HomeMy WebLinkAboutORDINANCE - 2239 - 5/26/1992 - INDUSTRIAL REVENUE BONDSMINUTES of a regular public meeting of the President and Board
of Trustees of the Village of Elk Grove Village, Cook and DuPage
Counties, Illinois, held at the Village Hall at 8: 00 o'clock, P.M.,
on the Nth day of May, 1992.
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The Mayor called the meeting to order, and directed the City Clerk to call the roll.
Upon the roll being called, the President and the following Trustees answered present:
Joseph T. Bosslet, Ronald L. Chernick, Dennis J. Gallitano,
James P. Petri, Michael A. Tosto
The following Trustees were absent: Nancy J. Czarnik
(Other Business)
Trustee Tosto presented, and the Village Clerk read in full,
the followine ordinance:
ORDINANCE NO. 2239
AN ORDINANCE authorizing the execution and delivery of a Second
Supplemental Indenture of Trust and a Second Amendment to Loan
Agreement and related matters.
WHEREAS, the Village of Elk Grove Village, Cook and DuPage Counties, Illinois, a
municipality and a home rule unit of government duly organized and validly existing under
the Constitution and the laws of the State of Illinois (the "Issuer"), has previously issued its
Floating Rate Monthly Demand Industrial Development Revenue Bonds, Series 1984
(La Quinta Motor Inns, Inc. Project) in the aggregate principal amount of $4,800,000 (the
"Bonds"), pursuant to the Indenture of Trust dated as of October 1, 1984 (the "Indenture"),
by and between the Issuer and United States Trust Company of New York, as Trustee (the
"Trustee"); and
WHEREAS, the Issuer lent the proceeds of the Bonds to La Quinta Motor Inns, Inc., a
Texas corporation (the "Company"), pursuant to the Loan Agreement dated as of October 1,
1984, by and between the Issuer and the Company (the "Agreement'); and
WHEREAS, the Bonds are still outstanding; and
WHEREAS, the Issuer, the Trustee and the Company have now determined that it is
necessary and desirable to supplement the Indenture for various purposes and to amend the
Agreement for various purposes; and
WHEREAS, it is necessary to authorize the execution and delivery of a Second
Supplemental Indenture of Trust dated as of June 1, 1992, by and between the Issuer and the
Trustee (the "Supplemental Indenture "); and
WHEREAS, it is necessary to authorize the execution and delivery of a Second
Amendment to Loan Agreement dated as of June 1, 1992, by and between the Issuer and the
Company (the "Amendatory Agreement'); and
WHEREAS, it is necessary to approve the distribution of a Remarketing Memorandum
relating to the Bonds (the "Remarketing Memorandum"); and
WHEREAS, a form of Supplemental Indenture, a form of Amendatory Agreement and
a form of Remarketing Memorandum have been prepared and presented to this meeting;
NOW THEREFORE, Be It Ordained by the President and Board of Trustees of the
Village of Elk Grove Village, Cook and DuPage Counties, Illinois, as follows:
Section 1. That the form, terms and provisions of the proposed Supplemental
Indenture be, and they are hereby, in all respects approved; that the President of the Issuer
be, and is hereby, authorized, empowered and directed to execute, and the Village Clerk of
the Issuer be, and is hereby, authorized, empowered and directed to attest and to affix the
official seal of the Issuer to, the Supplemental Indenture in the name and on behalf of the
Issuer, and thereupon to cause the Supplemental Indenture to be delivered to the Trustee;
that the Supplemental Indenture is to be in substantially the form presented to and before this
meeting and hereby approved or with such changes therein as shall be approved by the
officer of the Issuer executing the Supplemental Indenture, his execution thereof to consti-
tute conclusive evidence of his approval of any and all changes or revisions therein from the
form of Supplemental Indenture before this meeting; that from and after the execution and
delivery of the Supplemental Indenture, the officers, officials, agents and employees of the
Issuer are hereby authorized, empowered and directed to do all such acts and things and to
execute all such documents as may be necessary to carry out and comply with the provisions
of the Supplemental Indenture as executed; and that the Supplemental Indenture shall consti-
tute and is hereby made a part of this authorizing Ordinance and a copy of the Supplemental
Indenture shall be placed in the official records of the Issuer and shall be available for public
inspection at the principal office of the Issuer.
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Section 2. That the form, terms and provisions of the proposed Amendatory
Agreement be, and they are hereby, in all respects approved; that the President of the Issuer
be, and is hereby, authorized, empowered and directed to execute, and the Village Clerk of
the Issuer be, and is hereby, authorized, empowered and directed to attest and to affix the
official seal of the Issuer to, the Amendatory Agreement in the name and on behalf of the
Issuer, and thereupon to cause the Amendatory Agreement to be delivered to the Company;
that the Amendatory Agreement is to be in substantially the form presented to and before
this meeting and hereby approved or with such changes therein as shall be approved by the
officer of the Issuer executing the Amendatory Agreement, his execution thereof to consti-
tute conclusive evidence of his approval of any and all changes or revisions therein from the
form of Amendatory Agreement before this meeting; that from and after the execution and
delivery of the Amendatory Agreement, the officers, officials, agents and employees of the
Issuer are hereby authorized, empowered and directed to do all such acts and things and to
execute all such documents as may be necessary to carry out and comply with the provisions
of the Amendatory Agreement as executed; and that the Amendatory Agreement shall consti-
tute and is hereby made a part of this authorizing Ordinance and a copy of the Amendatory
Agreement shall be placed in the official records of the Issuer and shall be available for
public inspection at the principal office of the Issuer.
Section 3. That the distribution of the Remarketing Memorandum in substantially
the form presented to and before this meeting is hereby approved.
Section 4. That the President, the Village Clerk and the proper officers, officials,
agents and employees of the Issuer are hereby authorized, empowered and directed to do all
such acts and things and to execute all such documents and certificates as may be necessary to
carry out and comply with the provisions of the Supplemental Indenture and the
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Amendatory Agreement and to further the purposes and intent of this authorizing
Ordinance, including the preamble hereto.
Section 5. That all acts of the officers, officials, agents and employees of the Issuer
which are in conformity with the purposes and intent of this authorizing Ordinance be, and
the same are hereby, in all respects, approved, ratified and confirmed.
Section 6. That the provisions of this authorizing Ordinance are hereby declared to
be separable, and if any section, phrase or provision of this authorizing Ordinance shall for
any reason be declared to be invalid, such declaration shall not affect the validity of the
remainder of the sections, phrases and provisions of this authorizing Ordinance.
ME
Section 7. All ordinances, resolutions and orders, or parts thereof, in conflict with
the provisions of this authorizing Ordinance are, to the extent of such conflict, hereby super-
seded. This authorizing Ordinance shall be in full force and effect upon its adoption as by
law provided.
Presented, passed, approved and recorded by the President and Board of Trustees of
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the Village of Elk Grove Village, Cook and DuPage Counties, Illinois, this ii2th day of May,
1992.
[SEAL]
Attest:
Patricia S. Smith
Village Clerk
Approved:
Charles J. Zettek
President
Ayes:Joseph T. Bosslet, Ronald L. Chernick, Dennis J. Gallitano,
James P. Petri, Michael A. Tosto
Nayes: None
Absent or Not Voting: Nancy J. Czarnik ( Absent)
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Trustee Tosto
moved, and Trustee
Petri
seconded the motion, that said ordinance as presented and read by the Village Clerk be
adopted.
After a full discussion thereof, the President directed that the roll be called for a vote
upon the motion to adopt said ordinance, as read.
Upon the roll being called, the following Trustees voted:
AYE: Joseph T. Bosslet, Ronald L. Chernick, Dennis J. Gallitano
James P. Petri, Michael A. Tosto
NAY:
ABSENT OR NOT VOTING: Nancy J. Czarnik ( Abs
Whereupon the President declared the motion carried and said ordinance adopted, and
hereforth did approve and sign the same in open meeting and did direct the Village Clerk to
record the same in full in the records of the President and Board of Trustees of the Village
of Elk Grove Village, Cook and DuPage Counties, Illinois.
[SEAL]
(Other Business)
Upon motion duly made and seconded, the meeting was adjourned.
Patricia S. Smith
Village Clerk
STATE OF ILLINOIS )
Cook & ) SS.
COUNTY OF DuPage )
1, the undersigned, do hereby certify that I am the duly qualified and acting Village
Clerk of the Village of Elk Grove Village, Cook and DuPage Counties, Illinois, and as such
officer I am the keeper of the records and files of the President and Board of Trustees of
said Village.
I do further certify that the foregoing constitutes a full, true and complete transcript
of the minutes of the legally convened meeting of said President and Board of Trustees of
said Village held on the Z$th day of May, 1992, insofar as same related to the adoption of an
ordinance entitled:
AN ORDINANCE authorizing the execution and delivery of a Second
Supplemental Indenture of Trust and a Second Amendment to Loan
Agreement and related matters.
a true, correct and complete copy of which said ordinance as adopted at same meeting
appears in the foregoing transcript of the minutes of said meeting.
