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HomeMy WebLinkAboutORDINANCE - 1711 - 4/9/1985 - INDUSTRIAL REVENUE BONDS/LAQUINTAORDINANCE NO. 1711 AN ORDINANCE PROVIDING FOR THE MODIFICATION OF CERTAIN DOCUMENTS EXECUTED IN CONNECTION WITH THE ISSUANCE ON NOVEMBER 2, 1984 OF $4,800,000 FLOATING RATE MONTHLY DEMAND INDUSTRIAL DEVELOPMENT REVENUE BONDS (LA QUINTA MOTOR INNS, INC. PROJECT) SERIES 1984 WHICH WERE AUTHORIZED IN ORDINANCE NO. 1676; AUTHORIZING THE EXECUTION AND DELIVERY OF A LOAN AGREEMENT AMENDMENT BETWEEN THE VILLAGE OF ELK GROVE VILLAGE, ILLINOIS AND LA QUINTA MOTOR INNS, INC.; AUTHORIZING THE EXECUTION AND DELIVERY OF A SUPPLEMENTAL INDENTURE BETWEEN THE VILLAGE OF ELK GROVE VILLAGE, ILLINOIS AND UNITED STATES TRUST COMPANY OF NEW YORK, AS TRUSTEE, AND RELATED MATTERS. WHEREAS, the Village of Elk Grove Village, Cook and DuPage Counties, Illinois (the "Issuer") is a duly constituted and existing municipality within the meaning of Section 1 of Article VII of the 1970 Constitution of the State of Illinois, and is a home rule unit of government under Section 6(a) of Article VII of said Constitution; and WHEREAS, -pursuant to Ordinance No. 1676 duly adopted by the President and Board of Trustees of the Village of Elk Grove Village, Illinois on October 18, 1984 (the "Bond Ordinance"), the Issuer was authorized to issue its $4,800,000 Floating Rate Monthly Demand Industrial Development Revenue Bonds (La Quinta Motor Inns, Inc. Project) Series 1984 (the "Bonds") to aid in the financing by La Quints, Motor Inns, Inc., a Texas corporation (the "Company") of its acquisition, construction and installation of certain land, buildings, machinery and equipment (the "Project"); and f WHEREAS, the Bonds were issued on November 2, 1984 pursuant to an Indenture of Trust dated as of October 1, 1984 (the "Indenture") between the Issuer and the United States Trust Company of New York, as Trustee (the "Trustee") for the bondholders and, concurrently with the issue of the Bonds a Loan Agreement dated as of October 1, 1984 (the "Loan Agreement") between the Issuer and the Company was executed and delivered for the purpose of requiring payment by the Company of amounts sufficient to secure payment of amounts due from time to time under the Bonds; and WHEREAS, in connection with the rating of the Bonds certain modifications have been requested to be made to the Loan Agreement and to the Indenture, including the .form of the Bond which is set forth in the Indenture; and WHEREAS, the Indenture may be modified by supplemental indenture pursuant to Article X thereof, and, therefore, a Supplemental Indenture dated as of April 1, 1985 to the Indenture (the "Supplemental Indenture") has been prepared containing the aforesaid requested modifications to the Indenture; and WHEREAS, the Loan Agreement may be modified by amendment pursuant to Section 8.3 thereof and Article XI of the Indenture and, therefore, an Amendment dated as of April 1, 1985 to the Loan Agreement (the "Loan Agreement Amendment") has been prepared containing the aforesaid requested modifications to the Loan Agreement; and WHEREAS, it is necessary in connection with the rating of the Bonds for the Issuer to approve and execute the Supplemental F G Ind-enture and the Loan Agreement; and WHEREAS, the Issuer has caused to be prepared and pre- sented to this meeting the following documents, which the Issuer proposes to enter into: -2- 1. The Loan Agreement Amendment; and 2. The Supplemental Indenture. 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 Loan Agreement Amendment and Supplemental Indenture be, and they hereby are, in all respects approved, and that the President and the Clerk of the Issuer be, and they are hereby, authorized, empowered and directed to execute, acknowledge and deliver such instruments in the name and on behalf of the Issuer; that the Loan Agreement Amendment and Supplemental Indenture are to be in sub- stantially the forms submitted to this meeting and hereby approved, with such changes therein as shall be approved by the President and Clerk of the Issuer, their execution thereof to constitute conclusive evidence of their approval of any and all changes or revisions therein from the forms