIT A—Description of the Land and Improvements........................................................A-1
EXHIBIT B—Form of Completion Certificate...........................................................................B-1
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LEASE-PURCHASE AGREEMENT
This LEASE-PURCHASE AGREEMENT dated as of October 1, 2016 (the "Lease"),
is executed by and between the HOUSING AND REDEVELOPMENT AUTHORITY OF
THE CITY OF GOLDEN VALLEY, MINNESOTA, a body corporate and politic of the State
of Minnesota, as lessor (the "Authority"), and the CITY OF GOLDEN VALLEY,
MINNESOTA, a political subdivision of the State of Minnesota, as lessee (the "City").
RECITALS
WHEREAS, the City is authorized by Minnesota Statutes, Section 465.71 to acquire real
and personal property by entering into lease-purchase agreements; and
WHEREAS, the City and the Authority have determined to enter into this Lease to
finance the acquisition, improvement and construction of certain improvements consisting of a
new community center (the "Improvements") upon real property (the "Land," and together with
the Improvements, the"Project") in the City, as further described in Exhibit A.
NOW THEREFORE, in the joint and mutual exercise of their powers, and in
consideration of the mutual covenants herein contained, the parties hereto recite and agree as
follows:
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ARTICLE I
DEFINITIONS AND EXHIBITS
Section 1.1. Definitions. Unless the context otherwise requires, the terms defined in
this Section shall, for all purposes of this Lease and its exhibits, have the meanings herein
specified.
Additional Bonds means any additional Bonds issued pursuant to Section 2.10 of the
Indenture.
Authority Representative means the Chair or Authority Director of the Authority or any
other person authorized to act on behalf of the Authority under or with respect to this Lease, as
evidenced by a certificate conferring such authority executed by the Chair or Authority Director
and given to the Trustee and the City.
Bond Fund means the Bond Fund so designated and established pursuant to the Trust
Indenture.
Bond or Bonds means the Series 2016 Bonds together with any Additional Bonds.
Business Day means any day other than a Saturday, Sunday, or other day on which
commercial banks in the City in which the principal corporate trust office of the Trustee is
located are not open for business.
City Representative means the Mayor, City Manager, or any person authorized by law to
act on behalf of the City under or with respect to this Lease, as evidenced by a certificate
conferring such authority executed by the Mayor or City Manager and given to the Trustee and
the Authority.
Code means the Internal Revenue Code of 1986, as amended, and the regulations and
revenue rulings and procedures issued pursuant thereto from time to time.
Completion Certificate means a certificate in the form attached as Exhibit B, executed by
the City, stating that the Project has been completed.
Completion Date means, with respect to the Project, the date upon which the Completion
Certificate is issued with respect thereto by the City and delivered to the Authority and the
Trustee.
Event of Default means an Event of Default as described in Section 10.1 hereof or
Section 7.01 of the Indenture, which has not been cured.
Fiscal Year means each twelve-month fiscal period of the City commencing on January 1
of any year and ending on December 31 of said year.
Ground Lease means the Ground Lease of even date herewith, between the City, as
lessor, and the Authority, as lessee.
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Improvements means the improvements to the Land, including, but not limited to, the
new community center constructed thereon as described on Exhibit A.
Independent Counsel means an attorney duly admitted to the practice of law before the
highest court of the State who is not a full-time employee of the Authority or the City.
Interest Payment Date means the stated maturity of an installment of interest on any of
the Bonds.
Land means the real property described on Exhibit A.
Lease means this Lease and any duly authorized and executed amendment hereto.
Lease Term means the period during which this Lease remains in effect as specified in
Sections 4.1 and 4.2.
Net Proceeds means any insurance proceeds or condemnation award paid with respect to
the Project,remaining after payrnent therefrom of all expenses incurred in the collection thereof.
Outstanding means, when used as of any particular time with reference to Bonds (subject
to the provisions of Section 9.03 of the Indenture pertaining to Bonds held by the Authority and
the City), all Bonds theretofore authenticated and delivered by the Trustee under the Indenture
except: (i) Bonds theretofore canceled by the Trustee or surrendered to the Trustee for
cancellation; (ii) Bonds deemed not outstanding pursuant to the terms of Section 10.02 of the
Indenture; and (iii) Bonds in lieu of or in substitution for which other Bonds shall have been
authenticated and delivered by the Trustee pursuant to the terms of Section 2.08 of the Indenture
pertaining to replacement of Bonds.
Permitted Encumbrances means, as of any particular time: (i) liens for taxes and
assessments not then delinquent, or which the City may, pursuant to provisions of Article VI
hereof, permit to remain unpaid; (ii) the Ground Lease, this Lease and the Trust Indenture;
(iii) any mechanic's, laborer's, materialmen's, supplier's or vendor's lien or right not filed or
perfected in the manner prescribed by law; (iv) such minor defects, irregularities, encumbrances,
easements, rights-of-way and clouds on title as normally exist with respect to properties similar
in character to the Land and do not, in the opinion of Independent Counsel, materially impair the
property affected thereby for the purpose for which it was intended; or(v) easements, restrictions
or encumbrances, if any, included in the Ground Lease.
Principal Payment Date means the stated maturity of principal of any Bond, or the
mandatory sinking fund redemption date of any Bond.
Project means the Land together with the Improvements.
Project Costs mean all costs incurred by the City for the acquisition, construction and
equipping of the Project.
Project Fund means the Project Fund so designated and established pursuant to the Trust
Indenture.
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Purchase Price means the amount necessary to defease, to the earliest permissible
redemption date, the remaining Outstanding principal amount of Bonds, together with an amount
equal to the Authority's and Trustee's fees and expenses in connection with such defeasance and
redemption.
Rental Payment means any payrnent due from the City to the Authority under Section 5.1
of this Lease.
Rental Payment Date means the fifth Business Day preceding each Interest Payment
Date, which is the date upon which any Rental Payment is due and payable as provided in
Section 5.1 hereof.
Series 2016 Bonds means the $[ � Lease Revenue Bonds (Community Center
Project), Series 2016, to be issued by the Authority pursuant to the Trust Indenture.
State means the State of Minnesota.
State and Federal Law or Laws means the Constitution and laws of the State, and any
ordinance, rule or regulation of any agency or political subdivision of the State; and any law of
the United States, and any rule or regulation of any executive department or federal agency.
Trustee means U.S. Bank National Association, with an office in St. Paul, Minnesota, and
any successor thereto.
Trust Indenture means the Trust Indenture dated as of the date hereof, between the
Authority and the Trustee, and any duly authorized and executed amendment thereto.
Section 1.2. Exhibits. The following Exhibits are attached to and by reference made a
part of this Lease:
Exhibit A. Description of the Land and Improvements
Exhibit B. Form of Completion Certificate
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ARTICLE II
REPRESENTATIONS AND COVENANTS OF THE CITY AND THE AUTHORITY
Section 2.1. Representations and Covenants of the City. The City represents and
covenants as follows:
(a) The Constitution and the laws of the State authorize the City to enter into
the Ground Lease, this Lease and the transactions contemplated hereby, and to cany out
its obligations under this Lease.
(b) The officers of the City executing the Ground Lease and this Lease are
duly authorized to execute and deliver this Lease under the Constitution and laws of the
State.
(c) The City has complied and will comply with all open meeting laws, all
public bidding laws and all other State and Federal Laws applicable to this Lease and the
acquisition, construction and equipping of the Project by the City.
(d) The City will use the Project during the Lease Term only to perform
essential governmental functions of the City, and will not enter into any sublease, use
agreement, management agreement or other contract with respect to the Project which
would cause the Bonds to be considered "private activity bonds" or "private loan bonds"
pursuant to Section 141 of the Code if the result would be that interest payable on the
Bonds would become includable in gross income for federal tax purposes.
(e) During the Lease Term, the City will not take, or permit any of its officers
to take, any action with respect to the Lease or the Project which would cause interest on
the Bonds to become includable in gross income of the recipient for federal income tax
purposes under the Code, and shall take all actions necessary to ensure that interest on the
Bonds remains excludable from gross income of the recipient under the Code, insofar as
it has the power and authority to take such actions.
(� The execution and delivery of the Ground Lease, this Lease and the other
agreements contemplated hereby to which the City is a party and the consummation of
the transactions contemplated hereby and thereby and the fulfillment of the terms hereof
and thereof will not conflict with, or constitute on the part of the City a breach of, or a
default under, any existing (i) law, or (ii)provisions of any legislative act or other
proceeding establishing or relating to the establishment of the City or its affairs or its
resolutions, or (iii) agreement, indenture, mortgage, lease or other instrument to which
the City is subject or is a party or by which it is bound.
(g) No officer of the City who is authorized to take part in any manner in
making this Lease or any contract contemplated hereby has a personal financial interest
in or has personally and financially benefited from this Lease or any such contract.
(h) There is not pending or overtly threatened, any suit, action or proceeding
against or affecting the City before or by any court, arbitrator, administrative agency or
other governmental authority which materially and adversely affects the validity, as to the
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City, of this Lease or the Ground Lease, any of the obligations of the City thereunder or
any of the transactions contemplated thereby.
(i) No event of nonappropriation or other financing lease termination has
occurred in connection with any prior lease financing of the City.
(j) The economic useful life of the Project is substantially greater than the
Lease Term.
(k) The obligation created by this Lease ($[ �), together with all
other net debt of the City, does not cause the net debt of the City to exceed the limitation
set forth in Minnesota Statutes, Section 475.53.
Section 2.2. Representations and Covenants of the Authority. The Authority represents
and covenants as follows:
(a) The Constitution and the laws of the State authorize the Authority to
undertake the Project, to enter into the Ground Lease, this Lease and the Trust Indenture
and the transactions contemplated hereby and thereby, and to carry out its obligations
under the Crround Lease, this Lease and the Trust Indenture.
(b) The officers of the Authority executing the Ground Lease, this Lease and
the Trust Indenture are duly authorized to execute and deliver this Lease and the Trust
Indenture under the Constitution and laws of the State.
(c) The Authority has complied and will comply with all open meeting laws,
and all other State and Federal Laws applicable to this Lease and the Project.
(d) So long as any of the Bonds remain Outstanding, the Authority will not
enter into any lease, use agreement, management agreement or other contract which
would cause the Bonds to be considered "private activity bonds" or "private loan bonds"
pursuant to Section 141 of the Code if the result would be that interest payable on the
Bonds would become includable in gross income for federal income tax purposes.
(e) So long as any of the Bonds remain Outstanding, the Authority will not
take or permit any of its officers to take any action with respect to this Lease or the
Project which would cause interest on the Bonds to become includable in gross income of
the recipient for federal income tax purposes under the Code, and shall take all actions
necessary to ensure that interest on the Bonds remains excludable from gross income of
the recipient under the Code, insofar as it has the power and authority to take such
actions.
(� The execution and delivery of the Ground Lease, this Lease and the Trust
Indenture and the other agreements contemplated hereby to which the Authority is a party
and the consummation of the transactions contemplated hereby and thereby and the
fulfillment of the terms hereof and thereof will not conflict with, or constitute on the part
of the Authority a breach of, or a default under, any existing (i) law, or (ii)provisions of
any legislative act or other proceeding establishing or relating to the establishment of the
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Authority or its affairs or its resolutions, or (iii) agreement, indenture, mortgage, lease or
other instrument to which the Authority is subject or is a party or by which it is bound.
(g) No officer of the Authority who is authorized to take part in any manner in
making this Lease or any contract contemplated hereby has a personal financial interest
in or has personally and financially benefited from this Lease or any such contract.
(h) There is not pending or threatened any suit, action or proceeding against
or affecting the Authority before or by any court, arbitrator, administrative agency or
other governmental authority which materially and adversely affects the validity, as to the
Authority, of this Lease, the Ground Lease or the Trust Indenture, any of the obligations
of the Authority thereunder or any of the transactions contemplated thereby.
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ARTICLE III
LEASE OF PROJECT
Section 3.1. Lease. The Authority hereby leases the Project to the City, and the City
hereby leases the Project from the Authority, upon the terms and conditions set forth in this
Lease.
Section 3.2. Possession and Enjovment. The Authority hereby covenants to provide
the City, during the Lease Term, with the quiet use and enjoyment of the Project, and the City
shall, during the Lease Term, peaceably and quietly have and hold and enjoy the Project without
suit, trouble or hindrance from the Authority, except as expressly set forth in this Lease. The
Authority will, at the request of the City and at the City's cost,join in any legal action in which
the City asserts its right to such possession and enjoyment to the extent the Authority lawfully
may do so.
Section 3.3. Citv to Act as Agent; Acquisition and Construction of Project; Authority
Access to Project. The Authority hereby irrevocably appoints the City as its agent in connection
with the acquisition, construction and equipping of the Project. The City, as agent of the
Authority, has or will enter into all contracts with the contractors providing for the acquisition
and construction of the Project in accordance with the City's specifications. The Authority shall
have no obligation whatsoever with respect to the design, acquisition, construction, installation
or operation of the Project and no obligation whatsoever with respect to the Project other than the
obligations set forth in Section 3.1 and 3.2. Upon final acceptance of the Project, the City shall
execute and deliver to the Authority a Completion Certificate substantially in the form of Exhibit
B. The City agrees that the Authority and any Authority Representative shall have the right at all
reasonable times to examine and inspect the Project. The City further agrees that the Authority
and the Authority's Representative shall have such rights of access to the Project as may be
reasonably necessary to cause the proper maintenance of the Project in the event of failure by the
City to perform its obligations hereunder, or to exercise the Authority's rights under Article X, or
to determine whether the City is in compliance with this Lease.
Section 3.4. Project Costs. The Project Costs are not expected to exceed the amount
available from the proceeds of the Bonds to be issued by the Authority. The Authority and the
City agree that, in order to ensure that moneys sufficient to pay such Project Costs and necessary
financing expenses will be available for this purpose when required, the Authority shall deposit
or cause to be deposited with the Trustee the sum of$[ � from the proceeds of the
Series 2016 Bonds. $[ � of such moneys shall be deposited in the Project Fund,
$[ � of such moneys shall be deposited in the Bond Fund and $[� shall be
applied by the Trustee to pay costs of issuance of the Series 2016 Bonds as directed by the
Authority. All such moneys shall be administered by the Trustee as provided in the Trust
Indenture. The City reserves the right to modify or add items to the Project. No such change in
the Project, however, shall increase the amount of moneys required to be deposited by the
Authority with the Trustee pursuant to this Lease or alter the Rental Payments, but if any change
increases the Project Costs beyond the amount available in the Project Fund to pay such Project
Costs, the City shall deliver to the Trustee moneys sufficient to pay such excess Project Costs for
deposit in the Project Fund (unless the Authority agrees to issue Additional Bonds in accordance
with Section 2.10 of the Trust Indenture to fund such excess Project Costs).
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ARTICLE IV
LEASE TERM
Section 4.1. Lease Term. This Lease shall be and remain in effect with respect to the
Project for a Lease Term commencing on its date of execution and continuing until no Bonds
remain Outstanding, or until terminated as provided in Section 4.2.
Section 4.2. Termination of Lease Term. The Lease Term will terminate prior to the
date on which no Bonds remain Outstanding, upon the occurrence of the first of the following
events:
(a) termination of this Lease pursuant to Section 5.4 hereof;
(b) a default by the City and the Authority's election to terminate this Lease
pursuant to Article X; or
(c) the payment by the City of all Rental Payments due hereunder or the
payrnent of the Purchase Price pursuant to Section 11.3 hereof, together with any fees and
expenses due the Authority or the Trustee hereunder or under the Trust Indenture.
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ARTICLE V
RENTAL PAYMENTS; FEES AND EXPENSES
Section 5.1. Rental Pa ents. The City shall, by wire transfer in immediately
available funds or such other method agreed to by the parties, pay Rental Payments with respect
to the Project as follows:
(a) By each Rental Payment Date, the City shall pay an amount equal to the
interest, and principal, if any, due on the Bonds on the next succeeding Interest Payment
Date.
(b) As a credit against the first interest payment otherwise required to be paid
by the City to the Trustee pursuant to (a) of this Section 5.1, there shall be applied any
accrued or capitalized interest on the Bonds initially deposited into the Bond Fund.
(c) On each Rental Payment Date, so long as no Event of Default has
occurred and is continuing, the City shall have a credit against the Rental Payment
otherwise due on said date to the extent of any investment profits or earnings which have
been transferred or are otherwise available in the Bond Fund for such purpose.
(d) In the event the City shall have paid Rental Payments with respect to the
next succeeding Interest Payment Date, but the funds on deposit in the Bond Fund are
nevertheless insufficient to pay such principal, premium (if any) and interest on the
Bonds then due or to become due on such Interest Payment Date, the City will forthwith
pay, as Rental Payments, the amount of the deficiency.
The Rental Payments provided for in this Section 5.1 shall be paid directly to the Trustee
at its corporate trust office for the account of the City for deposit in the Bond Fund as provided
in the Indenture.
Section 5.2. Rental Payments to be Unconditional. Except as provided in Section 5.4,
the obligation of the City to make Rental Payments due with respect to the Project or any other
payrnents required hereunder shall be absolute and unconditional in all events. Notwithstanding
any dispute between the City and the Authority or any other person, the City shall make all
Rental Payments and other payments required hereunder when due and shall not withhold any
Rental Payment or other payrnent pending final resolution of such dispute nor shall the City
assert any right of set-off or counterclaim against its obligation to make such Rental Payrnents or
other payments required under this Lease. The City's obligation to make Rental Payments or
other payments during the Lease Term shall not be abated through accident or unforeseen
circumstances including, without limitation, any circumstance related to the Project or the
construction thereof.
Section 5.3. Current Expense. The obligations of the City under this Lease, including
its obligation to pay the Rental Payments due with respect to the Project in any Fiscal Year for
which this Lease is in effect, shall constitute a current expense of the City for such Fiscal Year
and shall not constitute an indebtedness of the City within the meaning of the Constitution and
laws of the State(except the amount of the Lease in excess of$1,000,000 shall be included in the
calculation of net debt for purposes of Minnesota Section 475.53, as provided in Minnesota
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Statutes, Section 465.71). Nothing herein shall constitute a pledge by the City of any taxes or
other moneys, other than moneys lawfully appropriated from time to time by or for the benefit of
the City's annual budget and the proceeds of the Bonds or Net Proceeds of the Project, to the
payment of any Rental Payment or other amount coming due hereunder.
Section 5.4. Nonappropriation: Termination of Lease. The City shall have the right to
cancel and terminate this Lease, in whole but not in part, at the end of any Fiscal Year of the
City, in the manner and subject to the terms specified in this Section 5.4 and Section 5.6, if the
City's governing body does not appropriate moneys sufficient to pay the Rental Payments
coming due in the next Fiscal Year. Lack of a sufficient appropriation shall be evidenced by a
specific provision in the budget of the City which prohibits the expenditure of the City funds for
this purpose. The City may effect such termination by giving the Authority a written notice of
termination and by paying to the Authority any Rental Payments which are due and have not
been paid at or before the end of its then current Fiscal Year. The City shall make reasonable
best efforts to give notice of termination not less than one hundred twenty (120) days prior to the
end of such Fiscal Year, and shall notify the Authority of any anticipated termination. In the
event of termination of this Lease as provided in this Section 5.4, the City shall deliver
possession of the Project to the Authority in accordance with Section 10.3, and release its interest
in the same, as granted under this Lease, within ten(10) days after the termination of this Lease.
Section 5.5. Intent to Continue Lease-Purchase Payments• Ap��ropriations. The City
presently intends to continue this Lease for the entire Lease Term and to pay all Rental Payrnents
required hereunder. City staff will include in the budget request for each Fiscal Year the Rental
Payments to become due in such Fiscal Year, and will use all reasonable and lawful means at
their disposal to secure the appropriation of money for such Fiscal Year sufficient to pay the
Rental Payments coming due therein. The City reasonably believes that moneys in an amount
sufficient to make all such Rental Payments can and will lawfully be appropriated and made
available for this purpose.
Section 5.6. Effect of Termination. Upon termination of this Lease as provided in
Section 5.4, the City shall not be responsible for the payment of any additional Rental Payments
coming due with respect to succeeding Fiscal Years, but if the City has not delivered possession
of the Project to the Authority in accordance with Section 10.3 and conveyed to the Authority or
released its interest in the Project granted under this Lease within ten (10) days after the
termination of the Lease, the termination shall nevertheless be effective, but the City shall be
responsible for the payment of damages in an amount equal to the amount of the Rental
Payments thereafter coming due which are attributable to the number of days after such ten (10)
day period during which the City fails to take such actions. Upon termination of this Lease as
provided in Section 5.4, the Trustee, on behalf of the Authority, may take the action specified in
Section 10.2(iii) hereof; notwithstanding that a termination pursuant to Section 5.4 is not an
event of default hereunder.
Section 5.7. Additional Rent. The City shall, during the Lease Term, within ten (10)
Business Days after written notice that such payrnent is due, also pay the following amounts of
additional rent to the following persons:
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(a) to the Trustee, all reasonable fees and expenses of the Trustee for services
rendered under the Trust Indenture, provided that the City may, without creating a default
hereunder, contest in good faith the reasonableness of any such fees or expenses other
than the Trustee's fees for ordinary services as may be set forth in the Trust Indenture;
(b) to the Authority, all reasonable expenses incurred by the Authority in
connection with the transactions contemplated hereby which are not otherwise required to
be paid by the City under the terms of this Lease;
(c) all other costs and expenses specifically required to be paid by the City
under the terms of this Lease or the Trust Indenture; and
(d) to the Authority or the Trustee, as the case may be, the amount of all
advances of funds made by either of them under the provisions hereof.
In the event the City should fail to make any of the payments required by this Section 5.7,
the item in default shall continue as an obligation of the City until the amount in default shall
have been fully paid, and the City will pay the same with interest thereon at the rate of 8% per
annum, or, if less, at the maximum rate permitted by State law.
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ARTICLE VI
USE OF THE PROJECT; TAXES, INSURANCE AND NEGLIGENCE
Section 6.1. Use; Permits. The City shall exercise due care in the acquisition,
construction, installation, use, possession, operation and maintenance of the Project, and shall
not install, use, operate or maintain the Project improperly, carelessly, in violation of State and
Federal Laws or for a purpose or in a manner contrary to that contemplated by this Lease. The
City shall obtain all permits and licenses necessary for the installation, operation, possession and
use of the Project. The City shall comply with all State and Federal Laws applicable to the
acquisition, construction, installation, use, possession, operation and maintenance of the Project,
and if compliance with any such State and Federal Law requires changes or additions to be made
to the Project, such changes or additions shall be made by the City at its expense.
Section 6.2. Maintenance of Project by the City. The City shall, at its own expense,
maintain, preserve and keep the Project in good repair, working order and condition, and shall
from time to time make all repairs and replacements necessary to keep the Project in such
condition. The Authority shall have no responsibility for any of these repairs or replacements.
Section 6.3. Taxes, Other Governmental Charges and Utility Char�es. Except as
expressly limited by this Section 6.3, the City shall pay all taxes and other charges of any kind
which are at any time lawfully assessed or levied against or with respect to the Project, the
Rental Payments or any part thereof, or which become due during the Lease Term, whether
assessed against the City or the Authority. The City shall also pay when due all gas, water,
steam, electricity, heat, power, telephone, and other charges incurred in the operation,
maintenance, use, occupancy and upkeep of the Project, and all special assessments and charges
lawfully made by any governmental body for public improvements that may be secured by a lien
on the Project; provided that with respect to special assessments or other governmental charges
that may lawfully be paid in installments over a period of years, the City shall be obligated to
pay only such installments as are required to be paid during the Lease Term as and when the
same become due. The City shall not be required to pay any federal, state or local income,
inheritance, estate, succession, transfer, gift, franchise, gross receipts, profit, excess profit,
capital stock, corporate, or other similar tax payable by the Authority, its successors or assigns,
unless such tax is made in lieu of or as a substitute for any real estate or other tax upon the
Proj ect.
The City may, at the City's expense and in the City's name, in good faith contest any
such taxes, assessments, utility and other charges and, in the event of any such contest, may
permit the taxes, assessments or other charges so contested to remain unpaid during the period of
such contest and any appeal therefrom unless the Authority shall notify the City that, in the
opinion of Independent Counsel, by nonpayment of any such items the interest of the Authority
in the Project will be materially endangered or the Project or any part thereof will be subject to
loss or forfeiture, in which event the City shall promptly pay such taxes, assessments or charges
or provide the Authority with full security against any loss which may result from nonpayment,
in form satisfactory to the Authority.