I do further certify that the deliberations of the President and Board of Trustees of
said Village on the adoption of said ordinance were taken openly; that the vote on the adop-
tion of said ordinance was taken openly; that said meeting was held at a specified time and
place convenient to the public; that notice of said meeting was duly given to all newspapers,
radio or television stations and other news media requesting such notice; and that said meet-
ing was called and held in strict accordance with the provision of the Open Meetings Act of
the State of Illinois, as amended, and with the provisions of the Illinois Municipal Code, as
amended, and that said President and Board of Trustees has complied with all of the appli-
cable provisions of said Act and said Code and its procedural rules in the adoption of said
ordinance.
IN WITNESS WHEREOF, I have hereunto affixed my official signature and the seal of
said Village, this 26th day of May, 1992.
Patricia S. Smith
Village Clerk,
Village of Elk Grove Village, Cook and
DuPage Counties, Illinois
(SEAL)
SECOND AMENDMENT
TO
LOAN AGREEMENT
Dated as of June 1, 1992
By and Between
VILLAGE OF ELK GROVE VILLAGE,
COOK AND DUPAGE COUNTIES, ILLINOIS
and
LA QUINTA MOTOR INNS, INC.
SECOND AMENDMENT TO LOAN AGREEMENT
THIS SECOND AMENDMENT TO LOAN AGREEMENT dated as of June 1,
1992, by and between the VILLAGE OF ELK GROVE VILLAGE, COOK AND DUPAGE
COUNTIES, ILLINOIS, a municipality and a home rule unit of government duly organized
and validly existing under the Constitution and the laws of the State of Illinois (the
"Issuer"), and LA QUINTA MOTOR INNS, INC., a corporation duly organized and validly
existing under the laws of the State of Texas (the "Company");
WITNESSETH:
WHEREAS, on November 2, 1984, the Issuer issued $4,800,000 aggregate
principal amount of its Floating Rate Monthly Demand Industrial Development Revenue
Bonds, Series 1984 (La Quinta Motor Inns, Inc. Project) (the "Bonds") to provide funds to
pay the cost of the acquisition, construction and installation of certain motor inn
facilities (the "Project"); and
WHEREAS, in order to secure the Bonds the Company entered into a Loan
Agreement dated as of October 1, 1984 (the "Original Agreement") with the Issuer; and
WHEREAS, the Original Agreement has been supplemented and amended by
the Amendment to Loan Agreement dated as of April 1, 1985, by and between the Issuer
and the Company (the Original Agreement as so supplemented and amended and as from
time to time supplemented and amended being referred to herein as the "Agreement");
and
WHEREAS, the Bonds were secured by a Mortgage and Security Agreement
dated as of October 1, 1984 (the "Original Mortgage") among the Issuer, the Company,
Republic Bank Dallas, National Association and United States Trust Company of New
York (the "Trustee"); and
WHEREAS, the parties have decided to amend and restate the Original
Mortgage; and
WHEREAS, the parties desired to amend the Agreement for various
purposes;
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
All words and terms defined in Article I and elsewhere in the Original
Agreement shall have the same respective meanings in this Second Amendment to Loan
Agreement, unless otherwise defined in this Second Amendment to Loan Agreement.
ARTICLE II
AMENDMENTS
Section 2.01. Definition of "Alternate Letter of Credit" Amended. The
definition of "Alternate Letter of Credit" contained in Article I of the Original
Agreement is hereby amended to read as follows:
"Alternate Letter of Credit" means an irrevocable letter of credit issued in
accordance with Section 4.5(b) hereof and shall include (i) any letter of credit
substituted therefor in a reduced amount but otherwise having terms identical to
such irrevocable letter of credit when issued, except as otherwise provided herein,
and (ii) any renewal or extension of any such Alternate Letter of Credit.
"Alternate Letters of Credit" shall mean more than one Alternate Letter of Credit.
Section 2.02. Definition of "Letter of Credit" Amended. The definition of
"Letter of Credit" contained in Article I of the Original Agreement is hereby amended to
read as follows:
"Letter of Credit" means the irrevocable Letter of Credit issued by the Bank
to the Trustee contemporaneously with the original issuance of the Bonds and shall
include (i) any letter of credit substituted therefor in a reduced amount but
otherwise having terms identical to such irrevocable Letter of Credit when issued,
except as otherwise provided herein, and (ii) any renewal or extension of the Letter
of Credit; provided, that upon the issuance and delivery of an Alternate Letter of
Credit in accordance with Section 4.5(b) hereof, "Letter of Credit" shall mean such
Alternate Letter of Credit instead of the letter of credit for which such Alternate
Letter of Credit has been substituted.
Section 2.03. Definition of "Mortgage" Amended. The definition of
"Mortgage" contained in Article I of the Original Agreement is hereby amended to read
as follows:
"Mortgage" means the Amended and Restated Mortgage and Security
Agreement dated as of June 1, 1992, from the Company to the Bank, the Trustee,
United Virginia Bank, as trustee, and the First National Bank of Chicago, as
trustee, as from time to time supplemented and amended.
Section 2.04. Definition of "Prime Rate" Amended. The definition of
"Prime Rate" contained in Article I of the Original Agreement is hereby amended to read
as follows:
"Prime Rate" means the interest rate announced or published from time to
time by NationsBank of North Carolina, N.A., at its principal corporate offices in
Charlotte, North Carolina as its "prime rate." The Prime Rate is not necessarily
the best or lowest rate of interest offered by NationsBank of North Carolina, N.A.
If NationsBank of North Carolina, N.A. is no longer the Remarketing Agent, the
"Prime Rate" shall be that rate announced or published from time to time by the
Bank as its "Prime Rate," which rate may not necessarily be the best or lowest rate
of interest offered by the Bank, or, if there is no Letter of Credit outstanding, the
Prime Rate shall mean the Commercial Prime Rate for large money center banks
published by the Wall Street Journal.
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ARTICLE III
MISCELLANEOUS
Section 3.01. Agreement Confirmed. Except as amended by this Second
Amendment to Loan Agreement, all of the provisions of the Original Agreement as
previously amended shall remain in full force and effect, and from and after the
effective date of this Second Amendment to Loan Agreement shall be deemed to have
been amended as herein set forth.
Section 3.02. Severability. If any provision of this Second Amendment to
Loan Agreement shall be held or deemed to be or shall, in fact, be inoperative or
unenforceable as applied in any particular case in any jurisdiction or jurisdictions or in all
jurisdictions, or in all cases because it conflicts with any other provision or provisions
hereof or any constitution or statute or rule of public policy, or for any other reason,
such circumstances shall not have the effect of rendering the provision in question
inoperative or unenforceable in any other case or circumstance, or of rendering any other
provision or provisions herein contained invalid, inoperative, or unenforceable to any
extent whatever.
Section 3.03. Counterparts. This Second Amendment to Loan Agreement
may be simultaneously executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same instrument.
Section 3.04. Applicable Provisions of Law. This Second Amendment to
Loan Agreement shall be governed by and construed in accordance with the laws of the
State of Illinois.
IN WITNESS WHEREOF, the Issuer and the Company have caused this
Second Amendment to Loan Agreement to be executed in their respective names and
their respective seals to be hereunto affixed and attested by their duly authorized
officers, all as of the date first above written.
[SEAL]
Attest:
Patricia S. Smith
Village Clerk
[SEAL]
Attest:
Its
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VILLAGE OF ELK GROVE VILLAGE,
COOK AND DUPAGE COUNTIES,
ILLINOIS
By Charles J. Zettek
Village President
LA QUINTA MOTOR INNS, INC.
By:
CONSENT AND APPROVAL OF THE TRUSTEE
Pursuant to Section 1101 of the Indenture of Trust dated as of October 1,
1984, by and between the Village of Elk Grove Village, Cook and DuPage Counties,
Illinois, and United States Trust Company of New York, as trustee (the "Trustee"), as
from time to time supplemented and amended, the Trustee hereby consents to and
approves the execution and delivery of the attached Second Amendment to Loan
Agreement.
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
By
Its
RECEIPT OF THE LETTER OF CREDIT BANK
Pursuant to Section 1101 of the Indenture of Trust dated as of October 1,
1984, by and between the Village of Elk Grove Village, Cook and DuPage Counties,
Illinois, and United States Trust Company of New York, as trustee, as from time to time
supplemented and amended, NationsBank of Texas, N.A., as the Bank (as defined in said
Indenture of Trust) hereby receipts for an executed copy of the attached Second
Amendment to Loan Agreement.
NATIONSBANK OF TEXAS, N.A.
