280476 (3) Installation and Construction. The Partnership will
cause the Improvements to be installed and constructed b�the
• Citu substantially in accordance with the Plans and
Specifications and in accordance with the terms and conditions
of the,�Sale A�reement and� Lease and wholly within the boundary
- lines �of the�. � . � •
(4) Survey. On or before Bond Closing the Partnership
will file with the Trustee a plat or survey prepared by a
registered land surveyor, addressed and certified to the
Trustee, containing the correct legal description of and
showing the dimensions, area, and the location of all
improvements, easements, encroachments and other visible
encumbrances upon .the Land and a certificate of the registered
land surveyor or the Architect showing that the Facilities as
laid out, are within the lot lines of the Land.
(5) Completion. The Partnership will cause the Project
to be completed by the City by the Completion Date, provided
that if the Project is not completed by that date there shall
be no resulting liability on the part of the Issuer and no
abatement or diminution in the gayments required to be made by
the Partnership under Article 4; and
(6) Insurance and Payment and Performance Bonds. Ttie
Partnership will cause insurance and payment and performance
bonds to 'be procured and maintained in accordance with the
terms and conditions of the Sale Aareement and Lease during
construction of the Improvements and as requ r d in Section -
3.07 of this Agreement.
(7) Title Assurances and Recording. The Partnership will .
cause tc be delivered at the Bond Closing such policy or binder
as is required under Section 3.09 and to be executed, recorded
and filed in the office o� the County Recorder of Ramsey
County, Minnesota, and at any other place or places required by
. Bond Counsel before Bond_Closing, the Assignment of Leases and
Rents, all financing statements and any title curative
docunteats that the Trustee, the�PartnersY�A_ or Bond Counsel may
deem necessary or desirable to perfect or protect title of the
Partnership to the Project and the riahts and interests of the
Truste �er�the Assignment of Leases and Rents�and the�
n enture.
Section 3.02. Payment of Cost.
The Fartnership and Issuer agreen that all of the
following items/1wi11 be reimbursable from Bond '�roceeds to t�e
/�
16
exte available therefor and laced into the Construction Fund
to the extent and in the manner provided in Sections 3.05 an
3.06 and subject to the provisions of the Act:
(1) all expenses incurred and to be incurred in
. connection with the development,� acquisition,. .construction and
installation of Zmprovernents, including but not limited to the
cost of acquiring the Facilities and rights under the Ground
Lease A�signment. the contract price of all labor, services,
materials, supplies and equipment furnished under any contract
for construction and installation of the Improvements or
otherwise incurred in connection therewith, including the cost
of all appurtenances thereto, and of all rights-of-way for
acces d utility connections to and from the Project, and all
fees required for recording all financing stateanents and any
title documents relating to the Lease, Partnership Note,
Indenture or Assignment of Leases and Rents;
(2) the expense of preparation of the Plans and Speci-
fications for the Improvezaents, including utilities, and all
other facilities necessary or desirable in connection
therewith, and all other architectural, engineering and
supervisory services incurred and to be incurred in the
planaing, construction and completion of the Improvements;
(3) all legai, Bond Counsel, abstractors' , financial and
accounting fees and expenses, rating agency fees (if any) ,
AMBAC insurance fees, printing and engraving costs and other
expenses incurred and to be incurred on or before or in � .
connection with the Completion Date with respect to (i) the
authorization, sale and issuance of the Bonds, (ii) the
purchase of the AMBAC insurance policy, (iii) the preparation
of this Agreement, the Lease, the Indenture, the Assignment of
Leases and Rents and all other documents necessary to the Bond
� Closiag or required by this Agreement or the Indenture or (iv)
the establishment of the Completion Date including cornpliance
with ariy governmental or administrative rules or regulations on
or before such date;
(4) the premium on the title insurance required under
Section 3.09 and premiums on all other insurance required to be
taken out and maintained during the construction period before
the Completion Date;
(5) all expenses incurred in seeking to enforce any
remedy against any contractar, or any subcontractor or anx
supplier in respect of any default under any contraet with such
person;
17
(6) all deed taxes, mortgage registry taxes, recording
fees and other taxes, charges and assessments and license and
� registration fees of every nature whatsoever incurred and to be
incurred i.n connection with acquisition or completion of the
Project including the financing thereof;
(7) the cost of. all otYier labor, services, materials,
supplies and equipment necessary to complete the construction,
acquisition and installation of the Improvements, including but
not limited to t2ze Project Equipment;
(8) all fees and expenses of the Trustee and Paying Agent
under the Indenture that become due on or before the Completion
Date or in connection with the establishment of the Contpletion
Date and an aci�ninistrative fee to the Issuer of $ ;
- (9) �''=� ==-_-_-- c��.:�g-Qn --�ry--�t�
�ar��ers�ri-p�-�or-rtezapr�r'a'ry"Yi�rrarei�rg�of �e-�-Prc�ject;
..i-�ci�cii�g interest accruing on the Bonds during the
� construction period and for six months thereafter in excess of
any Bond proceeds initially deposited in the Bond Fund at Bond
Closing for such purpose� �
•~----""°"�(10 without li=nitation by the foregoing, all other
expenses which under accepted accounting practice constitute
,' necessary capital expenditures for the completion of the
'� Project or issuance of the Bonds, not including working capital
or expendable supplies (all of which are nevertheless to be
� supplied by the Partnership from its own funds without
,`
reimbursement) ; and
�
;, (11) all advances, payments and e�cpenditures made or to be .
; made by the Issuer, the Trustee and any other person with
respect to any of the foregoing expenses.
�
`, The Partnership shall be solely responsible for
. ; paying all such Project Costs until the issuance of the Boads.
I Thereafter all Project Costs may be paid or reimbursed from
�, available moneys in the Construction Fund to the extent and in
the manner permitted in Sections 3.05 and 3.06. J�
, � >
`'�, Section 3.03. Authorization by Issuer.
� j In accordance with Section 474.03(7) of the Act aad
`� the terms and condi:tions of the Lease, the Partnership is
`� authorized by the Issuer, and the Partnership, pursuant to such
authorization, agrees:
• � s
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�,•'"1•k,Z',�"�-c'i?�o�.c �"�'�'�'�e ^ / .
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, ,. ��.,���,�
�� ���,�,�,. ,�;,,r�..f �--��c ���� — �
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�� ..�:.•�.+�C-:.c..> 18
' ,,��r, ��c.�.�.t�i.I�si- �s t`-��..�/ - '� W
' � � . ,��,,�,�� ` ,n.�.±�...; �
(1) to acquire he Facilities and to acquire, construct
and install the Impro ements�as provided in Section 3..01, in
connection with the Project;
(2) to execute, acknowledge and deliver the SaiP
. Agreement,� Ground Lease -Assignment and Lease;
(3) to make, execute, acknowledge and deliver any con- �
tracts, orders, receipts, writings and instructions, with any
other persons, firms or corporations, and in general to do all
things which raay be requisite or proper for acquiring, construc-
ti.ng and installing the Project;
(4) pursuant to the provisions of this Agreement, to pay
all fees, costs and expenses incurred in the acquisition,
construction and installation of the Project from funds made
available therefor in accordance with this Agreement or
otherwise subject to the right to contest such fees, costs and
expenses; .
(5) so long as the Partnership is not in default under
any of the provisions of this Agreement or the Assignment of
Leases and Rents to exercise all authority hereby conferred,
which is granted and conferred irrevocably to the Completion
Date and thereafter until all activities .in connection with the
acquisition, construction and installation of the Project shall
have been completed.
Neitller the authorization granted in this Section nor
ariy other provision of this Agreement shall be construed as
making the Partnership an agent or joint venturer with the .
Zssuer.
Section 3.04. Issuance of Bonds.
The Issuer has contracted for the sale of the Bonds
a�thorized by the Indenture, and the Partnership has and does
approve the terms of the Indenture. Forthwith upon execution
of this Agreement, the AMBAC insurance policy, the Sale
Agreement. the Ground L.ease Assianmentf the Lease, the
� Indenture, the Partnership Note and the Assignment of Leases
and Rents or as soon thereafter as practicable, the Issuer will
execute the Bonds and cause them to be authenticated by the
• Trustee and delivered to the Original Purchaser upon payment of
the purchase price and filing with the ?rustee of the opinion
of Bond Caunsel as to the legality of the Bonds and the
furnishing of all other documents required by this Agreement
and the Indenture to be furnished before delivery. The Issuer
19
will ttien cause the proceeds of the Bonds to be transmitted to
the Trustee, who is required by the Indenture to deposit the
same in the following trust funds in the following amounts:
(1) in the Bond Fund, an amount equal to the accrued
interest; . , ' _ .
(2) in the Reserve Fund,. the sum of ; and
(3) in the Construction Fund, the remainder of the pro-
ceeds.
If for any reason such documents are not furnished
and the approving opinion of Bond Counsel in customary form
eannot be obtained, then this Agreement shall be terminated and
be void ar,d of no effect and the Partnership shall be obligated
to pay all costs and expenses enumerated in Section 3.02 and
incurred on or betore the date of such termination.
Section 3.05. Disbursements from Construction
� r�a.
The Issuer has in the Indenture authorized and
directed the Trustee to disburse money from the Construction
Fund, upon the order of the Partnership, in payment or
reimbursement of all items of Cost enumerated in Section 3.02
and ce�tified in writing by the Project Supervisor and the
Representative of tlze Partnership to be due and payable or to
have been paid by the Partnership to the persons entitled
thereto; except that until Completion Date the Trustee is
directed to retain in the Construction Fund the sum of
$ ; provided that in no event shall more than
$ in Bond proceeds (including interest thereon) be .
used to pay or reimburse for the payment of Working Capital
Eapense or of any Project Costs incurred prior to April 21,
1983. The cost of acquiring the Facilities and the Project
Costs for the Improvements described in Section 3.02(3) , (4) ,
. (5) , (6) , (8} and (9) may be paid or reimbursed in full upon
receipt by the Trustee of any statement of the payee covering
such expenses endorsed by the payee and approved by the
Representative of the Partnership. With respect to aIl other
Project Costs, each certificate of the Project Supervisor and
the Representative of the Partnership�shall contain the
following additional information:
(1) the amount and nature of each item of Cost and the
name and address of the payee, with the payee's statement and
if reimbursement is requested, evidence of payment thereof
attached;
20
(2) a statement that each item for which payment or
reimbursement is requested is or was necessary in connection
with the Project and none of such items has formed the basis
for any previous payment from the Construction Fund, with a
copy of. the Architect' s certificate or orders, if any, with ,
respect to work completed� or materials or supplies delivered
. for v3hich payment or rei�mbursement is req�ested;.
' (3) a statement as estimated on the date of the certifi-
cate (whether or not such estimated total Cost exceeds the
available proceeds of the Bonds) , itemized to show separately
the total amount then and theretofore certified for payment and
the total amount remaining to be paid (A) under any
Construction Contract (as affected .by any modifications or
additioas to the Plans and Specifications since the last
certificate) and (B) for all other Project Costs;
(4) with respect to all Cost items incurred and to be
incurred under any Construction Contract which provides for the
retention of a portion of the contsact price, a statement that
the total amount then and theretofore certified for payment of
such Project Costs does not exceed the net contract price after
deducting any portion still withheld by the Partnership;
(5� a statement that each contractor, subcontractor a�d
materialman has filed with the Project Supervisor receipts or
waivers of liens for all amounts theretofore �certified for
payment, or any amount therein certified for reimbur�ement to
the Partnership for payment, for work, materials and equipment
furnished by him or that there is on file with the Project - -
Supervisor a cancelled check endorsed by the contractor, subcon-
t=actor or materialiaan evidencing such payment;
(6) a statement that the total of all Working Capital
Expenses then and theretofore certified for payment from the
Construction Fund do not exceed 10$ of the total of all Project
Costs enumerated in subsections (1) , (2) and (7) of Section
3.02 and then or theretofore certified for payment or
reimbursement from the Construction Fund.
No money shall be disbursed from the Construction Fund (other
than for Project Costs which do not require the additional
information set forth above) until there has been filed with
the Trustee:
�) Plans and Specifications covering the work, including
acquisition and installation of any Project Equipment, for
which payment is reguested; '
21 �
(2) A copy of any contract or purchase agreement covering
the work or items for which payment is requested; and
• �
(�,37 any payment and. performance bond required by this
Agreement covering the work- for which payment is requested..
Upon request of the Trustee, the Partnership shall furnish the
receipts or lien waivers or cancelled checks from such con-
tractors, subcontractors and materialmen specified in
subsection (5) above, and any other documentation which may be
deemed necessary by the Trustee as a condition for disbursement
of money from the Construction Fund.
If at any time the Project Supervisor estimates in
accardance with Section 3.05(3) that the total Cost of the
Project remaining to be paid from the Construction Fund exceeds
the total of the amount of money which in the judgment of the
Trustee will be available in the Construction Fund to pay such
Project COStS� 'tYlE�p�ans and Si -ei-fi nm+i nnc shall be ainended lIl
accordance with the Lease.
Section 3.06. Establishment of Completion Date.
(1) The Completion Date shall be that date on which the
Trustee shall acknowledge receipt of the following items, which
the Pattnership shall furnish to the Trustee •no later than 30
days after completion of the Project:
(A) a certificate�tating that (i) the acquisition,
construction and installatidn' of the mgrovements/�have been
completed in substantial conformity �'ith this Agfe'ement the
Sale Agreement and the Lease (ii} the e ost of the �
Project has been paid, or is then due and payable in accordance
with a certificate of the Project Supervisor and Partne=ship
Representative submitted in accordance with Section 3.05
hereof, except any amount (not to exceed 10$ of the Loan} which
- the Trustee agrees to retain in the Construction Fund to secure
completion by any contractor, (iii) the Project conforms to all
applicable zoning (by special use permit or otherwise) ,
planni.ng and building regulat�ons and laws, pollution control
laws and regulations and is suitable and sufficient for
efficient operation for the purpose specified in Section
3.01(3) , and (iv) the certificate is given without prejudice to
' the rights against third parties which may exist at the date
thereof or �hich may subsequently come into being;
(B) final lien waivers from all contractors �
materialmen involved in the Pro 'ect or other evidence
satisfactory to the Truste that payment of the contractors and
materialmen has been made or provided for;
22
(C) an opinion of Independent Counsel, stating that:
� (i) the Partnership holds a good and
marketable leasehold interest in the Land and the '
Partnership holds good- and marketable title to the
� F�cilities and Zmprovements, or in the alternative
an awner's policy of tit�e insurance to the same
effect; and
(ii) stating that all recordings and filings
of the instruments which are required to perfect
the Trustee's security interest in the Issuer's
right, title and interest under this Agreement,
including its right to receive e s c a ents
and other sums payable to it under this Agreement,
against all creditors, subsequent purchasers and
encumbrancers have been effected, subject to the
�effect of bankruptcy, reorgana.zation, and
insolvency laws affecting creditors ' rights
generally and specifying the further refilings and
renewals required in order to conti.nue perfection
. of such security interests �for so long as any
Bonds remain outstanding.
(D) copies of any of said instrwaents so specified
in the'-foregoing opinion not previously furnished the Trustee;
(E) a certificate of occupancy, if any, required by.
the Issuer; and a certificate signed by the iia����p
Representative of the City stating that all other permits
necessary for the occupancy and use of the Project have been
obtained and are in full force and effect;
� (F) a certificate of the Architect stating that in .
his opinion the construct�on of the Pro�ect has been completed
substantially in accordance with the Plans and Specifications
then in effect;
(2) On the Completion Date, any balance remaining in the
Construction Fund in eacess of any amount retained therein
under subsection (1) (A) (ii) to secure completion by any
contractor shall be transferred by the Trustee to the Bond
Fund. Any sums retained in the Construction Fund shall 'be
' disbursed upon certification and approval as required under
Section 3.05. �
23
Section 3.07. Payment and Performance Bond.
� Before any claim for work, materials, and equipment
furnished under any Construction Contract for the construction
of the Project is certitied- for payment by the Project
� Supervisor and Partnership Representative and paid from the '
Construction Fund by the Trustee, a payment and performance
bond in the form prescribed in Section 574.26, Minnesota
Statutes, shall be secured from the contractor or each
subcontractor, executed by a responsible surety company
authorized to do business in the State of Minnesota, naming the
Trustee as a co-obligee, in a penal sum equal to the entire
amount to become payable under the applicable contract and
conditioned as required by the atoresaid statute for the com-
pletion of the work in accordance with the Plans and Specifica-
tions and for the payment of all claims of subcontractors (or
sub-subcontractors) and suppliers. Any sums which become
gayable pursuant to the provisions of any bond so furnished
shall be used and applied as provided in Section 3.08. Said
bonds shall be delivered to the Trustee before such contractor
commences work. The Partnership shall not be required to have
a 'bond for work performed by it or to secure a bond from a
vendor of any Project Equipment who is not responsible for the
installation thereof. Except as hereinabove otherwise required
in this Section 3.07, any payment and performance bond required
under �ection 574.26, Minnesota Statutes, is hereby waived.
- Section 3.08. Enforcement of Contract. - �
In the event of default of any contractor or
subcontractor under any Construction Contract or in the event
of a breach of warranty with respect to any materials, �
wor]ananship or performance, the Partnership or the City on its
behalf will promptly proceed, either separately or in
conjunction with others, to exhaust its remedies against the
contractor, subcontractor or vendor in default and against any
- • surety on a bond securing the performance of such contract,
provided, however, that the Partnership may on the advice of
counsel and with the Trustee' s consent refrain from exhaustiizg
such remedies if determined by the Partnership not to be in its
best interests and not necessary to complete the Project. The
Partnership will promptly advise the Trustee of the steps it
intends to take in c�nnection with any such default. Any
� amounts recovered pursuant to any bond or 'by way of damages,
refunds, adjustments or otherwise in connection with the
foregoing, after deduction of expenses incurred in such
recovery, other than any amounts resulting from the loss of
income, shall be paid into the Construction Fund if received
before the Completion Date, and otherwise shall be paid into
24 �
the Bond Fund, provided that the Partnership or the City may
obtain reimbursement for any payments made in connection with
such action as an item of Cost as provided in Section 3.05.
Section 3.a9. - Title Assurances.
For the Bond Closing and as a precondition to the
establishment of the Completion Date, the Pa�rtnership shall
cause to be furnished to the Trustee adequate assurances �
showing with respect to the Land a good and marketable
leasehold interest in the Partnership in the�form an owner' s
policy of title insurance (or at Bond Closin a title binder)
to the leasehold interest in the Land and an owner's policy of
title insurance (or at Bond Closing a title binder) to the-
Facilities in an amount equal to at least
-th��.Boi�ds and payable to the Partnership �nd the Trustee as
tl�eir interests shall appear.
,
� , �,a � ! /cf� O � G
25
ARTICLE 4
THE LOAN, BASIC PAYMENTS,
ADDITIONAL CHARGES AND ADDITIONAL FINANCING -
Section 4.01. The Loan.
The Issuer agrees, upon the terms and conditions here-
in specified, to lend to the Partnership the proceeds received
by the Issuer from the sale of the Bonds, excluding any accrued
interest, by causing 1�1 such proceeds to be deposited with the
Trustee for disposition as provided herein and in the
Indenture. The amount of the Loan shall also be deemed to
include any "discount" or any other amount by which the
aggregate price at which the Issuer sells the Bonds to the
Original Purchaser is less than the aggregate principal amount
of the Bonds, plus accrued interest; and the obligation of the
Issuer to make the Loan �shall be deemed fully discharged upon
so depositing the proceeds of the Bonds with the Trustee.