Section 6.4. Liability Insurance. Upon receipt of possession of the Project, the City
shall take such measures as may be necessary to ensure that any liability for injuries to or death
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of any person or damage to or loss of property arising out of or in any way relating to the
condition or the operation of the Project or any part thereof, is covered by a blanket or other
general liability insurance policy maintained by the City. The Net Proceeds of all such insurance
shall be applied toward extinguishment or satisfaction of the liability with respect to which any
Net Proceeds may be paid.
Section 6.5. Negli ence. The City assumes all risks and liabilities, whether or not
covered by insurance, for loss or damage to the Project and for injury to or death of any person
or damage to any property, whether such injury or death be with respect to agents or employees
of the City or of third parties, and whether such property damage be to the City's property or the
property of others, which is proximately caused by the negligent conduct of the City, its officers,
employees and agents. The City hereby assumes responsibility for and agrees to reimburse the
Authority for all liabilities, obligations, losses, damages, penalties, claims, actions, costs and
expenses (including reasonable attorney's fees) of whatsoever kind and nature, imposed on,
incurred by or asserted against the Authority that in any way relate to or arise out of a claim, suit
or proceeding based in whole or in part upon the negligent conduct of the City, its officers,
employees and agents, to the maximum extent permitted by law.
Section 6.6. PrOperty Insurance. Upon receipt of possession of the Project, the City
shall have and assume the risk of loss with respect thereto. The City shall procure and maintain
continuously in effect during the Lease Term, all-risk insurance, subject only to the standard
exclusions contained in the policy, in such amount as will be at least sufficient so that a claim
may be made for the full replacement cost of any part thereof damaged or destroyed and to pay
the applicable Purchase Price of the Project. Such insurance may be provided by a rider to an
existing policy or under a separate policy. Such insurance may be written with customary
deductible amounts. The Net Proceeds of insurance required by this Section shall be applied to
the prompt repair, restoration or replacement of the Project, or to the purchase of the Project, as
provided in Section 7.1. Any Net Proceeds not needed for those purposes shall be paid to the
City.
Section 6.7. Worker's Com ensation Insurance. If required by State law, the City shall
carry worker's compensation insurance covering all its employees on, in, near or about the
Project. Alternatively, the City may self-insure against such liabilities in accordance with
applicable law.
Section 6.8. Other Insurance and Reauirements for All Insurance. All insurance by
this Article may be carried under a separate policy or a rider or endorsement to an existing
policy; shall be taken out and maintained with responsible insurance companies organized under
the laws of one of the states of the United States and qualified to do business in the State; shall
contain a provision that the insurer shall not cancel or revise coverage thereunder without giving
written notice to both parties, and to the Trustee, at least 30 days before the cancellation or
revision becomes effective; and shall name the City, the Authority and the Trustee as insured
parties as their interests may appear. The City shall provide the Trustee, commencing as of the
date hereof with a Certificate as to compliance with the provisions of this Article VI. The
Trustee shall be entitled to rely upon said Certificate as to the City's compliance with the
insurance requirements. The Trustee shall not be responsible for the sufficiency of coverage or
amounts of such policies. Before the expiration of any such policy, the City shall furnish to the
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Authority evidence that the policy has been renewed or replaced by another policy conforming to
the provisions of this Article.
Section 6.9. Advances. If the City shall fail to perform any of its obligations under this
Lease, the Authority or the Trustee may, but shall not be obligated to, take such action as may be
necessary to cure such failure, including the advancement of money, and the City shall be
obligated to repay all such advances on demand, with interest at the m�imum rate permitted by
law or 8%, whichever is less, from the date of the advance to the date of repayrnent.
Section 6.10. Liens. The City shall not, directly or indirectly, create, incur, assume or
suffer to exist any mortgage, pledge, lien, charge, encumbrance or claim on or with respect to the
Project, other than the respective rights of the Authority and the City as herein provided and
Permitted Encumbrances. Except as expressly provided in this Article, the City shall promptly,
at its own expense, take such action as may be necessary duly to discharge or remove any such
mortgage, pledge, lien, charge, encumbrance or claim if the same shall arise at any time. The
City shall reimburse the Authority for any expense incurred by it in order to discharge or remove
any such mortgage, pledge, lien, charge, encumbrance or claim.
Section 6.11. Financial Statements. The City shall, upon request, provide the Authority,
within 365 days of the end of each Fiscal Year, a copy of the annual audited financial statements
of the City.
Section 6.12. Arbitra�e Rebate. The City and the Authority acknowledge that the Bonds
are subject to the rebate requirements of Section 148(fl of the Code. The City covenants and
agrees to retain such records,make such determinations, file such reports and documents and pay
such amounts at such times as are required under said Section 148(fl and applicable Regulations,
unless the Bonds qualify for an exception from the rebate requirement pursuant to one of the
spending exceptions set forth in Section 1.148-7 of the Regulations and no "gross proceeds" of
the Bonds (other than amounts constituting a "bona fide debt service fund") arise during or after
the expenditure of the original proceeds thereof.
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ARTICLE VII
DAMAGE, DESTRUCTION AND CONDEMNATION;
USE OF NET PROCEEDS
Section 7.1. Dama�e, Destruction and Condemnation. If after delivery of the Project
to the City all or any part of the Project is lost, stolen, destroyed or damaged beyond repair the
City shall have the rights specified in this Section with respect to the Net Proceeds of any
insurance or condemnation award. The City may either (i) apply such Net Proceeds to replace
the Project with a project of equal or greater value to the Project immediately prior to the time of
the loss occurrence, such replacement project to be subject to the Authority's reasonable
approval, whereupon such replacement shall be substituted in this Lease by appropriate
endorsement and the City shall be obligated to continue to pay the Rental Payrnents or (ii) the
City may exercise its option to purchase the Project pursuant to the terms of Section 11.3 hereof,
in which event the Net Proceeds may be used for such purpose. The City shall notify the
Authority and the Trustee within 90 days of the date of damage, destruction or taking as to its
decision regarding replacement or purchase. In the event the City determines to replace the
Project, the Authority shall assign to the City all of its interests in said Net Proceeds and the City
shall deposit the Net Proceeds with the Trustee for deposit into the Project Fund. The Trustee
shall disburse such Net Proceeds from the Project Fund to pay the costs of replacement in the
manner provided in Article IV of the Trust Indenture.
Section 7.2. Insufficiency of Net Proceeds. If the City elects to replace the Project and
the Net Proceeds are insufficient to pay in full the cost of any replacement, the City shall
complete the work and pay any cost in excess of the amount of the Net Proceeds, and the City
agrees that if by reason of any such insufficiency of the Net Proceeds the City shall make any
payments pursuant to the provisions of this Section 7.2, the City shall not be entitled to any
reimbursement therefor from the Authority nor shall the City be entitled to any diminution of the
Rental Payments due with respect to the Project.
Section 7.3. Cooperation of Authoritv. The Authority shall cooperate fully with the
City at the expense of the City in filing any proof of loss with respect to any insurance policy
covering the casualties described in Section 7.1 hereof and in the prosecution or defense of any
prospective or pending condemnation proceeding with respect to the Project or any part thereof
and will, to the extent it may lawfully do so, permit the City to litigate in any proceeding
resulting therefrom in the name of and on behalf of the Authority. In no event will the Authority
voluntarily settle, or consent to the settlement of, any proceeding arising out of any insurance
claim or any prospective or pending condemnation proceeding with respect to the Project or any
part thereof without the written consent of the City.
Section 7.4. Destruction or Condemnation of Other Pro�v Owned by Citv. The City
shall be entitled to the Net Proceeds of any insurance claim or condemnation award or portion
thereof made for destruction of, damage to or taking of its property not included in the Project.
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ARTICLE VIII
CITY'S PROJECT; REPAIRS; WARRANTIES; DISCLAIMER
Section 8.1. Installation of Cit 'y s Equi ment. The City may at any time and from time
to time after the Completion Date, in its sole discretion and at its own expense, install items of
equipment in or upon the Project. All such items shall remain the sole property of the City, in
which the Authority shall have no interest, and may be modified or removed by the City at any
time provided that the City shall repair and restore any and all damage to the Project resulting
from the installation, modification or removal of any such items. Nothing in this Lease shall
prevent the City from purchasing items to be installed pursuant to this Section under a
conditional sale or lease with option to purchase contract, or subject to a vendor's lien or security
agreement, as security for the unpaid portion of the purchase price thereof, provided that no such
lien or security interest shall attach to any part of the Project.
Section 8.2. Installation and Maintenance of Project. The Authority shall have no
obligation to install, erect, test, inspect, service or maintain the Project, or any portion thereof,
under any circumstances, but such actions shall be the obligation of the City in accordance with
the provisions of this Lease.
Section 8.3. Modification of Project. The City shall, at its own expense, have the right
to make repairs to the Project, and to make repairs, replacements, substitutions and modifications
to all or any of the parts thereof. All such work and any part or component used or installed to
make a repair or as a replacement, substitution or modification, shall thereafter comprise part of
the Project and be subject to the provisions of this Lease. Such work shall not in any way
damage the Project or cause it to be used for purposes other than those authorized under the
provisions of State and Federal Law or those contemplated by this Lease; and the Project, upon
completion of any such work shall be of a value which is not less than the value of the Project
immediately prior to the commencement of such work. Any property for which a replacement or
substitution is made pursuant to this Section may be disposed of by the City in such manner and
on such terms as are determined by the City. The City will not permit any mechanic's or other
lien to be established or remain against the Project for labor or materials furnished in connection
with any repair, replacement, substitution or modification made by the City pursuant to this
Section; provided that if any such lien is established and the City shall first notify the Authority
of the City's intention to do so, the City may in good faith contest any lien filed or established
against the Project, and in such event may permit the items so contested to remain undischarged
and unsatisfied during the period of such contest and any appeal therefrom unless the Authority
shall notify the City that, in the opinion of Independent Counsel, by nonpayrnent of any such
item the interest of the Authority in the Project will be materially endangered or the Project or
any part thereof will be subject to loss or forfeiture, in which event the City shall promptly pay
and cause to be satisfied and discharged all such unpaid items or provide the Authority with full
security against any such loss or forfeiture, in form satisfactory to the Authority. The Authority
will cooperate fully with the City in any such contest, upon the request and at the expense of
City.
Section 8.4. Warranties. The Authority hereby assigns to the City for and during the
Lease Term, all of its interest, if any, in all warranties and guarantees, express or implied, issued
on or applicable to the Project, and the Authority hereby authorizes the City to obtain the
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customary services furnished in connection with such warranties and guarantees at the City's
expense.
Section 8.5. Disclaimer of Warranties. THE AUTHORITY MAKES NO
WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE
VALUE, DESIGN, CONDITION, MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE OR FITNESS FOR THE USE CONTEMPLATED BY THE CITY
OF THE PROJECT, OR ANY OTHER REPRESENTATION OR WARRANTY WITH
RESPECT TO THE PROJECT.
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ARTICLE IX
ASSIGNMENT AND SUBLEASING
Section 9.1. Delegation and Assignment bv Authority. The Authority shall not
delegate its obligations under this Lease, and no purported delegation thereof shall be effective.
However, all of the Authority's right, title and/or interest in and to the Ground Lease, this Lease,
the Project, the Rental Payrnents and other amounts due hereunder (other than any indemnity
payments and reimbursement of costs and expenses) and the right to exercise its rights under this
Lease and the Ground Lease may be assigned to the Trustee, and the City hereby consents to the
assignment made by the Authority to the Trustee pursuant to the Trust Indenture.
Section 9.2. Dele�ation and Assignment and Subleasin� bv City. The City may not
delegate its obligations or assign its rights under this Lease to any person during the Lease Term.
The City may not sublease all or any part of the Project, or contract for the operation of the
Project by an entity other than the City or an agency or department of the State during the Lease
Term unless such contract, authorized by prior written consent of the Authority, will not cause
interest on the Bonds to become includable in gross income of the owners thereof for federal
income tax purposes, as evidenced by an opinion of nationally recognized bond counsel filed
with the Authority and Trustee prior to the effective date of any such sublease or contract.
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ARTICLE X
EVENTS OF DEFAULT AND REMEDIES
Section 10.1. Events of Default Defined. The following shall be Events of Default
under this Lease and the terms "events of default" and "default" shall mean, whenever they are
used in this Lease, with respect to the Project, any one or more of the following events:
(i) Failure by the City to pay any Rental Payments or other payments required
to be paid hereunder at the time specified herein, which failure shall continue for a period
of five days after written notice given to the City by the Trustee on behalf of the
Authority. The termination of this Lease by nonappropriation pursuant to Section 5.4
does not constitute an event of default.
(ii) Failure by the City to observe and perform any covenant, condition or
agreement on its part to be observed or performed under this Lease, the Trust Indenture
or the Ground Lease, other than as referred to in clause(i) of this Section 10.1, for a
period of ninety (90) days after written notice specifying such failure and requesting that
it be remedied has been given to the City by the Trustee on behalf of the Authority,
unless the Trustee shall agree in writing to an extension of such time prior to its
expiration if such an extension is reasonable under the circumstances.
(iii) The filing by the City of a voluntary petition in bankruptcy, or failure by
the City promptly to lift any execution, garnishment or attachment of such consequence
as would impair the ability of the City to carry on the operation of the Project, or
adjudication of the City as a bankrupt, or assignment by the City for the benefit of
creditors, or the entry by the City into an agreement of composition with creditors, or the
approval by a court of competent jurisdiction of a petition applicable to the City in any
proceedings instituted under the provisions of the Federal Bankruptcy Statute, as
amended, or under any similar acts which may hereafter be enacted.
The provisions of this Section 10.1 and Section 10.2 are subject to the following limitation: if by
reason of force majeure the City is unable in whole or in part to carry out its obligations under
this Lease with respect to the Project, other than the obligation of the City to pay Rental
Payments with respect thereto which shall be paid when due notwithstanding the provisions of
this paragaph, the City shall not be deemed in default during the continuance of such inability or
during any other delays which are a direct consequence of the force majeure inability. The term
`force majeure" as used herein shall mean, without limitation, the following: acts of God;
strikes, lockouts or other industrial disturbances; acts of public enemies; orders or restraints of
any kind of the government of the United States of America of the State of Minnesota or any of
its departments, agencies or officials, or any civil or military authority; insurrections; riots;
landslides; earthquakes; fires; storms; droughts; floods; explosions; or any other cause or event
not reasonably within the control of the City and not resulting from its negligence. The City
agrees, however, to remedy with all reasonable dispatch the cause or causes preventing it from
carrying out its obligations under this Lease; provided that the settlement of strikes, lockouts and
other employrnent disputes shall be entirely within the discretion of the City.
-20-
Draft(8/31/16)
Section 10.2. Remedies on Default. Whenever any event of default referred to in
Section 10.1 hereof shall have happened and be continuing with respect to the Project, the
Authority shall have the right, at its option, without further demand or notice, to take one or any
combination of the following remedial steps:
(i) with or without terminating this Lease, declare all Rental Payments due or
to become due during the Fiscal Year in effect when the default occurs to be immediately
due and payable by the City, whereupon such Rental Payrnents shall be immediately due
and payable; and
(ii) with or without terminating this Lease, enforce the Ground Lease and
repossess the Project by giving the City written notice to surrender the Project for the
remaining term of the Ground Lease. Notwithstanding the fact that the Authority has
taken possession of the Project, the City shall continue be responsible for the Rental
Payrnents due during the Fiscal Year then in effect. If this Lease has not been terminated,
the Authority shall return the Project to the City at the Lessee's expense when the Event
of Default is cured, or as required by the Ground Lease; and
(iii) if the Authority chooses to terminate this Lease and take possession of the
Project, the Authority shall thereafter use its best efforts to sell or lease its interest under
the Ground Lease and in the Project or any portion thereof in a commercially reasonable
manner in accordance with applicable State laws and apply the proceeds of such lease or
sale shall be applied in accordance with Section 7.03 of the Trust Indenture.
The Authority covenants to cooperate with the Trustee, upon request, in the exercise of
any of the foregoing remedies, which remedies shall be exercised by the Trustee, on behalf of the
Authority,pursuant to the Trust Indenture.
Section 10.3. Surrender of Project. Upon the termination of this Lease as aforesaid, the
City shall surrender possession of the Project to the Authority in the condition, repair,
appearance and working order required in Section 6.1.
Section 10.4. Delay; Notice. No delay or omission to exercise any right or power
accruing upon any 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 any party to exercise any remedy reserved to it in
this Lease it shall not be necessary to give any notice, other than such notice as may be required
in this Lease or by law.
Section 10.5. No Remedv Exclusive. No remedy herein conferred upon or reserved to
the Authority is intended to be exclusive and every such remedy shall be cumulative and shall be
in addition to every other remedy given under this Lease or now or hereafter existing at law or in
equity. No delay or omission to exercise any right or power accruing upon any 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.
Section 10.6. Agreement to Pay Attornevs' Fees and Ex enses. In the event either party
to this Lease should default under any of the provisions hereof and the nondefaulting party
-21-
Draft(8/31/16)
should employ attorneys or incur other expenses for the collection of moneys or the enforcement
or performance or observance of any obligation or agreement on the part of the defaulting party
herein contained, the defaulting party agrees that it will on demand therefor pay to the
nondefaulting party the reasonable fee of such attorneys and such other expenses so incurred by
the nondefaulting party.
Section 10.7. No Additional Waiver Implied by One Waiver. In the event any
agreement contained in this Lease 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.
-22-
Draft(8/31/16)
ARTICLE XI
TITLE
Section 11.1. Title. During the Lease Term, and so long as the City is not in default
under Article X, legal title to the Improvements and any and all repairs, replacements,
substitutions and modifications to it shall be in the name of the Authority, subject to the interests
of the City under this Lease; and legal title to the Land shall be in the City, subject to the interst
of the Authority under the Ground Lease. Upon termination of this Lease pursuant to Section
4.2(c), full and unencumbered legal title to the Project shall pass to the City, and the Authority
shall have no further interest therein. In such event, the Authority shall execute and deliver to
the City such documents as the City may request to evidence the passage of legal title to the
Project to the City and the termination of the Authority's interest therein.
Section 11.2. Security Interest. The Authority shall have and retain a security interest
under the Uniform Commercial Code in the Project, the proceeds thereof and all repairs,
replacements, substitutions and modifications thereto or thereof made pursuant to Section 8.3,
and a security interest in the proceeds of all insurance policies and amounts held in the funds
established pursuant to the Trust Indenture relating to the Bonds, in order to secure the City's
payment of all Rental Payments due during the Lease Term and the performance of all other
obligations herein to be performed by the City. The Authority is authorized to record such
financing statements as may be necessary to perfect such security interest. The City will join
with the Authority in executing such other documents and will perform such acts as the
Authority may request to establish and maintain a valid security interest in the Project. If
requested by the Authority, the City shall conspicuously mark the Project with appropriate
lettering, labels or tags, and maintain such markings during the Lease Term, so as clearly to
disclose the Authority's security interest in the Project.
Section 11.3. Purchase of Project. On any Business Day on or after [ � 1,
20[_] and as otherwise provided herein, except during the continuance of an Event of Default,
the City shall have the option of purchasing the Project as follows:
(a) T'he City shall give written notice to the Authority of its intention to
purchase the Project and the Authority shall give written notice to the Trustee of its
intention to redeem the Bonds. The City notice must state therein a closing date not less
than forty-five (45) days after the date the notice is mailed, and the Authority shall make
arrangements satisfactory to the Trustee for the giving of any required notice of
redemption or notice of defeasance of the Bonds in connection with the purchase.
(b) The City shall pay to the Trustee, on or before the closing date, an amount
equal to the Purchase Price for the Project.
(c) On the closing date, a closing shall be held at the principal office of the
Trustee, or any other office mutually agreed upon. At the closing the City and the
Authority shall, upon acknowledgment of receipt of the Purchase Price, the Authority
shall convey or release to the City, all of its right, title and/or interest in and to the Project
by delivering to the City such documents as the City deems necessary for this purpose.
-23-
Draft (8/31/16)
At such time as all of the Bonds have been fully paid or provision for payrnent thereof
has been made in accordance with the provisions of the Indenture, and all expenses of the
Authority and Trustee have been paid or provided for to the date of such full payment of the
Bonds, the City shall be deemed to have purchased all right, title and interest of the Authority in
the Project, this Lease shall be deemed terminated, and title to the Project shall automatically
vest in the City. Nevertheless, the Authority, at the expense of the City, shall execute such
documents as shall be reasonably necessary to convey its interest in the Project to the City.
Section 11.4. Personal Property. The Improvements are and shall at all times be and
remain personal property notwithstanding that the Improvements or any part thereof may be or
hereafter may become in any manner affixed or attached to or embedded in or permanently
rested upon real property or any building thereon or attached in any manner to what is permanent
by means of cement,plaster, nails,bolts, screws or otherwise.
-24-
Draft (8/31/16)
ARTICLE XII
ADMINISTRATIVE PROVISIONS
Section 12.1. Notices. All notices, certificates or other communications hereunder shall
be sufficiently given and shall be deemed given on the earlier of(i) delivery or (ii) three days
following deposit in the United States mail in first-class form with postage fully prepaid. Any
notice provided hereunder by the City or the Authority shall also be sent to Trustee at the address
given in Section 13.08 of the Trust Indenture.
Section 12.2. Bindin Effect. This Lease shall inure to the benefit of and shall be
binding upon the Authority and the City and their respective successors and assigns.
Section 12.3. Severabilitv. In the event any provision of this Lease 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 12.4. Amendments, Chan�es and Modifications. This Lease may be amended
or any of its terms modified only by written amendment authorized and executed by the City and
the Authority, and in accordance with Article XII of the Trust Indenture.
Section 12.5. Further Assurances and Corrective Instruments. The Authority and the
City agree that they will, if necessary, execute, acknowledge and deliver, or cause to be
executed, acknowledged and delivered, such supplements hereto and such further instruments as
may reasonably be required for correcting any inadequate or incorrect description of the Project
hereby sold or intended so to be or for carrying out the expressed intention of this Lease.
Section 12.6. Execution Counterparts. This Lease 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 12.7. A�plicable Law. This Lease shall be governed by and construed in
accordance with the laws of the State.
Section 12.8. Ca tp ions. The captions or headings in this Lease are for convenience only
and in no way define, limit or describe the scope or intent of any provisions or Sections of this
Lease.
-25-
IN WITNESS WHEREOF, the Authority has caused this Lease to be executed in its
corporate name by its duly authorized officers and the City has caused this Lease to be executed
in its name by its duly authorized officers as of the date first above written.
HOUSING AND REDEVELOPMENT
AUTHORITY OF THE CITY OF GOLDEN
VALLEY,MINNESOTA, as lessor
BY
Chair
Attest:
Authority Director
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
This instrument was acknowledged before me on this day of October, 2016,by
Steve Schmidgall and Tim Cruikshank, the Chair and Authority Director, respectively, of
Housing and Redevelopment Authority of the City of Golden Valley, Minnesota, a Minnesota a
body corporate and politic of the State of Minnesota.
Notary Public
Commission Expiration:
(SEAL)
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
S-1
Draft(8/31/16)
[COUNTERPART SIGNATURE PAGE TO LEASE-PURCHASE AGREEMENT DATED AS
OF OCTOBER 1, 2016]
CITY OF GOLDEN VALLEY,MINNESOTA,
as lessee
By
Mayor
Attest:
City Manager
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
This instrument was acknowledged before me on this day of October, 2016,by
Shep Harris and Tim Cruikshank, the Mayor and City Manager, respectively, of the City of
Golden Valley, Minnesota, a Minnesota political subdivision.
Notary Public
Commission Expiration:
(SEAL)
S-2
Draft(8/31/16)
EXHIBIT A
DESCRIPTION OF LAND AND IMPROVEMENTS
Description of Land
A portion of the property legally described in Exhibit A-1, as depicted in Exhibit A-2:
Exhibit A-1
Par 1: That part of the Northeast Quarter of Section 6, Township 117, Range 21, described as
beginning at the Northwest corner of said Northeast Quarter; thence East along the North line
thereof 1485 feet, more or less, to an intersection with the extention of the West line of"Jessen's
Addition", which West line is marked by Judicial Landmark set pursuant to Torrens Case No.