By
Its
VILLAGE OF ELK GROVE VILLAGE
COOK AND DU PAGE COUNTIES, ILLINOIS
And
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
SECOND SUPPLEMENTAL INDENTURE OF TRUST
SECURING VILLAGE OF ELK GROVE VILLAGE,
COOK AND DU PAGE COUNTIES, ILLINOIS
FLOATING RATE MONTHLY DEMAND INDUSTRIAL
DEVELOPMENT REVENUE BONDS, SERIES 1984
(LA QUINTA MOTOR INNS, INC. PROJECT)
Dated as of June 1, 1992
SECOND SUPPLEMENTAL INDENTURE OF TRUST
TABLE OF CONTENTS
(This Table of Contents is not a part of the Second Supplemental Indenture
of Trust and is only for convenience of reference).
Parties ......................................................
Preamble.....................................................
ARTICLE I
Definitions
Section 101. Definitions of Terms ............................
ARTICLE II
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Page
1
1
2
2
3
4
6
7
7
8
8
Amendments of Original Indenture
Section 201.
Amendment of Section 101 of the Original
Indenture.....................................
Section 202.
Amendment of Section 202 of the Original
Indenture .....................................
Section 203.
Amendment of Sections 202(c)(i) and 202(c)(iii)
of the Original Indenture ..........................
Section 204.
Amendment of Section 917 of the Original
Indenture .....................................
Section 205.
Amendment of Section 918 of the Original
Indenture.....................................
Section 206.
Amendment of Section 919 of the Original
Indenture.....................................
Section 207.
Amendment of Section 921 of the Original
Indenture.....................................
Section 208.
Amendment of Section 1304 of the Original
Indenture.....................................
Section 209.
Deletion of References to Indexing Agent
in the Indenture ............................... .
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Page
1
1
2
2
3
4
6
7
7
8
8
ARTICLE III
Bond Form
Section 301. Bond Form ..................................... 8
ARTICLE IV
Miscellaneous
Section 401. Indenture Confirmed .............................. 8
Section 402. Severability .................................... 9
Section 403. Counterparts ................................... 9
Section 404. Applicable Provisions of Law ........................ 9
Exhibit A Form of Bond
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SECOND SUPPLEMENTAL INDENTURE OF TRUST
THIS SECOND SUPPLEMENTAL INDENTURE OF TRUST dated as of
June 1, 1992 (the "Second Supplemental Indenture"), by and between the VILLAGE OF
ELK GROVE VILLAGE, COOK AND DU PAGE COUNTIES, ILLINOIS, a municipality and
a home rule unit of government duly organized and validly existing under the
Constitution and the laws of the State of Illinois (the "Issuer"), and UNITED STATES
TRUST COMPANY OF NEW YORK, a corporation duly organized, validly existing and
authorized to accept and execute trusts of the character herein set out under and by
virtue of the laws of the State of New York, with its principal corporate trust office
located in the City of New York, New York, as Trustee (the "Trustee");
WITNESSETH:
WHEREAS, Ordinance No. 1486 duly adopted by the President and Board of
Trustees of the Issuer on October 13, 1981, as supplemented and amended (the "Act"),
authorizes the Issuer to issue revenue bonds and loan the proceeds therefrom to a
corporation for the purpose of financing the cost of acquiring, constructing and installing
industrial projects, within the meaning of the Act, which revenue bonds ace to be payable
solely and only out of the revenues and receipts derived from the repayment of such loan;
and
WHEREAS, pursuant to and in accordance with the provisions of the Act
and pursuant to an Indenture of Trust dated as of October 1, 1984 by and between. the
Issuer and the Trustee (the "Original Indenture"), the Issuer issued its Floating Rate
Monthlv Demand Industrial Development Revenue Bonds, Series 1984 (La Quinta Motor
Inns, Inc. Project) in the aggregate principal amount of $4,800,000 (the "Bonds") and
loaned the proceeds thereof to La Quinta Motor Inns, Inc., a Texas corporation (the
"Company"), for the purpose of financing the costs of the acquisition, construction and
installation of certain motor inn facilities situated within the boundaries of the Village of
Elk Grove Village, Cook and DuPage Counties, Illinois (the "Project"); and
WHEREAS. Section 1002 of the Original Indenture authorizes the execution
and delivery of a supplemental indenture with the consent of and approval of the Bank (as
defined in the Original Indenture) and the holders of not less than 66-2/3% in aggregate
principal amount of the Bonds then outstanding for the purpose of modifying, amending,
adding to or rescinding, in any particular, any of the terms or provisions contained in the
Original Indenture; provided, however, that nothing in said Section 1002 shall permit or
be construed as permitting (a) an extension of the maturity date of the principal of or the
interest on any Bond, or (b) a reduction in the principal amount of, or redemption
premium on, any Bond or the rate of interest thereon, or (c) a privilege or priority of any
Bond or Bonds over any other Bond or Bonds, or (d) a reduction in the aggregate principal
amount of the Bonds required for consent to such supplemental indenture; and
WHEREAS, the Original Indenture has been supplemented and amended by
the Supplemental Indenture of Trust dated as of April 1, 1985, by and between the Issuer
and the Trustee (the Original Indenture as so supplemented and amended and as from
time to time supplemented and amended being referred to herein as the "Indenture"); and
WHEREAS, the Issuer has determined to amend certain sections of the
Original Indenture in order to provide for a different way to compute the Interest Rate,
permit a bank or trust company to act as Remarketing Agent for the Bonds, eliminate
references to the Indexing Agent and for certain other purposes;
NOW THEREFORE, IN CONSIDERATION OF THE PREMISES AND
AGREEMENTS HEREIN SET FORTH AND OF THE SUM OF ONE DOLLAR AND OTHER
GOOD AND VALUABLE CONSIDERATION, THE ISSUER AND THE TRUSTEE HEREBY
COVENANT AND AGREE, AS FOLLOWS:
ARTICLE I
DEFINITIONS
Section 101. Definitions of Terms. All words and terms defined in Article
I and elsewhere in the Original Indenture shall have the same respective meanings in this
Second Supplemental Indenture.
ARTICLE II
AMENDMENTS OF ORIGINAL INDENTURE
Section 201. Amendments of Section 101 of the Original Indenture.
a. The definition of "Alternate Letter of Credit" is hereby amended to
read as follows:
"Alternate Letter of Credit" means an irrevocable letter of credit
issued in accordance with Section 4.5(b) of the Agreement and shall include
any letter of credit substituted therefor in a reduced amount but otherwise
having terms identical to such irrevocable letter of credit when issued,
which shall be deemed to be the Letter of Credit (including any renewal or
extension thereof). "Alternate Letters of Credit" shall mean more than one
Alternate Letter of Credit.
b. The definition of "Letter of Credit" is herebv amended to read as
follows:
"Letter of Credit" means the irrevocable Letter of Credit issued
by the Bank to the Trustee contemporaneously with the original issuance of
the Bonds and shall include (i) any letter of credit substituted therefor in a
reduced amount but otherwise having terms identical to such irrevocable
letter of credit when issued, except as otherwise provided herein, and (ii)
any renewal or extension of the Letter of Credit; provided, that upon the
issuance and delivery of an Alternate Letter of Credit in accordance with
Section 4.5(b) of the Agreement, "Letter of Credit" shall mean such
Alternate Letter of Credit instead of the letter of credit for which such
Alternate Letter of Credit has been substituted.
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C. The definition of "Mortgage" in the Original Indenture is hereby
amended to read as follows:
"Mortgage" means the Amended and Restated Mortgage and
Security Agreement dated as of June 1, 1992, from the Company to the
Bank, the Trustee, United Virginia Bank, as trustee, and The First National
Bank of Chicago, as trustee, as from time to time supplemented and
amended.
d. The definition of "Prime Rate" in the Original Indenture is hereby
amended to read as follows:
"Prime Rate" shall mean the interest rate announced or published
from time to time by NationsBank of North Carolina, N.A., at its principal
corporate offices in Charlotte, North Carolina as its "prime rate." The
Prime Rate is not necessarily the best or lowest rate of interest offered by
NationsBank of North Carolina, N.A. If NationsBank of North Carolina,
N.A. is no longer the Remarketing Agent, the "Prime Rate" shall be that
rate announced or published from time to time by the Bank as its "Prime
Rate," which rate may not necessarily be the best or lowest rate of interest
offered by the Bank, or, if there is no Letter of Credit outstanding, the
Prime Rate shall mean the Commercial Prime Rate for large money center
banks published by the Wall Street Journal.
Section 202. Amendment of Section 202 of the Original Indenture.
Subsections (i), (ii), (iii), (iv), (v) and (vi) of Section 202(b) of the Original Indenture are
deleted and the following subsections are added in their place:
"(i) The Interest Rate on the Bonds (the "Interest Rate") for each
Interest Period shall be the lowest rate of interest which the Remarketing
Agent determines will cause the Bonds to have a market value equal to the
principal amount thereof plus accrued interest under prevailing market
conditions.