. Section 4.02. Basic Payments.� W..----�""�
y�_.._ .�._- �
. /�The Partnershig agrah_ to repay the Loa�bv executina
and deliverinc to the Trustee �nd pavina amounts due under the
Partner-ship Note and the Assig' ent of Leases and Rents.Y�Tfie
Loan srai bo a»p and nav,�,�able_ in installments of Basic /
Payments as follows: �.��.��e'"`:e t�
�.�t. �, ��
(1) During the Term of this Agreement, the Partnership ,
shall make Basic Payments in immediately available funds as
follaws:
_ (a) Commencing on Au ust 20�1,983, and semiannually
thereafter o each Feb a 20 and Au st 20 in each year
the Partnership s a make Basic Payments in an amount
v�lhich, together with any balance then on hand in the Bond
Fund.,will equal the total interest and principal and
pre icun, if any, due on all Outstanding Bonds on the next
succeeding Maturity Dat�.
(b) In any event the sum of the Basic Payments
payable under this Section shall be sufficient to (i) pay
� all principal, interest and premium, if any, on the Bonds
as such princi�pal, interest and premiums become due, at
maturity, upon redemption or otherwise, (ii) maintain the
amount of the Reserve Requirement in the Reserve Fund, and
26 �
i��"� G
, , �
� ' ' ' , if on/�
� Februarv 20 or Auaust 20 of any year the balaneae in the
� Bond Fund or on any day the balance in the Resei�ve Fund is
not sufficient for this purpose, the Partnership�wi-� make
a Basic Payment• to cure
� the deficiency. � �
(2) All payments of Basic Payments shall be made directly
to the Trustee at its corporate trust office, for the account
of the Issuer and shall be deposited by the Trustee in the Bond
Fund or the Reserve Fund, as the case may be. In the event the
Partnership should fail to make any of the payments required in
this Section 4.02, the item so in default shall continue as an
obligation of the Partnership until the amount in default shall
have been fully paid, and the Partnership agrees to pay the
same from the proceeds of the Partnership Note and the Assign-
ment of Leases and Rents with interest thereon (including to
the eatent permitted by law, interest on overdue installments
of interest) at the rate borne by the respective Bonds as to
which such default exists.
(3} The accrued interest on the Bonds from the date of
the Bonds to the date of Bond Closing shall be applied as a
credit against the first Basic Payment due under Subsection
(1) (a) of this Section 4.02. .
(4) As provided in Internal Revenue Service Revenue
P�ocedure 79-5, Reveaue Procedure 81-22 and 26 CFR 601.201 (and
any subsequent amendments, modifications or replacements
thereof) Restricted Construction Funds in the Bond Fund shall
be used only to prepay Bonds which are subject to redemption at
their earliest caZl date without penalty or premium or to pay a �
pro rata portion of the principal of the Bonds as provided in
Section 5-3(2) (A) of the Indenture.
(5) Neither Restricted Construction Funds used to prepay
� Bonds nor any other sums set aside in the Bond Fund -to purc2iase
or prepay Bonds (other than pursuant to Section 3-1 (3) of the _
Indenture) shall be deemed available as a credit against Basic
. Payments required to be made under subsection (1) (a) of this
Section 4.02.
(6) Except during the continuance of an Event of Default,
' all available remaining sums on deposit in the Bond Fund and
not credited against currently payable installments of Basic
Payments or applied as provided in Sections 8.02 or 8.04 shall
be credited against the last i.nstallments of Basic Payments.
27 �
(7) In no event shall any purchase of any Bond made by or
on behalf of the Partnership result in the discharge of either
(i) the Bonds so purchased, (ii) the obligations under this
Section 4.02 to make Basic Payments relating to the Bonds so .
purchased, or (iii) the Loan made hereunder to the extent of
� the Bonds so purchased, iinless and to the extent the Bonds so
purchased are surrendered to the Trustee and cancelled.
Section 4.03. Additional Charges.
The Partnership agrees to pay, when due, each and all
of the following: �
(1) to or upon the order of the Trustee, when due, all
fees of the Trustee for services rendered under the Indenture
and all fees and charges of the Paying Agent, registrars, legal
counsel, accountants, engineers, public agencies and others
incurred in the performance on request of the Trustee of
services required under -the Indenture for which the Trustee and
such other persons are entitled to payment or reimbursement;
provided that the Partnership may, without creating a default -
hereunder, contest in good faith the necessity or
reasonableness of any such services, fees or eupenses other
than the Trustee' s fees for ordinary services as set forth in
the Indenture, Paying Agency fees and any fees or charges of
public--agencies; �
(2) to the Issuer, all reasonable expenses directly incur-
red by the Issuer to perform its obligations or exercise its
rights under this Agreement, and all other reasonable expenses
incurred by the Issuer in relation to the Project which are not
othe=wise required to be paid by the Partnership under the
terms of this Agreement, provided that a Representative of the
Partnership or the Trustee shall have given prior written
approval to the incurring of such other expenses, and all �
ind�nnity payments required to be made under Section 7.04;
(3) to the Trustee the amount of all advances made by the
Trustee, with interest thereon, as provided in Sectioa 5.04;
(4) to the Issuer or the Trustee, as the case may be,
interest at the rate per annum of t�1Ye percent 12$ on each
paym�nt commencing on tYie date when due and required in this
� Section to be made to the Issuer or the Trustee, if not made
when due and if not advanced by the Trustee under the
Indenture, Partnership Note or Assignment of Leases and Rents;
28
provided that amounts due under clauses (3) and (4) shall be
payable solely from moneys payable to the Trustee under the
� Assignment of Leases and Rents other than Basic Rent (as that
term is defined therein) . .
� ' Section 4.04. Partnership's Obligations �
Unconditional.
Al1 Basic Payments and Additional Charges and all
other payments required of the Partnership hereunder shall be
paid without notice or demand and without setoff, counterclaim,
or defense for any reason and without abatement or deduction or
defense (except as provided in Section 8.02) . The Partnership
will not suspend or discontinne any such payments, and will
perform and observe all of its other agreements in this
Agreement, and, except as expressly permitted in Section 8.04,
will not terminate this Agreement for any cause, includirig but
not limited to any acts or circumstances that may constitute
failure of consideration, destruction or damage to the Project
or Partnership' s business, the taking of the Project or
Partnership's business by Condemnation or otherwise, the lawful
prohibition of the Partnership's use of the Project, or
Partnership's business, the interference with such use by any
p�,ivate person or corporation, the invalidity or unenforce-
ability or �lack of due authorization or othe= infirmity of this
Agreement, or lack of right, power or authority of the Issuer
to enter into this Agreement, eviction by paramount title,
commercial �frustration of purpose, bankruptcy or insolvency of
the Issu�r or the Trustee, change in the tax or other laws or
administrative rulings or actions of the United States of
America or of the State of Minnesota or any political sub-
division thereof, or failure of the Issuer to perform and �
observe any agreement, whether express � or implied or any duty,
liability or obligation arising out of or connected with this
Agreement, or for any other cause whether similar or dissimilar
to the foregoing, any present or future law to the contrary
- _ ___ notwithstanding, it being the intention of the parties hereto
that the Basic Payments and other amounts payable by the
Partnership hereunder shall be paid in full when due without
any delay or diminution whatever.
Section 4.05. Partnership' s Remedies. �
� Nothing contained in this Article shall be construed
to release the Issuer from the performance of any of its agree-
ments herein ,o,�r under the Sale Agreement, and if the Issuer
should fail to per orm any such agreements, the Partnership may
institute such action against the Issuer as the Partnership may
deem necessary to compel the �erformance so long as such action
29
shall not violate the Partnership's agreements in Section 4.04
or diminish or delay the amounts required to be paid by the
Partnership pursuant to Sections 4.02 and 4.03 of this
Agreement. The Partnership acknowledges however and agrees '
that any pecuniary obligation of� the Issuer created by or
� arising out of this Agreement shall be payable solely out of
the proceeds derived from this Agreement �but not from the Sale
Agreemen�L, the sale of the Bonds, any insurance aad
Condeianation awards received pursuant to this Agzeement or upon
the sale or other disposition of *_he Project upon a default by
the Partnership or otherwise.
Section 4.06. Additional Financing.
(1) The Issuer iaay, with or without any Bondholder
consent (except as otherwise required in the Indenture) , i.n its
sole discretion (except as otherwise provided in subsection (3)
and the Indenture) , upon request and at the sole expense of the
Partnership use its best efforts to issue Additional Bonda for
the financing of additions and improvemer�ts to the Project or
for any other purpose authorized under Section 2-6 of the
Indenture (including the refunding of all or part of the Bonds�
which will have the effect of furthering the policies aad
purposes of the Act, provided that:
�� (A) such activities will not jeopardize the
exeinption of interest on the Bonds from federal income taaation
under the Iaternal Revenue Code; ---
(B) prior to the issuance of any Additional Bonds,
the necessary amendments or suppleiaents to this Agreement, the
Indenture, the Lease, arxd the Assignment of Leases and Rents
are executed and, where appropriate, recorded;
(C) there are no outstanding defaults existing under
this Agreement, the Indenture, the Lease, the Partnership Note,
and the Assignment of Leases and Rents wherein the period
within which such default may be cured has expired; and
(D) all other applicable conditions set forth in
Sectian 2-6 of the Indenture for the issuance of Additional
Bonds have been met.
� (2) The Partnership shall to the extent permitted by law,
have the right at its option and expense to require that the
Issuer exercise its best efforts to proceed under and pursuant
to the terms of Section 474.03(11) , Minnesota Statutes to issue
Additional Bonds to refund all Outstanding Bonds and any
Additional Bonds and any net benefit of such refunding shall
30
accrue to the Partnership in the form of adjusted Basic
Payments to coincide with the schedules agreed to under the
� terms and conditions of the refunding issue, provided that as a
result of the issuance of such refunding bonds:
- � (A)' all Outstanding Bonds and any �,dditional Bonds '
are discharged under the provisions of Article Seven of the
Zndenture;
(B) the refunding bonds are issued no more than six
months prior to the date on which the Bonds or Additional Bonds
to be refunded are fully paid and retired and the Partnership
certified that such refunding is required in order to assure
payment of such Bonds or Additional Bonds; and
(C) such activities will not jeopardize the
exen�tion of interest on the Bonds and any Additional Bonds
fram federal income taxation under the Internal Revenue Code.
� (3) Nothing contained in this Section 4.06 is intended to
restrict or limit the issuance of any other bonds of the Issuer
(in lieu of Additional Sonds) or the incurrence of debt by the
Partnership from other sources to complete the Project, to
finance any other project of the Partnership, except as limited
and provided herein, or to refund the Bonds, provided that:
(A) such activities will not jeopardize the
exemption of interest on the Bonds and any Additional Bonds _ ._ _
from federal- income taxation under the Internal Revenve Code;
and
(B) such other bonds or debt are not secured by any �
lien on the Trust Estate which is prior to or oa a parity with
the lien of the Indenture.
. �
31
ARTICLE 5
PROJECT COVENANTS
� � Section 5.01. ^ Project Operation and Maintenance.
The Partnership shall pay or cause to be paid all
� expenses of the operation and maintenance of the Project and
all expenses necessary to keep the Project in good repair and
good operating condition; including, but without limitation,
adequate insurance thereon and insurance against all liability
for injury to persons or property arising from the operation
thereof.
Section 5.02. Sale or Lease of Pro '�ect.
Other than pursuant to the Lease, the Partnership
will not lease the Project, in whole or in part, nor assign its
rights under tY►e Lease, nor sell, mortgage or otherwise
encumber its interests in the Project, in whole or part, except
as provided in the Assignment of Leases and Rents or in Section
8.01; provided that in no event shall such lease, mo��aa�a�e,
assignment or sale be permitted if the effect thereof wouZd be
to cause the Bonds to be deem�d issued in violation of the
requirement under Section 103(b) of the Internal Revenue Code
and the income tax regulations promulgated thereunder that
substantially all of the net proceeds of the Bonds be used for
the acquisition or improvement of land or depreciable property,
or under Section 474.02, Subdivision ld, of the Act that no
portion of the Project to be financed from Bond proceeds be
acquired in whole or part for sale, nor shall any such
transaction be permitted if the effect thereof would otherwise
� be to impair the validity or the tax exempt status of the
Bonds, nor shall any such •transaction release the Partnership
of any of its obligations under this Agreement (eacept as
otherwise provided in Section 8.01) . The Partnership shall •
promptly notify the Trustee and Issuer of any such sale,
mortgag1 assignment or lease.
..____
Section 5.03. Assignment of Leases and Rents.
In consideraticn of the Loan, and as security for the
� Basic Payments to be made by the Partnership for the payment of
the Bonds, and as security for the performance of all of the
other obligations, agreements and covenants of the Partnership
32
to be performed and observed hereunder, the Partnership shall
execute and cause to be recorded the Assignment of Leases and
� Rents as required under Section 3.01(7) and shall keep, perform
and observe each of its obligations thereunder.
• � Section 5.04. � Advances. � � � '
Subiect to the �rovisions of Section 4.03 and 9._13.
.�.—
the Partnership acknowledges and agrees that under the
Indenture and Assignment of Leases and Rents the Trustee may
take certain action and make certain advances relating to the
Project or to certain other matters as expressly provided
therein, and the Partnership shall be obligated to repay all
such advances on demand, with interest from the date of each
such advance, at the rate and under the conditions set farth in
the Indenture or Assignment of Leases and Rents, as the case
may be.
Section 5.05. Atterations to the Project and
� Removal of Project Equipment.
The Partnership shall, subject to the ternis and
conditions of the Assignment of Leases and Rents, have the
right from time to time at its cost and expense, to remodel and
make additions, modifications, alterations, improvements and
changes (collectively referred .to as "alterations"} in or to
the Praject or to permit removal of any Project Equipmeat
therefro�m as the Partnership in its discretion, may deeat to be_
desirable, provided such alterations or removal do not impair
the character of the Project as a "project" within the meaning
of the Act or impair the eaemption of the interest on the Bonds
from federal income taxation. �
- Section 5.06. Tie-Zns:
—
- The Partnership may, at its own expense, (A) connect
or "tie-in" walls (including use of existing walls for the
support of future adjacent buildings) and utilities and other
facilities located on the Land to other structures erected on
the Land or on real property adjacent to or near the Land or
partly on such adjacent real property and partly on the Land,
or (B) in connection with the expansion or i�rovement of any
� facility on the Land, tear dcwn any wall of the facility and
build an addition to such facility (either on the Land or on
real property adjacent thereto or partly on such adjacent real
property and partly on the Land) ; provided, however, that prior
to any such expansion, addition, improvement, tearing down or
33
� connection with the "tie-in" walls, utilities and other
facilties, the Issuer shall have received a written �
certification and/or opinion of an independent engineer that
the same will not materially impair the operating unity or the '
efficiency of the Project ar materially and adversely affect
� the character thereof. �
Section 5.07. Taxes and Other Governmental Charges.
The Partnership will pay or cause to be paid, as the
same respectively become due, any taxes, special assessments,
license fees and governmental charges af any kind whatsoever
that may at any time be lawfully assessed or levied against or
with� respect to the operations of the Project, or any
improvements, equipment or related property installed or
brought by the Partnership therein or thereon, or the Bonds,
the Loan Agreement, or the interest of the Issuer or the
Bondholders therein. The Partnership may, at its expense, in
good faith contest any such taxes, assessments, license fees
and other governmental charges and, in the event of ariy such
contest, may permit the taxes, assessments, license fees or
other charges so contested to remain unpaid during the p�riod
of--such contest and any appeal therefrom cuiless the Issuer
� shga_�ll.�notify the Partnership that, in the opinion of
' -�pendent Counsel, by nonpayment of.any_.�uch items, the
Projec� or any part thereof, or the �enenue tZ.ierefrom, will be
subject to loss or forfeiture, in whi'c�event such taxes,
assessm�ents, license fees or charges shall be paid promptly. .-- -
Section 5.08. Insurance Requirements.
� Except to the extent that self-insurance is provided
by the City pursuant to the Lease and except as provided in
- Section 5.09, the Partnership shall procure and keep or cause .
to be procured an3 kept in force at all times during the term
of this Agreement, the followiag types and amounts of insurance
relating to the Proj�ct:
(a) Property insurance against loss from or damage
� by vandalism, fire and lightning and other risks which at
the time are included under the standard "extended
coverage" endorsement, in amounts sufficient to prevent
the Issuer or Partnership from becoming a co-insurer of
� any loss but in any event in amounts not less t'han 100$ of
the actual replacement value of the Facilities and
Improvements, exclusive of foundations and excavations.
34
(b) �Public liability insurance coverina claims
against�the Partn�hiR amd the partners for bodily
injury, death or property damage occurring on, in or about
the Project and adjoining streets and sidewalks, in the
minimum amounts� of �$2,000,000 for bodiZy injury or death
� tt� any one person, $3,000,000 for any one a�ccident, and '
$2, 500,000 for property damage, or from time to time in
such greater amounts as are then customary for property
similar in use to the Project.
(c) Contractual liability covering the indemnity
obligations set forth in Section 7.04(1) .
(d) Workers' compensation insurance to the eatent
required by the law of the State and to the extent
necessary to protect Issuer and Partnership and the
Project against workers' compensation claisas. ,
(e) Explosion insurance in respect of any boilers
� and similar apparatus located in the Project in the
minimum amount of $500,000, or from time to time in such
greater amounts as are then custoiaary for property similar
in use to the Project.
(f) Only with respect to the public parking
facilities comprising part of the Project, rental loss or
business interruption insurance in an amount sufficient to
. replace all revenues lost from the operation tY►ereof for. a
period of twelve (12) months after the occurrence of the
insured eveat.
(g) From time to time, such other insurance, in svch �
amounts and against such risks, as is conanonly obtained in
the case of property similar in use to the Project and
located in the local�ty in which the Project is located,
including flood, earthquake and, when and to the extent
- obtainable from the United States Government or any agency
thereof, war-risk insurance. �
Section 5.09. Self Insurance.
The Partnership may self-insure up to the amount of
$ against each of the risks described in Section 5.08,
' paragzaphs (a) , (b) and (d) , and to the extent of such
self-insurance the �Partnership shall not be required to
maintain the insurance required thereunder. The Partnership's
determination to provide self-insurance with respect to each
such risk shall be evidenced 'by a certificate describing the
same executed by a Partnership Representative and delivered to
35
Issuer and the Trustee. The provisions of Section 5.10 shall
not apply to any self-insurance provided by Partnership. If
the Partnership elects to self-insure in accordance with the
provisions of this Section, in the event of an occurrence which "
would have� been covered :by the insurance described in Section
� 5.08, amounts equal to t21e amounts of self-insurance with
respect to t2ze occurrence or to the amount of the loss,
whichever is less, shall be made available by Partnership
within sixty (60) days after the occurrence, and shall be
applied, transferred or used in the same manner as Net Proceeds
of i.nsurance are to required to be handled under Section 6.03
hereof.