5458 at the Northwest and Southwest corners of "Jessen's Addition"; thence South along the
extension of the West line of"Jessen's Additions", and South along the West line of"Jessen's
Additions" a distance of 1053.05 feet to the Southwest corner of"Jessen's Additions"; thence
South along the West line of Hope Chest Addition and its extension a distance of 844.35 feet;
thence Northwesterly deflecting to the righ 121 degrees, 18 minutes, a distance of 403.3 feet;
thence Westerly along a tangential curveto the left, having a delta angle of 37 degrees 56 mintues
and a tangent of 302 .. 1 feet, a distance of 580.6 feet; thence Westerly, tangent to said last
described curve, a distance of 582.35 feet to a point on the West line of said Northeast Quarter
distant 1566.65 feet South along said West line from the point of beginning; thence North along
the West line of said Northeast Quarter to the point of beginning.
A-1
Draft (8/31/16)
Exhibit A-2
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A-2
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A-4
Draft(8/31/16)
EXHIBIT B
COMPLETION CERTIFICATE
The undersigned, being a duly appointed City Representative under the Lease-Purchase
Agreement, dated as of October 1, 2016 (the "Lease"), between the Housing and Redevelopment
Authority of the City of Golden Valley, Minnesota (the "Authority"), and the City of Golden
Valley, Minnesota (the "City"), hereby certifies on behalf of the City with respect to the project
to be acquired and constructed under said Lease (the "Project"), that the Project has been
acquired and constructed pursuant to and in accordance with said Lease, and is now available for
use by the City.
Dated , 20
THE CITY OF GOLDEN VALLEY,
MINNESOTA
By
City Representative
B-1
Draft (8/31/16)
GROUND LEASE
by and between
CITY OF GOLDEN VALLEY,MINNESOTA
as Lessor
and the
HOUSING AND REDEVELOPMENT AUTHORITY OF THE CITY OF GOLDEN
VALLEY,MINNESOTA
as Lessee
Dated as of October l, 2016
Relating to:
LEASE REVENUE BONDS (COMMUNITY CENTER PROJECT), SERIES 2016
This instrument drafted by:
Dorsey&Whitney LLP
Suite 1500
50 South Sixth Street
Minneapolis, Minnesota 55402
(612) 340-2600
GROUND LEASE
This GROUND LEASE dated as of October 1, 2016 (the "Ground Lease") is executed
by and between the CITY OF GOLDEN VALLEY, MINNESOTA, a political subdivision of
the State of Minnesota, as lessor (the "City"), and the HOUSING AND REDEVELOPMENT
AUTHORITY OF THE CITY OF GOLDEN VALLEY, MINNESOTA, a body corporate
and politic of the State of Minnesota, as lessee (the "Authority").
RECITALS
WHEREAS, the City is the owner of the land described in Exhibit A, located in
Hennepin County, Minnesota(the "Land"); and
WHEREAS, the City proposes to lease the Land to the Authority and sublease the Land
and lease certain improvements constructed thereon consisting of a new community center (the
"Improvements," and together with the Land, the "Project") from Authority pursuant to a Lease-
Purchase Agreement dated as of the date hereof, by and between Authority and the City (the
"Lease").
NOW, THEREFORE, for and in consideration of the Project and the mutual covenants
hereinafter contained, the parties hereto hereby formally covenant, agree and bind themselves as
follows:
2
ARTICLE I
DEMISE OF LAND; WARRANTIES
Section 1.1. Demise. Subject to and upon the terms, conditions, covenants and
undertaking hereinafter set forth, the City hereby demises and leases to Authority, and Authority
hereby leases from the City FOR THE SUM OF ONE DOLLAR ($1.00) and other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the real
property legally described in Exhibit A, located in Hennepin County, Minnesota, for a term
commencing on the date on which this Ground Lease is executed, and ending on
[ , 20_],unless the term of this Ground Lease is terminated earlier in accordance
with the provisions of Section 3.1.
Section 1.2. City Warranties. The City covenants and warrants to Authority that
(a) the City has good and merchantable title to the Land;
(b) the City has authority to enter into, execute and deliver this Ground Lease, and
that the City has duly authorized the execution and delivery of this Ground Lease;
(c) the Land is not subject to any dedication, easement, right of way, reservation in
patent, covenant, condition, restriction, lien or encumbrance which would prohibit
or materially interfere with the construction and use of the Improvements on the
Land, as contemplated by the Lease;
(d) all taxes, assessments or impositions of any kind with respect to the Land, except
current taxes, have been paid in full.
(e) the Land is properly zoned for the purpose of the Improvements; and
(fl the City has authority to enter into, execute and deliver the Lease, and that the
City has duly authorized the execution and delivery of the Lease.
Section 1.3. Authority Warranties. The Authority covenants and warrants to the City
that the Authority has authority to enter into, execute and deliver this Ground Lease and the
Lease, and that the Authority has duly authorized the execution and delivery of this Ground
Lease and the Lease.
3
ARTICLE II
RESERVED
4
ARTICLE III
TERMINATION
Section 3.1. Termination. Subject to the other provisions of this Ground Lease, this
Ground Lease shall terminate prior to [ , 20_] upon the occurrence of any one of the
following events:
(a) payrnent by the City of all Rental Payments (as such term is defined in the Lease)
and other amounts owing to Authority under the Lease;
(b) termination of the Lease by the City for nonappropriation of funds necessary to
pay Rental Payrnents in any fiscal year pursuant to the Lease and receipt by
Authority of amounts from the sublease and/or lease of Authority's leasehold
interest in the Land and interest in the Improvements sufficient to:
i. reimburse Authority for all administrative costs and all other liability or
expenses, including reasonable attorneys' and accountants' fees, incurred
by Authority as a result of the termination of the Lease and the exercise
of Authority's remedies thereunder;
ii. reimburse Authority for all capital costs and expenses in any manner
incurred by Authority with respect to the Improvements and the Land
reasonably necessary in order to render the Improvements and the Land
suitable for sublease and/or lease for commercial or other lawful purpose;
and
iii. pay to Authority an amount which will equal the outstanding principal
amount under the Lease applicable on the last day of the fiscal year of the
City for which the Lease last remains in effect;
(c) termination of the Lease by Authority upon the occurrence of an event of default
by the City thereunder and receipt by Authority of amounts from the sublease
and/or lease of Authority's leasehold interest in the Land and interest in the
Improvements sufficient to:
i. reimburse Authority for all administrative costs and all other liability or
expenses, including reasonable attorneys' and accountants' fees, incurred
by Authority as a result of the event of default and termination of the
Lease and the exercise of Authority's remedies thereunder;
ii. reimburse Authority for all capital costs and expenses in any manner
incurred by Authority with respect to the Improvements and the Land
reasonably necessary in order to render the Improvements and the Land
suitable for sublease and/or lease for commercial or other lawful
purposes;
5
iii. pay to Authority an amount which will equal the outstanding principal
amount under the Lease applicable on the last day of the fiscal year of the
City in effect when the event of default occurs; and
iv. pay to Authority an amount which will equal all Rental Payments due
under the Lease through the end of the fiscal year of the City in effect
when the event of default occurred and which remain unpaid by the City
as well as any other amounts owing under the Lease and unpaid by the
City as of the end of such fiscal year.
Section 3.2. Use of Sublease and/or Lease Rentals. The amounts referred to in
Section 3.1, paragraphs (b) and (c), respectively, shall be known as the "Reimbursement
Amount." The Reimbursement Amount shall be recovered by allowing the Authority first to
retain from any sublease rentals an amount equal to five percent (5%) thereof, to allow for
ongoing administrative costs. Thereafter, Authority shall be entitled to interest on the
outstanding Reimbursement Amount at the rates per annum then applicable to the Lease, or, in
the event that the Authority shall receive an opinion of an attorney or firm of attorneys nationally
recognized as bond counsel to the effect that such interest is includable in gross income of the
recipient thereof for federal income tax purposes as a result of the default or nonappropriation
and the sublease of the Project, a rate per annum three percent (3%) greater than that applicable
to the Lease, during the period of time from the last Rental Payment Date in the fiscal year of the
City for which the Lease was in effect until the time when the full Reimbursement Amount is
received from sublease rentals. Any amounts of sublease rentals distributed to the Authority
after payment of administrative costs and interest shall be credited to the payment of the
Reimbursement Amount.
Use of the Improvements by the Authority or any subsidiary or affiliate of the Authority,
other than for the purpose of assuming control, making necessary changes in the Improvements
and the Land, and the initial subleasing and/or leasing thereof, shall be treated as the sublease
and/or lease thereof on a monthly basis at the then-prevailing fair market value.
In the event the Lease is terminated by the City for nonappropriation of funds necessary
to pay Rental Payments in any fiscal year, or terminated by the Authority as a result of the
occurrence of an event of default by the City thereunder, the City may subsequently pay the
Reimbursement Amount.
Section 3.3. Return of Project Subject to Sublease or Lease. In the event the
Reimbursement Amount is received by the Authority in full, and the Authority's interest in the
Project has been subleased and/or leased to any sublessee or lessee, as the case may be, pursuant
to any subleases or leases that are still in effect, this Ground Lease shall not terminate but the
Authority shall assign and set over to the City all of the Authority's interest in the Project
granted under the Ground Lease, subject to all existing rights created in such sublessees or
lessees of the Project by any such subleases or leases.
Section 3.4. R�s. In the event the Lease is terminated by the City for
nonappropriation of funds necessary to pay Rental Payments in any fiscal year or terminated as a
result of the occurrence of an event of default by the City thereunder, the Authority shall keep
6
complete and accurate records regarding any sublease or lease of the Project and shall, within
sixty (60) days of the end of the fiscal year of the City (currently June 30), deliver a written
report to the City showing
(a) all amounts received by the Authority from any sublease or lease of
Improvements and the Land;
(b) an analysis as to whether the Authority has received the Reimbursement Amount,
with all supporting calculations; and
(c) the date, if any, in the next fiscal year of the City on which the Authority expects
to receive the Reimbursement Amount.
Such written report shall be verified at the expense of the City by a certified public accountant or
firm of certified public accountants not within the regular employ of the Authority. In the event
that on the last day of any fiscal year of the City the Authority has received the Reimbursement
Amount, then all rentals with respect to any sublease or lease of the Project payable after the
close of such fiscal year, as well as any rentals payable during such fiscal year in excess of the
amounts the Authority is entitled to receive pursuant to Section 3.2, shall be the property of the
City.
The City may, at its own expense, upon reasonable notice and at the Authority's offices during
normal business hours, examine the Authority's records in so far as they relate to the Project.
7
ARTICLE IV
USE OF PROJECT; ADDITIONAL COVENANTS
Section 4.1. Use. The Authority shall use the Land solely for the purpose of subleasing
the Land to the City pursuant to the Lease.
Section 4.2. Quiet Enjo 11ent. Subject to the terms of the Lease, the City shall provide
the Authority with the quiet use and enjoyment of the Land for the term of this Ground Lease;
and the Authority shall, during such term, peaceably and quietly have and hold and enjoy the
Land, without suit, trouble or hindrance from the City.
Section 4.3. Surrender of Project. The Authority agrees that upon the termination of
this Ground Lease it will surrender the Project to the City free and clear of all liens and
encumbrances created by or arising under Authority or any assignee of Authority, except
Permitted Encumbrances (as such term is defined in the Lease); provided that in the event that
the Project is subject to the rights of any sublessee or lessee of the Authority granted under any
sublease or lease entered into in accordance with the terms of this Ground Lease after the
termination of the Lease for nonappropriation by the City or as a result of an event of default by
the City, the Authority agrees to assign and set over to the City the Authority's entire interest in
the Project granted under this Ground Lease subject only to Permitted Encumbrances and the
rights of such sublessees or lessees under any such subleases or leases. The Authority's costs of
such assigning and setting over shall be included in the Reimbursement Amount.
Section 4.4. Assi ent. So long as the City is not in default under the Lease or has
not terminated the Lease pursuant to Section 5.4 thereof, the Authority will not assign or
otherwise dispose of or encumber this Ground Lease without the written consent of the City,
which consent shall not be unreasonably withheld. If the Lease is terminated by the City for
nonappropriation or terminated by Authority as a result of an event of default by the City, the
Authority may assign its interest hereunder and may use, sublease and/or lease the Project
without the consent of the City.
Section 4.5. Additional Covenants. In the event that any person or entity, however
organized(other than the Authority or any assignee of the Authority), shall be determined to hold
any interest that in any manner affects the City's good and merchantable title to the Land, the
City shall use its best efforts to acquire the interest in the Land so held, such acquisition to be
made at the City's sole cost and expense. The City hereby agrees to save and keep harmless the
Authority, or any assignee of the Authority, from and against any and all liabilities, obligations,
losses, damages, penalties, claims, actions, costs and expense (including reasonable attorney's
fees) of whatever kind and nature, imposed on, incurred by or asserted against the Authority, or
any assignee of the Authority, that in any way relate to or arise out of the assertion of any interest
affecting the City's good and merchantable title to the Land by any person or entity, however
organized (other than the Authority or any assignee of the Authority).
8
ARTICLE V
AUTHORITY'S DEFAULT; REMEDIES
Section 5.1. Default by Authority. The following shall be an "event of default" or a
"default" hereunder: if the Authority shall fail to (a)pay the consideration provided herein;
(b) observe or perform any of the obligations of the Authority otherwise provided herein; or
(c) observe or perform any of its obligations under the Lease in accordance with the terms
thereof.
Section 5.2. City Remedies. The City may, upon the occurrence of an event of default
by Authority which remains uncured for thirty(30) days after receipt by the Authority of written
notice from the City describing such event of default or at any time subsequently during the
existence of such breach or default, subject to its obligation to continue Rental Payrnents
pursuant to the Lease and the rights of existing sublessees, (a) enter into and upon the Land and
repossess the same, expelling and removing therefrom all persons and property, and
(b)terminate this Ground Lease, holding Lessee liable for damage for its breach.
9
ARTICLE VI
HAZARDOUS MATERIALS
Section 6.1. Covenants Regarding Hazardous Materials. The City shall comply with
all regulations concerning the environment, health and safety relating to the generation, use,
handling, production, disposal, discharge and storage of Hazardous Materials in, on, under or
about the Project. The City shall promptly take any and all necessary action in response to the
storage, use, disposal, transportation or discharge of any Hazardous Materials in, on, under or
about the Project by the City or persons acting on behalf of or at the direction of the City as all
applicable laws, rules, regulations or ordinances may require. The City agrees to promptly
(a) transmit to the Authority copies of any governmental citations, orders or notices
received with respect to Hazardous Materials which may result in a penalty,
liability or cost geater than $1,000;
(b) observe and comply with any and all laws, ordinances, rules, regulations,
licensing requirements or conditions relating to the use, maintenance or disposal
of Hazardous Materials and all orders or directives from any official, court or
governmental agency of competent jurisdiction relating to the use or maintenance
or requiring the removal, treatment, containment or other disposal of such
Hazardous Material;
(c) pay or otherwise dispose of any lien, charge or imposition relating thereto which,
if paid, would constitute a lien upon the Project; and
(d) hold harmless the Authority from any and all liabilities (including strict liability),
obligations, suits, actions, demands, penalties, losses, costs or expenses (including
without limitation, consultant's fees, investigation and laboratory fees, reasonable
attorneys' fees, expenses and remedial costs), costs of any settlement or judgment
and claims of any and every kind whatsoever, which may now or in the future be
paid, incurred or suffered by or asserted against the Authority relating to or
arising from the presence, at any time, of Hazardous Materials in, on, under or
about the Project, all to the maximum extent permitted by law; the Authority shall
not be liable for any payment whatsoever with regard to clauses (a) through (c) of
this Section.
For purposes of this Ground Lease, "Hazardous Materials" means (a) oil, flammable
substances, explosives, radioactive materials, hazardous wastes or substances, toxic wastes or
substances or any other substances, materials or pollutants which (i)pose a hazard to the Project,
adjacent premises or persons on or about the Project or adjacent premises, (ii) cause the Project
to be in violation of any local, state or federal law, rule, regulation or ordinance, or (iii) are
defined as or included in the definition of "hazardous substances," "hazardous wastes,"
"hazardous materials," or "toxic substances" or words of similar import under any applicable
local, state or federal law or under the regulations, policy guidelines or other publications
10
adopted or promulgated pursuant thereto, including, but not limited to (1) the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C.
§ 9601, et seq., (2)the Hazardous Materials Transportation Act, as amended, 49 U.S.C. § 1601,
et seq., (3)the Resource Conservation and Recovery Act, as amended, 42 U.S.C. § 6901, et seq.,
(4)the Clean Air Act, 42 U.S.C. § 7412, (5)the Toxic Substance Control Act, 15 U.S.C. § 2601
et seq., (6)The Clean Water Act, 33 U.S.C. § 1317 and 1321(b)(2)A and (7)rules, regulations,
ordinances and other publications adopted or promulgated pursuant to the aforesaid laws;
(b) asbestos in any form which is or could become friable, urea formaldehyde foam insulation;
and (c) any other chemical, material or substance, exposure to which is prohibited, limited or
regulated by any governmental authority or may or could pose a hazard to the health and safety
or property interests of the City or its employees, users and occupants of the Project or the
owners and/or occupants of property adjacent to or surrounding the Project.
Should any governmental authority or any third party demand or initiate legal action to
compel the preparation of a corrective action plan or the undertaking of corrective action because
of any deposit, spill, discharge, or other release of Hazardous Material that occurs during the
term of this Ground Lease, at or from or to the Project, then the City shall, at its own expense,
prepare and submit the required corrective action plans and all related bonds and other financial
assurances; and the Authority shall carry out all such corrective action.
The City's obligations and liabilities under this Article shall survive the termination of
this Ground Lease.
Section 6.2. Covenants and Warranties Re a� rding Historical Use. The City covenants
and warrants to the Authority that, on the date of execution of this Ground Lease, no Hazardous
Materials have been generated, treated, stored, transferred from, released or disposed of, or
otherwise placed, deposited in or located on the Land. The Land is not now, and to the best
knowledge of the City, never has been used to a landfill, dump or other disposal, storage, transfer
or handling area for Hazardous Materials or for industrial,military or manufacturing purposes, or
as a gasoline service station or a facility for selling, dispensing, storing, transferring or handling
petroleum and/or petroleum products. No above ground or underground tanks have been located
under, in or about the Land and have subsequently been removed or filled. To the extent storage
tanks exist on, under or adjacent to the Land, such storage tanks have been duly registered with
all appropriate regulatory and governmental bodies and otherwise are in compliance with
applicable federal, state and local statutes, regulations, ordinances, and other regulatory
requirements.
11
ARTICLE VII
MISCELLANEOUS
Section 7.1. Severabilitv. If any term or provision of this Ground Lease, or the
application thereof to any person or circumstance, shall to any extent be invalid or
unenforceable, the remainder of this Ground Lease or the application of such term or provision to
persons or circumstance other than those as to which it is invalid or unenforceable, shall not be
affected thereby, and each term and provision of this Ground Lease shall be valid and
enforceable to the fullest extent permitted by law.
Section 7.2. Bindin Eg ffect. This Ground Lease shall be binding upon, and inure to the
benefit of, the parties hereto, and their successors and assigns.
Section 7.3. Counterparts. This Ground Lease may be executed in counterparts, each
of which shall constitute one and the same instrument.
Section 7.4. A�plicable Law. This Ground Lease shall be interpreted and enforced in
accordance with the laws of the State of Minnesota.
Section 7.5. No Merger of Title. There shall be no merger of this Ground Lease or the
leasehold created by this Ground Lease with any other estate in the Land or any part thereof by
reason of the fact that the same entity may acquire or own or hold, directly or indirectly, (a) the
Land or any part thereof or any interest therein or (b) the Improvements or any part thereof or
any interest therein, and no such merger shall occur unless and until all persons having any
interest in the Improvements or any part thereof, shall join in a written instrument effecting such
merger and shall duly record the same.
Section 7.6. Notices. All notices, certificates or other communications hereunder shall
be sufficiently given and shall be deemed given on the earlier of(i) delivery or (ii) three days
following deposit in the United States mail in first-class form with postage fully prepaid. Any
notice provided hereunder by the City or the Authority shall also be sent to Trustee at the address
given in Section 13.08 of the Trust Indenture.
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
12
IN WITNESS WHEREOF, the City has caused this Ground Lease to be executed in its
corporate name by its duly authorized officers and the Authority has caused this Ground Lease to
be executed in its name by its duly authorized officers as of the date first above written.
CITY OF GOLDEN VALLEY, MINNESOTA,
as lessor
By
Mayor
Attest:
City Manager
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
This instrument was acknowledged before me on this day of October, 2016,by
Shep Harris and Tim Cruikshank, the Mayor and City Manager, respectively, of the City of
Golden Valley, Minnesota, a Minnesota political subdivision.
Notary Public
Commission Expiration:
(SEAL)
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
S-1
[COUNTERPART SIGNATURE PAGE TO GROUND LEASE
DATED AS OF OCTOBER 1, 2016]
HOUSING AND REDEVELOPMENT
AUTHORITY OF THE CITY OF GOLDEN
VALLEY, MINNESOTA, as lessee
By
Chair
Attest:
Authority Director
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
This instrument was acknowledged before me on this day of October, 2016,by
Steve Schmidgall and Tim Cruikshank, the Chair and Authority Director, respectively, of
Housing and Redevelopment Authority of the City of Golden Valley, Minnesota, a Minnesota a
body corporate and politic of the State of Minnesota.
Notary Public
Commission Expiration:
(SEAL)
S-2
EXHIBIT A
LEGAL DESCRIPTION OF THE LAND
A portion of the property legally described in Exhibit A-1, as depicted in Exhibit A-2:
Exhibit A-1
Par 1: That part of the Northeast Quarter of Section 6, Township 117, Range 21, described as
beginning at the Northwest corner of said Northeast Quarter; thence East along the North line
thereof 1485 feet, more or less, to an intersection with the extention of the West line of"Jessen's
Addition", which West line is marked by Judicial Landmark set pursuant to Torrens Case No.
5458 at the Northwest and Southwest corners of "Jessen's Addition"; thence South along the
extension of the West line of"Jessen's Additions", and South along the West line of"Jessen's
Additions" a distance of 1053.05 feet to the Southwest corner of"Jessen's Additions"; thence
South along the West line of Hope Chest Addition and its extension a distance of 844.35 feet;
thence Northwesterly deflecting to the righ 121 degrees, 18 minutes, a distance of 403.3 feet;
thence Westerly along a tangential curveto the left, having a delta angle of 37 degrees 56 mintues
and a tangent of 302 .. 1 feet, a distance of 580.6 feet; thence Westerly, tangent to said last
described curve, a distance of 582.35 feet to a point on the West line of said Northeast Quarter
distant 1566.65 feet South along said West line from the point of beginning; thence North along
the West line of said Northeast Quarter to the point of beginning.