of Loan Agreement Amendment and Supplemental Indenture hereby approved; and that from and after the execution and delivery of such instruments, the President and Clerk, 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 such instruments as executed. t F Section 2. That from and after the execution and delivery of said documents, the proper officials, agents and employees of the Issuer are hereby authorized, empowered and directed to do all -3- such acts and things and to execute all such documents as may be necessary to carry out and comply with the provisions of said documents as executed and to further the purposes and intent of this Ordinance, including the preamble hereto. Section 3. That all acts and doings of the officials of the Issuer which are in conformity with the purposes and intent of this Ordinance and the Bond Ordinance and in furtherance of the issuance and sale of the Bonds. Section 4. That the provisions of this Ordinance are hereby declared to be separable, and if any section, phrase or provision shall, for any reason, be declared to be invalid, such declaration shall not affect the validity of the remainder of the sections, phrases or provisions. Section 5. That all ordinances, resolutions, orders or parts thereof in conflict with the provisions of this Ordinance are, to the extent of such conflict, hereby repealed. Section 6. That this Ordinance shall be in full force and effect upon its passage and approval in the manner provided by law. AYES: 5 NAYS: 0 PASSED AND APPROVED this 9th day of April , 1985. F F Charles J. Zettek President ATTEST: Patricia S. Smith Village Clerk -4- STATE OF ILLINOIS ) ) SS COUNTY OF COOK ) I, 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 arid 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 9th day of April , 1985, insofar as same relates to the adoption of an ordinance entitled: "AN ORDINANCE PROVIDING FOR THE MODIFICATION OF CERTAIN DOCUMENTS EXECUTED IN CONNECTION WITH THE ISSUANCE ON NOVEMBER 2, 1984 OF $4,800,000 FLOATING RATE MONTHLY DEMAND INDUSTRIAL DEVELOPMENT REVENUE BONDS (LA QUINTA MOTOR INNS, INC. PROJECT) SERIES 1984 WHICH WERE AUTHORIZED IN ORDINANCE NO. 1676; AUTHORIZING THE EXECUTION AND DELIVERY OF A LOAN AGREEMENT AMENDMENT BETWEEN THE VILLAGE OF ELK GROVE VILLAGE, ILLINOIS AND LA QUINTA MOTOR INNS, INC.; AUTHO- RIZING THE EXECUTION AND DELIVERY OF A SUPPLEMENTAL INDENTURE BETWEEN THE VILLAGE OF ELK GROVE VILLAGE, ILLINOIS AND UNITED STATES TRUST COMPANY OF NEW YORK, AS TRUSTEE, AND RELATED MATTERS", a true, correct and complete copy of which Ordinance as adopted at said 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 on the adoption of said Ordinance were taken openly; that the vote on the adoption 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 meeting was called and held in strict accordance with the provisions 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 applicable provisions of said Act and said Code and its proce- dural rules in the adoption of said Ordinance. IN WITNESS WHEREOF, I have hereunto affixed my official sigbature and the seal of said Village, this 12th day of April , 1983. (SEAL) Patricia S . Smith Village Clerk, Village of Elk Grove Village, Cook and DuPage Counties, Illinois -5- JEJ/389767-e/P RP207111032795 AMENDMENT Dated as of April 1, 1985 to Loan Agreement Dated as of October 1, 1984 By and Between VILLAGE OF ELK GROVE VILLAGE, COOK AND DUPAGE COUNTIES, ILLINOIS and LA QUINTA MOTOR INNS, INC. THIS AMENDMENT dated as of April 1, 1985, between VILLAGE OF ELK GROVE VILLAGE, COOK AND DUPAGE COUNTIES, ILLINOIS, a home rule unit of government duly organized and existing under and by virtue of the Constitution and laws of the State of Illinois (hereinafter sometimes referred to as the "Issuer"), and LA QUINTA MOTOR INNS, INC., a corporation organized and existing under the laws of the State of Texas (hereinafter sometimes referred to as the "Company"), WITNESSETH: WHEREAS, on November 2, 1984 the Issuer issued $4,800,000 aggregate principal amount of its Village of Elk Grove Village, Cook and DuPage Counties, Illinois 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 "Agreement") with the Issuer; and WHEREAS, subsequent to the issue of the Bonds