Section 5.10. Requirements for All Insurance. '
All insurance required hereby may be provided by a
rider to an existing policy or under a separate policy. Al1
insurance poliCies (or riders) required hereby shall be taken
out and maintained with responsible insurance companies
organized under the laws of one of the states of the United
States and qualified to do business in the State of Minnesota;
shall contain a provision that the insurer shall not cancel or
revise coverage thereunder without giving written notice to. the
insured parties at least thirty (30) days' before the
cancellation or revision becomes effective; and, with respect
to policies described in Section 5.08, paragraphs (a) , (b) and
(d) , shall have an endorsement in favor of the Trustee. The
Partnership shall deposit with the Issuer the policies (and - -
riders) evidencing any such insurance procured by it, or a
certificate or certificates of the respecti�e insurers stating
that such insurance is in full force and effect. Before the
expiration of any such policy (or rider) , the Partnership shall
furnish to the Issuer evidence that the policy has been renewed
� or replaced by another policy confonaing to the provisions of
this Section, unless such� insurance is no longer obtainable in
which event the Partnership shall notice the Issuer of this
fact. The Partnership shall not obtain or carry separate
insurance concurrent in form or contributing in the event of
loss with that required in Section 5.08 hereof to be furnished
� by the Partnership unless such insuranc� meets all requirements
of this Section. The Partnership shall immediately notify
Issuer whenever any such separate insurance is obtained and
. shall deliver to Issuer policies or certificates of insurance
evidencing the same.
Section 5.11. Administration of Claims, EtC.
Neither the Issuer nor t]�ie Trustee nar Partnership
shall be required to prosecute aay claim against or contest any
settlement proposed by any insurer, but any of them may
36
.
prosecute any such claim or contest any such settlement. In
the event of a contest by the Partnership, it shall be at the
� Partnership's expense, and the Partnership may bring such claim
or contest in the name of. Issuer, Partnership, or both, and the
Issuer will join therein at- the Partnership' s written request
� upon the receipt by Issuer of an indemnity from the Partnership
against all costs, liabilities and expenses in connection with
such claim or contest.
37
ARTICLE 6 '
' � DAMAGE, DESTRUCTION AND CONDEI�IlTATION
. Section 6.01. Damage and Destruction. i��✓�. ���
. r.
��� ��
If there are ny Outstanding Bonds when the Pro ect
is damaged or destroyed by fire or other casualty, the
Partnership shall either restore the Project as required b the
c�� -�dcntus�e or if Section 8.04 of this Agreement is applicable,
exercise its option to prepay the Loan pursuant to said
Section. �
�
Section 6.02. � Condeianation. '�� v �
If there are any Outstanding Bonds when the Project
or any part thereof is taken by Condemnation
- ---- ---�--_ -�cie�t-��e-
• vr--�# Section 8.04 of this Agreement is applicable, exercise
its option to prepay the Loan pursuant to said Sec�io�n.' ����a
!
Section 6.03. Application of Net Proceeds. ����
The Partnership will cause the Net Proceeds of any
insurance proceeds or condemnation award resulting from any
events described in Sections 6.01 and 6.02 of this Agreement to
be paid to be collected and such Net Proceeds shall be applied
by Partnership pursuant to said Sections 6.01 and 6.02.
38
ARTICLE 7
A PARTNERSHIP'S COVENANTS
t � . _ .
� Section 7.01. Covenant for the Benefit of the
Trustee and the Bondholders.
The Partnership recognizes the authority of the
Issuer to assign its interest in and pledge moneys receivable
under this Agreement (other than certain payments required to
be made to the Issuer under Sections 4.03(2) , 7.04 and 9.05) to
the Trustee as security for the payment of the principal of and
interest and redemption premiums, if any, on the Bonds, and the
payment of all fees• and expenses of the Trustee; and hereby
agrees to be bound by, and joins with the Issuer in the grant
of a security interest to the Trustee in any rights and
interest the Partnership may have in sums held in the Funds
� described pursuant to the tern�s and conditions in Article 5 of
the Indenture to secure payment of the Bonds. Each of the
terms and provisions of this Agreement is a covenant for the
use and benefit of the Trustee and the Holders of the Bonds, so
long as any thereof shall remain Outstanding; but upon payment
in full of �the Bonds in accordance with Article Seven of the
Indentiire and of all fees and charges of the Trustee and Paying
Agent, all references in this Agreement to the Bonds, the
Holders thereof and the Trustee shall be ineffective, and --- .
neither the Trustee nor the Holders of any of the Bonds shall
thereafter have any rights hereunder, save and except those
tt►at shall have theretofore vested or that arise from
provisions hereunder which survive tenaination of this �
Agreement.
Section 7.02. fnspection and Access.
� The Partnership agrees that the Trustee and its duly
authorized agents shall have the right at all reasonable times
to examine and inspect and for that purpose to enter upon the
Project, and shall also have such right of access there�o as
may be reasonably necessary to cause the construction and
installation of the Project to be completed as provided in
Article 3 and to cause the Project to be properly maintained in
� accordance with Article 5 in the event of failure by the
Partnership to per�orm these obligations.
39 �
Section 7.03. Annual Statement, Audit, Certificate
of Compliance and Other Reports.
(1) The Partnership. agrees that it will have a certified ' "
annual audit of its book.s made by an Independent Accountant as
� sooa a's practical after the close of each fiscal� year and upon
occurrence of an Event of Default will promptly furnish a copy
of the full report of audit upon request to the Trustee and the
Original Purchaser. The Partnership also agrees to have an
annual financial statement prepared within 120 days after the
close of each fiscal year in accordance _with generally accepted
accounting principles and upon occurrence of an Event of
Default to furnish a copy to the Trustee.
(2) At the time the Partnership furnishes thef�inancial
statement herein required, the Partnership shall aTsb• furnish
the Trustee a certificate in a form approved by the Trustee and
executed by the Partnership Representative and declaring that
during the same fiscal year covered by the statement and
continuing to the date of execution of the certificate, the
Partnership has fully complied with the terms and conditions of
this Agreement except as otherwise fully disclosed in the
certificate.
(3) The Partnership will furnish the Issuer, Trustee and
the Coiivaissioner of Commerce all reports required by the
Department pursuant to law and regulation.
(4) The Partnership will at the request of the Trustee,
and at the Partnership's expense, furnish to the Trustee,
Original Purchaser, and Zssuer at such times and in such fozm
as the Trustee may reasonably require a copy of such other
reports containing such informatioa as is necessary to comply
� with any lawful reporting or continuing registration
require�ents i.mposed by any agency of the State of Minnesota
under the Act, the Minnesota Blue Sky Laws or any other
applicable state law as- st now exists or may hereafter be
aiaended or any agency of any other state in which the Bonds
have been sold, or such information as necessary to comply with
federal securities law.
Section 7.04. Indemnitv bY Partnership.
� The Partnership will, . to the fullest extent permitted
hy law, protect, indemnify and save the Issuer and Trustee and
their officers, agents, employees and any person who controls
the Issuer or Trustee within the meaning of the Securities Act
of 1933, harmless from and against all liabilities, losses,
40
damages, costs, expenses (including attorneys' fees and
expenses of the Trustee and the Issuer) , causes of action,
� suits, claims, demands and judgments of any nature arising
from:
� (1) any injury to or death of any person or damage to '
property in or upon the Project or growing out of or connected
with the use, non-use, condition or occupancy of the Project or
arly pa�ct thereof including any and all acts or operations
relating to the construction or installation of property or
improvements. The foregoing indemnification obligations shall
not be limited in any way by any limitation on the amount or
type of damages, compensation or benefits payable by or for the
Partnership, customers, suppliers or affiliated organizations
uader any Workers ' Compensation Acts, Disability Benefit Acts
or other employee benefit Acts;
(2) violation of any agreement, provision ar condition of
this P,greement, except by tYie Issuer;
(3) violation of any contract, agreement or restriction
which shall have existed at the commencement of tYie Term of
this Agreement or shall have been approved by the Partnership;
(4) violation of any law, ordinance, court order or regu-
lation'-affecting the Project, or a part thereof or the
ownership, occupancy or use thereof;
(5) any statement or information relating to the expen-
diture of the proceeds of the Bonds contained in the "Arbitrage
Certificate" or similar document furnished by the Partnership
to the Issuer or the Trustee which, at the time made, is �
misleading, untrue or incorrect in any material respect; and
(6) any untrue statement or alleged untrue statement of a
material faet contained in any offering material relating to
- the sale of the Bonds (a� from time to time amended or
supplemented) or arising out of or based upon the omission or
alleged maission to state th�rein a material fact required to
� stated therein or necessary in order to make the statements
therein not misleading, or failure to properly register or
otherwise qualify the sale of the Boads or failure to comply
with any licensing or other law or regulation whzch would
' affect the manner whereby or to whom the Bonds could be sold.
The Trustee and the Issuer shall first pursue any
remedy available to them under the Lease and Assignment of
Leases and Rents before enforcing the provisions o€ this
Section 7.04. .
� 41
Promptly after receipt by t,21e Issuer or Trustee, as
the case may be, or any such other indemnified person� of notiee
of the commencement of any action in respect of which indemnity
may be sought against the. Partnership under this Section, such '
person will notify t�e Partnership i.n wr.iting of the �
� commencement thereof, and, subject to t2ze provisions
hereinafter stated, the PartnersYiip shall assume the defense of
such action (including the employment of counsel who shall be
counsel satisfactory to the Issuer, Trustee or such other per-
son as the case may be, and the payment of expenses) . Insofar
as such action shall relate to any alleged liability in respect
,�.����; of which indemnity may be sought against the Partnership, the
Issu�e .or any such other indemnified person shall have the
�.,.._._-- ---�' right �.o employ separate counsel in any such action and to
participate in the defense thereof, but the fees and expenses
of such counsel shall not be at the expense of the Partnership
unless the employment of such counsel has been specifically
authorized by the Partnership. The Partnership shall not be
liable to indemnify any person for any settlement of any such
action effected without its consent. .
- The provisions of this Se.ction 7.04 shall survive the
payment and discharge of the Bonds.
Section 7.05. Status of Partnership.
Throughout the Tenn of this Agreement, the
Partnership will maintain its existence as a limited - - -
partnership organized under the laws of the State of Minnesota
aad will not wind up or otherwise dispose of all oz
substantially all of the its assets; provided that, subject to
the sale resttictions in Section 5.02, the Partnership may sell
or otherwise transfer to another person all or substantially
- all of its assets as an entirety and thereafter wind up if the
transferee person assumes •all of the obligations of the
Partnership under this Agreement, the Partnership Note, the
. Lease and the Assignment of Leases and Rents by written
instrument delivered to the Issuer and Trustee. Every such
t=ansferee person shall be bound by all of the covenants and
� agreements of the Partnership herein with respect to any
further sale or transfer. Any new general partners may be
substituted for the general partner if such new general
. partners have assumed 'by written instrument delivered to the
Issuer and Trustee all of the obligations of the Partnership
under this Agreement, the Partnership Note, the Lease and the
Assignment of Leases and Rents, subject to the terms of Section
9.13. Any limited partners may withdraw, be changed or
substituted without the consent of or notice to the Trustee or
Issuer.
42
Upon any change in the general partners of the
Partnership, whether by death, expulsion, withdrawal, or
� retirement of a partner or the addition of a new partner, the
Trustee shall be promptly. informed and, if requested, all
general partners of �the •Partnership as newly constituted shall
� deliveic to the Trustee for the benefit of the� Issuer and '
Bondholders an instrument in form satisfactory to the Trustee
affirming the joint and several liability of all then existing
general partners for the obligations of the Partnership
hereunder, subject to the terms of Section 9.13.
The withdrawal, retirement, death or expulsion of a
partner shall not automatically discharge the liability of said
partner for the obligations of the Partnership hereunder. The
Issuer and Partnership agree that, subsequent to the occurrence
of one of said events, the indiviaual involved (or his or her
estate) may be discYiarged from liability hereunder if no Event
of Default under this Agreement shall have happened and be �
continuing on the date of discharge. The Trustee by execution
� of the Indenture shall be deemed to have agreed to execute such
documents as may be necessary or desirable to indicate such
discharge upon receipt of evidence satisfactory to said parties
that the requirements for this Section have been satisfied, aad
provided that no Event of Default under this Agreement shall
have happened and be continuing on the date of the discharge.
Section 7.06. Filing of Financing Statements.
The Partnership agrees that it will, at its sole
expense, file or cause to be filed any financing statements and
continuation statements required or requested by the Trustee to
perfect the security interest of the Trustee in this Agreement �
and the payments to be made hereunder granted under the
Indenture.
Section 7.07. Assurance of Tax Eaemption.
Zn order to assure that the interest on the Bonds
shall at all times be free from federal income taxation, the
Partnerslzip covenants with the Issuer, the Trustee and all
Holders of Bonds that i.�r�►1:
�..•�"wr�:.�d
(1) �not take or per:ait any action to be taken which would
' iunpaiz qualification of all parts of the Project as an exempt
facility under 4(B)-, (C) and (D) in 3ection 103(b) of the Code,
and applicable federal income tax regulations;
43
• �;µr�1rC
(2),L not use the proceeds of the Bonds or any other sums
treated as "bond proceeds" under Section 103(c) of the Code and
applicable federal income tax regulations in such a manner as
to cause the Bonds to be classified "arbitrage bonds" under
Section 103(c) of the Code and applicable federal income tau
� regulations; � � � �
..�X� �
(3) �not cause any Working Capital Expenses to exceed 10$
of the "net proceeds" of the Bonds in violation of the
requirement in Section 103(b) of the Code and the applicable
federal income tax regulations that substantially all of the
proceeds of the Bonds be used for the acquisition or
improvement of land or depreciable groperty;
(4� the average maturity of the Bonds does not eaceed
120$ of the average reasonably expected economic life of the
Project within the meaning of Section 103(b) (14) of the
Internal Revenue Code;
(5� the Partn�rship or the City shall provide the Issuer
at Bond Closing with all information required to satisfy the
ir�formational requirements set forth in Section 103(1) of the
Internal Revenue Code, including the information necessary to
complete IRS Form 8038; and
..�L',�'
(6)^ not otherwise use Bond proceeds, or take or fail to
take any actioa, the effect of which w�ould be to impair the
exemption of interest on the Bonds from federal income --.- -
taxation.
44
ARTICLE 8
• PARTNERSHIP'S OPTIONS
� • Section 8.01. � Assignment and Transfer.. -
The Partnership may sell, assign, mortgaae o�
otherwise transfer its rights and obligations under this
Agreement an , as an incident thereto,J�its interest in the
Project under the Sale Agreement, the'GYound Lease Assignment
and the Lease without prior consent of the Zssuer or the
Trustee but subject to the provisions of Section 5.02 and to
each of the following conditions:
(1) unless the transferee is a surviving, resulting or
tzansferee entity as�ermitted under Section 7.05, and subject
to the provisions of Section 9.13, no such/�traasfer shall
relieve the Partnership from primary liabi'lity for all Basic
� Payments, Additional Charges and other payraents due and for the
performance of all other obligations required under this Agree-
ment and the Indenture;
(2) no suchf�ransfer shall subject the interest payable .
on the Bonds in the hands of persons other than the Partnership
or any--other "substantial user" or "related persons" to Federal
iacome taxes;
� (3) '� transferee of this Agreement other than a �
ee�or �e Pa tne s i s interest in the Pro�ec� shall
expreasly asume £Yie o-bligati�ns o e ar ners ip �der this
Agreement, the Lease, the Partnership Note and Assignment of �
Leases and Rents by instrument in writing delivered to the
Issuer and the Trustee and a� mortgagee shall acknowledge in a
foria acceptable to the Trustee that all of the mortgagee's �
rights are subordinate to �this Agreement and the Lease;
� (4) within thirty (30) days of any
such ransfer the Partnership shall deliver to the Issuer and
Trus�e a true and complete copy of all documents evidencing
such/�transfer or related thereto.
/ �
Section 8.02. Prepayment.
The PartnershiF�may at any time transmit funds
directly to the Trustee, 'for deposit in the Bond Fund, in
addition to amounts, if any, otherwise required at that time
pursuant to this Agreement, and direct that said n�ney, be
utilized by the Trustee to:
45
� (1) redeem Bonds which are then or will be
redeemable in accordance with their terms on an
interest payment date specified by the Partnership/�
occurring at least thirty {30� days after the � � .
money is deposited for_ this purpose; or
(2) purchase Bonds in accordance with the �
prvvisions of Section 5-6 of the Indenture on a
Purchase Date occurring at least thirtv (30) days
after the money is deposited for such purpose; or
� (3) provide for the discharge of Bonds aad
coupons prior to their maturity or redemption
dates as provided in Section 7-1 of tYie Zndenture. �
Section 8.03. Direction of Investments.
Except during the continuance of an Event of Default,
the Partnership shall have the right during the Term of this
Agreement to direct the Trustee to invest or reinvest all
moneys held for the credit of Funds established by Article Five
of the Indenture, in such securities as are authorized by law
for such funds, subject, however, to the further conditions of
Article Six of the Indenture.
__ Section 8.04. Termination of Loan �Agreement.
Except during the continuance of an Event of Default,
the Partnership shall have the option of terminating this � -
Agreement subject to the following conditions:
(1) such option may be exercised only:
(A) if all Bonds shall have matured or will mature
or be subject to redemptiqn in accordance with their terms on �
their then next succeeding interest payment date or if
provision is otherwise made for payment of all Bonds in such
manaer that the Indenture will be discharged under Article
Seven thereof on or before the date of termination; or
� (B) if the� Project shall have been damaged or
destroyed to such extent that the Lease is terrai.nated pursuant
to Section �.L3 thereof, or that, in the reasonable
� judgment of-£�Partnership (i) the Project cannot reasonably
be restored within s ix (6) months to substantially its
condition ii�unediately preceding such damage or destruction, or
(ii) cannot reasonably be used for its normal operations for
six (6) months, or (iii) the reasonably estimated cost of
restoration exceeds twenty percent (20$) of the ariginal face
� 46
amount of the Bonds and is also reasonably estimated to exceed
the proceeds of property insurance payable therefor plus any
� deductible amount for which the Partnership is self-insured,
� provided that such estimates shall be apprvved by the Trustee;
or � � - �
(C) if by reason of Condemnation, title shall have
been taken to all or substantially alI of the Project or so
much thereof that the Lease is terminated pursuant to Section
9.3 thereof, or that, in the reasonable judgment of the
Partnership, (i) the Project cannot be used for its normal
operations for six (6) months, or (ii) the reasonably estimated
cost of restoration of the Project exceeds twenty percent (20$)
of the original face amount of the Bonds and is also reasonably
estimated to exceed the procesds of the Condemnation award
provided that such estimates shall be apgroved by the Trustee.
(2? in any of the events stated in subsection (1) ,
clauses (B) and (C) above, if the Partnership determines to
exercise its option to terminate this Agreement it must give
written notice of its decision to exercise its option within
one hundred twenty (120) days after such event;
(3) the Partnership shall give written notice to the
Issuer and to the Trustee of its intention to exercise the
option;� stating therein a termination date not less than
forty-five (45) nor more than one hundred eighty (180} days
after the date the notice is mailed, but in no event prior to_ .
the date on which all Outstanding Bonds shall be deemed
discharged under Article Seven of the Indenture; and the
Partnership shall make arrangements satisfactory to the Trustee
for the giving of any notice required for redemption of all of �
the Outstanding Bonds on the date on which the Bonds are to be
redeen�d;
(4) on or before the termination date, the Partnership
- shall pay to the Trustee an amount equal to the sum of the
following:
(A) an amount which, sahen added to the aggregate
amount of any other available balances on deposit in the Funds
created under Article Five of the Zndenture, will be sufficient
to discharge the Indenture in accordance with Article Seven
� thereof; plus
(B) to the extent not paid under subsection (A)
above, an amount equal to the Trustee's and Paying Ag�nt' s fees
and expenses under the Indenture, accrued and to acerue until
47
final payment and redemption of the Bonds and all other
advances, fees, costs and expenses reasonably incurred and to
be incurred on or before the termination date by the Trustee
and Paying Agent under the Indenture and by the Issuer under .
this Agreement; , . � _ ,
provided that in any event, in order to effect prepayment or
discharge of any Outstanding Bonds the Partnership shall, prior
to the termination date, satisfy the requirements of Section
� 8.02.