Exhibit A-2
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Draft (8/31/16)
TRUST INDENTURE
by and between
HOUSING AND REDEVELOPMENT AUTHORITY OF THE CITY OF GOLDEN
VALLEY,MINNESOTA
and
U.S. BANK NATIONAL ASSOCIATION
as Trustee
Dated as of October 1, 2016
Relating to:
LEASE REVENUE BONDS (COMMUNITY CENTER PROJECT), SERIES 2016
Draft(8/31/16)
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND INTERPRETATION..........................................................4
Section1.01 Definitions........................:............................................................................4
Section 1.02 Additional Provisions as to Interpretation....................................................7
ARTICLE II FORM, EXECUTION AND REGISTRATION OF BONDS.............................7
Section2.01 Form of Bonds..............................................................................................7
Section 2.02 Maturities,Numeration and Interest Payment Dates....................................7
Section 2.03 Execution of Bonds.......................................................................................8
Section 2.04 Authentication of Bonds...............................................................................8
Section 2.05 Registration, Transfer and Exchange............................................................8
Section 2.06 Payment of Interest on Bonds; Interest Rights Preserved.............................9
Section 2.07 Ownership of Bonds ...................................................................................10
Section 2.08 Reissuance of Mutilated, Destroyed, Stolen or Lost Bonds .......................11
Section 2.09 Conditions for Authentication of the Series 2016 Bonds...........................11
Section 2.10 Authorization of Additional Bonds.............................................................l 1
Section 2.11 Book-Entry Only System............................................................................12
Section 2.12 Substitute Securities Depository; Termination of Book-Entry Only
System........................................................................................................13
ARTICLE III REDEMPTION OF BONDS..............................................................................14
Section 3.01 Redemption of Bonds .................................................................................14
Section 3.02 Notice of Redemption.................................................................................15
Section 3.03 Deposit for Redemption..............................................................................15
Section 3.04 Payment of Redeemed Bonds.....................................................................15
Section 3.05 Cancellation of Redeemed Bonds...............................................................15
Section 3.06 Partial Redemption of Bonds......................................................................15
ARTICLE IV BOND PROCEEDS; PROJECT FUND ...........................................................16
Section 4.01 Deposit of Bond Proceeds...........................................................................16
Section 4.02 Establishment of Project Fund....................................................................16
Section 4.03 Project Costs Defined .................................................................................17
Section 4.04 Payments from Project Fund.......................................................................17
Section 4.05 Deposit and Investment of Money in Project Fund....................................18
Section 4.06 Application of Balance in Project Fund......................................................18
ARTICLE V DISPOSITION OF PLEDGED REVENUES ....................................................18
Section5.01 Bond Fund...................................................................................................18
Section5.02 Reserved......................................................................................................19
Section 5.03 Investment of Funds in Bond Fund.............................................................19
ARTICLE VI PARTICULAR COVENANTS OF THE AUTHORITY ................................20
Section 6.01 Payment of Bonds.......................................................................................20
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Section 6.02 Extensions of Payrnents of Bonds...............................................................20
Section6.03 Authorization..............................................................................................20
Section 6.04 Concerning the Lease..................................................................................21
Section 6.05 To Observe All Covenants and Terms -- Limitations on Authority's
Obligations.................................................................................................21
Section6.06 Liens............................................................................................................21
Section 6.07 Rental Payments..........................................................................................21
ARTICLE VII EVENTS OF DEFAULT; REMEDIES...........................................................21
Section 7.01 Events of Default........................................................................................21
Section 7.02 Enforcement of Covenants and Conditions................................................22
Section 7.03 Application of Money.................................................................................22
Section 7.04 Right of Trustee to Act Without Possession of Bonds ...............................23
Section 7.05 Power of Majority of Bondholders.............................................................24
Section 7.06 Limitation on Suits by Bondholders...........................................................24
Section 7.07 Waiver by Bondholders..............................................................................25
Section 7.08 Remedies Cumulative, Delay Not To Constitute Waiver...........................25
Section 7.09 Restoration of Rights Upon Discontinuance of Proceedings......................25
ARTICLE VIII CONCERNING THE TRUSTEE...................................................................25
Section 8.01 Acceptance of Trust and Prudent Performance Thereof.............................25
Section 8.02 Trustee May Rely Upon Certain Documents and Opinions .......................27
Section 8.03 Trustee Not Responsible for Indenture Statements, Validity.....................27
Section 8.04 Limits on Duties and Liabilities of Trustee................................................28
Section 8.05 Money Held in Trust...................................................................................28
Section 8.06 Obligation of Trustee..................................................................................28
Section 8.07 Notice to Bondholders................................................................................28
Section 8.08 Intervention in Judicial Proceedings...........................................................28
Section 8.09 Further Investigation by Trustee.................................................................29
Section 8.10 Trustee to Retain Records...........................................................................29
Section 8.11 Compensation of Trustee............................................................................29
Section 8.12 Trustee May Hold Bonds............................................................................29
Section 8.13 Appointment of Trustee..............................................................................29
Section 8.14 Merger of Trustee.......................................................................................30
Section 8.15 Resignation or Removal of Trustee............................................................30
Section 8.16 Appointment of Successor Trustee.............................................................30
Section 8.17 Transfer of Rights and Property to Successor Trustee................................31
Section 8.18 Appointment of Successor or Alternate Paying Agents .............................31
Section 8.19 Indemnification...........................................................................................31
Section8.20 Agents.........................................................................................................31
Section 8.21 Conflicting Directions.................................................................................32
ARTICLE IX CONCERNING THE BONDHOLDERS..........................................................32
Section 9.01 Execution of Instruments by Bondholders..................................................32
Section9.02 Waiver of Notice.........................................................................................32
Section 9.03 Determination of Bondholder Concurrence................................................32
Section 9.04 Bondholders' Meeting ................................................................................33
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Section 9.05 Revocation by Bondholders........................................................................35
ARTICLE X PAYMENT, DEFEASANCE AND RELEASE..................................................35
Section 10.01 Payment and Discharge of Indenture....................:...................................35
Section 10.02 Bonds Deemed Not Outstanding After Deposits......................................36
Section 10.03 Unclaimed Money to be Returned............................................................37
ARTICLE XI SUPPLEMENTAL INDENTURES...................................................................37
� Section 11.01 Purposes for Which Supplemental Indentures May be Executed.............37
Section 11.02 Execution of Supplemental Indenture.......................................................38
Section 11.03 Discretion of Trustee.................................................................................38
Section 11.04 Modification of Indenture with Consent of Bondholders.........................38
Section 11.05 Supplemental Indentures to be Part of Indenture......................................39
Section 11.06 Rights of City Unaffected.........................................................................39
Section 11.07 RightsofAuthority...................................................................................39
Section 11.08 Opinion of Counsel...................................................................................40
Section 11.09 Notice to Rating Agencies........................................................................40
ARTICLE XII AMENDMENTS TO THE LEASE..................................................................40
Section 12.01 Amendments to the Lease Not Requiring Consent of Bondholders.........40
Section 12.02 Amendments to the Lease Requiring Consent of Bondholders................40
Section 12.03 Rights of Authority...................................................................................40
Section 12.04 Notice to Rating Agencies........................................................................41
ARTICLE XIII MISCELLANEOUS.........................................................................................41
Section 13.01 Rights in Authority are Held Solely for Benefit of Bondholders.............41
Section 13.02 Covenants of Authority Bind Successors and Assigns.............................41
Section 13.03 Immunity of Officers................................................................................41
Section 13.04 No Benefits to Outside Parties..................................................................41
Section 13.05 Separability of Indenture Provisions.........................................................41
Section 13.06 Execution of Indenture in Counterparts....................................................42
Section 13.07 Headings Not Controlling.........................................................................42
Section 13.08 Notices etc., to Trustee, Authority and City.............................................42
EXHIBIT A—Form of Series 2016 Bond..................................................................................A-1
EXHIBITB—Draw Request.......................................................................................................B-1
EXHIBIT C—Costs of Issuance .................................................................................................C-1
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TRUST INDENTURE
This TRUST INDENTURE dated as of October 1, 2016 (the "Indenture") is executed by
and between the HOUSING AND REDEVELOPMENT AUTHORITY OF THE CITY OF
GOLDEN VALLEY, MINNESOTA, a public body corporate and politic of the State of
Minnesota, having its principal office and address at 7800 Golden Valley Road, Golden Valley,
Minnesota (the "Authority"), and U.S. BANK NATIONAL ASSOCIATION, a national
banking association, having an office in the City of St. Paul, Minnesota(the "Trustee").
RECITALS
WHEREAS, as authorized by Section 469.033, the Authority has agreed to issue its
revenue bonds to finance the acquisition, construction and equipping of certain improvements to
real property within the City of Golden Valley, Minnesota (the "City"), which real property the
Authority has leased pursuant to a Ground Lease(as hereinafter defined); and
WHEREAS, the Authority has agreed to sublease such real property and lease the
financed improvements thereto and thereon to City the pursuant to and in accordance with the
Lease(as hereinafter defined); and
WHEREAS, the Authority has authorized and deemed it advisable to enter into this
Indenture to issue its Lease Revenue Bonds (Community Center Project), Series 2016, in the
aggregate principal amount of $[ � (the "Series 2016 Bonds"), which Series 2016
Bonds shall be fully registered bonds as hereinafter provided; and
WHEREAS, the proceeds of the Series 2016 Bonds, together with any other required
funds, will be used for the specific authorized purpose of providing funds to pay Project Costs
(as hereinafter defined); and
WHEREAS, the Lease requires the City to make rental payrnents thereunder in amounts
and at times sufficient to pay, when due, the principal of, premium, if any, and interest on the
Series 2016 Bonds, subject to annual appropriation as further set forth therein; and
WHEREAS, the execution and delivery of this Indenture, the Ground Lease and the
Lease and the issuance of the Series 2016 Bonds have been in all respects duly and validly
authorized by the Board of Commissioners of the Authority pursuant to a resolution adopted by
the Board of Commissioners of the Authority on September 6, 2016 (the `Bond Resolution");
WHEREAS, all conditions, acts and things necessary and required by the Constitution
and Laws of the State of Minnesota, or otherwise, to exist, to have happened or to have been
performed precedent to and in the execution and delivery of this Indenture, and in the issuance of
the Series 2016 Bonds, do exist, have happened or have been performed in regular form, time
and manner, and the execution and delivery of this Indenture have been in all respects duly
authorized; and
WHEREAS, the Trustee has accepted the trusts created by this Indenture and in evidence
thereof has joined in the execution hereof.
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NOW, THEREFORE, THIS INDENTURE WITNESSETH as follows:
GRANTING CLAUSES
That the Authority, in order to secure the payment of the principal of, premium (if any)
and interest on the Bonds (as hereinafter defined) issued under this Indenture according to their
tenor and effect and the performance and observance of each and all of the covenants and
conditions herein and therein contained, and for and in consideration of the premises and of the
purchase and acceptance of the Bonds by the respective purchaser or purchasers and Owners or
Holders thereof, and for other good and valuable considerations, the receipt whereof is hereby
acknowledged, has executed and delivered this Indenture and has granted, bargained, sold,
assigned, transferred, conveyed, warranted, pledged and set over, and by these presents does
hereby grant, bargain, sell, assign, transfer, convey, warrant, pledge and set over, absolutely unto
the Trustee, and to its successor or successors in the trust hereby created and to its or their
assigns forever:
I.
All of the right, title and interest of the Authority in the Ground Lease and the Lease
(except for the Authority's rights to indemnification and reimbursement of expenses), including,
without limitation, the Project subject thereto, the Rental Payments and other amounts due
thereunder, and the right to exercise all rights of the Authority pursuant thereto.
II.
A first lien on and pledge of (i)the money and investments in the Bond Fund (as
hereinafter defined) covenanted to be created and maintained under this Indenture, and (ii)the
money and investments in the Project Fund (as hereinafter defined) established under this
Indenture not paid out to meet Project Costs.
III.
Any and all other property of every name and nature from time to time hereafter by
delivery or by writing of any kind conveyed, mortgaged, assigned or transferred, or in which a
security interest is granted, by the Authority or the City or by anyone on behalf of them or with
their written consent, to the Trustee, which is hereby authorized to receive any and all such
property at any and all times and to hold and apply the same to the terms hereof.
TO HAVE AND TO HOLD, all and singular, the said property hereby conveyed and
assigned, or agreed or intended so to be, to the Trustee, its successor or successors in trust and its
and their assigns, FOREVER.
IN TRUST NEVERTHELESS, upon the terms and trust herein set forth, for the equal
and proportionate benefit, security and protection of all Holders of the Bonds issued or to be
issued under and secured by this Indenture, without preference, priority or distinction as to lien
or otherwise of any of the Bonds over any of the others;
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PROVIDED, HOWEVER, that if the Authority, its successors or assigns, shall well and
truly pay or cause to be paid the principal of the Bonds and the premium (if any) and interest due
or to become due thereon, at the times and in the manner mentioned in the Bonds, according to
the true intent and meaning thereof, or shall provide, as permitted hereby, for the payment
thereof by depositing with the Trustee sums sufficient to pay the entire amount due or to become
due thereon, and shall well and truly keep, perform and observe all the covenants and conditions
pursuant to the terms of this Indenture to be kept, performed and observed by it and shall pay to
the Trustee all sums of money due or to become due to it in accordance with the terms and
provisions hereof; then upon such final payment this Indenture and the rights hereby granted
shall cease, determine and be void; otherwise, this Indenture to be and remain in full force and
effect.
THIS INDENTURE FURTHER WITNESSETH, and it is expressly declared that, all
Bonds issued and secured hereunder are to be issued, authenticated and delivered and all said
property hereby assigned or pledged is to be dealt with and disposed of under, upon and subject
to the terms, conditions, stipulations, covenants, agreements, trusts, uses and purposes as
hereinafter expressed, and the Authority has agreed and covenanted and does hereby agree and
covenant with the Trustee and with the respective Holders from time to time, of the said Bonds,
as follows:
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ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.01 Definitions. Unless the context otherwise requires, the terms defined in this
Article I and in the recitals shall, for all purposes of this Indenture and of any indenture
supplemental hereto, have the meanings herein specified, such definitions to be equally
applicable to both the singular and plural forms of any of the terms defined:
Additional Bonds means any additional Bonds issued pursuant to the terms and
conditions of Section 2.10 of this Indenture.
Authority Representative means the Chair or Authority Director of the Authority or any
other person authorized to act on behalf of the Authority under or with respect to this Indenture,
as evidenced by a certificate conferring such authority executed by the Chair or Authority
Director, given to the Trustee and the City.
Bond Fund means the fund so named and created under Section 5.01 of this Indenture.
Bond Resolution means the resolution of the Authority adopted by the Board of
Commissioners of the Authority on September 6, 2016, authorizing the issuance and sale of the
Series 2016 Bonds.
Bond Year means a calendar year.
Bond or Bonds means the Series 2016 Bonds and any Additional Bonds.
Business Day means any day other than a Saturday, Sunday, or other day on which
commercial banks in the city in which the principal corporate trust office of the Trustee is
located are not open for business.
Certificate means a certification in writing required or permitted by the provisions of the
Lease or this Indenture, signed and delivered to the Trustee or other proper person or persons.
City means the City of Golden Valley, Minnesota, and its permitted successors and
assigns under the Lease.
City Representative means the Mayor or City Manager, or any person authorized by law
to act on behalf of the City under or with respect to the Lease, as evidenced by a certificate
conferring such authority executed by the Mayor or City Manager and given to the Trustee and
the Authority.
Completion Certificate means an executed certificate in the form of Exhibit B to the
Lease.
Completion Date means the date upon which the Completion Certificate is issued by the
City and delivered to the Authority and the Trustee.
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Default means default by the Authority in the performance or observance of any of the
covenants, agreements or conditions on its part contained in this Indenture, exclusive of any
notice or period of grace required to constitute a default an "Event of Default" as described in
Section 7.01 hereof.
Event of Default means an Event of Default described in Section 7.01 hereof which has
not been cured.
Fiscal Year means the fiscal year of the Authority; initially, the 12-month period
commencing on January 1 in each year.
Ground Lease means the Ground Lease, dated as of October 1, 2016, between the City,
as lessor, and the Authority, as lessee, relating to the Series 2016 Bonds, as the same may be
amended pursuant thereto and hereto.
Holder, Bondholder or Owner means the person or persons in whose name any Bond is
registered in the registration books maintained by the Trustee on behalf of the Authority.
Improvements means the improvements to the Land and constructed thereon consisting of
a new community center as further described on Exhibit A to the Lease.
Indenture means this Trust Indenture under which the Bonds are authorized to be issued,
and any amendments or supplements hereto entered into in accordance with the provisions
hereof.
Independent Counsel means an attorney or firm of attorneys duly admitted to practice law
before the highest court of any state and not an officer or full-time employee of the Authority or
the City.
Interest Payment Date means the stated maturity of an installment of interest on any of
the Bonds.
Internal Revenue Code means the Internal Revenue Code of 1986, as amended from time
to time.
Land means the real property as described on Exhibit A to the Lease.
Lease means the Lease-Purchase Agreement, dated as of October 1, 2016, between the
Authority, as lessor, and the City, as lessee, relating to the Series 2016 Bonds, as the same may
be amended pursuant thereto and hereto.
Opinion of Counsel means a written opinion of counsel (who need not be Independent
Counsel unless so specified) appointed by the City or Authority and acceptable to the Trustee or
appointed by the Trustee.
Outstanding means, when used as of any particular time with reference to Bonds (subject
to the provisions of Section 9.03 of this Indenture pertaining to Bonds held by the Authority and
the City) all Bonds theretofore authenticated and delivered by the Trustee under this Indenture
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except: (i) Bonds theretofore canceled by the Trustee or surrendered to the Trustee for
cancellation; (ii) Bonds deemed not outstanding pursuant to the terms of Section 10.02 of this
Indenture; and (iii) Bonds in lieu of or in substitution for which other Bonds shall have been
authenticated and delivered by the Trustee pursuant to the terms of Section 2.08 hereof
pertaining to replacement of Bonds.
Payment Date means the fifth Business Day preceding each Interest Payment Date,
which is the date upon which any Rental Payment is due and payable as provided in Section 5.1
hereof.
Predecessor Bonds means every previous Bond evidencing all or a portion of the same
debt as that evidenced by a particular Bond, including Bonds exchanged pursuant to Section 2.05
hereof, and for purposes of this definition, any Bond authenticated and delivered under
Section 2.08 hereof in lieu of a lost, destroyed or stolen Bond shall be deemed to evidence the
same debt as the lost, destroyed or stolen Bond.
Principal Payment Date means the stated maturity of principal of any Bond, or the
mandatory sinking fund redemption date of any Bond.
Project means the Land together with the Improvements.
Project Costs means the costs defined in Section 4.03 of this Indenture.
Project Fund means the fund so named and created under Section 4.02 of this Indenture.
Purchase Price means the amount necessary to defease, to the earliest permissible
redemption date, the remaining Outstanding principal amount of Series 2016 Bonds, together
with an amount equal to the Authority's and Trustee's fees and expenses in connection with such
defeasance and redemption.
Qualified Investments means any investments permitted pursuant to Minnesota Statutes,
Sections 118A.04 and 118A.05, for the investment of public funds.
Redeem or Redemption includes and means "prepay" or "prepayment," as the case may
be.
Rental Payment means any payment due from the City to the Authority under the Lease.
Responsible Officer means as to any Trustee, the president, every vice president, every
assistant vice president, the cashier, every assistant cashier, every corporate trust officer, and
every officer and assistant officer of such Trustee, other than those specifically above mentioned,
to whom any corporate trust matter is referred because of such person's knowledge of, and
familiarity with, a particular subject and who shall have direct responsibility for the
administration of this Indenture.
Series 2016 Bonds means the $[_� Lease Revenue Bonds (Community Center
Project), Series 2016, authorized by this Indenture and the Bond Resolution and described in
Section 2.01 of this Indenture.
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State means the State of Minnesota.
Trust Estate means the interest of the Authority in the Ground Lease and the Lease
assigned under Granting Clause I of this Indenture; the revenues, money, investments, contract
rights, general intangibles and instruments and proceeds and products and accessions thereof as
set forth in Granting Clause II of this Indenture; and additional property held by the Trustee
pursuant to Granting Clause III of this Indenture.
Ti�ustee means the trustee at the time serving as such under this Indenture.
Section 1.02 Additional Provisions as to Interpretation. All references herein to
"Articles," "Sections" and other subdivisions are to the corresponding Articles, Sections or
subdivisions of this Indenture; and the words "herein", "hereof', "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular Article, Section or
subdivision hereof. Any terms defined in the Lease, but not defined herein, shall have the same
meaning herein unless the context hereof clearly requires otherwise. This Indenture is governed
by and shall be construed in accordance with the laws of the State.
ARTICLE II
FORM, EXECUTION AND REGISTRATION OF BONDS
Section 2.01 Form of Bonds. The Series 2016 Bonds to be issued and secured under this
Indenture shall be designated "Lease Revenue Bonds (Community Center Project), Series 2016."
The Series 2016 Bonds, forms of assignment and certificates of authentication shall all be
substantially in the form of Exhibit A hereto.
Section 2.02 Maturities. Numeration and Interest Payment Dates. The Bonds shall be in
the denomination of $5,000 or any integral multiple thereof, initially numbered within each
series, R-1 upwards, in order of issuance. The Series 2016 Bonds shall bear a date of original
issue as of [ �, 2016. No Bond shall represent principal payable or maturing in
different years. The Bonds shall bear interest payable semiannually on [_] 1 and
[ 1 1 (each an "Interest Payment Date") of each year, commencing [ � 1,
201[�, from their date of original issue or the most recent Interest Payrnent Date to which
interest has been paid or duly provided for. The principal and redemption price of the Bonds
shall be payable to the Owner upon presentation and surrender at the principal office of the
Trustee in such coin or currency of the United States of America as may be, on the respective
dates of payrnent thereof, legal tender for the payrnent of public and private debts, and interest on
the Bonds shall be paid by check or draft mailed to the Owner at the Owner's registered address;
provided that, so long as the Bonds are registered in the name of Cede & Co., as nominee of The
Depository Trust Company, or in the name of any other nominee of The Depository Trust
Company or other securities depository, the Trustee shall pay all principal of and interest on the
Bonds, and shall give all notices with respect to the Bonds, only to Cede & Co. or other nominee
in accordance with the operational arrangements of The Depository Trust Company or such other
securities depository.
The Regular Record Date referred to in Section 2.06 for the payment of interest on the
Bonds payable, and punctually paid or duly provided for, on any Interest Payment Date, shall be
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the 15th day (whether or not a Business Day) of the calendar month next preceding such Interest
Payment Date.
The Series 2016 Bonds shall be issued in the aggregate principal amount of
$[ �, and shall mature on [_] 1 in the years (each a "Principal Payment Date")
and amounts and shall bear interest at the rates per annum, according to years of maturity, as
follows:
Year Amount Rate Year Amount Rate
Section 2.03 Execution of Bonds. The Bonds shall be signed in the name of the
Authority by the manual or facsimile signatures of the Chair and Authority Director and said
signatures shall be authenticated by the Trustee, which is hereby designated as authenticating
agent. The seal of the Authority, if any, need not be affixed to or imprinted on the Bonds. In the
event that any of the officers who shall have signed any of the Bonds shall cease to be officers of
the Authority before the Bonds shall have been authenticated or delivered by the Trustee, or
issued by the Authority, such Bonds may, nevertheless, be authenticated, delivered, and issued,
and upon such authentication, delivery and issue, shall be binding upon the Authority as though
those officers who signed the same had continued to be such officers of the Authority; and, also,
any Bond may be signed on behalf of the Authority by such person who, at the actual date of
execution of such Bond, shall be the proper officer of the Authority, although at the date of such
Bond such person shall not have been such an officer of the Authority. Upon the execution and
delivery of this Indenture, the Authority shall execute and deliver the Bonds to the Trustee for
authentication.
Section 2.04 Authentication of Bonds. No Bond shall be valid or obligatory for any
purpose or shall be entitled to any right or benefit hereunder or under the Lease, unless an
authorized signatory of the Trustee shall manually endorse and execute on such Bond a
certificate of authentication substantially in the form set forth in Exhibit A hereto. Such
Trustee's certificate upon any Bond executed on behalf of the Authority shall be conclusive
evidence that the Bond so authenticated has been duly issued under this Indenture and that the
Holder thereof is entitled to the benefits of this Indenture and the Lease. No Bonds shall be
authenticated by the Trustee except in accordance with this Article. The Trustee shall not be
required to authenticate any Bond or Bonds unless provided with the documents referred to in
Sections 2.09 and 2.10 hereof, as applicable.
Section 2.05 Registration, Transfer and Exchan�. As long as any Bonds issued
hereunder shall remain outstanding, the Authority shall maintain and keep at the office of the
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Trustee, as paying agent, the records for the payment of the principal of and interest on such
Bonds, as in this Indenture provided, and for the registration and transfer of such Bonds, and
shall also keep at said office of the Trustee books for such registration and transfer. The
Authority does hereby appoint the Trustee, and its successors in the trust from time to time, as its
agent to maintain said office and agency at the office of the Trustee.
Upon surrender for transfer of any fully registered Bond at the office of the Trustee with
a written instrument of transfer satisfactory to the Trustee, duly executed by the Owner or the
Owner's duly authorized attorney, and upon payment of any tax, fee or other governmental
charge required to be paid with respect to such transfer, the Authority shall execute and the
Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one
or more fully registered Bonds of the same series, of any authorized denominations and of a like
aggregate principal amount, interest rate and maturity.
Except as the right of exchange may be limited as to Bonds of any series, fully registered
Bonds, upon surrender thereof at the office of the Trustee, may, at the option of the Owner
thereof, be exchanged for an equal aggregate principal amount of fully registered Bonds of the
same series,maturity and interest rate of any authorized denominations.
In all cases in which the privilege of exchanging Bonds or transferring fully registered
Bonds is exercised, the Authority shall execute and the Trustee shall deliver Bonds in accordance
with the provisions of this Indenture. For every such exchange or transfer of Bonds, whether
temporary or definitive, the Authority or the Trustee may make a charge sufficient to reimburse
it for any tax, fee or other governmental charge required to be paid with respect to such exchange
or transfer, which sum or sums shall be paid by the person requesting such exchange or transfer
as a condition precedent to the exercise of the privilege of making such exchange or transfer.