(ii) The Interest Rate for each Interest Period shall be computed
by the Remarketing Agent as of the first day of such Interest Period, may
be readjusted upon a demand purchase as provided in Sections 202(c)(i) or
202(c)(11i) hereof to produce the lowest rate of interest which the
Remarketing Agent determines will cause the Bonds to have a market value
equal to the principal amount thereof plus accrued interest under prevailing
market conditions on such demand purchase date, and shall be made
available to the Trustee, the Bank, the Company and the Paying Agent on
the first day of such Interest Period or on such demand purchase date, as
applicable.
(iii) The determination of the Interest Rate by the Remarketing
Agent shall be confirmed in writing to the Trustee and the Paying Agent by
the Remarketing Agent and shall be conclusive and binding upon the Issuer,
Cho
the Company, the Trustee, the Bank, the Paying Agent, the Registrar, the
Remarketing Agent and the Bondholders.
(iv) The frequency with which the Interest Rate may be computed
or the method of calculation of the Interest Rate may be changed from
time to time by the Company with the written consent of the Remarketing
Agent, provided that the Trustee and the Remarketing Agent shall be so
directed by the Company and shall have received an opinion of Bond
Counsel stating that such change in the frequency of computation is
authorized and permitted by this Indenture and by the Act and that such
change will not adversely affect the validity or exemption of the interest
on the Bonds from Federal income taxation. Such change in the frequency
of computation of the Interest Rate or the method of calculation of the
Interest Rate shall not be effective until the first Interest Payment Date
not less than forty-:ive (45) days from the date the Companv gives such
direction and supplies such opinion of Bond Counsel to the Trustee, the
Paying Agent and the Remarketing Agent. The Trustee shall include or
cause the Paying Agent to include a notice of such change in frequency of
computation or the method of calculation of the Interest Rate with the
next interest payment.
(v) [Reserved]
(vi) [Reserved]
Section 203. Amendment of Sections 202(c)(i) and 202(c)(iii) of the Original
Indenture. Subsections (i) and (iii) of Section 202(c) of the Original Indenture are hereby
amended to read as follows:
(1) Any Bond shall be purchased on behalf of the Company, on
the demand of the holder thereof, on any Interest Payment Date at a
purchase price equal to the principal amount thereof, upon: (A) telephonic
notice to the Remarketing Agent at its Principal Office at or prior to 4:00
p.m., New York City time, on the third Business Day prior to such Interest
Payment Date, identifying (I) the principal amount of such Bond and (II) the
fact that such Bond shall be purchased on such Interest Payment Date; and
(B) the delivery of such Bond with an appropriate transfer of registration
form executed in blank acceptable to the Remarketing Agent) at the
Principal Office of the Remarketing Agent at or prior to 10:00 a.m., New
York City time, on such Interest Payment Date; provided, however, that
such Bond shall be so purchased pursuant to this Section 202(c)(i) only if the
Bond so delivered to the Remarketing Agent shall conform in all respects
to the description thereof in the aforesaid notice. A holder who gives the
notice set forth in (A) above may repurchase the Bond so tendered on such
Interest Payment Date if the Remarketing Agent agrees to remarket the
Bonds so tendered on behalf of the Company to such holder. If such holder
decides to repurchase such Bond and the Remarketing Agent agrees to
remarket the specified Bond on behalf of the Company to such holder, the
delivery requirements set forth in (B) above shall be waived.
-4-
(ii) Any Bond shall be purchased on behalf of the Issuer on the
demand of the holder thereof, if such holder shall be an Investment
Company, on any Business Day at a purchase price equal to the principal
amount thereof plus accrued interest, if any, to the date of purchase,
upon: (A) telephonic notice to the Trustee at its Principal Office and to
the Remarketing Agent at its Principal Office, identifying (I) the fact that
such holder is an Investment Company, (II) the principal amount of such
Bond and (III) the date on which such Bond shall be so purchased, which date
shall be a Business Day not prior to the seventh (7th) day next succeeding
the date of delivery of such notice to the Trustee; and (B) delivery of such
Bond (with an appropriate transfer of registration form executed in blank
acceptable to the Trustee), and, in the case of a Bond to be purchased prior
to the Interest Payment Date for any Interest Period and after the Record
Date in respect thereof, a due -bill check, in form satisfactory to the
Trustee, for interest due on such Interest Payment Date, at the Principal
Office of the Trustee at or prior to 10:00 a.m., New York City time, on the
date specified in the aforesaid notice; provided, however, that such Bond
shall be so purchased pursuant to this Section 202(c)(h) only if the Bond so
delivered to the Trustee shall conform in all respects to the description
thereof in the aforesaid notice.
(iii) Any Bond shall be purchased on behalf of the Company, on
the demand of the holder thereof, on any Business Day at a purchase price
equal to the principal amount thereof plus accrued interest, if any, to the
date of purchase, upon: (A) telephonic notice to the Remarketing Agent at
its Principal Office, identifying (I) the principal amount of such Bond and
(II) the date on which such Bond shall be purchased pursuant to this
Section 202(c)(iii), which date shall be a Business Day not prior to the
seventh (7th) day next succeeding the date of the delivery of such notice to
the Remarketing Agent; and (B) delivery of such Bond (with an appropriate
transfer of registration form executed in blank acceptable to the
Remarketing Agent) and, in the case of a Bond to be purchased prior to the
Interest Pavment Date for any Interest Period and after the Record Date in
respect thereof, a due -bill check, in form satisfactory to the Remarketing
Agent, for interest due on such Interest Payment Date, at the Principal
Office of the Remarketing :agent at or prior to 10:00 a.m, New York City
time, on the date specified in the aforesaid notice; provided, however, that
such Bond shall be so purchased pursuant to this Section 202(c)(iii) only if
the Bond so delivered to the Remarketing Agent shall conform in all
respects to the description thereof in the aforesaid notice.
Section 204. Amendment of Section 917 of the Original Indenture. The
first sentence of Section 917 of the Original Indenture is hereby amended to read as
follows:
"The Remarketing Agent shall be a bank, trust company or
member of the National Association of Securities Dealers, having a
capitalization of at least $15,000,000 and authorized by law to perform all
the duties imposed on the Remarketing Agent by this Indenture."
-5-
Section 205. Amendment of Section 918 of the Original Indenture. Section
918 of the Original Indenture is hereby amended to read as follows:
SECTION 918. REMARKETING OF BONDS.
(a) Except as provided in subsection (b) of this Section 918, upon
the delivery of Bonds to the Remarketing Agent by any Bondholder in
accordance with Section 202(c)(i) or (iii) hereof, the Remarketing Agent
shall offer for remarketing and use its best efforts to remarket such Bonds
on behalf of the Company, on the date stated in the notice provided in
Section 202(c)(i) or (iii), in either of the following manners: (a) at a
purchase price equal to the principal amount of such Bonds bearing interest
at the Interest Rate or if a par sale cannot be achieved at the Interest Rate
then (b) at the best available price for such Bonds bearing interest at the
Interest Rate but not at a price, which when added to the amount available
under the Letter of Credit to be drawn by the Trustee for the payment of
the discount for such a purchase, is less than the principal amount of such
Bonds. The Remarketing Agent shall have the discretion, subject to the
approval of the Company pursuant to the Remarketing Agreement between
the Company and the Remarketing Agent, to enter into either of the
foregoing remarketings described in clauses (a) and (b) above. If the
Remarketing Agent, pursuant to clause (b) above, shall remarket anv such
Bonds on behalf of the Company at a discount, the discounted amount shall
be paid by a draw made by the Trustee under the Letter of Credit with
respect to such amount as specified in Section 919 thereof.
(b) Notwithstanding the provisions of subsection (a) of this
Section 918, to the extent that any moneys described in clause (i) or (ii) of
Section 919(a) hereof shall be on deposit with the Remarketing Agent at
the time any Bonds are delivered to the Remarketing Agent, any Bonds
delivered to the Remarketing Agent shall be purchased with such moneys
and shall not be remarketed by the Remarketing Agent on behalf of the
Company.
(c) The Remarketing Agent shall give telephonic or telegraphic
notice to the Trustee of each notice given to it in accordance with Section
202(c)(1) and (iii) hereof and, immediately upon the delivery to it of Bonds
in accordance with said Section 202(c)(i) and (iii), give telephonic or
telegraphic notice to the Trustee specifying the principal amount of the
Bonds so delivered. Upon receipt of such telephonic or telegraphic notice
by the Trustee in each event, the Trustee shall give telephonic or
telegraphic notice of such event to the Company and the Bank.