(5) on the termination date, a closing shall be held at
the princigal office of the Trustee, or aay other office mut-
ually agreed upon. At the closing the Issuer and Trustee
shall, upon acknowledyment of receipt of the sum set forth in
subsection (4) above, execute and deliver to the Partnership
such release and other instruments as the Partnership
reasonably detenaines is nec�ssary to teriainate this Agreement.
All further obligations .of the Partnership hereunder, except
under Section 7.04 and 7.07, shall thereupon tenainate,
provided, however, that the Partnership shall also remain
obligated to pay or reimburse the Issuer and Trustee for the
payment of all other fees, costs and expeases unaccounted for
- in the sum paid in accordance with subsection (4) above and
reasonably incurred before or subsequent to such closing in
connection with the Bonds; and provided furtYier that the
obligations under the Agreement relating to the payment of
Project Costs out of Bond proceeds held in the Construction
Fund and the payment of Trustee's fees and expenses shall - �
survive if (a) the Agreement should terminate prior to the
Completion Date, (b) the Project has not been abandoned and (c)
proceeds of such Bonds, including interest thereon, remain
available in the Construction Fund for the payment of Project
Costs, all as provided in Section 7-5 of the Indenture.
48
ARTICLE 9
� EVENTS OF DEFAULT AND REMEDIES
� � Section 9.01. Events of Default. � � '
Any one or more of the following events is an Event
of Default under this Agreement, and the term "Event of
Default, " wherever used herein, means any one of the following
events, whatever the reason for such default and whether it
shall be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or
goverr�mental •body:
(1) if the Partnership shall fail to pay any Basic Pay-
ments on or before the date that the payment is due and t2ze
deficiency is not cured by payments due under the Partnership
� Note as provided in SectionS�3 G�' of the Indenture; or if the .
Paztnership shall fail to pay any Additional Charges on or
before the date that the payment is due, and shall continue to
be in arrears for ten (10) days after mailing of a notice to it
by the Issuer or the Trustee that said P,dditional Charges have
not been received on the due date; .
(2) if the Partnership shall fail to observe and perform
or shall breach any. other covenant, condition or agreement on_ .
its part under this Agreement for a period of thirty (30) days
after mailing of a notice to it by t�►e Issuer or the Trustee,
specifying such default or breach and requesting that it be
remedied, unless the Trustee shall agree in writing to an exten=
sion of such time prior to its expiration for such longer
period as may be reasonably necessary to remedy such default
provided that the Partnership is proceeding with reasonable
diligence to remedy the same;
(3) the partnership agreement of the Partnership shall
expire or be annulled; or if .the Partnership shall be dissolved
or liquidated (other than when a new entity assumes the obliga-
tions of the Partnership under the conditions permitting such
action contained in Section 7.05 or when dissolution occurs as
a result of the death or disability of a partner under
� circumstances where action is taken in accordanee wa.th the
partnership agreement to reconstitute the partnership) ;
(4) if a default should occur under the Indenture, the
Lease, the Partnershi Note or the Assignment of Leases and
Rents and the period for reinedying sueh default has expired;
• 49
(5) if any representation or warranty made by the
Partnership herein, or by a partner or representative• of the
Partnership in any document or certificate furnished the
Trustee or the Issuer in connection herewith or therewith or '
pursuant hereto or t�ereto,- shal� prove at any time to be, . in
' any material respect, incorrect or misleading� as� of the date
made. �
Section 9.02. Remedies.
Whenever any Event of Default shall have happened and
be subsisting and subject to the provisions of Section 9.13,
any one or more of the following remedial steps may to the
extent periaitted by law be taken:
(1) the Trustee or the Issuer (with the prior written
consent of the Trustee) may take whatever action at law or in
equity may appear necessary or apprcpriate to collect all sums
then due and thereafter �to become due, or to enforce perfor-
mance and observance of any obligation, agreement, covenant,
representation or warranty of the Partnership, uader this Agree-
ment, the Partnership Note, the Assignment of Leases and Rents
or any related instrument; or to otherwise compensate the
Issuer, Trustee or Bondholders for any damages on account of
such Event of Default; .
(2) the Issuer (without the prior written consent of the
Trustee if the Trustee is not enforcing the Issuer's right in_ a
manner to protect the Issuer or is otherwise taking action that
brings adverse consequences to the Issuer) may take whatever
action at law or in equity may appear necessary or appropriate
to enforce its rights of indemnification under Section 7.04 and
to collect all sums then due and thereafter to became due to
- the Issuer under Section 4.03, 7.04 and 9.05 of this Agreement.
Section 9.03. Dis�osition of Funds.
Any amounts collected pursuant to action taken under
Section 9.02 (other than sums collected for the Issuer on
account of its rights to indemnification and certain direct
payments to be made to the Issuer under Sections 4.03, 7.04 and
9.Q5) shall be applied in accordance with the provisions of the
Indenture. All other am4unts shall be paid directly to the
' Issuer.
50
Section 9.04. Nonexclusive Remedies.
� No remedy herein conferred upon or reserved to the
Issuer or Trustee is intended to be exclusive of any other
available remedy oz remedies, but each and every such remedy
� shall be cumulative and shaZl be in addition tn every other '
remedy given under this Agreement or now or hereafter existing
at law or in equity or by statute. No delay or omission to
exercise any right or power accruing upon any Event of Default
shall impair any sucYi right or power or shall be construed to
be a waiver thereof, but any such right and power may be
exercised from time to time and as often as may be deemed
expedient. In order to entitle the Zssuez (or the Trustee) to
exercise any remedy reserved to it in this Article, it shall
not be necessary to give any notice, other than such notice as
may be herein expressly required or be required by law.
Section 9.05. Attorneys ' Fees and Expenses.
� If an Event of Default shall exist under this
Agreement and the Issuer or the Trustee should employ attorneys
or incur other expeases for the collection of any amounts due
hereunder, or the enforcement of performance of any obligation
or agreement on the part of the Partnership, tlle Partnership
will upon demand pay to the Issuer or the Trustee the
reasonable fees of such attorneys and such other expenses so
incurred, provided that if the Partnership pays any such fees
and expenses, it sha11 be subrogated to the Issuer s or- -
Trustee' s rights to s�over such fees and expenses from the
City or any other person.
Section 9.06. Effect of Waiver. �
In the event any agreement contained in this
Agreement should be breached by either party and thereafter
waived by the other party, such waiver shall be limited to the
- particular breach so waived and shall not be deeneed -to waive
arly other breach hereunder.
Section 9.07� Waiver of Stay or Extension.
The Partnership covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or
� plead, or in any manner whatsoever claim or take the benefit or
advantage of, any appraisement, valuation, stay, or extension
law wlzerever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of this
Agreement; and the Partnership (to the extent that it may law-
fully do so) hereby expressly. waives aZl benefit or advantage
of any such law, and covenants that it will not hinder, delay
51
or impede the execution of any power herein granted to the
Issuer or the Trustee, but will suffer and permit the• execution
of every such power as though no such law had been enacted.
Section 9.-08. ;. Issuer May File Proofs of Clai.m.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrange-
ment, adjustment, composition or other judicial proceeding
relative to the Partnership or the property of the Partnership,
the Trustee or the Issuer with the prior consent of the Trustee
shall be entitled and empowered, by intervention in such pro-
ceeding or otherwise,
(1) to file and prove a clai.m and to file such other pa-
pers or documents as may be necessary or advisable in order to
have the claims of the Issuer and the Trustee (for themselves
and on behaZf of Bondholders) (including any claim for the
reasonable compensation, expenses, disbursements and advances
of the Issuer and Trustee, their agents and counsel) allowed in
�such judicial proceeding, and .
(2) to collect and receive any moneys or other property
payable or deliverable on any such clairns and to distribute the
same. �
Section 9.09. Restoration of Positions.
If the Issuer or the Trustee have instituted any
proceeding to enforce any right or remedy under this Agreement,
and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Issuer or the
Trustee, then and in every such case the Partnership and the
� Issuer shall, subject tc any determination in the proceeding,
be restored to the positions they held prior to commencement of
such proceedings, and thereafter all rights and remedies of the
Issuer shall continue as though no such proceeding had been
instituted.
� Section 9.10. Suits to Protect the Project.
If the Partnership shall fail to do so after thirty
(30) days prior written notice from the Issuer or the Trustee,
� the Issuer shall have power to institute and to maintain such
� proceedings as it may deem expedient to prevent any impainaent
of the Project or any portion thereof, by any acts which may be
unlawful or in violation of this Agreement, and such suits and
proceedings as the I�suer may deem expedient to protect its
52
.
interests in the Project or any portion thereof, including
power to institute and maintain proceedings to restrain the
• enforcement of or compliance with any governmental enactment,
rule or order that may be unconstitutional or otherwise
invalid, if the enforcement of, or compliance with, such
. er.actment, rule or order w�uld impair or adversely affect the � .
Project or be prejudicial to the interests of the Bondholders.
Section 9.11. Performance by Third Parties.
The Issuer may pern�it third parties to perform any
and all acts or take such action as may be necessary for and on
behalf of the Partnership to cure any Event of Default
hereunder. The acceptance by the Issuer or the Trustee of any
s;sch performance by third parties shall not in any way diminish
or absolve the Partnership of primary liability hereunder.
Section 9.12. Exercise of the Issuer's
Reme ies by Trustee.
Whenever any Event of Default shall have happened and
be subsisting the Trustee may, but except as otherwise provided
in the Indenture shall not be obliged to, exercise any or all
of the rights of the Issuer under this Article 9, without �
notice to the Zssuer.
Section �`�. Limited Recousse �r��, ;,�,,�,�
�„R,��,r,�, �'��,,,�. - C„�� �R�� _G
(J (/
� (1) The bbligation of the Partnership to repay th an
is 1�'ted to�ayment from amouats due under the Partner�
Notetand to�ayment,�from proceeds of the Assignment of Leases
and Rents. The partners of the Partnership shall have no .
personal liability for the indebtedness described in Section
4.02. The term "partners" as used in this Section 9.13 ineans
every general partner, limited partner, preferred li.mited
partner and every owner, ageat employee, officer, director and
. __ _ controlling person of any partner of the Partnership.
(2) The obligations of the Partnership under Sections
4.03, 5.04, 7.04 and 9.OS sha11 be payable solely from the
assets of the Partnership subject to the prior lien thereon of
the indebtedness described in Sectian 4.02. The partners of -
the Partnership shall have no persoaal liability for the obliga-
• tions of the Partnership under Sections 4.03, 5.04, 7.04 aad
9.05. -
(3) Except as provided in subsections (1) and (2) of this
Section 9.13, the indebtedness and obligations described herein
are non-recourse and neither the Partnership nor the partners
shall have any liability therefor.
53
ARTICLE 10
� • - GENERAL
Section 10.01. Amounts Remaining in Funds.
Except during the continuance of an Event of Default,
any amounts remaining in the Funds created under Article Five
of the Indenture upon expiration or earlier terraination of this
Agreement, as provided herein, and after adequate provision has
been made for payment in full of the Bonds, in accordance with
Article Seven of the Indenture, any Additional Charges payable
to the Trustee and the Issuer, including Paying Agent's fees
and expenses, and all other amounts required to be paid under
this Agreement, the Indenture, and the Assignment of Leases and
Rents, shall forthwith be paid to the Partnership by the
Trustee.
� Section 10.02. Notices.
AlI notices, certificates or other communications �
hereunder shall be sufficiently given and shall be deemed given
when mailed by first class mail, postage prepaid, with proper
address as indicated below. The Issuer, the Partnership,
Original Pu=chaser, and the Trustee may, by written notice - -
given by each of them to the ot]zers, designate any address or
addresses to which notic�s, certificates or other communi-
cations to tlzem shall be sent when required as contemplated by
this Agreement. Until otherwise provided by the respective
parties, all notices, certificates and co�nunications to each
- of them shall be addressed as follows:
To the Issuer: Housing and Redevelopment
Authority of the City of
Saint Paul
25 West Fourth Street
12th Floor City Hall Annex
Saint Paul, Minaesota 55102
To the Civic Center Partners Limited
� Partnership: Partnership
710 Luraber Exchange Building
Minneapolis, Minnesota 55401
54
To the Trustee: First Trust Company of
Saint Paul
� 332 Minnesota Street
St. Paul, Minnesota 55101
� ' To the Original � �
Purchaser: Dougherty, Dawkins, Strand &
Yost Incorporated
700 Lumber Exchange Building
Minneapalis, Minnesota 55401
Piper, Jaffray & Hopwood,
Incorporated
800 Multifoods Building
733 Marquette Avenue
Minneapolis, Minnesota 55402
� Section 10.03. Binding Effect.
This Agreement sY►all inure to the benefit of and
shall be binding upon the Issuer and the Partnership and their
respective successors and assigns.
Section 10.04. Severability.
'" In the event any provisions of this Agreement shall
be held invalid or unenforceable by any court of competent
jurisdiction, such holding shall not invalidate or render -
unenforceable any other provision hereof.
Section 10.05. Amendmer�ts, Changes, and
Modifications. '
Except as otherwise provided in this Agreement or in
the Indenture, subsequent� to the issuance of the Bonds and
before the lien of the Indenture is satisfied and discharged in
- accordance with its terms, this Agseement may not be
effectively amended, changed, modified, altered or terminated
without the written consent of the Trustee.
Section 10.06. Execution Counterparts.
This 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 sanee instrument.
Section 10.07. Required Approvals.
Consents and appzovals required by this Agreement to
be obtained from the Partnership, the Issuer or t2ze Trustee
shall be in writing and shall not be unreasonably withheld or .
delayed. '
55
t
♦ .
' Section 10.08. Limitation on Municipality Liability.
No agreements or provisions contained in this
Agreement nor any agreement, covenant or undertaking by the . -
Issuer contained in any document. executed by the Issuer in
. connection with the Pro7ect shall give rise to. any pecuniary
liability of the Issuer or the City or a charge against their
general credit or taxing powers, or shall obligate the Issuer
or the City financially in any way except with respect to the
Project and the application of revanues therefrom and the
proceeds of the Bonds. No failure of the Issuer to comply with
any term, condition, covenant or agreement herein shall subject
the Issuer or the City to liability for any claim for damages,
costs or other financial or pecuniary charge except to the�
extent that the same can be paid or recovered from th� Project
or revenues therefrom or proceeds of the Bonds; and no
eaecution of any claim, demand, cause of action or judgment
shall be levied upon or collected from the general credit,
general funds or taxing .powers of the Issuer or the City.
Nothing herein shall preclude a proper party in interest from
seeking and obtaining specific performance against the Issuer �
for any failure to comply with any term, condition, covenant or
agreement herein; provided, that no costs, expenses or other
monetary relief shall be recoverable from the Issuer or City
except as may be payable from the Project or its revenues. T�he
provisions of this Section 10.08 shal? n�t a�=?y to the
a�reements, covenants, or undertakinas of the Issuer �nder_ the
Sa�e Agreemen an Ground Lease Assignment or agreements,
covenants the Citv under the Lease. � -
Section 10.09. Re resentations of Partnership.
Al1 representations made in this Agreement by the
Partnership are based on the Partnership's independent
investigation of the facts and law, and accordingly no such
representations are made in reliance upon any representations
made or legal advice given by the City, the Issuer, its Bond
Counsel, or any agents, officers or employees of the City or
Zssuer. �
Section 10.10. Joint and Several Guaranty of
In vidual Partners.
� Intentionally omitted.
- �
56 �
c
♦ '
Section 10.11. Payment of Interest Costs After
. Discharge of Indenture.
_ . Intentionally omitted.
� � Section 10.12. Survivorship of Obligatioas. �
All obligations of the Partnership under Section 7.04
shall survive payment of the Bonds or earlier termination of
this Agreement under Section 8.04.
IN WITNESS WHEREOF, the Issuer has executed this Loan
Agreement in its name with its seal hereunto affixed and
attested by its duly authorized officers and the Partnership
has caused this Loan Agreement to be executed by its general
partners; all of the above occurred as of the date first above
written.
. IiOUSING AND REDEVELOPMENT
AUTHORITY OF THE CITY OF
SAINT PAUL, MINNESOTA
By
� Chairman .
Approved as to Form
� • BY
Secretary
Assistant City Attorney
BY �
Executive Director
BI'
� Director, Department of Finance
and Management Services
(SEAL)
57
► �_
CIVIC CENTER PARTNERS
LIMITED PARTNERSAIP, a '
� ^ - Minnesota limited partnership
By Churchill Civic Center, Inc.
General Partner
$Y
Its President
� (Constituting all of the general
partners)
Loan Agreement dated as of June l, 1983, between Housing and
Redevelopment Authority of the City of Saint Paul and Civic
Center Partners Limi.ted Partnership.
58
•'
E?�iIBIT A
Legal Description of the Project Premises _.
t � �
EXFiIBIT B
� Description of Improvements '
.{ -.���/ . . . .
� ,y� r��' �� � .
�^, � _ ` . � . � .-.. � _ � _� _//�
' ' _ . - dRAF� �`� 3 83 -
- = - . _ : - . . _ , . � ' 6/�s`/�� •
_ _ � - - ' . - . `HOUSING AND REDEVELOP�4EN'I� �i�JTHORITY _ .
_ .. . .. . OF 'THE. :CITY OF SA�NT PAUL, MINNESOTA -
�. ISSUER
- - _.... .. . ._ _ : - _ _ .
� - - . . _ . . - _ .- . :AND.. _.. - . _
- � FIRS� TRUST COMPANY OF SAINT PAUL-
= TRUSTEE
INDENTURE OF TRUST � � �
Dated: June 1, 1983
$
� REVENUE BONDS, SERIES 1983
(SAINT PAUL CIVIC CENTER PROJECT)
- This instrument was drafted by:
� BRIGGS AND MORGAN
Professional Association
2200 First NationaZ Bank Building
� Saint Paul, Minnesota 55101
s - .
�.* •
��
: . . -� . . . TABLE OF CON'FENT�� - . . _� -
V • _ . . -. . _ - - . _ :.. - _ - -- - . _ � " - Page
-- PARTIES. . .:.:. . . . . . . . .•. . . .-. . .� .�. . . . . . . . . . . . �. . . . . . . ... .-. . . .. 1 - ,.
RECITALS. . . . . . . . . . . . . : . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
GRANTING_CLAUSES. . .�. : . .:. . . : .,. . � . ._�.-. . . ._. . .�.. . . . .-.. . . ... . . . 1
ARTICLE ONE - Definitions, Exhibits and
�. . General Provisions. . . . . . : . . . . . . . . . . . . . . e . 4
Section l-1. Definitions. . . . . . . . . . ...-. . . ... . . . . . . . 4
� �� Section� l-2. �Exhibits. . . . . :. .:". . . . , .�. : . . . . . . . . . . 12
_ Sectior� 1-3. .Rules `of Interpretation. . . . . . . . . . . . 12
ARTICLE TWO - The Bonds. . . . . . . . . . . . . . . . . . . . . .._. . . . . . . . . 14
- Section 2-1. Authorized Amount and Form
of Bond. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
� Section 2-2. Initial Issue. . . . . . . . . . . . . . . . . . . . . . 28
Section 2-3. Execution. . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 2-4. Authentication. . . . . . . . . . . . . . . . . . . . . 29
Section 2-5. Delivery. of Initial Issue. . . . . . . . . . 29
� Section 2-6. Issuance of Additional Bonds. . . . . . . �T
Section 2 7. Mutilat�ed, S�ost and Destroyed
-- Bonds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 2-8. Ownership of Bonds. . . . . . . . . . . . . . . . . 32
� . Section 2-9. Preparation of Definitive Bonds;
Temporary Bonds. . . . . . . . . . . . . . . . . . .. 32
Section 2-10. Registration, Transfer and
Exchange of Bonds. . . . . . . . . . . . . . . . . . 33
Section 2-11. Interest Rights Preserved; '
_ � Dating of Registered Bonds. . . . . . . . . 35
ARTICLE THREE - Redemption of Bonds Before Maturity. . . . 36
Section 3-1. Redemptioa. . . . . . . . . . . . . . . . . . . . . . . . . 3b
- Section 3-2. Notice of Redemption. . . . . . . . . . . . . . . 38
Section 3-3. Cancellation. . . . . . . . . . . . . . . . . . . . . . . 39
Section 3-4. Method of Redemption. . . . . . . . . . . . . . . 39
ARTICLE FOUR - General Covenants. . . . . . . . . . . . . . . . . . . . . . . 41
Section 4-1. Payment of Principal, Premium
and Interest. . . . . . . . . . .•. . . . . . . . . . . . 41
' • Section 4-2. Performance of and Authority
' for Covenants. . . . . . . . . . . . . . . . . . . . . . 41
Section 4-3. Instruments of Further Assurance. . . 42
Section 4-4. Recording and Filing. . . . . . . . . . . . . . . 42
Section 4-5 . Books and Records. . . . . . . . . . . . . . . . . . 42
, � •�
` - : ,. - -
. - - - . � .. �- - P�e .
� � - Section 4-6: `List of Bondholders. �. . . . . . . . . . . . .•. . 42 •
..
. ._. _. _- _ =
. . _ � . . Sect�ion 4-7. Rights Under Loan .Agreement. . . . ... . . 43
� - � Section 4-8.: -Rights Under Lease and _ � - �
.. _-. . ..- . .. . �Assignment of Leases_ and Rents... . . . 43 -
- � C.:c.�,+..�c.�J6 �-t---� � �.�,�...- : . . _
- ARTICLE FIVE - Funds a�counts. . . . . . . . . . . . . . . . . . . . . . 44
- Section- 5-1. Trust Funds_ Pledged and _. - �
. - - - � � P.ssigned to the� Triistee and .
- - . - - - -- - . Lease R�ceipts Fund-:. :.. . . . :�.". . .�. . . . 44
Section 5-2. Construction Fund. . . . . . . . . . . . . . . . . . 44
_ Section 5-3. � Revenue Bond Fund, Series 1983
� :Saint Paul Civic Center Project. . , , 45
-- Section 5-4. Reserv.e:-Fund.... .... .�. . .��.�. ,. . .�. . . . . . . . 47
� Section 5=5. �Notificiation of Bond� Insurer and
� Insurance Trustee. . . . . . . .:. � . � . . . . . . 48
- Section 5-6. Purchase or Prepayment of Bonds
- at Request of Company. . . . . . . . . . . . . . 48
� " " � Section 5-7. Deposit of Funds with Paying Agent. 49
.ARTICLE SIX - Investments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50� .
• Section 6-1. Investments by Trustee. . . . . . . . . . . . . 50
Section 6-2. Return on Investments. . . . . . . . . . . . . . 51
Section 6-3. Computation of Balances in Fund. . . . � 51
ARTICLE -SEVEN - Discharge of� Lien. . . . . . . . . . . . . . . . . . . . . . 53
Section 7-1. Payment of Bonds aad-�s��aeas-�—
Satisfaction and Discharge of
Bonds and Obligation to � .
Bondholders. . . . . . . . . . . . . . . . . . . . . . . . 53
Section 7-2. Cancellation of Surrendered "
Bonds a�Coupc�s.. . . . . . . . . . . . . .J . . 55
Section 7-3. Payment of Bonds ar ' �--: • • 55
� Section 7-4. Application of �Deposited Money. . . . . 5� .
Section 7-5. . Completion of Project. . . . . . . . . . . . . . 56
ARTICLE EIGHT - Default Provisions and Remedies. . . . . . . . 57
Section 8-I. Events of Default. . . . . . . . . . . . . . . . . . 57
Sectioa 8-2. Acceleration (Intentionally
� Omitted) . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 8-3. Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . 58 �
Section 8-4. Direction of Proceedings
By Bondholders. . . . . . . . . . . . . . . . . . . . . 59
' Section 8-5. Waiver of Stay or Extension Laws. . . 59
� Section 8-6. - Priority of Payment and
Application of Monies. . . . . . . . . . . . . . 59
Section 8-?. Remedies Vested in Trustee. . . . . . . . . 62
- Section 8-8. Rights and Remedies of
Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
. , ',
, � � • .
. . - _ . . _ . - . _ page
� Section 8=9:. =.Te 'nation of Proceedings. . . . . . . . . 63
� - �� . - - Section 8-10. Wai er of an Event of Default. . .. . . . 63
_ _ � . � . .Section `8=];1. - _ -as Agent of� 3ssue"r... . . . . . ..: 64 _
-_-_ ARTICLE NINE - The Trustee. . . . . . . . . . . . . . .�:�. . .�.�. .�. . . . . .: 65 , �
Section 9-1. Acceptance of the Trustee. . . . . . . . . . 65
_ Section. 9-2. Trustee' s Fees,� Charges and_ _
- .� - . _ � Expenses. • • • i �•�• • i• � • • • • • • • • • • • •.• • • 68
- Section 9=3:.- Notice� to. Holders . _.= �- . -_ -
- c�f- Default. . . . . . . . . . . . . . . . . . . . . . . . .. 68
Section 9-4. ' Intervention by Trustee. . . . . . . . . . . . 69
• Section 9-5. Successor Trustee. . . . . . . . . . . . . . . . . . 69
.. Section 9-6. =Resignation by Trustee... . . :". . . . . . . . 69
Section 9=7. 'Removel of Trustee. • •�. • • • • . . . • • • . •• 70
Section 9-8. - Appointment of the Successor-
. . - - . Trustee. . . . . . . . ... . . . .. . . . . . .. . . . . . . 70
_ _ Section 9-9. Acceptance by Successor Trustees. . . 70
� • � � Section 9-10. Right of Trustee to Pay
� Taxes and Other Charges. . . . . . . . . . . . 71
Section 9-11. Trustees Protected in Relying
Upon Resolutions. . . . . . . . . . . . . . . . . . . 71
Section 9-12. Successor Trustee as Custodian
� of. Bond Fund and Paying Agent. . . . . . �72 �
Secti�n 9-13. . Co-Trustee. . . . . . . . . . . . . . . . :t. • • • • • • 72
- S��tion 9-14. Obligat-i�n �to Trustee As to
Reporti�g. . . . . . . . . . . . . . . . . . . . . . . . . . 74
`� . Section 9-15. Sucessor Paying Agent. . . ... . . . . . . . . . 75
Section 9-16. Confirmation of the Trustee. . . . . . . . 75
ARTICLE TEN - Supplemental Indentures. . . . . . . . . . . . . . . . . . 78 .
Section 10-1. Supplemsntal Indentures Not �
Requiring Coasent of
- Bondholders. . . � . . . . . . . . . . . . . . . . . . . . 78
� Section 10-2. Supplemental Indentures Requiring
Consent of Holders. . . . . . . . . . . . . . . . . 78
- Section 10-3. Rights of Trustee. . . . . . . . . . . . . . . . . . 80
- ARTICLE ELEVEN - Amendments to Related Documents. . . . . . . 81
Section 11-1 Amendments Not Requiring
Bondholder Consent. . . . . . . . . . . . . . . . . SI '
Section 11-2. Amendments Requiring
� • Bondholder Consent. . . . .�. . . . . . . . . . . . 81
� � '�
. �. .. _ . _ � _. . '. _' ' -. . .
'--.: - - � . . . ' _ - .
- . - - _ pag e
- - ARTICLE TWELVE �-. Mi�cellaneous. . . . . . . . ._.�. . . . . . . . . . . . .•. . 83 .
.. _ - - Section 12-1. . Conserit of Aold�ers...,�. . . . ... . . . . . . . . 83
. .
- - = � " � � �Section 1�2-2. . Rights under- Inden�ture. .�.�. . . . . . . . ..: .83
Section 12-3.. - �Meetings .of Bondholders: . . . . . . . . . . . 84. _
. - .. S�ction 12-4.. Severabili�.y. . . . . . . . . . . . .•.�. .•. . . . . .. 88
Section 12-5. Notices. . . ... . : . . . . . . . . . . . . . . . . . . . . . 88
� Section 12-6. Counterparts. . .-. . . . . . . . . . . . . . . . . . . . 89
- . _ Section 12-7. Limitation �of._L-iabi�.ity. . . . : . . . . . . . �89
� _ Sec_tion I.-2-8. Amounts,.Remaining .i���Funds.-. . . . . . . . 89 �
SIGNATURES. . . . . . . :. . . .. . . . . . . . . . . . . . . .: : . . . . . . . . . . . . . . . 90-91
_ E�chibit - - - - _-
. � �
. .
- -.- - • - - _ . INDENTiJRE-flF TRUST -
. . _ • _ THIS INDENTURE OF- TRUST (the. "Indenture") dated as of
_ - . _ . � -June� 1,- .1983, _by and.. between _the. Housing �anfl:Redevelopment -
� Authority of the City of Saint Paul, Minnesflta, a body : _
�_ : cbrgo�cate�`arid politic (:the "Issuer" ) , and: Fi�st ,-Trust_Company ' -
of Saint Paul, duly established, existirig and authorized to
accept and execute trusts of the character herein set out, with
�_ � . its pri.ncipal office, in. Saint- Pau�:, Minnesota ��(the "Trustee") :
- . , - - -. - . . _ . -WITNESSETH .. -. . . �
y� _ _ _ -
- �L''�►SL
-- 1. _The Issuer is .authorized� by �he Municipal Indus-
trial Development Act, as amended (tYie "Act") , to issue
comme=cial development reveaue bonds to finance. in whole or in
part the cost of a "Project" (as hereinafter defined) for the �
�.- , � �; public purposes expressed in the Act; and
� 2. The Issuer has made the necessary arrangements
with Civic Center Partners Limited Partnership, a Minnesota
limited partnership (the "Partnership" ) for tl�e acquisition,
installation and construction of the Project, which will -be o.f
� the character and accomplish the purposes provided by the P,ct,
and the .Issuer fias entered. into a revenue ag'reement with the
Partnership (in the form of a Loan Agreement as said term is
. hereinafter defined) which specifies the terms and conditions
o� said acquisition, installation and construction and provides
for the Issuer to finance the Project by making a loan (the
"Loan") to the Partnership to be funded through the issuance of
' Revenue Bonds, Series 1983 (Saint Paul Civic Center Project) of.
the Issuer (the "Bonds") ; and •
. 3. Under the terms of the Loan Agreement, the
Partnership has agreed to the repaxment of the sums borrowed
pursuant thereto and the Partnership has executed or caused to
be executed, a Partnership Note (in the form of the Partnership
Note as that terra is hereinafter defined) and an assignment of
leases and rents (in the form of the Assignment of Leases and
Rents as that term is hereinafter defined) to secure the
payments due and other obligatians under the Loan Agreement;
and
� 4. The execution and delivery of this Indenture and
the issuance of the Bonds have been in all respects duly and
validly authorized by the Issuer; and .
� �.
= ���' � � � 5.� The amount estimated to be necessary to finance
: � - the cost of the Project; _.including- the �costs_ and� ��stimated
- -. . costs perinitted by Section 474.�OS�of the Act, will require the
_ _ issuance, sale and delivery..of the �Bonds �in the principal �
.. _ . -amount of $ : . :. -as -hereina.fter �rovid�d; and -
. � . . . . _ _ _ - _
�_ - =6:. All things necessary to- make the Bonds, when
authenticated by the Trustee� and issued as in this Indenture
� provided, valid, binding and legal .limited obligations of the
- Issuer a�cording to the. import -thereof,. and to constitu±e this
� " Indenture a _valid cantract for. t'he security of_the Bonds, have -
� been done and perforsaed; an�` the �crea�ion, -execution and
delivery of this Ind.enture, and the creation, execution and
issuance .of said Bonds, subject to the terms hereof, have in
all respects been duly authorized; - ._
NOW THEREFORE, KNOW ALL PERSONS BY THESE PRESENTS,
THIS. �NDENTURE WITNESSETH: � -
- _ , The Issuer, in consideration of the premises and the
� acceptance by the Trustee of the trusts hereby created and of
the purchase and acceptance of the Bonds by the Holders (as
herein defined) thereof, in order to secure the payment of the .
principal of and interest and premium, if any,- on the Bonds
according to their tenor and effect and the performance and
observance by the Issuer of all the covenants, � expressed or
implied .herein and .in the Bonds, does hereby gr�nt�a security
interest in, assign, transfer in trust, and pledge to the
Trustee, and to its successors in trust, and to them and their
assigns forever, the following:
� F�RST
- All rights, title, interest �and privileges of the
Issuer in, to and under the Loan Agreement, including, but not
� limited to, all sums which the Issner is entitled to receive �
from the Partnership pursuant to the Loan Agreement and in
particular the Basic Payments (but excluding the rights of the
Issuer to indemnification and certain direct payments to be
made to it pursuant to Sections 4.03, 7.04 and 9.05 of the Loan
Agreement) and all other sums (including Bond proceeds) which
� - are required to be deposited in the trust accounts in
accordance with Article Five hereof;
. SECOND
� The earnings derived from the investment of any of
the foregoing sums as provided herein; and
2 � .
� . '� � .
. . . _ - . . - TIHIRD' .. :- ' . . _ - - _ .
A1T sums due under. the Partnership Note, the
_ -�. _ . � Certificates of De osit.. (-as �herein defined) �nd all property
� pledge and assigned un er the Assignment _of Leases and Rents
�_ - and any and.�all other property. �of every� name and nature which �
. may f�om time to time hereafter �by delivery or l�y writing of .
any kind be subjected to the lien hereof by the Issuer or by
- anyone in. its behalf-or with its written consent, and the
" Trustee is hereby authortzed to receive� any and all such
property at any and all ti.mes ancT to'Iicld� and apply the same as
additional security heseunder subject to the terms hereof.
" . - .TO HAVE AND TO HO�D all the same- (herein called the
"Trnst Estate" )_ wit2} all privileges and appurtenances hereby
granted and assigned, or agreed or intended so to be, to the
Trustee and its successors in trust and to them .and their
assigns forever;
. � � � . SUBJECT TO the rights of the Partnership under the
Loan Agreement and Assignment of Leases and Rents;
IN TRUST NEVERTHELESS, upon the terms and trusts
herein set forth for the equal and proportionate beaefit,
security and protectiori of all Holders from time to time of the
� _ Bonds is.sued und�er ,and: secured .by this �ndenture, without privi-
lege, .priority or distinct'ion as to lien or atherwise of any of
the Bonds over any of the others eacept as otherwise provided
herein; - � �
PROVIDED, HOWEVER, that if the Issuer, its successors
or assigns, shall well and truly pay, or cause to be paid, or
provide fully for payment as herein provided of the principal .
of the Bonds and the interest due or to become due ther.eon
(together with premium, if any) , at the time and in the manner
set forth in the Bonds according to the true intent and meaning
thereof, and shall make the payments into t21e Bond Fund as
required under Article Five or shall provide, as permitted
� hereby, for the-payment thereof by depositing with the Trustee
sums sufficient for payment of the entire amount due or to
. become due thereon as herein provided, and shall well and truly
keep, perform and observe all the covenants and conditions
pursuant to the terms of this Indenture to be kept, performed
and observed by it, and shall pay to the Trustee all sums of
. money due or to become due to it in accordance with the terms
and provisions hereof, the Partnership Note and the Assignment
of Leases and Rents, then this Indenture and the rights hereby
granted shall cease, terminate and be void except as otherwise
provided lzerein; otherwise, this Indenture shall be and remain
in full force and effect.
,
3
, � ,
� �� - _ UNDER THE PROVI.SIONS OF THE A�CT the Bonds.. may not be •
- �- . payable from or be a charge upon any funds of the Issuer or the : �
_ Ci� other than the- revenue .�ledged to the payment thereof nor
_ - . _ . � shall- _the: Issuer or the_:.City be subject� t� an� pecuniary
� liability thereon and� no Fiolder or �Holders of the Bonds shall
_-- � ever have the right to conipel �any exercise of the taxing power
� the Issue to pay any Bonds or �the interest and premium, if
�, any, thereon, or to enforce- payment_ thereof against any
property- of the Issuer, except .as above provided; the Bonds
� � shall not constitute a clfarge, . lien or encumUrance, legal or -
equitable, upon� any property�of �the 'Issuer,�- except as above
provided; and no Bond _shall constitute . a debt of the Issuer
or #he City within the meaning of any constitutional or
statutory .limitation, but nothing in the Act impairs the rights .
. of Aolders af Bonds ._�issued under this :I�ndenture to ezforce the
covenants made for the security thereof as provided in this
� Indenture and in the Act, and by authority of th� Act, the
Issuer and �the Trustee mutually covenant and agree, tc the
- - , ezctent specifically provided herein, for the equal and
� proportionate benefit of all Aolders of the Bonds, as follows:
' ARTICLE ONE
DEFINITIONS, EXHIBITS AND GENER.AL PROUISIONS �
Section 1-1. Definitions.
In this Indenture the following terms have the follaw-
ing meanings unless the context hereof clearly requires other- .
wise, and aay other terms defined in the Loan Agreement shall
have the same meanings wYien used herein as assigned t2zem in the
Loan Agreement unless the conte�ct or use tYiereof indicates
. � another or different meaning or intent:
Act: The Municipal Industrial Development Act, Minnesota
� Statutes, Chapter 474, as amended;
Additional Bonds: Additional Bonds issued under the
� provi3ions of this Indenture;
Additional Charges: the payments required by Section 4.03
• of the Loan Agreement; .
� Additional Rent: the Additional Rent payable under
Section 6.2 of the Lease;
_ � � • '�"uc. ^ "�'°"'Cq : �.. +�-t(rC.�-c..al.,a.�. �la�.o�
�� C�:�,� 4 C�,� � .�-�-�-�-- �
. �`� C.�.,�' . ���
- ,�-�,y�c� a-�- �� .
w..a—�o /
,� 2� (° e� 1't�o .
. � . ��'� � '�, � bR ..S � c c.�.�'°k-� ��..Irac�•����.1 .
�:. /
- ���' - " AMBAC: � the Americain Munic�pal Bond Assurance Corporation.
: � � -� a- New_York corporation, - i�s success.ors.:.or assigns; _. _
• � Assi ent of Leases- and Rents: � the Assignment of Leases
_ - . _�. � �and Rents o even a.te _herewit rom the.Partnership to the -
� Trustee; � � . _ . � _
Bank: The First National Baflk of Saint Paul;
�_ Basic Pa ents:�. the payments:.required by Section 4.02 of
the �Loan greemen ; - - _ � _ _ .
Basic Rent: .tl�e_Basic Rent payable under Section 6-1 of
the Lease; - -
-- Bond Closin : ,�the date on whieh. the=e is� delivery of and
payment or the Bonds; '
- Bond Counsel: the firm of Briggs and Morgan, Professional
- - Association, of Saint Paul and Minneapolis, Minnesota, or any .