Notwithstanding any other provision of this Indenture, the cost of preparing each new Bond upon
each exchange or transfer, and any other expenses of the Authority or the Trustee incurred in
connection therewith (except any applicable tax, fee or other governmental charge) shall be paid
by the City pursuant to the Lease. The Authority and the Trustee shall not be obligated to make
any such exchange or transfer of Bonds during the 15 days next preceding the date of the first
publication or the mailing (if there is no publication) of notice of redemption in the case of a
proposed redemption of Bonds. The Authority and Trustee shall not be required to make any
transfer or exchange of any Bonds called for redemption.
Neither the Trustee nor any agent shall have any responsibility or liability for any actions
taken or not taken by DTC. Transfers are subject to DTC requirements while the Bonds are held
in book-entry form.
Section 2.06 Payment of Interest on Bonds; Interest Rights Preserved. Interest on any
Bond which is payable, and is punctually paid or duly provided for on any Interest Payrnent Date
shall be paid to the person in whose name that Bond (or one or more Predecessor Bonds) is
registered at the close of business on the Regular Record Date for such interest specified in the
provisions of this Indenture creating such series.
Any interest on any Bond which is payable, but is not punctually paid or duly provided
for, on any Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
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payable to the Holder on the relevant Regular Record Date solely by virtue of such Holder
having been such Holder; and such Defaulted Interest may be paid by the Authority as provided
in Subsection(a) or(b)below:
(a) The Authority may elect to make payment of any Defaulted Interest on the
fully registered Bonds of any series to the persons in whose names such Bonds (or their
respective Predecessor Bonds) are registered at the close of business on a "Special
Record Date" for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Authority shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Bond and the date of the proposed
payment (which date shall be such as will enable the Trustee to comply with the next
sentence hereo fl, and at the same time the Authority shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payrnent, such money when deposited to be held in trust
for the benefit of the persons entitled to such Defaulted Interest as in this Subsection
provided and not to be deemed part of the Trust Estate. Thereupon the Trustee shall fix a
Special Record Date for the payrnent of such Defaulted Interest which shall be not more
than 15 nor less than 10 days prior to the date of the proposed payment and not less than
10 days after the receipt by the Trustee of the notice of the proposed payrnent. The
Trustee shall promptly notify the Authority of such Special Record Date and, in the name
of the Authority and at the expense of the City, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be mailed,
first class postage prepaid, to each Holder of a fully registered Bond of such series at his
address as it appears in the registration books not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall be
paid to the Persons in whose names the Bonds of such series (or their respective
Predecessor Bonds) are registered on such Special Record Date and shall no longer be
payable pursuant to the following Subsection (b).
(b) The Authority may make payment of any Defaulted Interest on the Bonds
of any series in any other lawful manner, if, after notice given by the Authority to the
Trustee of the proposed payrnent pursuant to this Subsection, such payrnent shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Bond delivered under this
Indenture 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 and
each such Bond shall bear interest from such date that neither gain nor loss in interest shall result
from such transfer, exchange or substitution.
Section 2.07 Ownership of Bonds. The Authority and the Trustee and their respective
successors, each in its discretion, may deem and treat the person in whose name any Bond shall,
for the time being, be registered, as the absolute owner thereof for all purposes, and neither the
Authority nor the Trustee nor their respective successors shall be affected by any notice to the
contrary. Payment of or on account of the principal of and interest on any such Bond shall be
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made only to or upon the order of the Owner thereof, but such registration may be changed as
above provided. All such payments shall be valid and effectual to satisfy and discharge the
liability upon such Bond to the extent of the sum or sums so paid.
Section 2.08 Reissuance of Mutilated, Destroved, Stolen or Lost Bonds. In case any
outstanding Bond shall become mutilated or be destroyed, stolen or lost, the Trustee shall
authenticate and deliver a new Bond of like tenor, number and amount as the Bond so mutilated,
destroyed, stolen or lost, in exchange and substitution for such mutilated Bond, upon surrender
of such mutilated Bond, or in lieu of and substitution for the Bond destroyed, stolen or lost, upon
filing with the Trustee evidence satisfactory to the Authority and the Trustee that such Bond has
been destroyed, stolen or lost and proof of ownership thereof, and upon furnishing the Authority,
the Trustee and the City with indemnity satisfactory to them and complying with such other
reasonable regulations as the Trustee may prescribe and paying such reasonable expenses as the
Authority, the Trustee and the City may incur in connection therewith. In the event any such
Bond shall have matured, instead of issuing a new Bond, the Authority may pay the same
without surrender thereof.
Section 2.09 Conditions for Authentication of the Series 2016 Bonds. The Trustee shall
not authenticate and deliver the Series 2016 Bonds to be issued and delivered pursuant to the
Indenture unless theretofore or simultaneously therewith there shall have been delivered to the
Trustee the following items:
(i) a certified copy of the Bond Resolution authorizing the issuance of
the Series 2016 Bonds and the execution and delivery of the Lease, Ground Lease
and this Indenture;
(ii) a certified copy of the resolution adopted by the City Council of
the City approving the issuance of the Series 2016 Bonds and the terms of the
Indenture and authorizing the execution and delivery of the Lease and Ground
Lease by the City;
(iii) executed counterparts of the Lease, Ground Lease and the
Indenture;
(iv) the manually signed approving opinion of Dorsey& Whitney LLP,
Minneapolis, Minnesota, as bond counsel for the Authority, concerning the
validity and legality of the Series 2016 Bonds and exemption of interest on any
tax-exempt portion thereof from federal income taxation under the Internal
Revenue Code; and
Section 2.10 Authorization of Additional Bonds. In addition to the Bonds above
described, the Authority may in its discretion, upon request of the City, issue Additional Bonds
to (1)provide funds to complete the acquisition and construction of the Project, and/or
(2)provide funds for additions to or further improvements of the Project. Any such Additional
Bonds shall be authorized by resolution of the Authority and described in a supplemental
indenture executed by the Authority and the Trustee and which, when so issued, authorized and
described, shall be secured by this Indenture and the Trust Estate on a parity with the Series 2016
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Bonds then Outstanding under this Indenture; provided, that no such Additional Bonds shall be
issued under the Indenture or secured by the Trust Estate on a parity with the Outstanding Bonds
unless the following conditions are met:
(i) There shall have been furnished to the Trustee a Certificate of an
Authority Representative and a Certificate of a City Representative to the effect
that the Lease is in effect and no "event of default" (as such term is defined in the
Lease) exists thereunder which shall not be cured upon the issuance of the
Additional Bonds;
(ii) There shall have been furnished to the Trustee an Opinion of
Counsel to the effect that the issuance of the Additional Bonds will not adversely
affect the exemption from federal income taxation of the interest on any
Outstanding Series 2016 Bonds;
(iii) There shall have been furnished to the Trustee a supplement to the
Lease providing for additional Rental Payments sufficient to pay the principal of
and interest on the Additional Bonds when due;
(iv) Reserved; and
(v) There shall have been furnished to the Trustee a Certificate of an
Authority Representative to the effect that the proceeds of the Additional Bonds,
together with any additional funds supplied or to be supplied by the Authority or
City, will be sufficient to complete the purchase of the Project, the cost of the
improvement to the Project, as the case may be.
The Trustee shall not authenticate any such Additional Bonds until there is also delivered
to the Trustee a resolution of the Authority authorizing the Additional Bonds, an executed
counterpart of an amendment to the Lease providing for the additional Rental Payrnents or a new
lease, a supplement to the Indenture describing the Additional Bonds and further documents of
the kind described in Section 2.09, to the extent applicable to the Additional Bonds. Additional
Bonds shall have Interest Payment Dates of [ ]1 and [ �1, and Principal
Payment Dates of[ ] 1.
Section 2.11 Book-Entr�v System. For purposes of this Section and Section 2.12,
the following terms shall have the following meanings:
"Beneficial Owner" shall mean, whenever used with respect to a Bond, the person in
whose name such Bond is recorded as the beneficial owner of such Bond by a Participant on the
records of such Participant, or such person's subrogee.
"DTC" shall mean The Depository Trust Company of New York,New York.
"DTC Participant" shall mean any broker-dealer, bank or other financial institution for
which DTC holds Bonds as securities depository.
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"Representation Letter" shall mean the Representation Letter pursuant to which the
Authority agrees to comply with DTC's Operational Arrangements.
Upon the initial issuance of the Bonds, DTC will act as securities depository for the
Bonds. The Bonds shall be initially issued in the form of a single Bond for each stated maturity,
registered in the Bond Register in the name of Cede& Co., as the nominee of DTC.
Until termination of the book-entry only system pursuant to Section 2.12 hereof, the
Bonds may only be registered in the name of Cede& Co.
With respect to the Bonds registered in the Bond Register in the name of Cede& Co., as
nominee of DTC, neither the Authority nor the Trustee shall have any responsibility or
obligation to any DTC Participant or to any Beneficial Owner. Without limiting the immediately
preceding sentence, neither the Authority nor the Trustee shall have any responsibility or
obligation with respect to (i)the accuracy of the records of DTC or any DTC Participant with
respect to any ownership interest in the Bonds, (ii)the delivery to any DTC Participant, any
Beneficial Owner or any other person, other than DTC, of any notice with respect to the Bonds,
including any notice of redemption, or (iii)the payment to any DTC Participant, any Beneficial
Owner or any other person, other than DTC, of any amount of principal of, premium, if any, or
interest with respect to the Bonds.
The Authority and the Trustee may treat as and deem DTC to be the absolute owner of
each Bond for the purpose of payment of the principal of, premium, if any, and interest with
respect to such Bond, for the purpose of giving notices of redemption and other matters with
respect to such Bond, for the purpose of registering transfers with respect to such Bond, and for
all other purposes whatsoever. The Trustee shall pay all principal of, premium, if any, and
interest with respect to the Bonds only to or upon the order of the Bondholders as shown on the
Bond Register, and all such payments shall be valid and effective to fully satisfy and discharge
the Authority's and Trustee's obligations with respect to the payment of the principal of,
premium, if any, and interest relating to the Bonds to the extent of the sum or sums so paid.
Upon delivery by DTC to the Trustee of written notice to the effect that DTC has
determined to substitute a new nominee in place of Cede& Co., and subject to the transfer
provisions in Section 2.05 hereof, references to "Cede & Co." in this Section shall refer to such
new nominee of DTC.
Section 2.12 Substitute Securities Depositorv; Termination of Book-Entrv Onl�vstem.
DTC may determine to discontinue providing its services with respect to the Bonds at any time
by giving written notice to the Authority and the Trustee and discharging its responsibilities with
respect thereto under applicable law. The Authority may terminate the services of DTC with
respect to the Bonds at any time if it determines that DTC is no longer able to carry out its
functions as securities depository or that continuation of the system of book-entry transfers
through DTC is not in the best interests of the Authority or the Beneficial Owners.
Upon the termination of the services of DTC, a substitute securities depository may be
appointed by the Authority. Any substitute securities depository appointed hereunder shall
undertake all the obligations and duties of DTC described in this Indenture. In any such case the
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references herein to DTC shall be deemed to mean such substitute securities depository and any
references herein to Cede & Co., as nominee of DTC, shall be deemed to mean the nominee of
such substitute securities depository.
Upon the termination of the services of DTC, and if no substitute securities depository
willing to undertake the functions of DTC hereunder can be found that, in the opinion of the
Authority, is able to undertake such functions upon reasonable and customary terms, or if the
Authority determines that it is in the best interests of the Authority or the Beneficial Owners of
the Bonds that the Beneficial Owners be able to obtain certificated Bonds, the Bonds shall no
longer be restricted to being registered in the Bond Register in the name of Cede & Co., as
nominee of DTC, but may be registered in whatever name or names the Bondholders shall
designate at that time, in accordance with this Article. To the extent that the Beneficial Owners
are designated as the transferee by DTC, the Bonds will be delivered to the Beneficial Owners.
Notwithstanding any other provision of this Indenture to the contrary, so long as any
Bond is registered in the name of Cede & Co., as nominee of DTC, all payments of the principal
of, premium, if any, and interest relating to such Bond, and all notices with respect to such Bond,
shall be made and given to DTC as provided in the Representation Letter.
ARTICLE III
REDEMPTION OF BONDS
Section 3.01 Redemption of Bonds. The Series 2016 Bonds maturing in 20[_] and later
years, upon prepayrnent of the corresponding principal portion of the Rental Payments pursuant
to the Lease, are subject to redemption at the option of the Authority, in whole or in part, in
integral multiples of$5,000, and if in part, in such order of maturity dates as the Authority may
determine and by lot or other manner deemed fair as to Series 2016 Bonds maturing on the same
date, on any Business Day on or after [ � 1, 20[� at a redemption price equal to the
principal amount thereof plus accrued interest to the redemption date.
The Series 2016 Bonds maturing in 20[_] are subject to mandatory sinking fund
redemption, at a redemption price equal to the principal amount thereof to be redeemed plus
accrued interest to the redemption date, on [ � 1 in the following years and amounts:
. Series 2016 Bonds Maturing in 20
Year Amount
$
*
*final maturity
The Series 2016 Bonds are also subject to redemption at the option of the Authority on
any Business Day, in whole or in part in integral multiples of$5,000, and if in part in such order
of maturity dates as the Authority may determine and by lot as to Series 2016 Bonds maturing on
the same date, in the event that all or any part of the Project is lost, stolen, destroyed or damaged
beyond repair and the Authority determines that the reconstruction and restoration of the Project
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to its prior condition is not economically feasible. All prepayments shall be at a price equal to the
principal amount thereof to be redeemed plus accrued interest to the redemption date.
Section 3.02 Notice of Redemption. If the Bonds are to be redeemed pursuant to
Section 3.01 hereof, and written notice of an election to exercise an option to redeem Bonds
hereunder shall have been given to the Trustee at least 45 days prior by the Authority(other than
for the mandatory sinking fund redemption of certain maturities of the Bonds maturing in the
years for which no notice of election shall be required), the Trustee shall prepare a notice in the
name of the Authority or in its own name describing the Outstanding Bonds to be redeemed, the
date of redemption, and the redemption price. Such notice may be conditional. Notice of
redemption shall be mailed by the Trustee, not less than thirty (30) days nor more than ninety
(90) days before the redemption date,by first-class mail or by electronic means, to the Owners of
all Bonds which are to be redeemed, at their last addresses appearing upon the registry books of
the Authority and shall be published to the extent required by law.
Section 3.03 Deposit for Redemption. Prior to the designated redemption date, the
Authority shall deposit or cause to be deposited with the Trustee funds sufficient to pay the
redemption price of the Bonds to be redeemed, and interest thereon to the redemption date, and
there shall be deposited, or arrangements shall be made with the Trustee to deposit, with the
Trustee a sum sufficient to pay the proper expenses and charges of the Trustee in connection
with such redemption. Upon deposit with the Trustee of the aggregate amount of such
redemption price and interest pursuant to this Section, such money shall be set aside by the
Trustee and held by it for the account of the respective Holders of the Bonds being redeemed.
Section 3.04 Payment of Redeemed Bonds. After notice of redemption shall have been
given as provided in Section 3.02, the Bonds specified in such notice shall become due and
payable on the redemption date. Payment of the redemption price and interest shall be made to
or upon order of the Owner, upon the surrender of the Bonds. Any installment of interest
maturing on or prior to the redemption date shall be payable to the Owners of Bonds registered
as such on the relevant Record Date according to the terms of such Bonds and the provisions of
Section 2.06 hereof and the notice of redemption herein provided for may so state. If redemption
money is available for the payment of all of the Bonds called for redemption on the redemption
date, the Bonds so called shall cease to draw interest after the redemption date, and such Bonds
shall not be deemed to be outstanding hereunder for any purpose, except that the Holders thereof,
on presentation, as herein provided, shall be entitled to receive payment of the redemption price
and interest accrued thereon to the redemption date from the money set aside by the Trustee as
aforesaid.
Section 3.05 Cancellation of Redeemed Bonds. All Bonds so redeemed, shall forthwith
be canceled and held by the Trustee on file until the final maturity of the Bonds; and no further
Bonds shall be executed or authenticated or issued hereunder in exchange or substitution
therefor.
Section 3.06 Partial Redemption of Bonds. If less than all of the Bonds of a particular
maturity at the time outstanding are to be called for prior redemption, the particular Bonds or
portions thereof of such maturity to be redeemed shall be selected by lot, except as otherwise
provided herein, by the Trustee. The Trustee shall call for redemption in accordance with the
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foregoing provisions as many Bonds or portions thereof as will, as nearly as practicable, exhaust
the money available therefor. Particular Bonds or portions thereof shall be redeemed only in
integral multiples of principal amount of$5,000.
So long as the Bonds are registered in the name of Cede& Co., as nominee of The
Depository Trust Company, or in the name of any other nominee of T'he Depository Trust
Company or other securities depository, the Bonds or portions thereof to be redeemed shall be
selected in accordance with the operational arrangements of The Depository Trust Company or
such other securities depository.
ARTICLE IV
BOND PROCEEDS; PROJECT FUND
Section 4.01 Deposit of Bond Proceeds.
(a) Series 2016 Bonds. The Authority shall deposit, or shall direct the purchaser or
purchasers of the Series 2016 Bonds to deposit with the Trustee, all of the net proceeds of the
sale of the Series 2016 Bonds (including accrued interest thereon from the date from which
interest is to be paid thereon to the date of delivery to the purchaser or purchasers thereo fl, and
the Trustee, out of such proceeds, shall:
(i) deposit to the credit of the Bond Fund the amount of
$[ l;
(ii) pay the costs of issuance of the Series 2016 Bonds, as set forth in
Exhibit C, in the amount of$[ �; and
(iii) deposit to the credit of the Project Fund the balance of such net
proceeds in the amount of$[ 1•
Section 4.02 Establishment of Project Fund. The Authority hereby establishes an
account with the Trustee entitled the "Lease Revenue Bonds (Community Center Project),
Series 2016 Project Fund." T'here shall be deposited with the Trustee to the credit of the Project
Fund the amounts specified in Section 4.01 above from the proceeds of the Series 2016 Bonds.
As provided in Section 4.05 hereof, income and profit from the investment of money in the
Project Fund shall be credited to the Project Fund. The Authority has no obligation hereunder to
deposit any money in the Project Fund or apply money to Project Costs except for proceeds of
Bonds or funds made available therefor by the City.
The Project Fund shall be held in trust by the Trustee and applied to the payment of the
Project Costs in accordance with and subject to the provisions of this Article IV, and pending
such application shall be subject to a lien and charge in favor of the Holders of the Bonds issued
and Outstanding under this Indenture and shall be held for the further security of such Holders
until paid out as herein provided. In the event the money in the Bond Fund shall be insufficient
on any Interest Payment Date to pay principal of, premium (if any) or interest on the Series 2016
Bonds due on such date, the Trustee shall use any money then on deposit to the credit of the
Project Fund, to the extent needed, to pay such principal, premium and interest. In no event shall
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the City direct money in the Project Fund to be paid for Project Costs if an Event of Default has
occurred under the Lease.
Section 4.03 Project Costs Defined. For the purposes of this Article, Project Costs
include, without intending thereby to limit or restrict any proper definition of such cost under any
applicable laws or sound accounting practice, the following:
(i) The costs of aquiring, constructing, improving and/or equipping
the Project;
(ii) Obligations incurred for labor and to contractors, builders and
materialmen in connection with the acquisition, construction, improving and/or
equipping of the Project, including obligations for machinery, materials and
equipment therefor;
(iii) The cost of any indemnity and surety bonds obtained in connection
with the installation of the Project, the fees and expenses of the Trustee during
installation, taxes and other municipal governmental charges levied or assessed
during installation of the Project or any property acquired therefor, and the
premiums for insurance, if any, in connection with the Project during renovation
and construction; and
(iv) Expenses of administration, supervision and inspection properly
chargeable to the Project, administrative fees of the Authority and the City, legal
expenses and fees, financing charges, cost of audits and of preparing, offering and
issuing the Bonds, and initial fees of the Trustee, incident to the renovation and
construction financing of the Project.
Section 4.04 Payments from Project Fund. Payments shall be made from the Project
Fund by the Trustee upon receipt of a draw request from a City Representative substantially in
the form attached hereto as Exhibit B that sets forth the following: (1) the requisition number,
(2)the name and address of the person, firm or corporation to whom payment is due or has been
made, (3) the amount to be paid, (4)the percentage of the cost attributable to Project Costs,
(5) the purpose to which such payrnent is to be applied, and (6) that each obligation, item of cost
or expense mentioned therein has been properly incurred and is a proper charge against the
Project Fund and has not been the basis of any previous withdrawal.
Such requisitions shall be submitted no more often than twice per month, and the Trustee
shall issue its check for each payment required by each such requisition within three Business
Days after receipt of said statement. All payments made from the Project Fund shall be
presumed by the Trustee to be made for the purposes certified in said statement, and the Trustee
shall not be required to see to the application of any payrnents made from the Project Fund or to
inquire into the purposes for which withdrawals are being made from the Project Fund. For
purposes of complying with the requirements of this Section, the Trustee may conclusively rely
and shall be protected in acting or refraining from acting upon the draw request of the City
Representative. The draw request may be submitted in fax form or via email (PDF format). The
Trustee shall not be bound to make an investigation into the facts or matters stated in any draw
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request submitted by the City. The Trustee shall not be responsible for determining whether the
funds on hand in the Project Fund are sufficient to complete the Project. The Trustee shall not be
responsible to collect lien waivers. None of the funds in the Project Fund shall be used for any
purposes other than the payment or reimbursement of Project Costs and the payment of principal
of, premium (if any) on and interest on the Bonds.
Section 4.05 Denosit and Investment of Mone iy �n Project Fund. The Trustee shall invest
the money on deposit in the Project Fund at the written request and direction of the City
Representative in Qualified Investments. The Trustee shall be fully protected in relying on the
. written direction of the City Representative as to the suitability and legality of such directed
investments and shall have no duty or obligation to confirm that such directed investments are
Qualified Investments. The Trustee may, from time to time, cause any such investments to be
sold or otherwise be converted into cash, whereupon the proceeds derived from such sale or
conversion shall be deposited into the Project Fund. Any interest or profit derived from
investments shall be credited to the Project Fund. Investments permitted under this Section 4.05
may be purchased from the Trustee or from any of its affiliates. No portion of the Project Fund
representing proceeds of the Series 2016 Bonds shall be invested or used in such manner that any
of the Series 2016 Bonds would be "arbitrage bonds" under the Internal Revenue Code and
regulations thereunder; provided that the Trustee has no duty to monitor the yield on any
Qualified Investment or any obligation to limit the yield on any investment the Authority directs
the Trustee to make. The Trustee shall have no liability whatsoever for any loss, fee, tax or other
charge incurred in connection with any investment, reinvestment, sale or liquidation of an
investment hereunder. The Trustee shall have no responsibility whatsoever to determine whether
any investments made pursuant to this ageement are or continue to be Qualified Investments. In
no event shall the Trustee be deemed an investment manager or adviser in respect of any
selection of investments hereunder.
Section 4.06 Application of Balance in Project Fund. When the Project is completed and
the Completion Certificate furnished, any balance in the Project Fund (after disbursing any final
amount in accordance with a statement from a City Representative), shall be deposited in the
Bond Fund.
ARTICLE V
DISPOSITION OF PLEDGED REVENUES
Section 5.01 Bond Fund. The Authority hereby establishes with the Trustee, and shall
maintain, so long as any of the Bonds are outstanding, a separate account with the Trustee
entitled the "Lease Revenue Bonds (Community Center Project), Series 2016 Bond Fund." Into
the Bond Fund, the Authority and Trustee shall make each of the following deposits:
(i) The amounts required to be deposited by Section 4.01 hereof.
(ii) The Rental Payments received from the City pursuant to the Lease.
(iii) All other money received by the Trustee from the City or
Authority when accompanied by directions of the City or Authority that such
money is to be paid into the Bond Fund or used for purposes for which money in
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the Bond Fund may be used. If the City or Authority so directs, such monies shall
be credited against Rental Payments due or to become due.
(iv) All other money required to be deposited in the Bond Fund
pursuant to any provision of this Indenture or the Lease.
The money and investments in the Bond Fund are irrevocably pledged to and shall be
used by the Trustee, from time to time, to the extent required, for the payment of principal of,
premium (if any) on and interest on the Bonds, as and when such principal, premium and interest
shall become due and payable.
Section 5.02 Reserved.