(d) The Remarketing Agent shall not remarket any Bonds to the
Company or any of its subsidiaries pursuant to Section 918 hereof unless,
prior to such sale the Trustee shall have received an unqualified opinion of
counsel experienced in bankruptcy matters and satisfactory to the Trustee
to the effect that such purchase would not result in a preferential payment
pursuant to the provisions of Section 547 of the United States Bankruptcy
Code, 11 U.S.C. §101 et sea.
Section 206. Amendment of Section 919 of the Original Indenture. Section
919 of the Original Indenture is hereby amended to read as follows:
SECTION 919. PURCHASE OF BONDS DELIVERED TO REMARKETING
AGENT.
(a) On the date Bonds are to be purchased pursuant to Section 202(c)(i)
or (iii) hereof, the Remarketing Agent shall cause to be purchased on behalf and for the
account of the Company, but only from and to the extent it shall have received the funds
listed below, such Bonds from the owners or holders thereof at a purchase price equal to
the principal amount thereof plus accrued interest, if any, to the date of purchase.
Funds for the payment of such purchase price shall be derived from the following sources
in the order of priority indicated:
(i) moneys directed by the Company to be used for the purchase
of Bonds in accordance with this Section 919 and furnished by the Trustee
to the Remarketing Agent pursuant to Section 308 hereof, provided that
such moneys shall not be used to pay accrued interest, if any, on such
Bonds;
(ii) moneys furnished by the Trustee to the Remarketing Agent
pursuant to Article XII hereof, such moneys to be applied only to the
purchase of Bonds which are deemed to be paid in accordance with Article
XII hereof;
(iii) proceeds of the sale of such Bonds pursuant to Section 918
hereof;
(iv) monevs furnished by the Trustee to the Remarketing Agent
representing proceeds of a drawing by the Trustee under the Letter of
Credit; and
(v) moneys furnished by the Company to the Remarketing Agent
pursuant to Section 4.6(a) of the Agreement.
(b) Funds for the payment of the purchase price of Bonds which are
deemed to be paid in accordance with Article XII hereof shall be derived only from the
source described in clause (ii) of this Section.
Section 207. Amendment of Section 921 of the Original Indenture. Section
921 of the Original Indenture is hereby amended to read as follows:
SECTION 921. DELIVERY OF PURCHASED BONDS.
(a) (i) Bonds remarketed by the Remarketing Agent on behalf of the
Company pursuant to Section 918 hereof shall be delivered to the purchasers thereof.
(i i) Bonds purchased by the Remarketing Agent on behalf of the
Company with moneys described in clauses (i) and (ii) of Section 919(a) hereof shall be
delivered to the Trustee for cancellation.
-7-
(iii) Bonds purchased by the Remarketing Agent on behalf of the
Company with moneys described in clause (iv) of Section 919(a) hereof shall be delivered
to the Bank as provided in the Pledge Agreement.
(iv) Bonds purchased by the Remarketing Agent on behalf of the
Company with moneys described in clause (v) of Section 919(a) shall, at the direction of
the Company, be (i) held by the Remarketing Agent for the account of the Company, (ii)
delivered to the Trustee for cancellation or (iii) delivered to the Company; provided,
however, that any Bonds so purchased after the selection thereof by the Trustee for
redemption shall be cancelled.
(b) (i) Bonds purchased by the Trustee with moneys described in clauses
(iii) and (iv) of Section 920(a) hereof shall be cancelled.
(c) Bonds delivered as provided in this Section 921 shall be in the
manner agreed upon by the recipient thereof and the Remarketing Agent or the Trustee,
as appropriate.
Section 208. Amendment of Section 1304 of the Original Indenture. The
notice address of the Bank is hereby amended to read as follows:
follows:
"NationsBank of Texas, N.A.
901 Main Street
Dallas, Texas 75202
Attention: Corporate Banking Department"
The notice address of the Remarketing Agent is hereby amended to read as
NationsBank of North Carolina, N.A.
One NationsBank Plaza, Mall
Charlotte, North Carolina 28255
Section 209. Deletion
in the Indenture. All references to
Indenture are hereby deleted.
ARTICLE III
BOND FORM
terest
Interest Index
Section 301. Bond Form. The Bond Form shall be amended to read as
provided in the form set forth as Exhibit A attached to and made a part of this Second
Supplemental Indenture.
me
ARTICLE IV
MISCELLANEOUS
Section 401. Indenture Confirmed. Except as amended by this Second
Supplemental Indenture, all of the provisions of the Original Indenture as previously
supplemented and amended shall remain in full force and effect, and from and after the
effective date of this Second Supplemental Indenture shall be deemed to have been
supplemented and amended as herein set forth.
Section 402. Severability. If any provision of this Second Supplemental
Indenture shall be held or deemed to be or shall, in fact, be inoperative or unenforceable
as applied in any particular case in any jurisdiction or jurisdictions or in all jurisdictions,
or in all cases because it conflicts with any other provision or provisions hereof or any
constitution or statute or rule of public policy, or for any other reason, such
circumstances shall not have the effect of rendering the provision in question inoperative
or unenforceable in any other case or circumstance, or of rendering any other provision
or provisions herein contained invalid, inoperative, or unenforceable to any extent
whatever.
Section 403. Counterparts. This Second Supplemental Indenture may be
simultaneously executed in several counterparts, each of which shall be an original and
all of which shall constitute but one and the same instrument.
Section 404. Apoticable Provisions of Law. This Second Supplemental
Indenture shall be governed by and construed in accordance with the laws of the State of
Illinois.
IN WITNESS WHEREOF, the Village of Elk Grove Village, Cook and DuPage
Counties, Illinois, by its President and Board of Trustees, has caused these presents to be
signed in its name and behalf by its President and its official seal to be hereunto affixed
and attested by its Village Clerk, and United States Trust Company of New York has
caused these presents to be signed in its name and behalf by one of its
its corporate seal to be hereunto affixed and attested by one of its
all as of the dated date hereinabove set forth.
(SEAL)
ATTEST:
By Patricia S. Smith
Village Clerk
M
VILLAGE OF ELK GROVE VILLAGE,
COOK AND DU PAGE COUNTIES,
ILLINOIS
By Charles J. Zettek
Village President
No. R-
EXHIBIT A
[FORM OF BOND] [FACE]
THIS BOND WAS AMENDED ON JUNE , 1992, PURSUANT TO A
SECOND SUPPLEMENTAL INDENTURE OF TRUST DATED AS OF
JUNE 1, 1992.
S
UNITED STATES OF AMERICA
STATE OF ILLINOIS
COUNTIES OF COOK AND DUPAGE
VILLAGE OF ELK GROVE VILLAGE
FLOATING RATE MONTHLY DEMAND
INDUSTRIAL DEVELOPMENT REVENUE BOND,
SERIES 1984
(LA QUINTA ROTOR INNS, INC. PROJECT)
REGISTERED OWNER:
[1] The Village of Elk Grove Village, Cook and Dupage Counties. Illinois
(the "Issuer"), a home rule unit of government organized and existing under and by virtue
of the Constitution and the laws of the State of Illinois, for value received, hereby
promises to pav (but oniv out of the sources hereinafter provided) to
or registered assigns, the principal
sum of ($ ).
Principal on this Bond shall be due October 1, 2001, the date of maturity of this Bond,
unless this Bond shall have been called for redemption and payment of the redemption
price shall have been duly made or provided for. This Bond shall bear interest from the
date hereof on the balance of the principal from time to time remaining unpaid at the
rates and on the dates set forth herein until payment in full of all principal, and interest
shall be payable on overdue principal and, to the extent permitted by law, on overdue
interest at the rates due on this Bond. The principal of, premium, if any, and interest on
this Bond shall be payable in lawful money of the United States of America. Payment of
principal, premium, if any, and interest on this Bond shall be (i) made by check or draft
mailed to the registered owner hereof (A) with respect to an interest payment, at his
address as it appears on the registration books of the Trustee on the Record Date
(hereinafter defined) for such interest payment or at such other address as is furnished to
the Trustee (as hereinafter defined) in writing by such owner and (B) with respect to a
principal or premium payment, at his address as it appears on the registration books of
the Trustee on the fifth (5th) day immediately preceding the date on which such payment
is due or at such other address as is furnished to the Trustee in writing by such owner, or
(ii) made by wire transfer to any owner of 33-1/3% or more in aggregate principal
amount of Bonds outstanding upon written notice by such owner to the Trustee given not
less than 15 days prior to the date payment is due; provided, however, that any final
payment completely discharging this Bond shall only be made against surrender of this
Bond. The term "Record Date" means with respect to any Interest Payment Date
(hereinafter defined) the 5th day immediately preceding such Interest Payment Date, or,
if such day shall not be a Business Day (hereinafter defined), the immediately preceding
Business Day. Terms not otherwise defined herein shall have the same meaning as
ascribed to them in the Indenture.