�� � other firm of nationally recognized bond counsel experienced in
tax exempt industrial revenue bond financing selected by the
Trustee and acceptable to the Issuer and the Partnership (any
opinion of Bond Counsel shall be a written opinion of such
Counsel) ; - . � '
Hond Fund: � the. fund sq. designated- in Section 5-3 from .,
which the principal of and interest and premium, if any, on� the
_ Bonds � payable;
Bondholder: the Holder of any �Bond;
Bond Insurance: the Municipal Bond Insurance Policy No. •
of AMBAC which insures payment of the principal of and
interest on the Bonds;
Bond Registe�r: the register maintained by the Trustee
pursuan�o e'�on 2-�ly0�s 9 � � ���
.�,� t�kc�u�i,.�.� ��� � h�
Bonds: n t��Revenue Bonds, Series 1983 (Saint Paul Civic
Center Project) to be issued by the Issuer pursuant to this
Indenture; �
Certificates of De osit: the Certificates of Deposit
. issued by the Bank date as .of the Bond Closing each redeemable
� in the amount of $350,000 to secure payments due under tlze
Partnership Note;
City: the City of Saint Paul, Minnesota��`
� �.
skcc�.�a.a�= -e-�-�� ' - �
1
� s
� � Civic Center Authorit " :- : the Civic Center Authority of the
: � _. Cityr� .� a:,,...d ��� � . .= � � _ ._
J
_ ,_ _ � Com letion Date: the date determined in accordance with �
.. - - . � �Sec��on- 3..0 Q the Loan -Agreement; '� �� �""� _ �e ��w��
�_ .- �" Condemriations �the:�word "Condemnation" or phrase "eminent
domain as used herein shaLl� include the taking or requisition
� by goverrunental authority or by� a person, firm or corporation
_ acting under governmental authority and a conveyance made �under
� � threat of _Condemnation, pr�oyided: such conveyance i� made with
the �approval of �the �rustee, which approval" shall not be
unreasonably withheld,. and "Condemnatioa award" shall mean
payment for .property -condemned or conveyed under threat of
Condemnation; � _ .-
Construction Fund: the fund so �designated in Section 5-2
hereo , to whic the proceeds of the Bonds, except for any
accrued interest and capitalized reserve are appropriated;
Cost, Cost of Project or Project Costs: the cost items
enumerated in Section 3.02 of the Loan Agreement; �
�' Cou n Bond• • n su s antially the o -
� �,�'r') i - 1) , _ .
d'" ferred Pa ent Note.No. . 1: the Defer"red" Payment Note
`' No. l of even date herewith issued by the Issuer pursuant to
the Purchase Agreement;.
Deferred Pa ent Note No. 2: the Deferred Payment Note
No. o even date herewit ssued by the Issuer pursuant to
the Purchase A�r�e��n�� Q � . �1 �,�,`��
J
ischarge a e: the date on which all Out tanding Bonds
are discharged under Article Seven; �
Event of Default: any of the events set forth in Section
8-1 hereo ; - —
Facilities: the buildings, fixtures and improvements
' including Pro�ect EQUipment and personal property as described
i E hibit C to the Loan Aareement located on the Land as
defined by the Loan Agreement as of the date of .execution and
. delivery of the Lease between the Partnership and the City of
Saint Paul; - �
Full Re istered Bond: any Bond in substantially the form
set forth in Section 2-1 2) ;
; a� �' °`'°� • '� ���`"' � .
� � ��w k,�k,,rl��� �",°`` �' _ . � :
�r,�� � ,� .��.4 � .
��bfi
��� �-�`�` ��`�`'� �' 6 �
. �� a,,,��,Qi.�►�..
. • � ��
. _._ _ . . . . _ _ . _ . � _
� - - _ Ground Lease the Grou � Lease -of � even date-herewith �
--- . between the City as lesso and the Issuer as lessee, �r���������Pa,.�(
. ._. _. = _ �- � . '. _� . � "�t�..�.
. .
.. - : : . " - . - . - .- . .. :. _ . .: . � ; :
- � Grotind Lease A i nment z the;Grouiid Lease As signment- of ��
� --- even .date -herewit r•• w tf�e Issuer interest in the �. ---_ �.
_ Ground Lease ' to e Partnershi�,�,a,,,�;. �I_�j, ���
a+.d�cec�.�f�{. � �,�,�D�G�-� � �oi����r.�� r,_ - R/
�j�j • �''��1
- . � Holc3�r �or Bondholder: any , =��, TT^r°^'° "''^"-` -�-d �.r,�,,,
- ^...�he Registered Ho.lder=of ,a egistered. Bond;
- - . - - - . : - -- .��;�,`,'' . - - -. ._ _ _ ��sr>>
Improvements: t2�e physical alterations, changes, � ""�
modifications and additions, includin an Pro 'ect Equipment, '�
to be made to the Facilities y the Partnership pursuant to the
Lease; _ : . � - . . . .
. - . : - . �e+�''�14�k
Indenture: this Indenture of Trust by and �etween the �
Issuer and- the Trustee, as the same may from time to time be �
- - . amended or supplemented as herein provided; '
• - /
Independent Accountant: a certified public accountant.
registered and qualified to practice as such under the laws of
the State of Minnesota, or a firm of such accountants, not
regularly employed by the Sssuer or the Partnership, except to
� perform independent auc�its of tYie books and records of either
or both of them -or other similar periodic revie�ws;
Independent Counsel: any attorney designated by the
Trustee, duly admitted to practice law before the highest court
of any state, who may be counsel to the Partnership or the
Issuer but who may not be an officer or a full time eiaployee of
the Partnership or the Issuer (any opinion of Independent .
Counsel shall be a written opinion signed by such Counsel) ;
. � . Independent Engineer: an architect, engineer or �
architectural or engineering firm• designated by the Trustee,
registered and qualified to practice such profession under tne
laws of the State of Minnesota, and not a full-time employee or
officer of the Partnership or the Issuer;
Internal Revenue �Code or Code: the Internal Revenue Code
of 1954, as amended; �
. . Issuer: the Housing and Redevelopment Authority of the
City of Saint Paul,_ Minriesota, its successors and assigns;
Land: the real property described in the Ground Lease but
not the Facilities thereon or Improvements;
7 .
� , ; �
.- � Lease: the Lease :Aareement of even date herewith between
: � -� the Partners�},ip as ;lessar. and . he �City' as less�e:� -- � fo
- � � . - ta�� Y'�..c �u�� � �- � � .
.� . l
'( Lease�Recei ts Fund:- �the fund so .d�signated in Section
_ - _ = -�''J-K.213�2 hereo , to which a�l -payment� of -Additional Rent and Basic
� Rent made by .tlie City to the Trustee under the Lease are _
�_ = iiiitially��credited; :_ - . - � - .� . . � - �
� Loan: the loan of Bond proceeds by the Issuer to the
�_ - Partnership 'described in_ Section_ 4.Ol:.of the. Loan Agreeinent;
- Loan Agreement: . ,_the ��Loan Agreement of even date herewith
between the Issuer and the Partnership as the same may from
time to time be amended or supplemented as therein and herein
provided; _ . - . . - _-
Mandatory Rede.mption- Payments: the payments which are
required _to be made under Section 3-1(3) to redeem the Bonds in
accordance with the Mandatory Redemption Schedule after
-.� _ appropriate credits, if. any, have been made;
Mandato Red tion Schedule: the mandatory redemption
schedule or the Bon s maturing in the years 2003 and 2008 as �
set forth in Section 3-1 (3) ;
Maturity Date: the date on which principal. of and
interest �and premium, .if any, on the Bonds is due whether at
maturity, a scheduled interest payment date, or upon
redemption, a^^�+-.` �os or otherwise;
Net Proceeds: with respect to any property insurance
payment or Condemnation award for any portion of the Project, �
the amount remaining therefrom after payment of all expenses .
incurred by the Partnership. Trustee and Issuer in the
collection thereof;
Ori inal Purchaser: the bank, investment banker, bond
dealer, or ot er person who acts as underwriter or otherwise�
� purchases the Bonds from the Issuer;
� Outstanding Bonds: as of the date of determination, all
� Bonds theretofore issued and delivered under this Indenture
except:
. (A) Bonds theretofore cancelled by the Trustee or
Paying Agent or de?ivered to the Trustee or Paying Agent cancel-
� led or for cancellation; .
8 �
.:- (B) Bonds for w�ich payment or redemption monies or
: � � "� sec.urities (as provided .in Article -Seven) shall .'Yiave- been
' � . . theretofore. depo.sited with the �Trustee or Paying Agent in trust
.. ., _ for� the Holders of .such Bonds; provided,_�however, that .if such
_ . . - . " �Bonds -are to be. redeemed; notice of sueh-redemption shall have �
" been duly given pur.suant to. this Zndenture or irrevocable �
-` action shall �have been taken to �call such- Bonds ;for redemption A •
at a stated redemption- date;� and � -
-_ � _ � - (C) Bonds- in exchange_ for or._ in lieu of which other
Bonds .sha�].,have been_issued and:.delivered. pursuant to this -
Indenture; � - -- _ . _
provided, however, tliat in determining whether the Holders of
the requisite principal amount of 0utstanding �onds have given
any� request; demand, authorization,.�direction, notice, consent
or waiver hereunder, Bonds owned by the Issuer or the
Partnership =sha11 be disregarded and deemed not to be Out-
standing Bonds except that in determining whether the Trustee �
� � . . shall �be protected in relying upon any such request, demand,
- �� authorization, direction, notice, consent, or waiver, only
Bonds which the Trustee knows to be so owned shall be disre-
garded;
Partnership: the Civic Center Partners Limited � -
� Partnership, a Minnesota limited part.nership, its successors
and assigns, and any� surviving, resulting or" transferee
partnership or other entity which may assume its obligations
. under Section 7.05 of tYie Loan Agreement; .
� � �..�.� r, �9� •
Partnershi ote: the $3,500,000 Partnership Note dated
as o to be issued by the Partnership to th�-
Trustee at Bond Closing and secured by the Certificates-nf .
Deposit; �
- Paying Agent: the Trustee, or any other entity designated
pursuant to� this Indenture as the agent of the Issuer and the
Trustee to receive and disburse the principal of and premium,
� if any, and interest on the Bonds;
Payment Date: the Maturity Date, Purchase Date or
Discharge Date, as the case may be;
Permitted Investments: any of the following:
� (A) Direct general obligations of the United States
of America;
9
_. . _ . . :.
- �-� � (B) Obligations;� the -payment of the principal of and
_ � �� interest on which .is unconditionally �uaranteed _by �the United
- - . States_ of America; and �. - . . :
. . _
_ _ . � - . � _ .: (C) . Certificates � of deposit-� with �fixed maturities,
� tirae deposits, or repurchase agreements witY� or of the Bank or
�_ _- any other �bank rate� AA# or better by-the :rating:agency wliich
initiaily rated the Bonds; � -
�_ Plans aTdT�ecifications: - th� plans and specifications
� for the acquisition, � construction and installation .of the
� Improvements to the Facilities, and -ariy mod�ifications thereof
and additions the�eto �inade and filed in- accordance with the
provisions of Section- 3.01 (1) of the Loan Agreement;
•� Project: . the l�eas�hold_ inte�es� :in .tYie Land granted under
the Ground Lease and the Facilities and Improvements together
with . all additions to, replacements of and substitutions for
the � foregoing which may be made as permitted or required by the
_ - Loan Agreement, but excluding any real estate taken by
� Condenmation;n �
� Project Costs: see Costs; �
k . -
` Project Equipment: any and alI (i) fixtu=es or tangible
� personal property now o= hereafter attached or. affixed to the
i_ Pro ject .a�nd (ii)� any,.additions ,to, replacements� of and
� substitutions for any of the foregoing as may be permitted or
required by the Loan Agreement; but excluding property
�• installed pursuant to Section 4.06 of the Ass�gnment of Leases
� and Rents and any other property w�,��i--iQsj�taken by
Condemnation;� .
Project Supervisor: t who shall have full
� authority to sign any certificate or statement of any kind
_ � authorized by the Loan Agreement to be given by the Project
� � Supervisor to the �Issuer or the Trustee, both of whom may rely
on any certificate or statement so signed as that of the
� Project Supervisor and shall not be affected by any notice to
the contrary; provided, hawever, that if the original Project
� Supervisor, or any successor appointed hereunder, should become
� unavailable, unable or unwilling to take any action or make any
� ', certificate provided for in the Loan Agreement, a successor
" (who need not be an architect or engineer) shall. be appointed
. � by the 'p, subject to acceptance by the Issuer and the
� Trustee, and ' f the Partnership fails to make such designation
� � within ten d s following such event, the Trustee may appoint
as such suc ssor any architect or engineer licensed under the
laws of th State of Minnesota;
, .
,
. {p v►��u,�sr-- Q �a��k�
f�1f' "''` ' � �nT�"`"�` N � ��/
��� �-6'�` 10 � ' `�t � ,! —
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,q,(�._ at
" ' 'Q„ ,,) �n�;��,�i�L�.-P ��yL����d'L �,,,�.�z�,,o_ L j
�,�.- �- d• �"`�
_
. � �
��+� � � �
_ . �� _ _ _ _
: � � Furchase Agreement i . the� cont�act_,:c�f even .date-.herewith
� - . between the .City. and the Issuer� under which the Facilities are
.. __ :� conveyed to the I s suer; � - � _ .
� Purchase Date: :. the date on, wYiich any_ Outstanding� Bonds
- . are �pu�chased pursuant t� Section 5-6; � = . , . � _ � " -
Registered Bond: any itegistered Coupon Bond or Fully
. � .Registered Bond; � _ - _ . : �� � �
� Re ist ' Bondi any Coupon Bond _ - ed as to
princ' (but not to bea the Bond
� Registered Holder: the person in whose name a Regist red
Bond is registered in the 'BOnd Regis�er; - �. �
.Rela�ed :Documents: �he Purchase Aareement,. Ground Lease,
Sa1e Agreement, Ground Lease Assignment, Loan Agreement,
: ,- � Partnership Note, Lease, signment of Leases and Rents;
. . Representative: the Secretary of the Issuer or Managing
Director of the Civic Center Authority on behalf of the Issuer,
or a duly authorized general partner of the Partnership, or any
other person at any ti.iae des ignated to act on behalf of the
� Issuer or the Partnership, as the case. may be, -as evidenced by
a written' certificate furnished to the other 'party and the
Trustee containing the specimen signature of such person and
. signed for -the Issuer by its Secretary or for the Partnership
by a general partner thereof;
� Rental Payment Date: each February 1 and August 1 during
Ithe term of the Lease conunencing on August 1, 1983; .
_ � Reserve Fund: the fund so designated in Section 5-4; ,
Reserve Requirement: a swn equal to $ plus
. _ ariy other sums which are added to and included as part of the
Reserve Requirement under Section 2-6(3) ; /�
� �
Responsible Agent: any person duly authorized and
designated by the Trustee to act on its behalf in carrying out
the applicable duties and powers of the Trustee as set forth in
this Indenture {any action required by the Trustee under this
• . Indenture may be taken by a Responsible Agent) ;
� Restricted Construction Funds: any Bond proceeds, includ-
ing interest thereon, which are required to be transferred on
the Completion Date from the Construction Fund to the Bond Fund
and which the Trustee is required under Section 5-3(2) (8) to
apply towards the prepayment �or pro rata payment of principal
of the Bond �� c .�� �y�( �-.a�, � . �
��� �
� � O-� Kl`
' �' � �
`�� �"°�- ��,
. �
. .
.:- ._.' _ - . . ree��ven�' _ _
: � � � Sale the contract of even date- herew-ith, .
� � between .the Zssuer•;ans�. the Partnership _under which the ,
. _. : �acilities are conveyed to the Partners2�,�p; :
SLGS: United -States Treasury Obligations - State and _
- Loca1 Government Series, as provided for in the United States -
Treasury Regulation 3I CFR 344;. �
_ � _ . Tax Increment Note; . the Spsc�.al - .r� ;��ti�n Tax Increment
_ Revenue _Nate Saint �Paul �ivic Center Proiect,) -Series 1983 of
even date herewith executed by the Issuer;
� Trust Estate: the Trust Estate as def�.ned and set forth
. in.thz Granting Clauses hereof; . . - - -
Trustee: the First Trust Company of _Saint Paul, in Saint
Paul-, Minnesota, and any co-trustee or successor trustes
appointed, qualified and then acting as such under the
-: . . �.provisions of this Indenture;
Un ed Bond: Cou on B re
prin ' al, or registere earer.
Section 1-2. Exhibits. .
_� � The following Exhibits are attached to and by
reference made a part of this Indenture:
n Exhibit A: legal description of the Land.
/ �
� Section 1-3. Rules of Interpretation.
� (1) This Indenture shall be interpreted in accordance
with and governed by the laws of the State of Minnesota. .
(2) The words "herein" and . "hereof" and "hereunder" and
words of si.mila= import, without reference to any particular�
section or subdivision, refer to this Indenture as a whole
� rather than to any particular section or subdivision of this
� Indenture.
�
(3) References in this Indenture to any particular
article, section or subdivision hereof are to the designated
article, section or subdivision of this In�3enture as originally
executed.
�
- � 12 �'-��
' I c,�.e�, ��,,�.,,.� , � a,�-l�-�-�. � r-�c�-'F
t�
�u,�,^� ' q-�-
�
." (4) The Table of �onte�ts -and titles of articles and
: _ � -� sections herein are for� �onvenience only and a-re not a part of .
-� . this I-ndent.ure. . . �
_ � . - � � � •. � (5��: Unless the- context �ereof clearly requires otherwise,
� the singular shall -include the_:plural_ and. vice versa and the q
�-- masculine ��sliall include ~the feminine and=vice .versa. - � •
(6) Articles, sections, � subsections and clauses mentioned
' �_ by number orily are those_ so number�d which are contained in
_ this Indenture.. : . � _ � _ � - .. -_ � . _ .
13
_ --� . - - - � . - - _ ARTICL-E TWO _ _
. � . - � . . THE BONDS . �
� Section 2-1�. Authorized� Amount and Form of �Bond: '
� � Bonds secured by this Indenture shall �be issued in
� substantially the . form set -forth herein with such appropriate
�_ � _ variations, 'omissions and insertior�s as are permi.tted or requir-
� " ed tiy this Indenture, and _in accordance with the further provis-
ions of �this Article�_�.'wo,. ��and tYie total pr�ncipal amount of �
Bonds that may be.outstanding hereunder is expressly Iimited to
$ - unless duplicate Bonds are issued as provided in
�ection� 2-7 or Additional Bonds are .issued under Section 2-6.
The� Bonds and .the Trustee' s-.Certificate of� Authentication shall
be in substantially the following foria: .
(1) o Cou on Bond:
� . r •
14 �
_. __ _
_ --� - _ UNITED STP,TES OF 1�MERICA - -
� . - . . . STATE QE MINNESO�P, . - �" _.
' - -. . � _ � COLTNTY OF RAMSEY , -
� � � HOUSING�AND -REDEVELOPMENT AUTHORITY
. _' - - . _ OF THE C�T_Y -OF-_S.AIN�. PAUL, MINN�-SOTA
. � No. R - _ : - . _- . . . s�re�e�'—
- . -: ' -. REVENUE BOND,.. . -- .