and in connection with the rating of the Bonds certain modifications have been requested to be made to the Indenture of Trust under which the Bonds were issued and to this Agreement; and WHEREAS, the modifications requested for this Agreement are hereinafter set forth and concurrently with the execution of this Amendment a Supplemental Indenture to the Indenture of Trust will be executed containing the modifications to the Indenture referred to above. NOW, THEREFORE, in consideration of the premises, the parties hereto agree as follows: ARTICLE FIRST At the end of the first sentence of the definition of "Alternate Letter of Credit" in Article I of the Agreement which is found on page 2 thereof, the words "provided, however, that each Alternate Letter of Credit shall have a term of at least one (1) year" shall be added so that the first sentence of the definition reads as follows: t F "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, provided, however, that each Alternate Letter of Credit shall have a term of at least one (1) year. ARTICLE SECOND The second sentence of paragraph (b) of Section 4.5 which is found on page 19 of the Agreement is hereby modified by adding the words "and the term of such Alternate Letter of Credit shall be at least one (1) year" so that the sentence reads as follows: An Alternate Letter of Credit shall be an irrevocable letter of credit, issued by a commercial bank or banks, the terms of which shall in all material respects be the same as the Letter of Credit except that the expiration date of such Alternate Letter of Credit shall be later than the date of expiration of the original Letter of Credit and the term of such Alternate Letter of Credit shall be at least one (1) year. ARTICLE THIRD Paragraph (b) of Section 7.2 which is found on page 29 of the Agreement is hereby modified to require in the first sentence the tax indemnification payments referred to therein to be made by the Company within ten 10 days after its receipt of notice of a Determination of Taxability and the last sentence requiring such payment on or prior to the redemption date for outstanding Bonds is hereby deleted so that paragraph (b) reads as follows: [b] Upon receiving written notice of the occurrence of a Determination of Taxability, the Company covenants to pay, within ten (10) days after receipt of such notice, to the Trustee for the benefit of the holders or former holders of the Bonds an amount for tax indemnification purposes equal to the difference between [i] the amount of interest paid on each Qualified Bond [whether or not then outstanding] during the Inclusion Period and [ii] the amount of interest which would have been paid on such Bonds at a rate equal to the Prime Rate plus 3/4 of 1% during the Inclusion Period, which amount shall be in addition to interest otherwise payable on the Bonds. IN WITNESS WHEREOF, the Issuer and the Company have caused this Agreement to be executed in their respective corporate names and their corporate 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 F c [SEAL] Attest: Assistant Secretary -2- VILLAGE OF ELK GROVE VILLAGE, COOK AND DUPAGE COUNTIES, ILLINOIS By Charles J. Zettek President LA QUINTA MOTOR INNS, INC. By: Sr. Vice President -Finance P RP206/JEJ/389767-d/1-032785 Village of Elk Grove Village Cook and DuPage Counties, Illinois to United States Trust Company of New York as Trustee SUPPLEMENTALINDENTURE dated as of April 1, 1985 to Indenture of Trust dated as of October 1, 1984 securing Village of Elk Grove Village, Cook and DuPage Counties, Illinois Floating Rate Monthly Demand Industrial Development Revenue Bonds Series 1984 (La Quinta Motor Inns, Inc. Project) THIS SUPPLEMENTAL INDENTURE, dated as of April 1, 1985,is between VILLAGE OF ELK GROVE VILLAGE, COOK AND DUPAGE COUNTIES, ILLINOIS (the "Issuer"), a home rule unit of government duly organized and existing under and by virtue of the Constitution and laws of the State of Illinois, and UNITED STATES TRUST COMPANY OF NEW YORK (the "Trustee"), a corporation duly organized and existing with its principal corporate trust office located at 45 Wall Street, New York, New York 10005. RECITALS A. The Issuer has heretofore executed and delivered a certain