[2] This Bond is one of an authorized issue of bonds limited in aggregate
principal amount to $4,800,000 (the "Bonds") issued pursuant to an ordinance duly adopted
by the governing body of the Issuer on October 18, 1984, and the applicable provisions of
Ordinance No. 1486 of the Village of Elk Grove Village adopted on October 13, 1981, as
supplemented and amended (the "Act"), and executed under an Indenture of Trust (the
"Indenture") dated as of October 1, 1984, by and between the Issuer and United States
Trust Company of New York (the "Trustee"), for the purposes of providing funds to pay
the cost of the acquisition, construction and installation of certain motor inn facilities
(the "Project") which constitute an economic development project under the Act for use
by La Quinta Motor Inns, Inc., a Texas corporation (the "Company"), and for paying costs
and expenses incidental thereto and for the issuance of the Bonds. Proceeds from the
sale of the Bonds are to be loaned by the Issuer to the Company under the terms of a
Loan Agreement dated as of October 1, 1984 (the "Agreement"). In order to evidence the
loan and the obligation of the Company to repay the same the Company has executed and
delivered its promissory note dated the date of delivery of the Bonds (the "Note"). The
Note provides for the repayment by the Company of the loan, including interest thereon,
in installments sufficient to pay the principal of, premium, if any, and interest on the
Bonds as the same shall become due and payable. The Bonds are all issued under and
equally and ratably secured by and entitled to the security of a pledge and assignment of
the revenues and receipts derived by the Issuer pursuant to the Agreement and the Note,
and all receipts of the Trustee credited under the provisions of the Indenture against such
payments, including all moneys drawn by the Trustee under the Irrevocable Letter of
Credit (together with any renewal or extension thereof and any Alternate Letters of
Credit issued in substitution therefor in accordance with the Agreement, the "Letter of
Credit") of NationsBank of Texas, N.A., Dallas, Texas (together with any banks issuing
Alternate Letters of Credit in accordance with the Agreement, the 'Bank"), in favor of
the Trustee, issued at the request and for the account of the Company, and from any
other moneys held by the Trustee under the Indenture for such purpose, and there shall be
no other recourse against the Issuer or any property now or hereafter owned by it.
[3[ This Bond and all other Bonds of the series of which it forms a part
are issued pursuant to and in full compliance with the Constitution and laws of the State
of Illinois, particularly the Act, and pursuant to further proceedings adopted by the
President and Board of Trustees of the Issuer, which proceedings authorize the execution
and delivery of the Indenture. This Bond and the series of which it forms a part are
limited obligations of the Issuer payable solely from the amounts pledged under the
Indenture consisting of: (i) all amounts payable from time to time by the Company in
respect of the indebtedness under the Agreement (including amounts payable under the
Note) and all receipts of the Trustee credited under the provisions of the Indenture
against said amounts payable, including all moneys drawn by the Trustee under the Letter
-2-
of Credit for the payment of the principal of, premium, if any, and interest on the Bonds,
(ii) any portion of the net proceeds of the Bonds deposited in the Bond Fund created
under the Indenture, and (iii) any amounts paid into the Bond Fund created in the
Indenture from the Construction Fund created in the Indenture, including income from
the temporary investment thereof. No holder of any Bond issued under the Act has the
right to compel any exercise of the taxing power of the Issuer to pay the Bonds, or the
interest or premium, if any, thereon. The Bonds shall not constitute an indebtedness of
the Issuer or a loan of credit thereof within the meaning of any constitutional or
statutory provision, nor shall any of the Bonds constitute or give rise to a pecuniary
liability of the Issuer or a charge against its general credit or taxing powers. The Bonds
and the Letter of Credit are equally and ratably secured by an Amended and Restated
Mortgage and Security Agreement dated as of June 1, 1992, by and among the Company,
the Bank, the Trustee and the other trustees named therein.
[4] No recourse shall be had for the payment of the principal of,
premium, if any, or interest on any of the Bonds or for any claim based thereon or upon
any obligation, covenant or agreement in the Indenture contained, against any past,
present or future member, director, officer, employee or agent of the Issuer, or through
the Issuer, or any successor to the Issuer, under any rule of law or equity, statute or
constitution or by the enforcement of any assessment or penalty or otherwise, and all
such liability of any such member, director, officer, employee or agent as such is hereby
expressly waived and released as a condition of and in consideration for the execution of
the Indenture and the issuance of any of the Bonds.
[5] Modifications or alterations of the Indenture, or of any supplements
thereto, may be made only to the extent and in the circumstances permitted by the
Indenture.
[6] IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all acts
and conditions required to be performed precedent to and in the execution and delivery
of the Indenture and the issuance of this Bond have been performed in due time, form and
manner as required by law, and that the issuance of this Bond does not exceed or violate
any constitutional or statutory limitation.
[7] This Bond shall not be valid or become obligatory for any purpose or
be entitled to any security or benefit under the Indenture unless and until the certificate
of authentication hereon shall have been duly executed by the Trustee.
-3-
[8] IN WITNESS WHEREOF, THE VILLAGE OF ELK GROVE VILLAGE,
COOK AND DUPAGE COUNTIES, ILLINOIS, has caused this Bond to be executed in its
name by the manual or facsimile signature of its President and the facsimile of its
official seal to be printed hereon and attested by the manual or facsimile signature of its
Village Clerk.
Dated: May 26, 1992
[FACSIMILE SEAL]
Attest:
Patricia S. Smith
Village Clerk
-4-
VILLAGE OF ELK GROVE VILLAGE,
COOK AND DUPAGE COUNTIES,
ILLINOIS
By Charles J. Zettek
President
of Trust.
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This Bond is one of the Bonds described in the within mentioned Indenture
UNITED STATES TRUST COMPANY
OF NEW YORK,
as Trustee
By
Authorized Officer
[REVERSE)
[9] This Bond is transferable by the registered owner hereof in person or
by his attorney duly authorized in writing at the principal corporate trust office of the
Trustee, but only in the manner, subject to the limitations and upon payment of the
charges provided in the Indenture, and upon surrender and cancellation of this Bond.
Upon such transfer a new registered Bond or Bonds of authorized denomination or
denominations, for the same aggregate principal amount will be issued to the transferee
in exchange herefor.
[10] The Bonds are issuable as fully registered Bonds only, in the denomi-
nation of S100,000 or any integral multiple thereof. Subject to the limitations and upon
payment of the charges provided in the Indenture, Bonds may be exchanged for a like
aggregate principal amount of Bonds of authorized denominations.
[11] Any Bond shall be purchased on behalf" of the Company, but only
from funds made available therefor under the Indenture, on the demand of the holder
thereof, on any Interest Pav m ent Date (as hereinafter defined) at a purchase price equal
to the principal amount thereof, upon:
[a] telephonic notice to the Remarketing Agent (as hereinafter defined)
(Attention: Municipal Bond Department) at One NationsBank Plaza, Mall,
Charlotte, North Carolina, at or prior to 4:00 p.m., New York City time, on the
third Business Day prior to such Interest Payment Date, identifying (i) the
principal amount of such Bond and (ii) the fact that such Bond shall be so
purchased on such Interest Payment Date;
[b] delivery of such Bond (with an appropriate transfer of registration
form executed in blank acceptable to the Remarketing Agent) to the principal
office of the Remarketing Agent at One NationsBank Plaza, Mail, Charlotte,
North Carolina 28255, Attention: Money Market Sales Department, at or prior to
10:00 a.m., New York City time, on such interest Payment Date.
The Issuer has appointed NationsBank of North Carolina, N.A., as Remarketing Agent
under the Indenture. The Company may from time to time remove or replace the
Remarketing Agent. A holder who gives the notice set forth in (a) above may repurchase
the Bonds so tendered on such Interest Payment Date if the Remarketing Agent agrees to
Q'11
sell the Bonds so tendered to such Bondholder. If such holder decides to repurchase such
Bonds and the Remarketing Agent agrees to sell the specified Bonds to such holder prior
to delivery of the Bonds by the holder to the Remarketing Agent as set forth in (b) above,
the delivery requirements set forth in (b) above shall be waived.
(12] Any Bond shall be purchased on behalf of the Issuer, but only from
funds made available therefor under the Indenture, on the demand of the holder thereof,
if such holder shall be an open-end diversified management investment company
registered under the Investment Company Act of 1940, as amended (an "Investment
Company"), on any Business Day at a purchase price equal to the principal amount
thereof plus accrued interest, if any, to the date of purchase, upon:
[a] telephonic notice to the Trustee at its principal corporate trust
office and to the Remarketing Agent at its principal office, identifying (i) the fact
that such holder is an Investment Company, (ii) the principal amount of such Bond
and (iii) the date on which such Bond shall be so purchased, which date shall be a
Business Day not prior to the seventh (7th) day next succeeding the date of the
dedvery of such notice to the Trustee: and
(b] delivery of such Bond (with an appropriate transfer of registration
form executed in blank acceptable to the Trustee) and, in the case of a Bond to be
purchased prior to the Interest Payment Date for any Interest Period (as herein-
after defined) and after the Record Date in respect thereof, a due -bill check, in
form satisfactory to the Trustee, for interest due on such Interest Payment Date
at the principal corporate trust office of the Trustee at or prior to 10:00 a.m.,
New York City time, on the date specified in the aforesaid notice; provided, how-
ever, that such Bond shall be so purchased only if the Bond delivered to the
Trustee shall conform in all respects to the description thereof in the aforesaid
notice.