" - - - . � - _SERIES 1983 -
- - - - - - -- �(��AINT�PAUI;" 'CIVIC �CENTEF�� PROJECT)
� - . [1] KNOW= � PERSONS BY THESE P�tESELQTS that the
Housing and .Redevel � ment Authority�-of� ±he City of Saint Paul,
Minnesota in the. 0 ty of Ramsey and� State of Minnesota (the
� "Issuer") for val received, promises to pay �to bearer, or
registered- assig. , but only from the Revenue Bond Fund, Series
� , 1983 (Saint Pau Civic Center Project) (the "Bond Fund") , the
�� principal sum o
FIVE THOUSAND DOLLARS
on the firs day of , or, if this Bond is prepayable.
as stated elow, on a prior date on �which it s�all have been
duly caly d for �redemption, .and to pay interest� on said
principa sum solely from the Bond Fund, at the rate of
_ • and hundredths percent ( �)
per an um from the date hereof until the principal sum�is paid
� � or un il this Bond is duly discharged, interest being payable
� on S tembe 1, 1983, and semiannually thereafter on,,MarC]I 1
%-,---
Q anii e tember 1 of each year, interest to maturity being
re esented by and payable in accordance with and upon
_ p sentation and surrender of the interest coupons appurtenant
reto as the same severally become due. Both principal and
• nterest are payable at the�orpora_te trust office of the First
Trust Company of Saint Paul, in ain au , Minnesota, or at
the office of any duly appointed successor Paying Agent in
lawful money of the United States of America.
[2] This Bond is one of an issue in the aggregate
principal amount of $ , all of like date �and tenor
except as to serial number, interest rate, maturity .and
. , redemption provisions, issued in accordance with an Indenture
of Trust, dated as _of June 1, 1983 (the "Indenture") , duly
executed and delivered by the Issuer to the First Trust Company
of Saint Paul, in Saint Paul, Minnesota, (the "Trustee") ,
setting forth the terms upon which such Bonds are issued. The
15
. � ,�,�,9.� .,Q,c�,�l,.,�l. �� �
. � �`" e�,�-a.�.,.. .1�..�.r..�.
_. � Bonds of th'is series are issue - y the Issuer fo the purpose
: � - of-making: a loan of the�}�roceeds ereof (the "Loan to Civic _
� "- . Cente.r- Partners Limite� Partnership the .�"�artnershig under .
. . _ the� provisions of a Loan Agreement �dat �as of June 1, 83,
._ - . � �between- the Issuer a�d -the Partaership .(. e �"Loan Agreeme t")
" to finance a project within_the meaning o innesota Statu es,
_-. /�Section 474.02, Subd. `la, consisting of the cquisitian of
yr•• located in the City .of� Saint Paul, and the
� construction and installation� of certain improvements thereto
=_ � (the "Project") . The�Partnershi�_has:-agreed under the Loan
� _ � Agreement :to repa.y tYie: Loan, t�gether_with_ interest thereon, in
amounts and at times _suf£icient to pay �the �principal of,
premium, if any, and interest on the Bonds as the same shall
become due and payabl-e (the "Basic Payments") . The obligation
of the Pastnership to �make� 8asic Paymentst- however, is a
. Iimi recour.se obligation .which imposes no personal pecuniary
liability on the Partnership or any of its partners except for
liability_ of- the Partnership under a Partnership Note dated as
of June 1, 1983 (the "Partnership Note" ) given to the Trustee
- , . .to secure partial repayment of the Loan. Pursuant to the
Indenture, the Issuer has assigned and pledged to the Trustee,
for the equal and ratable benefit of the Holders of the Bonds,
the Basic Payments due under the Loan Agreement and has funded
out of Bond proceeds a Reserve Fund to further secure payment.
of the Bonds and interest thereon. Pursuant to an Assignment
of Leas.es and Rents dated as of June 1, 1983 (the "Assignment
of Leases and Rents".) .executed. by the �Partnership, the �
Partnership has assigned to the Trustee, for the equal and
ratable benefit of the Holders of the Bonds, all of the
Partnership' s rights and interests in a lease of the Project
(the "Lease") dated as of June 1, 1983, between the Partnership
as lessor and the City of Saint Paul, Minnesota (the "City") ,
as lessee, to further secure�repayment of the Loan. No
Additional Bonds may be issued and secured by the Assignment of
Leases and Rents except as provided in the Indenture. Ref-
� erence is hereby made to the Loan Agreement, Partnership Note, �
Lease, Assignment -of Leases and Rents and Indenture, including
all indentures supplemental thereto, for a description of th�
property encumbered and assigned, the provisions, among others,
with respect to the nature and extent of the security, the
rights of the Issuer and the rights, duties and obligations of
- the Partnership, the Trustee and the Holders of the Bonds and
the terms upon which the Bonds are issued and secured.
, [3] The Bonds of .this series are subject to
prepayment and redemption as follows:
16
�- _ _. (A) Bonds maturing on or aft�r :September 1,.- I994 are
- _ subject to redemption and prepayment upon request by the -
� - � PartnersYiip to �the Trustee on Septemb.er '1, 1993 and on any
• -• . - interest payment date thereifter, in whoie or. in part, .and if
�� . - � �in '�art in inverse order of -the'ir maturi�y dates in principal
. - . incr.ements thereof of $S,OOO and. by lot within any maturity,- at .
" . their principal amount glus accrued interest .and a premium, -
expressed as a percentage of� principal amount, set forth in the
. following table for the designated. �redemption dates: .
- - .- Redemption� Date - : .-- . _. . - -- Premium �
September 1, -1993 -
March 1, 1994
. September 1, 1994_ . - _ - . .
� March I, 1995 ' - �
September 1, 1995 � _
- March. l, 1996 $
_ _ � September 1, 1996 and thereafter ncne �
� • (B) All Bonds maturing on September 1, 2003 are subject
to mandatory redemption by lot in principal increments thereo£
of $5,000 pursuant to Section 3-1 (3) of the Indenture at par
and accrued interest without premium on March 1 and September l
in the following years -and principa2 amounts (unless and -to the
extent a .credit -against any such amount�. is app�ied as provided
- in Seation 3-1(3) of� the Indenture) : �
. Year • _ Amount March I Amount September 1
1999
2000 � �
2001 •
2002 �
- 2003 . -
(C) All Bonds maturing on September 1, 2008 are subject
. to mandatory redemption by lot in principal increments thereof
of $5,000 pursuant to Section 3-1 (3) of the� Indenture at par
and accrued interest without premium on March 1 and September I
in the following years and principal amounts (unless and to the
extent a credit against any such amount is applied as provided
in Section 3-1 (3) of the Indenture) :
w
. , Year Amount March 1 Amount September 1
2004
2005
2006
2007 �
2008 �
17
' o� ��G•.� � .�e-iuv�,C,�.�� c'�-O ���6���
, �- P��a.�
. . _ . _ ..!-w �.e. .
� . _. (.D) Al1 Bonds of this 'series sh 1 be called for �
� - _ redemption and prepaymerit on� any intere t paynient date at par -
� � and accrued interESt without a premium i_ the Partnezship �
• -• = exercises its right tp terminate the Loan Agreemen in the
.
- . � � event of �damage to =or. destrvction ar�Cond .. ation o the - .
__ . Pro.j ect or any pa=�' ereo � as -provid'ed . in clauses. t B) or C)
- . of Section `S.04(1) of the Loan Agreemen �. . . �
. -. [4] In th�e event of_ either. optional or mandatory
- -� redernption by lot, the 2�ustee shall assign to each Fully
� Registere� Borid� .�hen Outstanding - (as defined in the Indenture)
a distinctive number for each $5,000 of the principal amount of
such Bond. The Trustee shall then select by lot, using such
method of selection:.as it shall deem proper in its discretion,
from the numbers of �a11 Cou�on Bonds� then�� 0utstanding (as
. defined in the �Indenture). in the denomination of $5,000 and the
numbers so assigne8 to such Fully Registered Bonds, as many
numbers as-, at $5,000 for each number, shall equal the
. principal amount of such Bonds to be redeemed. The Bonds to be
`� � redeemed shall be the Cqupon Bonds af the denoinination of
$5,000 bearing such numbers so selected, and the Fully
Registered Bonds to which were assigned numbers so selected.
� Provided, however, that only so much of the �rincipal amount of �
such Fully Registered Bond of a denomination of more than
$5,000 shall be redeemed as shall equal $5,000 for each number
assigned .to it and so selected. If �a Bpnd may-�e redeemed only
in part; it shall be� surrendered to the Trustee (with, if the
Issuer or the Trustee so requires, a written instrument of
transfer in form satisfactory to the Zssuer and the Trustee
duly executed by the Holder thereof or his attorney duly
authorized in writing) and the Issuer shall execute and the
Trustee shall authenticate and deliver to the Holder of such - •
Bond, without service charge, a new Bond or Bonds of the same
series, of any authorized denomination� or denominations, as
requested by such Holder, having the same stated maturity�-and
' interest rate of any authorized denoraination in aggregate �
. principal amount equal to and in exchange for the unredeemed,
portion of th� principal of the Bond so surrendered. .
[5] Notice of redemption�shall be published at Ieast
� once before the redemption date in a daily or weekly financial
�� journal or newspaper of general circulation in Minneapolis or
,� Saint Paul, Minnesota and mailed to each Registered Holder of a
�---8t�d to be redeemed who has registered his name,. address and
. bon� numbers with the Trustee, but no defect in or failure to
give such mailed notice of redemption shall affect the validity
' of proceedings for redemption of any Bond. All Bonds so called
for redemption, provided funds for their redemption have been
- duly deposited, will cease to bear interest on the specified
18 .
. ` .
- . _. redemption date and (except for the pu�pose of payment} shall
• no�'longer be protected by the Inderiture and strall riot be deemed
. � Outstanding under the Indenture, and . sh�ll thereafter be pay-
• - • . - able solely from the funds .:provided for =payment.
. ._ _ [6] � This .Bond an�i the seri�s of which it forms a - ,
- . part. are issued pursuant to and �in full .compliance wi�h the -
Constitution and laws. of the� State of Minnesota, particularly�
. the Municip�l Industrial Development Act, as. amended (Chapter
- 4a4, �tinnesota Statutes�)y and pursuant �to .resolutions adopted
a�d..appFOVed by .the.�Issuer,---�aHia�i resolut.ions �uthorize the
Project and the execntion and delivery of the Indenture, and
the issuance of the -8onds and appurtenant coupons as special,
limited_ obligations::payable solely from revenues derived from
the Loan Agreement except that under, certain circumstances the
Bonds may be payable from Bond proceeds, insurance roceedsr
Condemnation proceeds,_ and the proceeds o property given as
seciirity -for the Loan. The Loan repayments under the Loan
Agreement are scheduled to be sufficient to pay the principal
� - � '�of, premium, if any, and interest on the Bonds as the same
� become due and payable and are to be paid to the Trustee for
the account of the Issuer and credited to the Bond Fund as a
special trust fund account created by the Issuer and riave been
and are hereby pledged for that purpose. The Bonds and the
interest due thereon do not and shall never constitute a � -
� general indebtedness of the Issuer or .the City�_within the
meaning�of any state constitut�ional or statu�ory provision and
do not and shall not constitute or give rise to a pecuniary
. liability or moral obligation of the Issuer or the City or a
charge against their general credit or taxing powers, or to the
extent permit��aw, any pecuniary liability of any
officer, employee or agent of the Issuer or the City.
[7] The Fiolder of this Bond shall have no right to
� enforce the provisions of the Indenture or to institute aetion
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, eacept as provided in the Indenture.
Modifications or alterations of the Indenture, or of any
indenture supplemental thereto, may be made only to the extent
and in the circumstances permitted by the Indenture.
[8] With the consent of the Issuer, the Partnership
. , and the Trustee, as appropriate, and to the extent pe=mitted by
and as provided in -the Indenture, the terms and provisions of
the Indenture, the Loan Agreement, the Lease, the Assignment of
Leases or Rents or of any instrument supplemental thereto, may
be modified or altered by the consent of the Holders of at
least 51$ in aggregate principal amount of the Bonds then
outstanding thereunder. •
19
-- . . _. [9] The Indenture �also contains provisions
� . _ permitting Holders of a majority iri aggregate principal amount �
� � of the Bonds af the= time outstanding,. ori behalf of all the •
• - . - Holders of all the Bor�ds,to waive. compl�ance. by the Issuer
_ . _
�� . " � with certain pr.ov�sions� of the Indenture �and "certain past _
. - . defaults under the Indenture and their consequences. Any su�h
- . consent or waiver :by the Holder of this Bond .shall be - �
. conclusive and binding upon such Holder and u„Zon all future
. Holders -of this Bond. and of any� Borid issued in lieu hereof
- .� whether or not notation-of such coriserit� or waiver is made upon
• - this Bond.-. -. � : - - _. � .-- . . - - -. -- ' . .
[10] Tlie Bonds are issued as Coupon Bonds, regis-
terable _as to principal only, in the denomination of $5,000, or
as .Fully Registered .Bonds without eczupons-� in tlie denomination
. of $5,000 or any whole multiple thereof. � The Coupon Bonds and
Fu11y Registered Bonds are interchangeable for one or more
- Bond"s in authorized denominations and of the saine series,
aggregate principal amount, interest rate and maturity date,
� � upon surrender thereof by the Holder at the principal office of
the Trustee, in the manner provided in the Indenture.
. �` .
[11] This Bo d may be registered as to principal
� only and may thereaft be discharged from registration in the
manner, to the exte , -with the effect and subject to the terms
�►� and conditions end sed on the reverse. hereof and set forth i.n
� the Indenture. N liin�g� herein- shall affect or impair the
transferability f the coupons appurtenant hereto which shall
be and remain ransferable by delivery.
. [12] No service charge sball be made for any �
registration, discha=ge from registration, transfer or exchange -
hereinbefore referred to but the Issuer may require payment of
a sum sufficient to cover any tax or other governmental charge
payable in connection therewith and the cost of printing the
� new Bonds. �
. [13] American Municipal Boad Assurance Corporatioa
has issued a policy. of mnaicipal. bond i.asurance with respect to
the payments due for principal and� interest on the Bonds.. In
the event of a defanit in the payment of priacipal and interest
' due on the Bonds, any Bonc�older entitled to the benefits of
such bond insurance is obligated to puraue its. remedies .under
an insurance policq with the Znsuraace �Trustee, IInited States
. Trust Canpany of Ne�w� Yor New.York, New York. The Truatee has
no obligation to take any a tion on behalf of the Bondholders
� or otherwise, with regard t the bond insurance.
�
�
20 .
_ - [14] IT IS HEREBY CE�TIFIED, RECITED AND DECLARED
: � � tliat all .acts, conditioris and things r-equired to- exist, to ..
� - happen- and• to be performed precedent �to �and in the execution
. .. _. - and delivery of the Indenture and the issuance� of this .Bond do
- _ - � exi•St, have happened and -ha've been_ perforined 'in due time, form
and manner, as. required by �aw,_ and that . the issuance of this _
- . Bond and the series .of which it forms a part,. .together with all -
other obligations of the Issuer, does not exceed or violate any
constitutional or statutory limitation. .
_ . - �15}. . 3'his �.ond :shal�l..not_be _.valid or become
obligatory for any pu�ose or be entitled� to any security or
benefit under the •Indenture until the Certificate of
Authentication hereon .shall have been executed by the Trustee.
-� [16]- IN WI ESS V�FFiEREO�', the Housing and Redevelo�
ment Author.ity of the ty of Saint Paul, _Minnesota, has caused
��Pthis- Bond- to be exec ed in its name by the facsimile signa-
�' tures .of its Chai n, Secretary and Director, Department of �
� �-: -Finance and Mana ent Services, and by the manual signature of
`O a Responsible A nt of the Trustee acting as authenticating
�`' agent, and ha caused this Bond to be sealed with a facsimile
Qi of its offi 'al seal, and has caused the interest coupons
appurtenan hereto to be executed and authenticated by the
facsimil signatures of. said officers of the Issuer, and �has
� caused is Bond to be� dated as of June. l, 1983,.
• HOUSING AND REDEVELOPMENT
� AUTAORITY OF TFiE CITY
OF SAINT PAUL, MINNESOTA
� Attest: By -
- �Its Chairman
By
� Secretary
_ Countersigned by:
. . Director, Department of Finance
(SEAL) _ and Management Services
� 21
� } [
- _. (Form of Trustee' s, Certificate) . ._
� � � _ - � TRUS�EE'.S CERTIFICATE OF AUTHENTICP.TION . •
. .. This Bond is one of� the Bonds of the series . .
- . designated therein and iasued under the provisions of 'the
� _ within mentioned. Indenture". and has been- execut+�d by the
facsimile signatures.�of the Chairman, Secretary and Director,
Department of Finance_-and Management Services of the Housing '
and�. Redevelopment Authority of the City of Saint Paul.
. - - . First Trust Company of Saint Paul,
as Trustee
. BY � .
• ' Responsible Agent
22 .
_:- PROVISIONS AS TO REGISTRATI N
- -• - - - - -
� - - -: The within �Bond� may be- registes� as to principal
" only in the name of._tYie Holder on the Bon Register kept by the
�-_- Trustee, such registrati�on being noted � reon, by. tYie Trustee in -
the registration blanks below, after wh' ch no transfer of this
Bond shall be valid unless made �on the ond Register at the
�_ � . request� of the Registered Holder _or-` hi: attorney duly �
_ autho=�.zed,. -and. such- transfer is :simi .arl}► _noted in the
registration blanks 7aelow, � but it ma be discharged from
registration by being _so transferre to bearer, after which it
shali be transferable- by delivery, ut it may be again and from
time to -time registered as before. T'he registr$tion of this
Bond as to principal shall not r train the negotiability of
_ the coupons. by delivery. ` � . _
. _ � Authorized
� Date .of N e of _ Signature of
Registration Re is ered Holder Trustee
23
:-- Form of Z�ntcrest Coupo _ -
.. _: - - - :
-- - - � � �No.. . _ ._ _ , - - _. _ __ . $5,000 -
� On the firs date of � - , 19 , unless the Bond
_ tQ wh�ch this cou n� appertains has pr�e� ously been called for
� _ � redemption, the. Hou ing and ._Redev.elopme_ t_ Authority of the City
of Saint Paul, Minne ota will pay to b arer upon presentation
and surrender of t.his .coupon at the c porate trust office of
the First Trust Compaa of Saint Paul ira Saint Paul,
Minnesota, or its sUCC sor; but sol y from the sources and in
the� manner provided in e Indenture of Trust under which such
Bond was issued, dated a of June 1 1983, the amount shown
herein in_ lawful money of the Unite States of America for
interest then due on its R venue B ds, Series 1983 (Saint Paul
- . . Civic Center Project) dated June 1 1983, No. .
(�'acsimile Signature) (Facsimile Signature)
Secretary Chairman '
(Facsimile Si n ure)
Director, Departm t of �
Finance and Management ervices
24
-_ ���' � (2) Form of Fu11 Re �i e nd. �
: �� . _ � A. - Substit the following paragraph for the first
_ . _ (lst) paragraph � e form �of Coupon Bond: .
" No.. R _ _ � - _ - �. $ _
-_. / ._. . _ . . . . . _ - . . - . -
� ' .�� [1] IQ�TOW ALL PERSONS. BY THESE� PRESENTS that��ie y'
�;v.