Indenture of Trust dated as of October 1, 1984 (the "Indenture") between the Issuer and the Trustee pursuant to which the Issuer issued and sold on November 2, 1984 its Floating Rate Monthly Demand Industrial Development Revenue Bonds, Series 1984 (La Quints. Motor Inns, Inc. Project) in the aggregate principal amount of $4,800,000 (the "Bonds"). B. Subsequent to the sale of the Bonds and in connection with the rating of the Bonds certain modifications have been requested to the Bonds and the Indenture and are hereinafter set forth. C. The execution and delivery of this Supplemental Indenture have been duly authorized and all things necessary to make this Supplemental indenture a valid and binding agreement have been done. NOW, THEREFORE, in consideration of the premises and one dollar duly paid to the Issuer by the Trustee at or before the execution and delivery of these presents and of other good and valuable considerations, the receipt of which is hereby acknowledged, the Issuer and the Trustee hereby agree to modify the Indenture as follows: ARTICLE FIRST The following sentence is hereby added at the end of the subparagraph identified as [19]((b)(1)) in the form of the Bond which is found at page 11 of the Indenture: Any such tax indemnification payment shall be payable only out of Available Moneys and shall be made by the Company to the Trustee within 10 days following receipt of written notice of the occurrence of a Determination of Taxability and, to the holder thereof, 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 ARTICLE SECOND At the end of the first sentence of the definition of "Alternate Letter of Credit" in Section 101 of the Indenture, which is found on page 16 thereof, the words "provided, however, that each Alternate Letter of Credit shall have a term of at least one (1) year" shall be added so that such definition reads 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, provided, however, that each Alternate Letter of Credit shall have a term of at least one (1) year. ARTICLE THIRD There shall be deleted from the end of Section 305 of the Indenture, which is found on page 33 thereof, the words "but nothing contained in this Section 305 shall prohibit the Trustee from using such moneys for the payment of the principal of, premium, if any, and interest on the Bonds, regardless of whether the same are Available Moneys" so that after such deletion Section 305 shall read as follows: SECTION 305. TRUSTEE AUTHORIZED TO DRAW ON LETTER OF CREDIT. The Issuer hereby authorizes and directs the Trustee, and the Trustee hereby agrees, to draw moneys under the Letter of Credit in accordance with the amounts available thereunder as shall be necessary (a) to make timely payment of the principal of and interest on Bonds (except with respect to the principal amount of Bonds held by the Bank pursuant to the terms of the Pledge Agreement) to the extent Bonds proceeds and other moneys in the Bond Fund or the Construction Fund are not available for such payment in accordance with the provisions of Section 304 of this Indenture and (b) to make timely payments as provided in Section 404 hereof. For purposes of this Section 305 and 404 hereof, moneys in the Bond Fund derived from payments made by the Company other than transfers pursuant to Section 307 and 308, shall be deemed not to be available for payment of the Bonds unless such moneys constitute "Available Moneys" (within the meaning of Section 1201 hereof). ARTICLE FOURTH The second to the last sentence of Section 404(d) of the Indenture, which is fopnd on page 38 thereof, is hereby modified by deleting the words "one hundred twenty (120) days beyond the term of the Letter of Credit" and substituting in lieu thereof the words "one (1) year from the date of its issuance" so that the sentence with such modification reads as follows: If, subsequent to the commencement of the giving of such notice, and before the giving of notice of redemption of Bonds under Section 601(B)(2) pursuant to K Section 602, an Alternate Letter of Credit is delivered to the Trustee in compliance with paragraph (c) of this Section 404 with a term that extends at least one (1) year from the date of its issuance, then the corresponding redemption