[13] Any Bond shall be purchased on behalf of the Company, but only
from funds made available therefor under the Indenture, on the demand of the holder
thereof, on any Business Day at a purchase price equal to the principal amount thereof
plus accrued interest, if any, to the date of purchase, upon:
[a] telephonic notice to the Remarketing Agent (Attention: Money
;Market Sales Department) at One NationsBank Plaza, -Mall, Charlotte, North
Carolina 28255, identifying (i) the principal amount of such Bond and (ii) the date
on which such Bond shall be so purchased, which date shall be a Business Day not
prior to the seventh (7th) day next succeeding the date of the delivery of such
notice to the Remarketing Agent; and
[b] delivery of such Bond (with an appropriate transfer of registration
form executed in blank acceptable to the Remarketing Agent) and, in the case of
a Bond to be purchased prior to the Interest Payment Date for any Interest Period
and after the Record Date in respect thereof, a due -bill check, in form
satisfactory to the Remarketing Agent at One NationsBank Plaza, -tall,
Charlotte, North Carolina 28255, for interest due on such Interest Payment Date,
at the principal office of the Remarketing Agent at or prior to 10:00 a.m., New
York City time, on the date specified in the aforesaid notice; provided, however,
-6-
that such Bond shall be so purchased only if the Bond so delivered to the
Remarketing agent shall conform in all respects to the description thereof in the
aforesaid notice.
Provided, however, that the foregoing addresses for delivery of notice and delivery of
Bonds can be changed upon notice of such change by the Paying Agent to the Bondholders
on any Interest Payment Date.
[141 The term "Business Day" means a day on which banks located in the
city in which the principal office of the Trustee is located, in the city in which the
principal office of any Paying Agent is located and in the city in which the principal
office of the Bank is located are not required or authorized to remain closed and on
which The New York Stock Exchange is not closed.
[151 Interest on the Bonds shall be paid on the first day of each calendar
month or, if such day is not a Business Day, on the immediately succeeding Business Day
(an "Interest Payment Date"), and shall be computed on the basis of a year oC 365 or 366
days, as appropriate, for the actual number of days elapsed at the rate determined as
hereinafter specified. Interest on the Bonds shall first accrue for the period from and
including the date of the first authentication and delivery of Bonds to and including
November 30, 1984, and, commencing December 1, 1984, interest on the Bonds shall
accrue for each period from and including the Interest Payment Date in each calendar
month to and including the day next preceding the next Interest Payment Date (each such
period being hereinafter referred to as an "Interest Period").
[161 The Company may, upon compliance with requirements of the Inden-
ture, instruct the Remarketing Agent and the Trustee to change the frequency of
calculation of such rates or the manner in which such rates shall be determined.
[171 The Remarketing Agent shall determine the Interest Rate (as
hereinafter defined).
[a] The Interest Rate on the Bonds (the "Interest Rate") for each
Interest Period shall be the lowest rate of interest which the Remarketing Agent
determines will cause the Bonds to have a market value equal to the principal
amount thereof plus accrued interest under prevailing market conditions.
[b] The Interest Rate for each Interest Period shall be computed by the
Remarketing Agent as of the first day of such Interest Period, may be readjusted
upon a demand purchase as provided in the Indenture to provide the lowest rate of
interest which the Remarketing Agent determines will cause the Bonds to have a
market value equal to the principal amount thereof plus accrued interest under
prevailing market conditions on such demand purchase date, and made available to
the Trustee, the Bank, the Company and the Paying Agent on the first day of such
Interest Period or on such demand purchase date, as applicable.
[c] The determination of the Interest Rate by the Remarketing Agent
shall be confirmed in writing by the Remarketing Agent and shall be conclusive
and binding upon the Issuer, the Company, the Trustee, the Bank, the Paying
Agent, the Registrar, the Remarketing Agent and the Bondholders.
-7-
(191 The Company has caused the Letter of Credit to be delivered to
the Trustee pursuant to the requirements of the Agreement which permits substitution of
Alternate Letters of Credit if the Company shall furnish to the Trustee (i) a written
opinion of Bond Counsel (as defined in the Indenture) stating that the delivery of such an
Alternate Letter of Credit to the Trustee is authorized under the Agreement and
complies with the terms thereof and (ii) written evidence from Moody's, if the Bonds are
rated by Moody's, or from S&P, if the Bonds are rated by S&P, or from both Moodv's and
S&P, if the Bonds are rated by both Moody's and S&P, in each case to the effect that
such rating agency has reviewed the proposed Alternate Letter of Credit and that the
substitution of the proposed Alternate Letter of Credit for the Letter of Credit will not,
by itself, result in a reduction or withdrawal of its ratings of the Bonds from those which
then prevail. Prior to the acceptance by the Trustee of any such Alternate Letter of
Credit the Trustee is required in accordance with Section 404 of the Indenture to furnish
the Bondholders with prior written notice thereof. The Trustee shall be entitled under
the Letter of Credit to draw up to (a) an amount sufficient (i) to pay the principal of the
Bonds when due at redemption, maturity or acceleration (except with respect to Bonds
held by the Bank pursuant to the Pledge and Security Agreement between the Company
and the Bank which provides security to the Bank for reimbursement of drawings under
the Letter of Credit), (ii) to enable the Remarketing Agent to pay the purchase price or
portion of the purchase price equal to the principal amount of Bonds delivered to it for
purchase and not remarketed or (iii) to enable the Trustee to pay the purchase price or
portion of the purchase price equal to the principal amount of Bonds delivered to it for
purchase, plus (b) $9,600.00 for payment of the portion of the purchase price of Bonds
delivered to the Remarketing ?,gent for purchase equal to the discount at which such
Bonds are remarketed, plus (c) an amount equal to seventy-five (75) days' interest (at an
assumed rate of 13-1/2% per annum) accrued on the outstanding Bonds (i) to pay interest
on the Bonds on or prior to the Letter of Credit Interest Termination Date (hereinafter
defined) or (ii) to enable the Trustee or the Remarketing Agent to pav the portion of the
purchase price of the Bonds delivered to it equal to the interest accrued, if any, on such
Bonds on or prior to the Letter of Credit Interest Termination Date.
"Letter of Credit Interest Termination Date" shall mean the one hundred
twenty-third (123rd) day next preceding the expiration date of the Letter of Credit or if
such day shall not be an Interest Payment Date then the Interest Payment Date next
preceding such day.
"Moody's" means Moody's Investors Service, Inc., a corporation organized
and existing under the laws of the State of Delaware, its successors and their assigns,
and, if such corporation shall be dissolved or liquidated or shall no longer perform the
functions of a securities rating agency, "Moody's" shall be deemed to refer to anv other
nationally recognized securities rating agency designated by the Trustee, at the direction
of the Company.
"S&P" means Standard & Poor's Corporation, a corporation organized and
existing under the laws of the State of New York, its successors and their assigns, and, if
such corporation shall be dissolved or liquidated or shall no longer perform the functions
of a securities rating agency, "S&P" shall be deemed to refer to any other nationally
recognized securities rating agency designated by the Trustee, at the direction of the
Company.
[19] (a) Optional Redemption
(1) The Bonds are subject to redemption on any Interest Payment Date
at a redemption price of one hundred percent (100%) of the principal amount thereof plus
accrued interest to the redemption date upon receipt by the Trustee of a written notice
from the Company delivered at least forty-five days prior to such Interest Payment Date
that moneys retained in the Construction Fund following the Completion Date are to be
applied to the redemption of Bonds in compliance with Section 308 of the Indenture. The
Bonds shall be subject to redemption pursuant to this subparagraph (1) in part in an
amount not exceeding the amount of the moneys which are so retained in the
Construction Fund and which are designated by the Company to be applied to such
redemption on the next Interest Payment Date for which timely notice of redemption
may be given.
(2) In addition to the right of redemption described in
subparagraph (a)(1) above, the Company shall have the option on any Interest Payment
Date on or after October 1, 1986 to redeem the Bonds, in whole or in part, on anv
Interest Payment Date at a redemption price equal to the principal amount thereof plus
accrued interest to the redemption date upon receipt by the Trustee of at least forty-
five (45) days prior written notice thereof from the Company.