Section 5.03 Investment of Funds in Bond Fund. Any money held as a part of the Bond
Fund shall be invested or reinvested by the Trustee upon the request and direction of a City
Representative in any Qualified Investment. The type, amount and maturity of Qualified
Investments shall conform to the instructions, if any, in the written request of the City
Representative; provided that investments acquired with money held in the Bond Fund shall
mature no later than the Interest Payment Date upon which such money will be needed to pay
principal of,premium, if any, and interest on the Bonds.
The Trustee shall be fully protected in relying on the written direction of the City
Representative as to the suitability and legality of such directed investments and shall have no
duty or obligation to confirm that such directed investments are Qualified Investments or that
any applicable yield restrictions are met. Investments permitted under this Section 5.03 may be
purchased from the Trustee or from any of its affiliates. Obligations so purchased shall be
deemed at all times to be a part of the Bond Fund unless otherwise provided herein, but may
from time to time be sold or otherwise converted into cash, whereupon the proceeds derived
from such sale or conversion shall be credited to the Bond Fund. Any interest accruing on and
any profit realized from such investment shall be credited to the Bond Fund.
The Trustee shall redeem or sell, at the best price obtainable, any obligations so
purchased, whenever it shall be necessary to do so in order to provide money to meet any
payment from the Bond Fund. Neither the Trustee nor the Authority shall be liable for any loss
resulting from any such investment, nor from failure to preserve rights against endorsers or other
prior parties to instruments evidencing any such investment. Investment of funds pursuant to this
Section 5.03 shall be limited as to amount and yield of investment in such manner that no part of
the Outstanding Series 2016 Bonds shall be deemed "arbitrage bonds" under the Internal
Revenue Code and regulations thereunder; provided that the Trustee has no duty to monitor the
yield on any Qualified Investment or any obligation to limit the yield on any investment the
Authority directs the Trustee to make. The Trustee shall have no liability whatsoever for any
loss, fee, tax or other charge incurred in connection with any investment, reinvestment, sale or
liquidation of an investment hereunder. The Trustee shall have no responsibility whatsoever to
determine whether any investments made pursuant to this agreement are or continue to be
Qualified Investments. In no event shall the Trustee be deemed an investment manager or
adviser in respect of any selection of investments hereunder.
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The Authority acknowledges that regulations of the Comptroller of the Currency grant
the Authority the right to receive brokerage confirmations of security transactions as they occur.
The Authority specifically waives such right to notification to the extent permitted by law and
acknowledges that it will receive periodic transaction statements that will detail all investment
transactions.
ARTICLE VI
PARTICULAR COVENANTS OF THE AUTHORITY
The Authority covenants and agrees, so long as the Bonds shall be outstanding and
subject to the limitations on its obligations herein set forth, that:
Section 6.01 Payment of Bonds. It will faithfully perform at all times any and all
covenants, undertakings, stipulations and provisions contained in this Indenture and the Bond
Resolution and in each and every Bond executed, authenticated and delivered hereunder; will
pay or cause to be paid, from Rental Payments by the City and other amounts received in respect
of the Lease or available under this Indenture, the principal of, premium (if any) on and interest
on every Bond issued hereunder on the dates, at the places and in the manner prescribed in the
Bonds in any coin or currency which, on the respective dates of payment of such principal and
interest, is legal tender for the payment of public and private debts; and will cause such amounts
received to be deposited with the Trustee prior to the due date of each installment of principal
and interest and prior to the maturity of any Bond in amounts sufficient to pay such installment;
provided, however, that the principal of and interest on any Bond is not and shall not be deemed
to represent a debt or pledge the faith or credit of the Authority, the City or the State of
Minnesota or grant to the Holder of any Bond any right to have the Authority, the City or the
State levy any taxes or appropriate any funds to the payrnent of principal of or interest on the
Bonds, such payrnent to be made solely and only out of the money received pursuant to the
Lease and the funds and accounts established and maintained with the Trustee pursuant to the
requirements of this Indenture and appropriated to the payment of the Bonds by the Indenture.
Section 6.02 Extensions of Payments of Bonds. It shall not directly or indirectly extend
or assent to the extension of the maturity of any of the Bonds, or the time of payment of any
claims for interest by the purchase or refunding of such Bonds or claims for interest or by any
other arrangement; and in case the maturity of any of the Bonds, or the time for payment of any
such claims for interest shall be extended, such Bonds or claims for interest shall not be entitled
in case of any default hereunder to the benefit of the Indenture or to any payrnent out of any
assets of the Authority or the funds (except funds held in the trust by the Trustee for the payment
of particular Bonds or claims for interest pursuant to this Indenture) held by the Trustee except
subject to the prior payment of the principal of all Bonds issued and outstanding hereunder, the
maturity of which Bonds or principal installments has not been extended, and of such portion of
the accrued interest on the Bonds as shall not be represented by such extended claims for
interest. Nothing in this Section 6.02 shall, however, be deemed to limit the right of the
Authority to fund or refund at one time all of such Bonds and claims for interest.
Section 6.03 Authorization. The Authority is duly authorized under the Constitution and
Laws of the State to create and issue the Bonds, to undertake the acquisition and financing of the
Project, to execute this Indenture and assign and pledge to the Trustee the Trust Estate, including
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the Rental Payments, and to make the covenants as herein provided. All necessary action and
proceedings on its part to be taken for the creation and issuance of the Bonds and the execution
and delivery of this Indenture have been duly and effectively taken.
Section 6.04 Concerning the Lease. It will cause and permit the Trustee to take such
action as may be necessary or advisable to enforce the covenants, terms and conditions of the
Lease if such action shall be deemed to be in the best interest of the Bondholders. The Authority
shall do or cause to be done all things on its part to be performed under the Lease so that the
obligations of the City thereunder shall not be impaired or excused.
Section 6.05 To Observe All Covenants and Terms -- Limitations on Authorit ��'s
Obli ations. It will not issue or permit to be issued any Bonds hereunder in any manner other
than in accordance with the provisions of this Indenture and the agreements in that behalf herein
contained, and will not suffer or permit any Event of Default to occur under this Indenture, but
will faithfully observe and perform all the conditions, covenants and requirements hereof. It is
expressly agreed that the Authority has no obligation to make any advance or payment or incur
any expense or liability from its general funds in performing, any of the conditions, covenants or
requirements of the Bonds or this Indenture or from any funds other than revenues and income
received pursuant to the Lease, the proceeds of its annual tax levy, or money in the funds and
accounts provided for herein.
Section 6.06 Liens. The Authority agrees it will not mortgage, sell or otherwise
encumber its interests in the Project during the term of the Lease, except pursuant to the Lease or
as otherwise permitted in the Lease or this Indenture.
Section 6.07 Rental Pavments. It is estimated that the Rental Payments to be made by
the City pursuant to the Lease will produce the amounts needed to meet when due the principal
and interest payments on the Bonds.
ARTICLE VII
EVENTS OF DEFAULT; REMEDIES
Section 7.01 Events of Default. Each of the following events is hereby defined as, and is
declared to be and to constitute, an`Bvent of Default":
(i) If payment of the principal of, or premium, if any, on any of the
Bonds, when the same shall become due and payable, whether at maturity or by
proceedings for redemption (by redemption, declaration or otherwise), shall not
be made; or
(ii) If payment of any interest on the Bonds when the same shall
become due and payable (in which case interest shall be payable to the extent
permitted by law on any overdue installments of interest, in each case at the
interest rate borne by the Bonds in respect of which such interest is overdue) shall
not be made; or
(iii) If an Event of Default shall occur and be subsisting under Section
10.1 of the Lease; or
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(iv) If default shall be made in the performance or observance of any
other of the covenants, agreements or conditions on the part of the Authority in
this Indenture, or in the Bonds contained, and such default shall have continued
for a period of thirty days after written notice thereof given to the Authority by
the Trustee.
Section 7.02 Enforcement of Covenants and Conditions. Upon the occurrence of an
Event of Default with respect to the Lease, the Trustee may, anything herein to the contrary
notwithstanding and without any request from any Bondholder of the Bonds relating thereto
(subject, however, to the provisions of Section 8.06 hereo�, take such action or actions for the
enforcement of its rights and the rights of such Bondholders and the rights of the Authority under
the Lease as due diligence, prudence and care would require and to pursue the same with like
diligence, prudence and care.
Upon the occurrence of an Event of Default with respect to the Lease, the Trustee may,
and shall upon the written request of the Holders of not less than twenty-five per centum (25%)
in aggregate principal amount of Outstanding Bonds relating thereto, by written notice to the
Authority, declare the principal of the respective Bonds to be immediately due and payable,
whereupon that portion of the principal of such Bonds thereby coming due and the interest
thereon accrued to the date of payrnent shall, without further action, become and be immediately
due and payable, anything in this Indenture or in such Bonds to the contrary notwithstanding.
Upon the happening and continuance of an Event of Default, the Trustee may, and shall
upon the written request of the Holders of not less than twenty-five per centum (25%) in
aggregate principal amount of the outstanding Bonds relating thereto, proceed forthwith by suit
or suits at law or in equity or by any other appropriate remedy to enforce payrnent of such
Bonds, to enforce application to such payment of the funds, revenues and income appropriated
thereto by this Indenture and by such Bonds, to enforce rights of the Authority under the Lease,
and to enforce any such other appropriate legal or equitable remedy as the Trustee, being advised
by counsel, shall deem most effectual to protect and enforce any of its rights or any of the rights
of the Bondholders with respect thereto. Notwithstanding the foregoing, the Trustee need not
proceed upon any such written request of such Bondholders, as aforesaid, unless such
Bondholders shall have offered to the Trustee security and indemnity satisfactory to it against the
costs, expenses and liabilities to be incurred therein or thereby.
Section 7.03 Application of Money. All money received by the Trustee pursuant to any
right given or action taken under the provisions of this Indenture or the Lease, shall, after
payment of the cost and expenses of the proceedings resulting in the collection of such money
and of the fees, expenses, charges, liabilities and advances, including legal costs and expenses,
incurred or made by the Trustee and its agents, be deposited in the Bond Fund and all money in
the Bond Fund maintained with the Trustee shall be applied as follows:
(i) Unless the principal of all the Bonds shall have become due and
payable, all such money shall be applied:
First: To the payment to the Bondholders entitled thereto of all
installments of interest then due on the Bonds, in the order of the maturity
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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
Bondholders entitled thereto, without any discrimination or privilege; and
Second: To the payment to the Bondholders entitled thereto of the
unpaid principal of any of the Bonds which shall have become due (other
than Bonds called for redemption for the payment of which money is held
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 in full
Bonds due on any particular date, then to the payment ratably, according
to the amount of principal due on such date, to the Bondholders entitled
thereto without any discrimination or privilege.
(ii) If the principal of all the Bonds shall have become due, all such
money shall be applied to the payment of the principal and interest then due and
unpaid upon the Bonds, without preference or priority of principal over interest or
of interest over principal, 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 Bondholders
entitled thereto without any discrimination or privilege.
Whenever money is to be applied by the Trustee pursuant to the provisions of this
Section 7.03, such money 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 money available for application
and the likelihood of additional money becoming available for such application in the future.
Whenever the Trustee shall apply such funds, it shall fix the date (which shall be an Interest
Payrnent 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 dates shall
cease to accrue. The Trustee shall give such notice as it may deem appropriate of the deposit
with it of any such money and of the fixing of any such date, and shall not be required to make
payment to the Holder of any Bond until such Bond shall be presented to the Trustee for
appropriate endorsement or for cancellation if fully paid.
Whenever all Bonds of a series and interest thereon have been paid under the provisions
of this Section and all expenses and charges of the Trustee and the Authority have been paid, any
balance remaining shall be paid to the persons entitled to receive the same; if no other person
shall be entitled thereto, then the balance shall be paid to the City.
Section 7.04 Right of Trustee to Act Without Possession of Bonds. All rights of action
(including the right to file proof of claim) under this Indenture, the Lease or under any of the
Bonds, may be enforced by the Trustee without the possession of any of the Bonds or the
production thereof in any trial or other proceeding 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 hereby secured, and any recovery
of judgment shall be for the equal benefit of the Holders of the Outstanding Bonds, subject to the
provisions of Section 6.02 hereof with respect to extended Bonds and claims for interest.
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Section 7.05 Power of Majoritv of Bondholders. Anything in this Indenture to the
contrary notwithstanding, the Holders of a majority in aggregate principal amount of Bonds
Outstanding hereunder with respect to the Lease 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 under this Indenture and the Lease; provided,
that such direction shall not be otherwise than in accordance with the provisions of law and that
the Trustee shall be indemnified as provided in Section 8.06.
Section 7.06 Limitation on Suits bv Bondholders. No Holder of any Bond with respect
to the Lease shall have any right to institute any suit, action or proceeding in equity or at law for
the enforcement of this Indenture or for the execution of any trust hereof or for any other remedy
hereunder, unless an Event of Default with respect to the Lease has occurred of which the
Responsible Officer has been notified in writing or of which it is deemed to have notice; nor
unless the Holders of twenty-five per centum (25%) in aggregate principal amount of Bonds with
respect to the Lease Outstanding hereunder shall have made written request to the Trustee and
shall have offered it reasonable opportunity either to proceed to exercise the powers hereinbefore
granted or to institute such action, suit or proceeding in its own name; nor unless also they shall
have offered to the Trustee indemnity as provided hereinafter; and 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 enforcement or for any other remedy hereunder; and the Trustee for 60
days after receipt of such written request and offer of indemnity has failed to institute such suit,
action or proceeding; and no direction inconsistent with such written request has been given to
the Trustee by the Holders of 25%in aggregate principal amount of the Bonds with respect to the
Lease during such 60 day period it being understood and intended that no one or more Holders of
such Bonds shall have any right in any manner whatsoever to affect, disturb, or prejudice the lien
of this Indenture by his or their action or to enforce any right hereunder 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 such Bonds
Outstanding hereunder. Nothing in this Indenture contained shall, however, affect or impair the
right of any Bondholder, which is absolute and unconditional, to enforce and bring suit for the
payment of the principal of and interest on any Bond at and after the maturity thereof to pay the
principal of and interest on each of the Bonds relating to the relevant Lease issued hereunder to
the respective Holders thereof at the time and place in such Bonds expressed, in accordance with
the terms of such Bonds.
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Section 7.07 Waiver bv Bondholders. The Trustee, upon the written request of the
Holders of not less than a majority in principal amount of the Bonds relating to the Lease at the
time Outstanding hereunder, shall waive any Event of Default hereunder and its consequences,
except an Event of Default in the payment of the principal of such Bonds at the date of maturity
specified therein; provided, however, that an Event of Default in the payment of interest on such
Bonds shall not be waived unless, prior to such waiver, all arrears of interest and all expenses of
the Trustee shall have been paid or shall have been provided for by deposit with the Trustee of a
sum sufficient to pay the same. In case of any such waiver, the Authority, the Trustee and the
Holders of such Bonds shall be restored to their former positions and rights hereunder
respectively. No such waiver shall extend to any subsequent or other Event of Default or impair
any right consequent thereon.
Section 7.08 Remedies Cumulative Delay Not To Constitute Waiver. No remedy by the
terms of this Indenture or the Lease, 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 given hereunder 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 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.
No waiver of any Event of Default hereunder, whether by the Trustee or by the
Bondholders, shall extend to or shall affect any subsequent Event of Default or shall impair any
rights or remedies consequent thereon.
Section 7.09 Restoration of Rights Upon Discontinuance of Proceedin�s. In case the
Trustee or Bondholders shall have proceeded to enforce any right under this Indenture and such
proceedings shall have been discontinued or abandoned for any reason, or shall have been
determined adversely to the Trustee or the Bondholders, then and in every such case the
Authority, the City, the Trustee and the Bondholders shall be restored to their former positions
and rights hereunder with respect to the Trust Estate, and all rights, remedies and powers of the
Trustee and the Bondholders shall continue as if no such proceedings had been taken.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Acceptance of Trust and Prudent Performance Thereof. The Trustee, prior
to the occurrence of an Event of Default and after the curing of all such Events of Default as may
have occurred, undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture and no duties shall be implied. The Trustee shall, during the existence of
any such Event of Default which has not been cured or waived, exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of care and skill in their exercise,
as a prudent person would exercise or use under the circumstances in the conduct of his or her
own affairs. The Trustee shall not be liable for any action taken or omitted by it in the
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performance of its duties under this Indenture except for its own negligence or willful
misconduct.
The Trustee shall not be required to take notice or be deemed to have notice of any
Default hereunder, except Default in the deposits or payments specified herein, unless the
Responsible Officer shall be specifically notified in writing of such Default by the City, by the
Authority or by the Holders of at least twenty-five percent (25%) in aggegate principal amount
of Bonds outstanding hereunder, and all notices or other instruments required by this Indenture
to be delivered to the Trustee must, in order to be effective, be delivered at the office of the
Trustee, and in the absence of such notice so delivered, the Trustee may conclusively assume
that there is no Default, except as aforesaid.
Delivery of reports, information and documents to the Trustee under this Indenture is for
infortnational purposes only and the Trustee's receipt of the foregoing shall not constitute
constructive notice of any information contained therein or determinable from information
contained therein, including the City's compliance with any of their covenants hereunder (as to
which the Trustee is entitled to rely conclusively on Officers' Certificates).
No provision of this Indenture shall be construed to relieve the Trustee from liability for
its own grossly negligent action, its own grossly negligent failure to act, or its own willful
misconduct, except that
(i) prior to such an Event of Default hereunder, and after the curing of
all such Events of Default which may have occurred:
(A) the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Indenture, and the Trustee shall not
be liable except for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(B) In the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and to the
correctness of the opinions expressed therein, upon any certificate or
opinion furnished to the Trustee conforming to the requirements of this
Indenture; and
(ii) at all times, regardless of whether or not any such Event of Default
shall exist:
(A) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer or Officers of the Trustee unless it
shall be proved that the Trustee was grossly negligent in ascertaining the
pertinent facts, and
(B) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of not less than a majority in aggregate principal amount of
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all the Bonds at the time outstanding relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee under
this Indenture.
None of the provisions contained in this Indenture shall require the Trustee to expend or
risk its own funds or otherwise to incur individual financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers, if it shall have reasonable grounds for
believing that repayrnent of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
Section 8.02 Trustee Ma�Relv Upon Certain Documents and Opinions. Except as
otherwise provided in Section 8.01,
(i) the Trustee may rely and shall be protected in acting upon any
resolution, certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(ii) any request, direction, election, order, certification or demand of
the Authority or the City shall be sufficiently evidenced by an instrument signed
by an Authority Representative or a City Representative, as the case may be
(unless otherwise in this Indenture specifically prescribed), and any resolution of
the Authority may be evidenced to the Trustee by a copy certified by the
Executive Director;
(iii) the Trustee may consult with counsel (who may be counsel for the
Authority or the City) and the opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken or suffered by it
hereunder in good faith and in accordance with the opinion of such counsel; and
(iv) whenever, in the administration of the trusts of this Indenture, the
Trustee shall deem it necessary or desirable that a matter be proved or established
prior to taking or suffering any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the absence
of negligence or bad faith on the part of the Trustee,be deemed to be conclusively
proved and established by a Certificate of the Authority or Certificate of the City
and any such Certificate shall, in the absence of negligence or bad faith on the
part of the Trustee, be full warrant to the Trustee for any action taken or suffered
by it under the provisions of this Indenture upon the faith thereof.
Section 8.03 Trustee Not Responsible for Indenture Statements Validity. The Trustee
shall not be responsible for any recital or statement herein, or in the Bonds (except in respect of
the certificate of authentication endorsed on such Bonds), or for the validity of the execution by
the Authority of this Indenture or the validity or execution of the Lease or the Bond Resolution,
or of any supplemental instrument, or for the sufficiency of the security of the Bonds issued
hereunder or intended to be secured hereby, or for the value or title of any of the Trust Estate, or
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otherwise as to the maintenance of the security hereof; and the Trustee shall not be bound to
ascertain or inquire as to the performance or observance of any covenant, condition or agreement
on the part of the Authority or the City, except as herein set forth, but the Trustee may require of
the Authority and the City full information and advice as to the performance of the covenants,
conditions and agreements aforesaid and of the condition of the physical property included in the
Trust Estate. The Trustee shall not be accountable for the use of any Bonds authenticated or
delivered hereunder.
Section 8.04 Limits on Duties and Liabilities of Trustee. The permissive right of the
Trustee to do things enumerated in this Indenture shall not be construed as a duty of the Trustee
and the Trustee shall be answerable only for its own gross negligence or willful default. The
Trustee shall not be required to give any bond or surety in respect of the execution of the said
trusts and powers or otherwise in respect of the premises.
Section 8.05 Monev Held in Trust. Money held by the Trustee hereunder is held in trust
but need not be segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder except as otherwise
agreed with the Authority or the City.
Section 8.06 Obligation of Trustee. The Trustee shall be under no obligation to institute
any suit, or to take any proceeding under this Indenture, or to enter any appearance or in any way
defend in any suit in which it may be defendant, or to take any steps in the execution of the trusts
hereby created or in the enforcement of any rights and powers hereunder, until it shall have
reasonable grounds for believing that repayrnent of all costs and expenses, outlays and counsel
fees and other reasonable disbursements in connection therewith and adequate indemnity against
all risk and liability is reasonably assured to it; the Trustee may, nevertheless, begin suit, or
appear in and defend suit, or do anything else in its judgment proper to be done by it as such
Trustee, without assurance of reimbursement or indemnity, and in such case the Trustee shall be
reimbursed for all costs and expenses, outlays and counsel fees and other reasonable
disbursements properly incurred in connection therewith. If the City shall fail to make such
reimbursement, the Trustee may reimburse itself from any money in its possession under the
provisions of this Indenture and shall be entitled to a preference therefor over any of the Bonds
or claims for interest outstanding hereunder.
Section 8.07 Notice to Bondholders. The Trustee shall give to the Holders of the Bonds
relating to the Lease whose names and addresses are known to it, written notice of all Events of
Default relating to the Lease known to the Trustee by virtue of actual knowledge of a
Responsible Officer, within sixty (60) days after the occurrence of an Event of Default unless
such Event of Default shall have been cured before the giving of such notice; provided that,
except in the case of an Event of Default in the payment of principal and interest on any of such
Bonds, the Trustee shall be protected in withholding such notice if and so long as its Board of
Directors, an executive committee or trust default committee or chief executive officer of the
Trustee in good faith determines that the withholding of such notice is in the interest of the
Bondholders relating thereto.
Section 8.08 Intervention in Judicial Proceedin�s. In any judicial proceeding to which
the Authority or the City is a party and which in the opinion of the Trustee has a substantial
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bearing on the interest of owners of Bonds issued hereunder, the Trustee may intervene on behalf
of Bondholders and shall do so if requested in writing by the owners of at least twenty-five
percent (25%) in the aggregate principal amount of Bonds Outstanding hereunder with respect to
the Lease. The rights and obligations of the Trustee under this Section 8.08 are subject to the
approval of the court having jurisdiction in the premises.
Section 8.09 Further Investi ation bv Trustee. The resolutions, 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 in full warrant, protection and
authority to the Trustee for its actions hereunder; but the Trustee may, in its unrestricted
discretion, and shall, if requested in writing so to do by the Holders of not less than twenty-five
per centum (25%) in aggregate principal amount of Bonds Outstanding hereunder with respect to
the Lease, cause to be made such independent investigation with respect to the Lease as it may
see fit, and in that event may decline to release any property, or pay over cash, or take other
action relating thereto unless satisfied by such investigation of the truth and accuracy of the
matters so investigated. ,
Section 8.10 Trustee to Retain Records. The Trustee shall retain reports furnished by the
Authority or the City in accordance with this Indenture or the Lease so long as any of the Bonds
shall be Outstanding.
Section 8.11 Compensation of Trustee. All advances, counsel fees and other expenses
reasonably made or incurred by the Trustee in and about the execution of the trust hereby created
and reasonable compensation to the Trustee for its services in the premises shall be paid by the
City. The compensation of the Trustee shall not be limited to or by any provision of law in
regard to the compensation of trustees of an express trust. If not paid by the City, the Trustee
shall have a first lien, with right of payment prior to payment on account of interest or principal
of any Bond issued hereunder, for reasonable compensation, expenses, advances and counsel
fees incurred in and about the execution of the trusts hereby created and exercise and
performance of the powers and duties of the Trustee hereunder and the cost and expense incurred
in defending against any liability in the premises of any character whatsoever (unless such
liability is adjudicated to have resulted from the gross negligence or willful default of the
Trustee).