of Bonds under Section 601(B)(2) shall not occur and the Trustee shall give notice of such provision of the Alternate Letter of Credit, which notice shall specify (i) that the giving of notice of the expiration of the term of the Letter of Credit has been commenced, (ii) that subsequent to the commencement of the giving of such notice provision has been made for such Alternate Letter of Credit and (iii) the date that the term of the Alternate Letter of Credit will expire. ARTICLE FIFTH The second paragraph of Section 501 of the Indenture, which is found on page 38 thereof, is hereby modified by adding a proviso at the end of the sentence so that the sentence with the proviso reads as follows: Any moneys held as part of the Bond Fund shall be invested and reinvested by the Trustee in accordance with the provisions of Section 3.7 of the Agreement, provided, that any moneys held as a part of the Bond Fund resulting from a draw on the Letter of Credit shall be invested solely in those obligations or securities described in clause (i) of the definition of Investment Securities. ARTICLE SIXTH Section 601(B)(1)) which is found on page 40 of the Indenture is hereby modified by adding the following sentence at the end thereof: The tax indemnification payment shall be payable only out of Available Moneys (as defined in Section 1201 hereof) and shall be made by the Company to the Trustee within 10 days following receipt of written notice of the occurrence of a Determination of Taxability and, to the holder thereof, not more than 140 days after the date of Determination of Taxability requiring such payment. ARTICLE SEVENTH The definition of "Available Moneys" contained in Section 1201 which is found at the top of page 64 of the Indenture is hereby modified to read as follows: The term "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. F! IN WITNESS WHEREOF, Village of Elk Grove Village, Cook and Dupage Counties, Illinois, 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 to evidence its acceptance of the trusts hereby created, United States Trust Company of New York has caused these presents to be signed in its name and behalf by one of its vice presidents, its official seal to be hereunto affixed, and the same to be attested by one of its trust officers, all as of the first day of April, 1985. VILLAGE OF ELK GROVE VILLAGE, COOK AND DUPAGE COUNTIES, ILLINOIS By Charles J. Zettek President (SEAL) Attest: By Patricia S. Smith Village Clerk UNITED STATES TRUST COMPANY OF NEW YORK, as Trustee By Its (SEAL) Attest: By Its ACKNOWLEDGEMENT OF VILLAGE OF ELK GROVE VILLAGE, COOK AND DUPAGE COUNTIES, ILLINOIS STATE OF ILLINOIS ) COUNTY OF Cook 6 DuPage ) I, the undersigned, a Notary Public in and for said County in said State, DO HEREBY CERTIFY that C.J. Zettek , whose name as President of the Village of Elk Grove Village, Illinois, is signed to the foregoing instrument, and who is known to me and known to be such person, acknowledged before me under oath on this day that, being informed of the contents of said instrument, he in his capacity as such officer and with full authority, executed the same voluntarily for and as the act of said Village of Elk Grove Village, Illinois. Given under my hand and seal of office, this _ day of , 1985. Notary Public My Commission expires: [SEAL] A ACKNOWLEDGEMENT OF UNITED STATES TRUST COMPANY OF NEW YORK STATE OF NEW YORK ) COUNTY OF ) On the _ day of , 1985, before me personally came to me known, who, being by me duly sworn, did depose and say that he resides at ; that he is an Assistant Vice President of UNITED STATES TRUST COMPANY OF NEW YORK, the corporation described in and which executed the foregoing instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the board of directors of said corporation, and that he signed his name thereto by like order. Given under my hand and seal of office, this _ day of 1985. My Commission expires: [SEAL] Notary Public Lot 3 in La Quints Range 11 East of September 20, 1984 EXHIBIT A LEGAL DESCRIPTION OF PROJECT SITE Resubdivision in the South West 1/4 of Section 23, Township 41 North, the Third Principal meridian, according to the plat thereof recorded as Document No. 27,262,582, in Cook Countv. Illinois.