(b) Mandatory Redemption
(1) The Bonds are also subject to mandatory redemption prior to
maturity in whole at any time at a redemption price equal to the principal amount
thereof, without premium, but with accrued interest thereon to the redemption date not
more than forty-five (45) days following a "Determination of Taxability" (as hereinafter
defined). A Determination of Taxability shall occur if, as a result of a failure by the
Company to observe or perform any covenant, agreement, or, representation on its part
to be observed or performed under the Agreement, or the inaccuracy of any
representation by the Company contained in the Agreement, a final decree or judgment
of any Federal court is issued or a final action of the Internal Revenue Service is taken
which determines that interest paid or payable on any Bond (other than interest paid to
any "substantial user" of the Project or "related person") is or was includable in the gross
income of a holder thereof for Federal income tax purposes under the Code: provided,
however, that such decree, judgment or action, as the case may be, shall not be
considered final unless: (a)the holder of the Bond involved in such proceeding or action
(i) gives the Company and the Trustee prompt written notice of the commencement
thereof and (ii) if the Company agrees to pay all expenses in connection therewith and
agrees to indemnify such holder against all liabilities in connection therewith and offers
the Company the opportunity to control the defense thereof and (b) the Company
contests such decree, judgment or action, as the case may be, to the extent it deems
sufficient or until no further right of appeal exists, it being agreed that the Company
may at any time in writing declare that such decree, judgment or action, as the case may
be, is final. A tax indemnification payment shall be payable by the Company which shall
be an amount equal to the difference between (1) the amount of interest paid on all
Qualified Bonds during the Inclusion Period (hereinafter defined) and (ii) the amount of
interest which would have been paid on all Qualified Bonds at a rate equal to the Prime
Rate plus 3/4 of 1% during the Inclusion Period. "Inclusion Period" means with respect to
any Qualified Bond (hereinafter defined) the period beginning on the Taxable Date
(hereinafter defined) and ending on the date of redemption or maturity (whichever occurs
first) of such Qualified Bond. "Prime Rate" shall mean the interest rate announced or
published from time to time by NationsBank of North Carolina, N.A., at its principal
corporate offices in Charlotte, North Carolina, as its "prime rate," which rate is not
necessarily the best or lowest rate of interest offered by NationsBank of North Carolina,
N.A.; provided, that if NationsBank of North Carolina, N.A. is no longer the Remarketing
Agent, the "Prime Rate" shall be that rate announced or published from time to time by
the Bank as its "Prime Rate," or, if there is no Letter of Credit outstanding, the Prime
Rate shall mean the Commercial Prime Rate for large money center banks published by
the Wall Street Journal. "Qualified Bond" means any Bond, interest on which is payable
on or after the Taxable Date, whether or not such Bond has been redeemed or has
matured on or after the Taxable Date. "Taxable Date" means the earliest effective date
as of which the interest payable on any of the Bonds is includable for Federal income tax
purposes in the gross income of any holder or former holder of the Bonds as a result of
the occurrence of any circumstance giving rise to a Determination of Taxability. Any
such redemption shall be made not more than 45 days after the date of the
Determination of Taxability requiring such redemption. Any such tax indemnification
payment shall be payable only out of Available Moneys and shall be made not more than
140 days after the date of Determination of Taxability requiring such payment.
"Available Moneys" shall mean moneys which have been on deposit with the Trustee for
at least 123 days during which no petition by or against the Company under any
bankruptcy act or under any similar act which may be hereafter enacted shall have been
filed unless such petition shall have been dismissed and such dismissal shall be final and
not subject to appeal, and the proceeds from the investment thereof.
(2) The Bonds are subject to mandatory redemption at the principal
amount thereof plus accrued interest to the redemption date on the Letter of Credit
Interest Termination Date, unless an Alternate Letter of Credit has been provided in
accordance with Section 404(d) of the Indenture.
(3) The Bonds are subject to mandatory redemption at the principal
amount thereof plus accrued interest to the redemption date if as a result of any changes
in the Constitution of the State of Illinois or the Constitution of the United States of
America or of legislative or administrative action (whether federal, state or local) or by
final decree, judgment or order of any court or administrative body (whether federal,
state or local) entered after the Company shall have had the right to contest the same
after the receipt of notice thereof, the agreement shall have became void or
unenforceable or impossible of performance in accordance with the intent of the parties
as expressed therein, or unreasonable burdens or excessive liabilities shall have been
imposed on the Issuer or the Company including without limitation federal, state or other
ad valorem, property, income or other taxes not being imposed on the date of the
Agreement. The Bonds shall be redeemed on the next Interest Payment Date which is at
least sixty (60) days following the occurrence.
[20] If less than all of the Bonds are to be redeemed, the particular
Bonds to be redeemed shall be selected as provided in the Indenture.
[211 In the event any of the Bonds or portions thereof are called for
redemption notice thereof will be given by the Trustee, by mailing a copy of the
-10-
redemption notice by registered or certified mail at least twenty-five (25) days prior to
the date fixed for redemption to the registered owner of each Bond to be redeemed in
whole or in part at the address shown on the registration books. All Bonds or portions
thereof so called for redemption will cease to bear interest on the specified redemption
date provided funds for their redemption are on deposit at the principal place of payment
at that time.
[22] The holder of this Bond shall have no right to enforce the
provisions of the Indenture or to institute action to enforce the covenants therein, or to
take any action with respect to any event of default under the Indenture, or to institute,
appear in or defend any suit or other proceedings with respect thereto, except as
provided in the Indenture. If an event of default as defined in the Indenture occurs and is
continuing, the principal of all Bonds then outstanding issued under the Indenture may be
declared due and payable upon the conditions and in the manner and with the effect
provided in the Indenture.
[23] The Indenture prescribes the manner in which it may be discharged
and after which the Bonds shall no longer be secured by or entitled to the benefits of the
Indenture, except for the purposes of registration and exchange of Bonds and of such
payment, including a provision that the Bonds shall be deemed to be paid if Governmental
Obligations, as defined therein, maturing as to principal and interest in such amounts and
at such times, as to insure the availability of sufficient moneys to pay the principal of,
premium, if any, and interest on the Bonds and all necessary and proper fees, compensa-
tion and expenses of the Trustee and anv paving agent shall have been deposited with the
Trustee.
[FORM OF :ASSIGNMENT]
The following abbreviations, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full according to appli-
cable laws or regulations:
UNIF GIFT MIN ACT
TEN COM -- as tenants in common Custodian
TEN ENT -- as tenants by the (Cust) (Minor)
entireties under Uniform Gifts to Minors Act -
JT TEN -- as joint tenants with right
of survivorship and not as
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
men
FOR VALUE RECEIVED, the undersigned sells, assigns and transfers unto
(Name, Address and Social Security or
Identification Number of Assignee)
the within Bond of the Village of Elk Grove Village, Cook and Dupage Counties, Illinois,
and does hereby irrevocably constitute and appoint
to transfer the said Bond on the books kept for registration thereof with full power of
substitution in the premises.
Dated:
Signature
Guaranteed:
NOTICE: The signature to this assignment must correspond with the name as it appears
upon the face of the within Bond in every particular, without alteration or enlargement
or any change whatever.
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CONSENT AND APPROVAL OF THE COMPANY
Pursuant to Section 1003 of the Indenture of Trust dated as of October 1,
1984, by and between the Village of Elk Grove Village, Cook and DuPage Counties,
Illinois, and United States Trust Company of New York, as trustee, as from time to time
supplemented and amended, La Quinta Motor Inns, Inc., hereby consents to and approves
the execution and delivery of the attached Second Supplemental Indenture of Trust.
LA QUINTA MOTOR INNS, INC.
By—
Its
CONSENT AND APPROVAL OF REMARKETING AGENT
Pursuant to Section 1003 of the Indenture of Trust dated as of October 1,
1984, by and between the Village of Elk Grove Village, Cook and DuPage Counties,
Illinois, and United States Trust Company of New York, as trustee, as from time to time
supplemented and amended, NationsBank of North Carolina, N.A., as Remarketing Agent,
hereby consents to and approves the execution and delivery of the attached
Second Supplemental Indenture of Trust.
NATIONSBANK OF NORTH CAROLINA, N.A.
By_
Its
RECEIPT OF THE LETTER OF CREDIT BANK
Pursuant to Section 1001 of the Indenture of Trust dated as of October 1,
1984, by and between the Village of Elk Grove Village, Cook and DuPage Counties,
Illinois, and United States Trust Company of New York, as trustee, as from time to time
supplemented and amended, NationsBank of Texas, N.A., as the Bank (as defined in said
Indenture of Trust), hereby receipts for an executed copy of the attached Second
Supplemental Indenture of Trust.
NATIONSBANK OF TEXAS, N.A.
By
Its