Section 8.12 Trustee May Hold Bonds. The Trustee and its officers and directors may
acquire and hold, or become the pledgee of, Bonds and otherwise deal with the Authority or the
City in the same manner and to the same extent and with like effect as though it were not Trustee
hereunder.
Section 8.13 A�pointment of Trustee. There shall at all times be a trustee hereunder
which shall be a trust company or bank in good standing organized and doing business under the
laws of the United States or any State thereof, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least ten million dollars ($10,000,000),
and subject to supervision or examination by Federal or State authority. If such association or
corporation publishes reports of condition at least annually, pursuant to law or to the
requirements of any supervising or examining authority above referred to, then for the purposes
of this Section the combined capital and surplus of such association or corporation shall be
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deemed to be its combined capital and surplus as set forth in its most recent report of condition
so published. In case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, and another association or corporation is eligible, the Trustee shall
resign immediately in the manner and with the effect specified in Section 8.16 hereof.
Section 8.14 Mer�er of Trustee. Any corporation or association 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 hereunder 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 8.15 Resignation or Removal of Trustee. The Trustee may resign and be
discharged from the trusts created by this Indenture by giving to the Authority and the
Bondholders thirty (30) days' notice in writing of such resignation, specifying a date when such
resignation shall take effect. Such resignation shall take effect on the day specified in such
notice, if a successor Trustee has been appointed, or upon such later date as a successor is
appointed. Any Trustee hereunder may be removed at any time upon thirty (30) days' notice by
an instrument or instruments in writing, appointing a successor to the Trustee so removed, filed
with the Trustee and executed by either (i)the Authority or (ii)the Holders of a majority in
principal amount of the Bonds hereby secured and then Outstanding.
Section 8.16 Appointment of Successor Trustee. In case at any time the Trustee shall
resign or shall be removed or otherwise shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or if a receiver of the Trustee or of its property shall be appointed, or if a
public supervisory office shall take charge or control of the Trustee or of its property or affairs, a
vacancy shall forthwith and ipso facto be created in the office of such Trustee hereunder, and a
successor may be appointed by either (i) the Authority or (ii)the Holders of a majority in
principal amount of the Bonds hereby secured and then Outstanding, by an instrument or
instruments in writing filed with the Trustee and executed by such Bondholders, notification
thereof being given to the Authority, but in the event the Trustee has been removed by action of
the Bondholders,until a new Trustee shall be appointed by the Bondholders as herein authorized,
the Authority may, subject to the provisions hereof, appoint a Trustee to fill such vacancy. After
any appointment by the Authority, in the event the Trustee has been removed by action of the
Bondholders, the Trustee so appointed shall cause notice of its appointment to be mailed within
30 days of such appointment to the registered Holders of the Bonds, but any new Trustee so
appointed by the Authority shall immediately and without further act be superseded by a Trustee
appointed in the manner above provided by the Holders of a majority in principal amount of said
Bonds whenever such appointment by said Bondholders shall be made.
If, in a proper case, no timely appointment of a successor Trustee shall be made pursuant
to the foregoing provisions the Holder of any Bond hereby secured or any retiring Trustee may
apply to any court of competent jurisdiction to appoint a successor trustee. Said court may
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thereupon, after such notice, if any, as such court may deem proper and prescribe, appoint a
successor trustee.
Section 8.17 Transfer of Rights and Property to Successor Trustee. Every successor
trustee appointed hereunder shall execute, acknowledge and deliver to its predecessor and also to
the Authority an 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 predecessor; but such
predecessor shall, nevertheless, on the written request of the Authority or of its successor execute
and deliver an instrument transferring to such successor all the estate, properties, rights, powers
and trusts of such predecessor hereunder, and every predecessor trustee shall deliver all securities
and money held by it as Trustee hereunder to its successor. Should any assignment, conveyance
or instrument in writing from the Authority be required by any successor trustee for more fully
and certainly vesting in such successor trustee the estates, rights, powers and duties hereby
vested or intended to be vested in the predecessor trustee, any and all such assignments,
conveyances and instruments in writing shall, on request, be executed, acknowledged and
delivered by the Authority. The resignation of any Trustee and the instrument or instruments
removing any Trustee and appointing a successor hereunder, together with all assignments,
conveyances and other instruments provided for in this Article shall, at the expense of the City,
be forthwith filed and/or recorded by the successor trustee in each recording office where the
Indenture shall have been filed and/or recorded.
Section 8.18 Appointment of Successor or Alternate Paving A ents. In the event the
initial Trustee shall also have been appointed paying agent for the Series 2016 Bonds or for any
Additional Bonds, a successor Trustee shall become successor paying agent with respect to such
Bonds unless otherwise provided in the instrument appointing such successor Trustee. If any
paying agent other than the initial Trustee shall resign or become incapable of acting, or shall be
removed under a supplemental indenture entered into pursuant to the terms hereof, the Trustee
may appoint a successor paying agent which is a bank or trust company qualified to act as paying
agent under the laws of the State and which is willing to accept the office on reasonable and
customary terms approved by an Authority Representative. The Trustee may appoint successor
paying agents. "Paying agent" as used in this Section refers to the bank or trust company named
in the form of Bond provided for the Series 2016 Bonds in the recitals hereof, or provided for
Additional Bonds in a supplemental indenture, where principal of and interest on Bonds may be
paid.
Section 8.19 Indemnification. To the extent authorized by law, the Authority shall
indemnify and hold harmless the Trustee against any and all loss, damage, claims, expense and
liability arising out of or in connection with the acceptance of administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against any claim (whether
asserted by the Authority, the City any bondholder or any other person) or liability in connection
with the exercise or performance of any of its powers or duties hereunder except to the extent
that such loss, damage, claim, expense or liability is determined by a court of competent
jurisdiction to have been caused solely by Trustee's gross negligence or willful misconduct.
Section 8.20 A�ents. 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 and the Trustee
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shall not be responsible for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder and may in all cases pay reasonable compensation to all
such attorneys, agents, receivers and employees as may reasonably be employed in connection
with the trust hereof.
Section 8.21 Conflicting Directions. In the event the Trustee receives inconsistent or
conflicting requests and indemnity from two or more groups of holders of the Bonds, each
representing less than a majority in aggregate principal amount of the Bonds outstanding, the
Trustee, in its sole discretion, may determine what action, if any, shall be taken and the Trustee
may, in its discretion, take other actions.
ARTICLE IX
CONCERNING THE BONDHOLDERS
Section 9.01 Execution of Instruments by Bondholders. Any request, direction, consent
or other instrument in writing required by this Indenture to be signed or executed by
Bondholders may be in any number of concurrent instruments of similar tenor and may be signed
or executed by such Bondholders in person or by agent duly appointed by an instrument in
writing. Proof of the execution of any such instrument and of the ownership of Bonds shall be
sufficient for any purpose of this Indenture and shall be conclusive in favor of the Trustee with
regard to any action taken by it under such instrument if made in the following manner:
(i) The fact and date of the execution by any person of any such
instrument may be proved by the certificate of any officer in any jurisdiction who,
by the laws thereof, has power to take acknowledgments of deeds to be recorded
within such jurisdiction, to the effect that the person signing such instrument
acknowledged to him the execution thereof, or by an affidavit of a witness to such
execution.
(ii) The ownership of Bonds shall be proved by the registration books
kept under the provisions of this Indenture.
Nothing contained in this Article shall be construed as limiting the Trustee to the proof above
specified, it being intended that the Trustee may accept any other evidence of the matters herein
stated which to it may seem sufficient.
Section 9.02 Waiver of Notice. Any notice or other communication required by this
Indenture to be given by delivery, publication or otherwise to the Bondholders or any one or
more thereof may be waived, at any time before such notice or communication is so required to
be given, by a writing mailed or delivered to the Trustee by the Holder or Holders of all of the
Bonds entitled to such notice or communication.
Section 9.03 Determination of Bondholder Concurrence. In determining whether the
Holders of the requisite aggregate principal amount of Bonds have concurred in any demand,
request, direction, consent or waiver under this Indenture, Bonds which are owned by the
Authority or the City shall be disregarded and deemed not to be Outstanding for the purpose of
any such determination; provided, that for the purpose of determining whether the Trustee shall
be protected in relying on any such demand, request, direction, consent or waiver only Bonds
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which the Trustee knows to be so owned shall be disregarded. Bonds so owned which have been
pledged in good faith may be regarded as Outstanding for the purposes of this Section if the
pledgee shall establish to the satisfaction of the Trustee the pledgee's right to vote such Bonds
and that the pledgee is not a person directly or indirectly controlling or controlled by or under
common control with the Authority or the City. In case of a dispute as to such right, any
decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee.
Section 9.04 Bondholders' Meetin�. A meeting of the Bondholders with respect to the
Lease may be called at any time and from time to time for any of the following purposes:
(A) to give any notice to the Authority or to the Trustee, or to
give any direction to the Trustee, or to make any request of the Trustee, or
to consent to the waiving of any Event of Default hereunder and its
consequences, or to take any other action authorized to be taken by
Bondholders pursuant to any of the provisions of Article VII hereof;
(B) to remove the Trustee or appoint a successor Trustee
pursuant to the provisions of Article VIII hereof;
(C) subject to Article XI hereof, to consent to the execution of
an indenture or indentures supplemental hereto;
(D) subject to Article XII hereof, to consent to any amendment
of the Lease or to any instrument supplemental to the Lease; or
(E) to take any other action authorized to be taken by or on
behalf of the Holders of any percentage of the Outstanding Bonds under
any other provisions of this Indenture or under applicable law.
Any Bondholders' meeting may be called and held as follows:
(i) A meeting of Bondholders may be held at such place within the
City where the Trustee has its principal office as the Trustee or, in case of its
failure to act, the Authority or Bondholders calling the meeting shall prescribe.
(ii) Notice of every meeting of Bondholders, setting forth the time and
place of such meeting and in general terms the action proposed to be taken at such
meeting, shall be mailed, postage prepaid, not less than 20 nor more than 180
days prior to the date fixed for the meeting, to each owner of Bonds. Any failure
of the Trustee to mail such notice, or any defect therein shall not, however, in any
way impair or affect the validity of any such meeting.
(iii) In case at any time the Authority, pursuant to a resolution, or the
Holders of at least ten percent (10%) in aggegate principal amount of the Bonds
then Outstanding with respect to the Lease, shall have requested the Trustee to
call a meeting of the Bondholders relating to the Lease, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have given the notice of such meeting within 20 days after
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receipt of such request, then the Authority or the Holders of such Bonds in the
amount above specified may call such meeting to take any action authorized in
this Section by giving notice thereof as provided in paragraph (b) of this Section.
(iv) Only a Holder of one or more Bonds or a person appointed as
proxy by an instrument in writing of such Holder shall be entitled to vote at or to
participate with their counsel and the representatives of the Trustee and the
Authority in such meeting. Each Holder shall be entitled to one vote for each
$5,000 in principal amount of Outstanding Bonds held.
(v) The Trustee or, in case of its failure to act, the Authority or
Bondholders calling or requesting the meeting, may make such reasonable
regulations as it may deem advisable for any meeting of Bondholders in regard to
proof of the holding of Bonds and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and examination
of proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
(vi) At any meeting of Bondholders, the presence of persons owning
Bonds in an aggregate principal amount sufficient under the appropriate provision
of this Indenture to take action upon the business for 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.
(vii) 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 Holders of Bonds or of their representatives by proxy and the
serial number or numbers of the Bonds held or represented by them. The
President 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
and there shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat 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 mailed as provided in paragraph(ii) hereof.
Each copy shall be signed and verified by the affidavits of the President and
secretary of the meeting and one such copy shall be delivered to the Authority and
one copy to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified shall
be conclusive evidence of the matters therein stated.
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Section 9.05 Revocation by Bondholders. At any time prior to (but not after) the
evidencing to the Trustee of the taking of any action by the Holders of the percentage in
aggregate principal amount of the Bonds specified in this Indenture in connection with such
action, any Holder of a Bond may, by filing written notice with the Trustee at its principal office,
revoke any consent given by such Holder or the predecessor Holder of 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 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 Authority, the Trustee and the Holders of all the Bonds.
ARTICLE X
PAYMENT, DEFEASANCE AND RELEASE
Section 10.01 Pavrnent and Dischar�e of Indenture. If the Authority, its successors or
assigns, shall
(i) pay or cause to be paid the principal of and premium, if any, and
interest on the Bonds at the time and in the manner stipulated therein and herein,
or
(ii) provide for the payrnent of principal and premium, if any, of such
Bonds and interest thereon by depositing with the Trustee at or at any time before
maturity amounts sufficient either in cash or in government securities of the type
permitted by Minnesota Statutes, Section 475.67, subd. 8, the principal and
interest on which when due and payable and without consideration of any
reinvestment thereof shall be sufficient to pay the entire amount due or to become
due thereon for principal and premium, if any, and interest to maturity of all said
Bonds Outstanding, or
(iii) deliver to the Trustee (1)proof satisfactory to the Trustee that
notice of redemption of all of such Outstanding callable Bonds not surrendered or
to be surrendered to it for cancellation has been given or waived as provided in
Article III hereof, or that arrangements satisfactory to the Trustee have been made
insuring that such notice will be given or waived, or (2) a written instrument
executed by the Authority and expressed to be irrevocable, authorizing the
Trustee to give such notice for and on behalf of the Authority, or (3) file with the
Trustee a waiver of such notice of redemption signed by the Holders of all of such
Outstanding Bonds, and in any such case, deposit with the Trustee or an escrow
agent satisfactory to the Trustee before the date on which such Bonds are to be
redeemed, as provided in said Article III, the entire amount of the redemption
price, including accrued interest, and premium, if any, either in cash or in
government securities of the type permitted by Minnesota Statutes,
Section 475.67, subd. 8, in such aggregate face amount, bearing interest at such
rates and maturing at such dates as shall be sufficient to provide for the payment
of such redemption price on the date such Bonds are to be redeemed, and on such
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prior dates when principal of and interest on the Outstanding Bonds is due and
payable, or
(iv) surrender to the Trustee for cancellation all such Bonds for which
payment is not so provided, and shall also pay all other sums due and payable
hereunder by the Authority,
then and in that case, all the portion of the Trust Estate relating to such Bonds shall revert to the
Authority and the City as their interests may appear, and the entire estate, right, title and interest
of the Trustee and of the owners of such Bonds shall thereupon cease, determine and become
void; and the Trustee in such case, upon the cancellation of all Bonds for the payment of which
cash or securities shall not have been deposited in accordance with the provisions of this
Indenture, shall, upon receipt of a written request of the Authority, and at its cost and expense,
execute to the Authority, or its order, proper instruments acknowledging satisfaction of this
Indenture and surrender to the Authority and the City, as their interests appear, all cash and
deposited securities, if any (other than cash or securities for the payment of such Bonds and
interest thereon), which shall then be held hereunder as a part of the Trust Estate.
In case of any discharge of the lien of the Indenture with respect to the Series 2016 Bonds
pursuant to paragraphs (ii) or (iii) above (unless in the context of a current refunding which is
gross funded, in which case the provisions of this paragraph will not apply), there shall be
submitted to the Trustee a report, of an independent accountant designated by the Authority to
the effect that the payment when due of the principal of and the interest on the government
securities of the type permitted by Minnesota Statutes, Section 475.67, subd. 8, deposited with
the Trustee will provide, together with any other money which shall have been deposited with
the Trustee for such purpose, sufficient money to pay all principal and interest on such
Outstanding Bonds when due; and there shall also be delivered to the Trustee an Opinion of
Counsel (such counsel to be designated by the Authority), which opinion may be based upon a
ruling or rulings of the Internal Revenue Service, to the effect that the interest on such Bonds
being discharged will not become includable in gross income for federal income tax purposes,
notwithstanding the discharge of the Indenture, and that all requirements of the Lease and
Indenture for the defeasance of such Bonds have been complied with.
Nothing contained in this Section 10.01 shall be construed to prohibit the defeasance of
one or more, but not all, series of Bonds by any of the methods set forth in clauses (i), (ii), (iii) or
(iv) above, as the same would apply to the particular series of Bonds being discharged.
Section 10.02 Bonds Deemed Not Outstanding After DepOSitS. When there shall have
been deposited at any time with the Trustee in trust for the purpose, cash or government
securities of the type permitted by Minnesota Statutes, Section 475.67, subd. 8, the principal and
interest on which shall be sufficient to pay the principal of any Bonds when the same become
due, either at maturity or otherwise, or at the date fixed for the redemption thereof and to pay all
interest with respect thereto at the due dates for such interest or to the date fixed for redemption,
for the use and benefit of the Holders thereof, then upon such deposit all such Bonds shall cease
to be entitled to any lien, benefit or security of this Indenture except the right to receive the funds
so deposited, and such Bonds shall be deemed not to be Outstanding hereunder; and it shall be
the duty of the Trustee to hold the cash and securities so deposited for the benefit of the Holders
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of such Bonds, and from and after such date, redemption date or maturity, interest on such Bonds
thereof called for redemption shall cease to accrue.
Section 10.03 Unclaimed Money to be Returned. Any money deposited with the Trustee
pursuant to the terms of this Indenture, for the payment or redemption of Bonds, and the payment
of interest and redemption premium with respect thereto, and remaining unclaimed by the
Holders of the Bonds for a period of two years and eleven months after the due date or the date
fixed for redemption of the same, as the case may be, shall, upon the written request of the
Authority, and if the Authority or any successor to the obligations of the Authority under this
Indenture and the Bonds shall not at the time, to the actual knowledge of the Trustee, be in
default with respect to any of the terms and conditions contained in the Indenture or in the
Bonds, be paid to the Authority, and such Holders of the Bonds shall thereafter look only to the
Authority, for payment and then only to the extent of the amounts so received without interest
thereon.
ARTICLE XI
SUPPLEMENTAL INDENTURES
Section 11.01 Purooses for Which Supplemental Indentures Mav be Executed. The
Authority, upon resolution, and the Trustee from time to time and at any time, subject to the
conditions and restrictions in this Indenture contained, may enter into such indentures
supplemental hereto as may or shall by them be deemed necessary or desirable without the
consent of any Bondholder for any one or more of the following purposes:
(i) To correct the description of any property hereby pledged or
intended so to be, or to assign, convey, pledge or transfer and set over unto the
Trustee, subject to such liens or other encumbrances as shall be therein
specifically described, additional property or properties of the Authority or the
City for the equal and proportional benefit and security of the Holders and owners
of all Bonds at any time issued and Outstanding under this Indenture, subject,
however, to the provisions hereinabove set forth with respect to extended Bonds;
(ii) To add to the covenants and agreements of the Authority in this
Indenture contained other covenants and agreements thereafter to be observed, or
to surrender any right or power reserved to or conferred upon the Authority or to
or upon any successor;
(iii) To evidence the succession or successive successions of any other
department, agency, body or corporation to the Authority and the assumption by
such successor of the covenants, ageements and obligations of the Authority in
the Bonds hereby secured and in this Indenture and in any and every supplemental
indenture contained or the succession, removal or appointment of any trustee or
paying agent hereunder;
(iv) To cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indentures which may be defective or
inconsistent with any other provision contained herein or in any supplemental
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indenture, or to make such other provisions in regard to matters or questions
arising under this Indenture or any supplemental indenture as the Authority may
deem necessary or desirable and which shall not be inconsistent with the
provisions of this Indenture or any supplemental indenture and which shall not
impair the security of the same;
(v) To modify, eliminate and/or add to the provisions of this Indenture
to such extent as shall be necessary 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; and
(vi) To provide for the issuance of Additional Bonds pursuant to this
Indenture.
Section 11.02 Execution of Supplemental Indenture. The Trustee is authorized to join
with the Authority in the execution of any such supplemental indenture, to make the further
agreements and stipulations which may be therein contained, and accept the conveyance, transfer
and assignment of any property thereunder, but the Trustee shall not be obligated to enter into
any such supplemental indenture which affects its rights, duties or immunities under this
Indenture.
Section 11.03 Discretion of Trustee. In each and every case provided for in this Article
XI (other than a supplemental indenture approved by the Holders of not less than a majority in
aggregate principal amount of the Bonds pursuant to Section 11.04 hereo fl, the Trustee shall be
entitled to exercise its unrestricted discretion in determining whether or not any proposed
supplemental indenture or any term or provisions therein contained is necessary or desirable,
having in view the needs of the Authority and the respective rights and interests of the Holders of
Bonds theretofore issued hereunder; and the Trustee shall be under no responsibility or liability
to the Authority or to the City or to any Holder of any Bond, or to anyone whatever, for any act
or thing which it may do or decline to do in good faith subject to the provisions of this Article
XI, in the exercise of such discretion.
Section 11.04 Modification of Indenture with Consent of Bondholders. Subject to the
terms and provisions contained in this Section 11.04, the Holders of not less than a majority in
aggregate principal amount of the Bonds then Outstanding with respect to the Lease shall have
the right, from time to time, to consent to and approve the execution by the Authority and the
Trustee of such indenture or indentures supplemental hereto relating to the Lease as shall be
deemed necessary or desirable by the Authority 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 relating to the Lease; provided, however, that,
notwithstanding any other provision of this Indenture, nothing herein contained shall permit or
be construed as permitting, without the consent of the Holders of all Outstanding Bonds affected
thereby, (a) an extension of the maturity of any Bond issued hereunder, or (b) a reduction in the
principal amount of any Bond or the redemption premium or the rate of interest thereon, or
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(c) the creation of a lien upon or a pledge of revenues ranking prior to or on a parity with the lien
or pledge created by this Indenture, or(d) a preference or priority of any Bond or Bonds over any
other Bond or Bonds, or (e) a reduction in the aggregate principal amount of the Bonds required
to consent to supplemental indentures or amendments to the Lease, or (� a reduction in the
aggregate principal amount of the Bonds required to waive an Event of Default.
Whenever the Authority shall deliver to the Trustee a resolution of Bondholders of Bonds
relating to the Lease adopted at a Bondholders' meeting approved by, or an instrument or
instruments purporting to be executed by, the Holders of not less than a majority in aggregate
principal amount of such Bonds then Outstanding, which resolution or instrument or instruments
shall refer to the proposed supplemental indenture and shall specifically consent to and approve
the execution thereof, thereupon, the Authority and the Trustee may execute such supplemental
indenture without liability or responsibility to any Holder of any Bond relating to the Lease,
whether or not such Holder shall have consented thereto.
If the Holders of not less than a majority in aggregate principal amount of the Bonds
Outstanding relating to the Lease at the time of the execution of such supplemental indenture
shall have consented to and approved the execution thereof as herein provided, no Holder of any
Bond relating to the Lease shall have any right to object to the execution of such supplemental
indenture, or 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 Authority from executing the same or from taking any action pursuant
to the provisions thereof.
Section 11.05 Su�plemental Indentures to be Part of Indenture. Any supplemental
indenture executed in accordance with any of the provisions of this Article shall thereafter form a
part of this Indenture; and all the terms and conditions contained in any such supplemental
indenture as to any provisions authorized to be contained therein shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes, and the respective
rights, duties and obligations under this Indenture of the Authority, the Trustee and all Holders of
Bonds then Outstanding shall thereafter be determined, exercised and enforced hereunder,
subject in all respects to such modifications and amendments. If deemed necessary or desirable
by the Trustee, reference to any such supplemental indenture or any of such terms or conditions
thereof may be set forth in reasonable and customary manner in the text of the Bonds or in a
legend stamped on the Bonds.
Section 11.06 Rights of City Unaffected. Anything herein to the contrary
notwithstanding, a supplemental indenture under this Article XI which adversely affects the
rights of the City under the Lease, so long as the Lease is in effect, shall not become effective
unless and until the City consents to the execution and delivery of such supplemental indenture.
The Trustee shall cause notice of the proposed execution and delivery of any such supplemental
indenture to the execution and delivery of which the City has not already consented, together
with a copy of the proposed supplemental indenture, to be mailed to the City at least 30 days
prior to the proposed date of execution and delivery of any such supplemental indenture.
Section 11.07 Rights of Authoritv_. The Authority has no duty or obligation to consent to
any supplemental indenture or other instrument amending the terms hereof and may, at the
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expense of the City, request and receive an opinion of such counsel as the Authority may select
in connection with any matter relating to a proposed amendment to this Indenture.
Section 11.08 Opinion of Counsel. The Trustee shall receive, and shall be fully
protected in relying upon, the opinion of any counsel approved by it who may be counsel for the
Authority, as conclusive evidence that any such proposed supplemental indenture complies with
the provisions of this Indenture, and that it is proper for the Trustee, under the provisions of this
Article, to join in the execution of such supplemental indenture.
Section 11.09 Notice to Rating A encies. The Authority will send by certified mail, or
overnight delivery service, to any rating agency then maintaining a rating on the Bonds, a copy
of any proposed supplemental indenture not less than 20 Business Days prior to its proposed
execution or adoption.
ARTICLE XII
AMENDMENTS TO THE LEASE
Section 12.01 Amendments to the Lease Not Reguiring Consent of Bondholders. The
Authority, the City and the Trustee may, without the consent of or notice to the Bondholders,
consent to any amendment, change or modification of the Lease as may be required (i)by the
provisions of the Lease and this Indenture, (ii) in connection with the issuance of Additional
Bonds as provided herein, (iii) in connection with the financing of any additions or expansions of
the Project, so long as such amendments do not affect the obligation of the City to make Rental
Payments as they become due and payable, (iv) for the purpose of curing any ambiguity or
formal defect or omission, or (v) in connection with any other change therein which is not to the
prejudice of the Trustee or the Holders of the Bonds.
Section 12.02 Amendments to the Lease Re uiring Consent of Bondholders. Except for
the amendments, changes or modifications as provided in Section 12.01 hereof, neither the
Authority nor the Trustee shall consent to any other amendment, change or modification of the
Lease without the written approval or consent of the Holders of not less than a majority in
aggregate principal amount of the Bonds at the time Outstanding relating thereto given and
procured as in this Section provided; provided, however, that no such amendment, change or
modification shall ever affect the obligation of the City to make Rental Payments as they become
due and payable. If the Holders of not less than a majority in aggregate principal amount of the
Bonds Outstanding hereunder with respect to the Lease at the time of the execution of any such
amendment, change or modification shall have consented to and approved the execution thereof
as herein provided, no Holder of any such Bond shall have any right to object to any of the terms
and provisions contained therein, or in the operation thereof, or in any manner to question the
propriety of the execution thereof, or to enjoin or restrain the Trustee, the Authority or the City
from executing the same or from taking any action pursuant to the provisions thereof.
Section 12.03 Rights of Authority. The Authority has no duty or obligation to consent to
any proposed amendment to the Lease and may, at the expense of the City, request and receive
an opinion of such counsel as the Authority may select in connection with any matter relating to
a proposed amendment to the Lease.
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Section 12.04 Notice to Ratin�A encies. The Authority will send by certified mail, or
overnight delivery service, to any rating agency then maintaining a rating on the Bonds, a copy
of any proposed amendment to the Lease not less than 20 Business Days prior to its proposed
execution or adoption.
ARTICLE XIII
MISCELLANEOUS
Section 13.01 Ri�hts in Authoritv are Held Solely for Benefit of Bondholders. All
rights, title and interest created in the Authority pursuant to the Lease are held by the Authority
solely for the benefit of the Owners of the Series 2016 Bonds issued pursuant to this Indenture,
and no rights, title or interest is created in the Authority in its individual capacity or for its own
account or benefit for any reason whatsoever. All such rights, title and interest have been
irrevocably and absolutely assigned and conveyed in their entirety to the Trustee for the benefit
of the Owners of the Bonds issued pursuant to this Indenture.
Section 13.02 Covenants of Authority Bind Successors and Assig�ns. All the covenants,
stipulations, promises and agreements in this Indenture contained, by or in behalf of the
Authority, shall bind and inure to the benefit of its successors and assigns, whether so expressed
or not.
Section 13.03 Immunitv of Officers. No recourse for the payment of any part of the
principal of or interest on any Bond or for the satisfaction of any liability arising from, founded
upon or existing by reason of the issue, purchase or ownership of the Bonds shall be had against
any officer, member or agent of the Board of Commissioners of the Authority, the Authority, the
City or the State, as such, all such liability being hereby expressly released and waived as a
condition of and as a part of the consideration for the execution of this Indenture and the
issuance of the Bonds.
Section 13.04 No Benefits to Outside Parties. Nothing in this Indenture, express or
implied, is intended or shall be construed to confer upon or to give to any person or corporation,
other than the City, the parties hereto and the Holders of the Bonds issued hereunder, any right,
remedy or claim under or by reason of this Indenture or covenant, condition or stipulation
thereof; and the covenants, stipulations and agreements in this Indenture contained are and shall
be for sole and exclusive benefit of the City, the parties hereto, their successors, and the Holders
of the Bonds.
Section 13.05 Separabilitv of Indenture Provisions. In case any one or more of the
provisions contained in this Indenture or in the Bonds shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not
affect any other provisions of this Indenture, but this Indenture shall be construed as if such
invalid or illegal or unenforceable provision had never been contained herein.
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Section 13.06 Execution of Indenture in Counterparts. This Indenture may be
simultaneously executed in several counterparts, each of which, when so executed, shall be
deemed to be an original, and such counterparts shall together constitute one and the same
instrument.
Section 13.07 Headings Not Controlling. The headings of the several Articles and
Sections hereof are inserted for the convenience of reference only and shall not control or affect
the meaning or construction of any of the provisions hereof.
Section 13.08 Notices etc., to Trustee, Authority and City. Any request, demand,
authorization, direction, notice, consent of Bondholders or other document provided or permitted
by this Indenture shall be sufficient for any purpose under this Indenture or the Lease, when
mailed certified mail, return receipt requested, postage prepaid (except as otherwise provided in
this Indenture) (with a copy to the other parties) at the following addresses (or such other address
as may be provided by any party by notice) and shall be deemed to be effective upon receipt:
To the Trustee: U.S. Bank National Association
60 Livingston Avenue
St. Paul, Minnesota 55107
Attn: Corporate Trust Services
To the Authority: Housing and Redevelopment Authority of the City of
Golden Valley, Minnesota
7800 Golden Valley Rd.
Golden Valley, MN 55427
Attn: Authority Director
To the City: City of Golden Valley, Minnesota
7800 Golden Valley Rd.
Golden Valley, MN 55427
Attn: City Manager
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IN WITNESS WHEREOF, the Housing and Redevelopment Authority of the City of
Golden Valley, Minnesota, by its Board of Commissioners, has caused this Indenture to be
signed in its name by its Chair and Authority Director, and U.S. Bank National Association, as
Trustee, to evidence its acceptance of the trust hereby created, has caused this Indenture to be
signed in its name by an authorized officer of the Trustee, all as of the day and year first above
written.
HOUSING AND REDEVELOPMENT
AUTHORITY OF THE CITY OF GOLDEN
VALLEY, MINNESOTA
By
Its Chair
Attest
By
Its Authority Director
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U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By
Its
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EXHIBIT A
FORM OF SERIES 2016 BOND
No. R-_ $
UNITED STATES OF AMERICA
STATE OF MINNESOTA
HENNEPIN COUNTY
HOUSING AND REDEVELOPMENT AUTHORITY OF THE CITY OF GOLDEN VALLEY,
MiNNESOTA
LEASE REVENUE BOND (COMMUNITY CENTER PROJECT), SERIES 2016
Rate Maturitv Date of Original Issue CUSIP
% 1, 20_ , 2016
REGISTERED OWNER: CEDE & CO.
PRINCIPAL AMOUNT: DOLLARS
The HOUSING AND REDEVELOPMENT AUTHORITY OF THE CITY OF GOLDEN
VALLEY, MINNESOTA, a public body corporate and politic of the State of Minnesota (the
"Authority"), for value received, hereby promises to pay to the registered owner named above, or
registered assigns, solely from the sources hereinafter identified, the principal amount set forth
above on the maturity date specified above, and to pay to the registered owner hereof, interest on
such principal amount, from such sources, at the interest rate specified above, from the date of
original issue specified above or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, as specified below, on [_] 1 and [_� 1 of
each year, commencing [_�1, 201[�, until said principal amount is paid. Interest shall
be computed on the basis of a three hundred sixty(360) day year composed of twelve(12), thirty
(30) day months and shall be payable to the person in whose name this Bond is registered at the
close of business on the fifteenth day (whether or not a Business Day) of the month preceding
such Interest Payment Date at such person's address set forth on the registration books
maintained by the Trustee hereinafter designated. The interest hereon, and upon presentation
and surrender at the principal office of the agent of the Trustee described below, the principal
hereof, is payable in lawful money of the United States of America by check or draft drawn on
U.S. Bank National Association, as trustee designated under the Trust Indenture referred to
below (the "Trustee"). Any such interest not punctually paid or provided for will cease to be
payable to the registered owner as of a regular record date and such defaulted interest may be
paid to the person in whose name this Bond shall be registered at the close of business on a
special record date for the payment of such defaulted interest established by the Trustee pursuant
to the Indenture.
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Notwithstanding any other provisions of this Bond, so long as this Bond is registered in
the name of Cede & Co., as nominee of The Depository Trust Company, or in the name of any
other nominee of The Depository Trust Company or other securities depository, the Trustee shall
pay all principal of and interest on this Bond, and shall give all notices with respect to this Bond,
only to Cede& Co. or other nominee in accordance with the operational arrangements of The
Depository Trust Company or other securities depository as agreed to by the Authority.
This Bond is issued under Minnesota Statutes, Section 465.71, Chapter 469, Chapter 471,
and Chapter 475, as amended, and in conformity with the provisions, restrictions and limitations
thereof. This Bond and interest hereon are payable from the money received under the Lease (as
hereinafter defined), or held by the Trustee in a fund appropriated to the payment of the Bonds of
this series under the Indenture (as hereinafter defined), including rental payments to be made by
the City of Golden Valley, Minnesota (the "City"), under the Lease. This Bond does not
constitute an indebtedness of the Authority, the City, the State of Minnesota (the "State") or any
other political subdivision within the meaning of any state constitutional provision or statutory
limitation, nor does this Bond give rise to a charge against the general credit or properties or
taxing powers of the Authority, the City, the State or other political subdivision and does not
grant to the registered owner of this Bond any right to have the Authority, the City, the State or
other political subdivision levy any taxes or appropriate any funds for the payment of the
principal hereof or interest hereon, nor is this Bond a general obligation of the Authority, the
City, the State or other political subdivision or the individual officers or agents thereof.
This Bond is one of a duly authorized series of revenue bonds in an aggregate principal
amount of$[_� (the "Series 2016 Bonds"), all of which have been authorized by law to
be issued and have been issued or are to be issued for the purpose of financing the acquisition
and construction of certain improvements in the City(the "Project") which are to be leased to the
City by the Authority pursuant to a Lease-Purchase Agreement, dated as of October 1, 2016,
between the Authority, as lessor, and the City, as lessee, relating to the Series 2016 Bonds (the
"Lease"). The Bonds of this series are issued pursuant to a Bond Resolution of the Authority
duly adopted [_] relating to the Series 2016 Bonds (the "Bond Resolution"), and a Trust
Indenture, dated as of October 1, 2016 (the "Indenture"), duly executed and delivered by the
Authority to the Trustee, as trustee. The Bonds of this series are equally and ratably secured by
the Lease, the Indenture and the Bond Resolution, to which Lease, Indenture and Bond
Resolution and amendments thereof reference is hereby made for a description and limitation of
the revenues and property pledged to secure the payment of the Bonds, the nature and extent of
the security thereby created, the rights of the registered owners of the Bonds, the rights, duties
and immunities of the Trustee, and the rights, immunities and obligations of the Authority
thereunder.
The obligation of the City under the Lease to make Rental Payments sufficient to pay the
principal of and interest on the Bonds when due is a limited obligation of the City, subject to the
annual appropriation in each fiscal year by the City Council of funds sufficient to pay such
Rental Payments. The City is not obligated to make any such appropriation and has the right to
cancel and terminate the Lease at the end of any fiscal year of the City if the City Council does
not appropriate money sufficient to pay the Rental Payments coming due in the next fiscal year.
Certified copies of the Bond Resolution and executed counterparts of the Indenture and Lease are
on file at the principal corporate trust office of the Trustee.
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The Series 2016 Bonds maturing in 20[� and later years are subject to redemption at
the option of the Authority, on [_� 1, 20[� and on any Business Day thereafter, in
whole or in part in integral multiples of$5,000, and if in part in such order of maturity dates as
the Authority may determine and by lot or other manner deemed fair as to Series 2016 Bonds
maturing on the same date, at a redemption price equal to the principal amount thereof to be
redeemed plus accrued interest to the redemption date.
The Series 2016 Bonds maturing in the years [_� are subject to mandatory
sinking fund redemption, at a redemption price equal to the principal amount thereof to be
redeemed plus accrued interest to the redemption date, on [_] 1 in the years and amounts
set forth in the Indenture.
The Series 2016 Bonds are also subject to redemption at the option of the Authority on
any Business Day, in whole or in part in integral multiples of$5,000, and if in part in such order
of maturity dates as the Authority may determine and by lot as to Series 2016 Bonds maturing on
the same date, in the event that all or any part of the Project is lost, stolen, destroyed or damaged
beyond repair and the Authority determines that the reconstruction and restoration of the Project
to its prior condition is not economically feasible.
All prepayments shall be at a price equal to the principal amount thereof to be redeemed
plus accrued interest to the redemption date. Notice of any redemption shall be published if, and
to the extent then required by law, and shall also be given to the registered owner of each Bond
to be redeemed by first-class mail, addressed to such owner at the owner's registered address, not
earlier than ninety(90) days nor later than thirty (30) days prior to the date fixed for redemption.
On or prior to the date fixed for redemption, funds are required to be deposited with the Trustee
sufficient to pay the Series 2016 Bonds called and accrued interest thereon. Upon the happening
of the above conditions, Series 2016 Bonds thus called shall not bear interest after the
redemption date and, except for the purpose of payment from the funds so deposited, shall no
' longer be protected by the Indenture.
This Bond is transferable, as provided in the Indenture, only upon books of the Authority
kept at the principal office of the agent of the Trustee by the registered owner hereof in person or
by the owner's duly authorized attorney, upon surrender of this Bond for transfer at the principal
corporate trust office of the Trustee, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Trustee duly executed by the registered owner hereof or the
owner's duly authorized attorney, and, upon payment of any tax, fee or other governmental
charge required to be paid with respect to such transfer, one or more fully registered Bonds of
this series of the same principal amount and interest rate will be issued to the designated
transferee or transferees.
The Series 2016 Bonds are issuable only as fully registered bonds without coupons in
denominations of$5,000 or any integral multiple thereof of single maturities. As provided in the
Indenture and subject to certain limitations therein set forth, the Series 2016 Bonds are
exchangeable for a like aggregate principal amount of Series 2016 Bonds of a different
authorized denomination, as requested by the registered owner or the owner's duly authorized
attorney upon surrender thereof to the Trustee at its principal corporate trust office.
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IT IS HEREBY CERTIFIED AND RECITED that all acts, conditions and things
required to be done precedent to and in the issuance of this Bond and the series of which it is a
part have been properly done, have happened and have been performed in regular and due time,
form and manner as required by law.
This Bond shall not be valid nor become obligatory for any purpose under the Indenture
until it shall have been authenticated by the execution of the certificate hereon endorsed by the
manual signature of an authorized representative of the Trustee.
IN WITNESS WHEREOF, the Housing and Redevelopment Authority of the City of
Golden Valley, Minnesota, by its Board of Commissioners, has caused this Bond to be executed
in its name by the facsimile signatures of its Chair and Authority Director.
HOUSING AND REDEVELOPMENT
AUTHORITY OF THE CITY OF GOLDEN
VALLEY, MINNESOTA
Chair
Authority Director
CERTIFICATE OF AUTHENTICATION
This is one of the Series 2016 Bonds described in the within mentioned Indenture.
Date:
U.S. BANK NATIONAL ASSOCIATION, as
Trustee
By
Authorized Representative
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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 according to the applicable laws or
regulations:
TEN COM-- as tenants in common UTMA as Custodian for
as tenants by the entireties (Cust) (Minor)
TEN ENT-- Minors Act Under Uniform Transfers to
JT TEN -- as joint tenants with right of (State)
survivorship and not as
tenants in common
Other abbreviations may also be used.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer the within Bond
on the books kept for registration thereof, with full power of substitution in the premises.
Dated:
Please Insert Social Security Number
or Other ldentifying Number of Assignee: Notice: The signature to this assignment must
correspond with the name as it appears on the
face of this Bond in every particular, without
alteration, enlargement or and change
whatever.
SIGNATURE GUARANTEED:
Signature(s)must be guaranteed by an
"eligible guarantor institution"meeting the
requirements of the Trustee, which
requirements include membership or
Participation in STAMP or such other
"signature guaranty program" as may be
determined by the Trustee in addition to or
in substitution for STAMP, all in accordance
with the Securities Exchange Act of 1934, as
amended.
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EXHIBIT B
DRAW REQUEST NO.
LEASE REVENUE BONDS (COMMUNITY CENTER PROJECT), SERIES 2016
The undersigned, a duly authorized City Representative pursuant to that certain Trust
Indenture, dated as of October l, 2016 (the "Indenture"), between the Housing and
Redevelopment Authority of the City of Golden Valley, Minnesota and U.S. Bank National
Association, as trustee (the "Trustee"), hereby requests and directs the Trustee to make the
disbursements to the persons and in the amounts set forth below from the Project Fund pursuant
to and in accordance with the provisions of Section 4.04 of the Indenture:
Purpose or Percentage Attributable
Payee Work Performed Amount to Project Costs
The undersigned certifies to the Trustee that each obligation, item of cost or expense
mentioned above has been properly incurred, is an item of Project Cost and is a proper charge
against the Project Fund and has not been the basis of any previous withdrawal.
Dated:
CITY OF GOLDEN VALLEY,
MINNESOTA
By:
City Representative
B-1
EXHIBIT C
COSTS OF ISSUANCE EXPENSES
Financial Advisor
Bond Counsel
Trustee Origination
Rating Agency (Standard&Poor's)
POS/Official Statement
Miscellaneous
Total Issuance Expenses
C-1
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763-593-8402/763-593-8109(fax)
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Executive Summary For Action
Golden Valley Special Housing and Redevelopment Authority Meeting
September 6, 2016
Agenda Item
3. Second Amendment to Private Development Agreement for Global One Golden Valley, LLC,
and 394 Associates, LLP
Prepared By
Jason Zimmerman, Planning Manager
Summary
Delays related to the legal issues associated with the Three•Nine•Four Development have caused
the start date for the construction of the apartment building to have been pushed back. Ground
breaking is now anticipated for October of 2016. The First Amendment to Private Development
Agreement between the developers and the HRA requires that at least one of the two buildings
approved for the project must be completed by September 30, 2017. Given the new projected
start date,this completion target is no longer feasible.
The developers have requested an extension of the completion date to December 31, 2018. The
attached Second Amendment to Private Development Agreement provides for this
accommodation.
Attachments
• Second Amendment to Private Development Agreement for Global One Golden Valley, LLC,
and 394 Associates, LLP (6 pages)
Recommended Action
Motion to authorize the Chair and Director to sign the Second Amendment to Private
Development Agreement for Global One Golden Valley, LLC, and 394 Associates, LLP.
GLOBAL ONE GOLDEN VALLEY. LLC
394 ASSOCIATES. LLP
SECOND AMENDMENT TO PRIVATE DEVELOPMENT AGREEMENT
THIS SECOND AMENDMENT TO PRIVATE DEVELOPMENT AGREEMENT
("Amendment"), effective as of , 2016, is made and entered into by and
between 394 ASSOCIATES, LLP, a Colorado limited liability partnership, with its
principal office at 4500 Cherry Creek Drive South, Suite 550, Glendale, Colorado 80246
("394"); GLOBAL ONE GOLDEN VALLEY, LLC, a Minnesota limited liability company,
with its principal office at IDS Center, 80 South 8th Street, Suite 900, Minneapolis,
Minnesota 55402 ("Global One"); and THE HOUSING AND REDEVELOPMENT
AUTHORITY IN AND FOR THE CITY OF GOLDEN VALLEY, a public body corporate
established and existing under Minnesota Statutes, Section 469.001 et seq., with its
principal offices at 7800 Golden Valley Road, Golden Valley, Minnesota 55427 (the
"HRA"). All capitalized terms used but not defined herein shall have the meaning
ascribed to them in the Agreement.
WHEREAS, the HRA and Global One entered into that certain Private
Development Agreement (the "Agreement") dated April 10, 2012, and amended by a
First Amendment to Private Development Agreement as of September 16, 2015, all
relating to the sale by the HRA to Global One of the MNDOT Parcel described on
Exhibit A hereto (the "MNDOT Parcel"), and the purchase by Global One of the
Adjacent Parcel described on Exhibit B attached hereto (the "Adjacent Parcel") for the
project commonly referred to as The Three.Nine.Four; and
WHEREAS, Global One and the HRA entered into a Partial Assignment and
Assumption of Private Development Agreement and Consent as of September 16,
2015, which assigned certain portions of the rights and obligations under the
Development Agreement to 394; and
WHEREAS, the Parties now wish to amend the Agreement in certain particulars
as set out below;
NOW, THEREFORE, in consideration of the foregoing, and in consideration of
the mutual terms and conditions contained herein, the Parties agree as follows:
1. Section 4.2 of the Development Agreement is hereby amended by changing the
date of September 30, 2017 contained in the First Amendment to Private Development
Agreement to December 31, 2018.
2. Except as set forth herein, all terms, provisions and covenants of the
Development Agreement shall remain unchanged and in full force and effect.
1
IN WITNESS WHEREOF, the HRA has caused this Amendment to be duly
executed in its name and behalf and its seal to be hereunto duly affixed and Global One
and 394 have caused this Amendment to be duly executed in their names and
behalves, on or as of the date first above written.
THE HOUSING AND REDEVELOPMENT
AUTHORITY IN AND FOR THE CITY OF
GOLDEN VALLEY
By:
Its: Chair
And
Its: Director
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this day of
, 2016, by Steven T. Schmidgall, Chair, and Timothy J. Cruikshank,
Director, of THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE
CITY OF GOLDEN VALLEY, on behalf of the organization.
Notary Public
GLOBAL ONE GOLDEN VALLEY, LLC
By:
Mark C. Globus, Chief Manager
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this day of
, 2016, by Mark C. Globus, Chief Manager of GLOBAL ONE GOLDEN
VALLEY, LLC, a Minnesota limited liability company, on behalf of the company.
Notary Public
394 ASSOCIATES, LLP
By: Forum Management, Inc., a
Colorado corporation,
its Managing Partner
By:
Name:Jeffrey T. Ogden
Its: Senior Vice President
STATE OF COLORADO )
) ss.
COUNTY OF ARAPAHOE )
The foregoing instrument was acknowledged before me this day of
, 2016, by Jeffrey T. Ogden, as Senior Vice President of Forum
Management, Inc., a Colorado corporation, as Managing Partner of 394 ASSOCIATES,
LLP, a Colorado limited liability partnership, on behalf of the partnership.
Notary Public
DRAFTED BY:
Best & Flanagan LLP (ADB)
225 South Si�h Street, Suite 4000
Minneapolis, Minnesota 55402-4690
011800/960700/2455402 1
EXHIBIT A
That part of Tract A described below:
Tract A: Tract N, Registered Land Survey No. 106, files of the Registrar of Titles,
Hennepin County, Minnesota; the title thereto being registered;
which lies northerly of Line 1 described below:
Line 1. Commencing at the west quarter corner of Section 30, Township 29 North,
Range 24 West; thence easterly on an azimuth of 91 degrees 21 minutes 02 seconds
along the east and west quarter line thereof for 560.49 feet; thence on an azimuth of 01
degree 23 minutes 46 seconds for 225.54 feet to a point on the west line of Tract A
hereinbefore described and the point of beginning of Line 1 to be described; thence on
an azimuth of 75 degrees 58 minutes 35 seconds for 134.05 feet; thence on an azimuth
of 87 degrees 00 minutes 30 seconds for 533.32 feet; thence deflect to the left on a
tangential curve, having a radius of 509.00 feet and a delta angle of 21 degrees 30
minutes 00 seconds, for 191.00 feet; thence on an azimuth of 51 degrees 00 minutes 02
seconds for 150.00 feet and there terminating.
EXHIBIT B
LEGAL DESCRIPTION FOR THE ADJACENT PARCEL
Lots 5 and 19, and
The South 9.75 feet of Lot 9,
The South 15 feet of Lot 7,
The South 15 feet of Lot 6,
That part of Lot 13, lying Southwesterly of a line drawn 9.75 feet Northeasterly of and
parallel with the Southwesterly line of said lot,
A II in Block 2, "Spring Green South", Hennepin County, Minnesota.
Subject to easements and memorials of record.
Reflected on Certificate of Title Number 1334024.