S Housing and Redevelopment Authority of the City of Saint Paul,
� � Minnesota iri the Coui�ty . of Ramsey _and :.the State- of Minnesota
(the "Issuer"). for value-r�eceived, promises to_pay_ to
� � � or registered assigns, but
only from the Revenue .Bond Fund, Series� 1983 (Saint Paul Civic
Center Project) (the �"Bond Fund") and upon presentation and
surrender -hereof at' the corporate trust office_-0f the Trustee
nanied below,- the principa�. sum of - -
. THOUSAND DOLLARS
- . . .on the first day of , 19 , or, if the Bond is
� prepayable as stated below, on a prior date on which it shall
. have been duly called for redemption, and to pay interest on
said principal sum to the Registered Holder hereof from the
date hereof until the principal sum is paid or. discharged, at
the rate of � and -
� hundredths. percent per annum. Interest is paya e on
September 1, 1983 and .semiannually thereafter oa March 1 and
September 1 in each year to the Registered Holder hereof by
. c ecc or draft mailed to the Registered Holder at his address
� as it appears on the Bond Register maintained by the Trustee
named below or .its successor in trust. The principal of and
interest on this Bond are payable in lawful money of the United
States of America. .
_ B. Substitute the following paragraph for the
eleventh (llth) paragraph of the form of Coupon Bonds:
[11] This Bond �s transferable by the Registered
� Holder hereof upon surrender of this Bond for transfer at the
�corporate trust office of the Trustee, duly endorsed or
accompanied by a written instrument of transfer in form
satisfactory to the Trustee and executed by the Registered
Holder hereof or his attorney duly authorized in writing.
Thereupon the Issuer shall execute and the Trustee shall
, authenticate and deliver, in exchange for this Bond, one or
more new Fully Registered Bonds in the name of the transferee,
of an authorized denomination, or, at the option of the
transferee, Coupon Bonds in the denomination of $5,000 each,
having attached coupons representing unpaid interest due or .to
� 25
= --� . - become �due thereon, `in-a�gr-egate. principal amoun� equal -to the �
�` . -� p�incipal amount of. this Bond, of the_ same _maturity, and
� - _ bearing interest at the sanie ra�e: � . . �
' � - . - . . C. . ,Substitute _the following...pa,ragraph for the .
- - � sixteenth' (16th�) .paragrap3� of the £orm of Coupon Bond i . -
[16] IN WITNESS WHEREOF, the Housing �and
Redevelopment Authority of _the City_ of Saint Pau1, Minnesota,
� . Ramsey Count�, Minnesota, by its governing body, has caused
- this� Bond to be executed =in its riame by the facsimile �
- signatures- of its� Chairman; ��Secretary 'and� Birector; Department
of Finance and Managenient Services and by the rnanual signature
of a Responsible Agent of. the Trustee acting as authenticating
agent, and has caused .this .Bond to be sealed with. � facsi.mile
, of its official, seal' printed hereon,-�and Yias caused this Bond
to be dated as� of � � � .
,
26 �
, r
- . .. ..' _..�. - . �`. . . . . ' _. . . � _. _
- _ - (Form f.or Transfer) -
- ,_ _ � - . FOR.VALUE RECEIVED, -the und.ersign�d .hereby sells, -assigns
- � and transfers unto " � • - (please insert Social
-- Securi.ty or_ other identrfy'ing�number of assignee) � -
� � jH the within Bond and all rights t ereun er,
� j and hereby irrevocably constitutes .and appoints ,
! � . attorne�r,- ta transfer the within Bo�nd:_on the books kept � for
� � " registration thereof, wi�h full power of� substitution in the
' premises. - - - . -- _. . - -
Dated: - . �.
NOTICE: The signature to tlzis assignment must correspond with
the name as it appears upon the face of the within Bond in
Ievery particular, without alteration or enlargement or any_
Ichange whatever.
i _ _ .. -
, - -
i�
�
�
iy
. .
i1 �� �� .
lS�'u �,� c�
� / �L�OX- ��
f
27
a f'
- _ -- _ - - - Secticn 2-:2: -initial _Issue. � -
-' � The Bonds shall be �in-itiall�' issued in the ,aggregate
� principal amount of° $ � and shal�:
. . ..
� . . . . - _ ,.. _�. _
- . - � '• �� (1) b.e dated -June -i, 1983, except_ as otherwise -
- . provided in .Section �2-l�; "� - - ' - �. : � - N
(2) be issued as _ ,
� ' , Fu�ly
� - . Registered Bonds, in_ the=denominations" o� $5,000 or any whole �
mul�iple -t�ereof.,- or any combination thereof, as requested by
the Original Purchaser of the Bonds, and be numbered
—r..,~�e^„oT*i�, , '- � " r R-1 upwards ,�er
v1-��"v v.a�.a��c�r.=i
.� � �. .�t �- - - ..
(3) �nature on March 1 and September 1 commencing
1, 1986 in the years and in the amo�xnts set fcrth
�belaw, and-bear interest from the date of issue until paid or
discharged as herein provided at the rate set forth opposite
� - "such years and amounts: �
� Amount Interest Amount Interest
Year March 1 Rate September l Rate � �
� _- .. . . . .
(4) bear interest payable semiannually on each
� � March 1 and September 1, coramencing September 1, 1983; � �
(5) be us o ice of the
T - aying gen , o
s on u y
be payable by check or draft mailed to
� the Registered Fiolders of such Bonds by the Trustee at the last
addresses thereof as shown in the Bond Register and principal
of and any premium on any Fully Registered Bonds shall be
, payable at the principal office of the Trustee; and
(6) be subject to redemption upon the terms and
conditions and at the prices specified in Article Three hereof.
28 �
Section 2-3 . Execution.
The Bonds shall be executed on behalf Qf the Issuer
• by the signature of its Chairman, Secretary and Director,
Department of Finance and Management Services and be sealed
with the seal of the Issu�er; provided, however, that the seal
- of the 2ssuer may be a printed facsimile; provided fLrther that •
all of .such Issuer' s .signatures may be printed facsimiles, in
which event the Bonds shall also be executed manualZy by the
Trustee as authenticating agent as provided in Section 2-4 and
Minnesota Statutes, Section 475.55. In the event of disability
or resignation or other absence of either such officer, the
Bonds and any interest coupons may be signed by the manual or
facsimile signature of that officer who may act in behalf of
such absent or disabled officer. In case either such officer
whose signature or facsimile of whose signature shall appear on
the Bonds shall cease to be such officer before the delivery of
the Bonds, such signature or facsimile shall nevertheless be
valid and sufficient for all purposes, the same as if he had
remained in office until delivery.
Section 2-4. Authentication.
No Bond shall be valid or obligatory for any purpose
or be entitled to any security or benefit under this Indentur.e
unless and� until a Certificate of Authentication on such Bond,
substantially in the form hereinabove set fo'rth, shall have
been duly executed by a Responsible Agent. Certificates of
Authentication on different Bonds need not be signed by the
same person. The Trustee shall authenticate the signatures of
officers of the Issuer on each Bond by execution of the
Certificate of Authentication on the Bond; and the executed
Certificate of Authentication on each Bond shall be conclusive �
evidence that it has been authenticated and delivered under
this Indenture.
Section 2-5. Delivery of Initial Issue.
Upon the execution and delivery of this Indenture the
Issuer �shall execute and deliver to the Trustee, and the Trus-
tee shall authenticate the Bonds in the aggregate amount of
$ , and the Trustee shall deliver the Bonds to the
Original Purchaser at such time or times as may be directed by
the Issuer after filing with the Trustee the following:
(1) the original Partnership Note and Certificates of �
Deposit and original executed counterparts of the Loan
Agreement, and this Indenture;
29
�f0'u''�GQ �Pa:c.v¢-� u�`i�n� �'U.'tiC'�1a �`'
. C I'1 yu�e.m��
(2) original executed counterparts of the Ground Lease,
Sale�Av�'F►?ment,� Lease and the Assignment of Leases and Rents
recdrded, or t e recorded, with the County Recorder or
Registrar of Titles, whichever is applicable, of Ramsey County,
and of financing statements filed, or to be filed, with the
. County. Recorder of Ramsey County, and at such other offices as
Bond Counsel shall have required; �� ,
�� 4
(3) a copy, duly cert' ied by the Issuer s Secretary or
� his deputy, of the resolu 'ons adopted and ap oved by the
governing body of the Is er, authorizing pur ase and sale of
the Facilities and the rcund Lease and the P oject; and the
execution and delivery of this Indenture, the Ground Lease,
Ground Lease Assi nme , Purchase Agreement,� le�Agreement,
Deferred Pa nt Note 1 De erre Pa ent Note -2 the Taz
Increment Note, the Loan Agreement and the issuan e of the
Bonds;
(4) a request and authorization (which may be part of a
certificate of the Issuer) to the Tzustee on be lf of t2ze
Issuer, signed by its Chairman, Secretary and Di ector,
Degartment of Finance and Management Services to deliver the
Bonds to the Original �Purchaser therein identif' d upon payment
to the Trustee for the account of the Issuer of a specified- sum
plus accrued interest; .
(5) a copy, duly certified by the City Cl rk or his
deputy of the resolutions adopted and approved my t2ie governing
body of the City, authorizing sale of the Facil�ties to the
Issuer and the execution and delivery of the Pu=__ chase
�Q�eement. Ground Lease, and the Lease;^
.�_
(6) the opinion of Partnership' s . attorney in the form
required by Bond Counsel;
(7) the opinion of City's attorney, ia th fona r.equired
by Bond Counsel; • I
(8} the opinion of Bond Counsel approving the legality of
the Bonds issued pursuant to this Indenture;
(9) the title insurance specified in Section 3.09 of the
Loan Agreement;
(10) an original of the Bond Insurance;. d
(11) any other documents or opinions whi h Bond Counsel
may reasonably require for purposes of rende ing its opinion
required under subsection (8) of this Sectio .
30 �, ��`- �� :
Section 2-6. Issuance of Additional Bonds.
After the delivery of the initial issue of Bonds the
� Issuer and the Partnership may from time to time, upon the
conditions stated in this Section 2-6, agree upon and approve
the issuance and delivery of Additional Bonds secured by the
. Indenture and the Related Documents for the purpose of -
refunding Bonds or any Additional Bonds or of financing
additions and improvements to� the Project or the equipping
thereof or for any other purpose permitted under the Act.
Every series of such Additional Bonds shall be authorized by an
amendment to the Loan Agreement and a supplement to this
Indenture establishing the terms thereof and providing for
additional Basic Payments sufficient to pay the interest when
due and to pay and redeem all such Additional Bonds at or
before maturity as provided in such supplemental indenture.
Each series of such Additional Bonds shall be equally and
ratably payable from the revenues pledged and appropriated
hereunder with the Bonds. Each series of such Additional Bonds
shall be executed, authenticated and deZivered as provided in
� this Article Two, upon filing with the Trustee of original
executed counterparts of the supplemental indenture aad the
amendment to the Loan Agreement, together with such additional
certificates, opinions, and other docuinents described in
Section 2-5 as are applicabl�e. No Additional Bonds shall be
issued under this Section unless at the time of such issuance
the fatlowing cond�itions have been met (such' facts to be shown
by a certificate of the Trustee) :
. ' (1) no Basic Payments or Additional Charges due under the
Loan Agreement or any amendments or supplements thereto are
then delinquent;
(2) there are at such time no other Events of Default
then existing or uncorrected under the terms of the Loan Agree-
ment, Indenture or any amendments or supplements thereto;
• (3) the balance in the Reserve Fund is increased to an
amount equal to the maximum amount of principal and interest to
become due and payable in any future calendar year on all
Outstanding Bonds, the Additional Bonds to be issued and any
Additional Bonds previously issued, after taking into account
any mandatory redemption schedule; , � .
. � �4) AMBAC.��..,,,m� J,.(,_1 c.c.q.c.�.o�-v�C�c_.�/'f'�'`t. ��t.C�v�c�...�
j r _� •
.
...�:�„� � . �
�
(5) the Assignment of Leases and Rents a� amended to the
extent required to secure payment of the Add tional Bonds; and
. C� �i
� .
i'q� .
31
(6) the issuance of such Additional Bonds will not cause
any Outstanding Bonds or Additional Bonds to lose their tax
exempt status under the Code.
��
/Nothing herein shall be construed as prohibiting the issuance
; of revenue bonds pursuant� to the Act or otherwise incurring
� debt secured by a Zien on a11 or any part of the Project
� � without Bondholder consent so long as (i) such lien is
,' subordinate to the rights and � interests af the Trustee under
/ the Indenture and t e ssignment o Leases and Rents and (ii)
�` such revenue bonds are not issued pursuant to this Indenture,
,�' including any supplement hereto.
t
� Section 2-7. Mutilated, Lost and Destroved Bonds.
�
; In case any Bond issued hereunder shal? become muti-
lated or be destroyed or lost, the Issuer shall, if nat then
� prohibited by law, cause to be executed, and the Trustee may
authenticate and deliver, a new Bond of like amount, number,
maturity date and tenor .in exchange and substitution for and
upon cancellation of any such mutilated Bond, or in lieu of and
in substitution for any such Bond destroyed or lost, upon the
. Holder' s paying the reasonable expenses and charges of the
Trustee and Issuer and, in the case of a Bond destroyed or
lost, his filing with the Trustee evidence satisfactory to -the
Trustee that such Bond was destroye3 or lost, and of his
; ownership thereof, and furnishing the Issuer'and the Trustee
` with indemnity satisfactory to them.� If the mutilated,
� destroyed or lost Bond has already matured or been c311ed for
redemgtion in accordance with its terms, it shall not be
`t necessary to issue a new Bond prior to payment.
�L
; Section 2-8. Ownership of Bonds.
� .
t� The Issuer, Trustee and Paying Agent may deem and
, treat the Holder of any Bond, �oup no
whether or not such Bond e�---cou�on shall be overdue, as the
�`, absolute owner of such Bond o�-coapon for the purpose of
`i receiving payment thereof and for all other purposes whatso-
ever, and the Issuer (or any agent thereof) , Trustee and Paying
Agent shall not be affected by any notice to the contrary.
'; Sect�on 2-9. Preparation of Definitive Bonds; Tem-
�
� �orary Bonds.
• `�
', The definitive Bonds �shall be lithographed or printed
on steel �ngraved borders� Until the definitive Bonds are
prepared, the Issuer may execute, in the same manner as is pro-
vided in Section 2-4 (except that manual signatures and manual
�\ �
�'`� �. . . .
. (��1 '� `� . �Q� ���.�c- ��.. � �s�. , �
.. . - � _ !� � �- `� .
��• '
�,..
�,�,� .
u� �•.�'.�...t ' ' �
�� �� � ��
seal may be used) , and deliver, in lieu of definitive Bonds,
but subject to the same provisions, limitations and conditions
as the definitive Fully Registered Bonds, except as to the
• denominations thereof, one or more temporary Bonds (which shall
be registered as to principal and interest) , substantially of
the tenor of the de.finitive Fully Registered Bonds, in any
. denominations authorized by the Issuer, and with such -
omissions, insertions. and variations as may be appropriate to
temporary Bonds. The Issuer shall prepare and execute and,
upon the surrender of such temporary Bonds for exchange and the
cancellation of such surrendered temporary Bonds, deliver in
exchange therefor, at the principal corporate trust office of
the Trustee, definitive Bonds of the same aggregate principal
amount as the temporary Bonds surrendered. Until so exchanged,
the temporary Bonds shall in all respects be entitled to the
same benefits and security as definitive Bonds issued pursuant
to this Indenture. AI1 temporary Bonds surrendered in exchange
for a definitive Bond or Bonds shall be forthwith cancelled by
the Trustee.
Section 2-10. Registration, Transfer and Exchange
of Bonds.
(1) The Issuer will cause to be kept at the principal
corporate trust office of the Trustee a Bond Register in which,
subject to. such reasonable regulations as the Trustee may
prescribe, the Issuer shall provide for the registration of
Bonds and the registration of transfers of Bonds entitled to be
. registered or transferred as herein provided; and the Trustee
is hereby appointed "Bond Registrar" for the purpose of
registering Bonds and transfers of Bonds as herein provided.
(2) Upon surrender for transfer of any Fully Registered .
Bond at the principal corporate trust office of the Trustee,
the Issuer shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or
tran�ferees, one or more new Fully Registered Bonds of any
authorized denomination or denominations of a like aggregate
principal amount, having the same stated maturity and interest
rate, as requested by the transferor.
1�,�,"
(3) Upon presentation for�registration of any Coupon Bond
at the principal c rate trust office of the Trustee, the
Coupon Bond shall be r istered as to principal in the name of
. the Holder and such regist�ration shal�l be noted on the Coupon
Bond. Any Registered Coupon Bond shall be transferable on the
Bond Register, upon present�ition of such Registered Coupon Bond
at the principal��`corporate rust office of the Trustee for
similar notation�therec�n, but the Registered Coupon Bond may be
33
discharged from registratio y being in like manner
transferred to bearer, wh eupon transferability by delivery
shall be restored. Cou n Bonds shall continue to be subject
to successive registr ion and discharges from registration at
the option of the H ders thereof.
, (4) �Coupon Bonds shall be � nsferable by ,delivery except
while registered as to p=inc' 1. Registration of any Coupon
Bond shall not affect the ansferability of the coupons
appertaining thereto, w 'ch shall continue to be payable to
bearer,� and transferab -by delivery.
d
� At the opti , the Holder, Coupon Bonds may be
exchanged for one or more y Registered Bonds, of any
authorized denamination or den ' ations o ke aggregate
principal amount and stated ma pon surrender at the
principal corporate tr ice of t Trustee of the Coupon
Bonds to be exc with all unmatured ons (and all
coupons in ault) thereto appertaining and u yment, if
the er sha ,
ro ' At the option of the Holder, Fully Registered Bonds
may be exchanged for Coupon Bonds or Fully Registered Bonds of
any authorized denomination of a like aggregate principal
amount and stated maturity, upon surrender of the Fully
Registered Bonds to be exchanged at the principal corporate
trust office of the Trustee, and upon payment, �if the Issuer
shall so require, of such charges. Whenever-any Bonds are so
surrendered for exchange, the Issuer shall execute, and the
Trustee shall authenticate and deliver, the Bonds which the
_ Holder making the exchange is entitled to receive. .
(-6'S All Bonds s surren ered upon any exchange
or transfer provided for in this Indenture shall be promptly
cancelled by the Trustee and thereafter dis sed of as directecY
the Issuer� provide , that pon Bonds surrender -
� � ex nge, and unmatured ou s appertaining thereto, may be
held by the Trustee avai le for redelivery upon subsequent
exchanges of Fully Reg' e d Bonds for Coupon Bonds.
5 f�) Al1 Bonds delivered in exchange for or upon transfer
of Bonds shall be valid special obligations of the Issuer
evidencing the same debt, and entitled to the same benefits
under this Indenture, as the Bonds surrendered for such
eachange or transfer.
� �,8') Every Registered Bond presented or surrendered for
tra sfer, exchange or discharge from registration shall (if so
required by the Issuer or the Trustee) be duly endorsed or be
accompanied by a written instrument of transfer, in form
34 �
satisfactory to the Issuer and the Trustee, duly executed by
the Holder thereof or his attorney duly authorized in writing.
!�' S l�.t-
� (�) No service charge shall be made to the der for any ---
registration, discharge from registration, r or
exchange, but the Issuer may require payment of a sum
. sufficient to cover any�tax or other governmental charge that -
may be imposed in connection� with any transfer or exchange of
Bonds, other than exchanges expressly provided in this
Indenture to be made without expense or without charge to
Bondholders, and the cost of printing any new Bonds.
� �
� (1�t3� '�he Issuer and Trustee shall not be required (i) to
�r-�or exchange any Bond for a period of fifteen (15) days
next preceding any interest payment date, or (ii) to *_rnira�f�eri���
,l�r exchange any Bond called or being called for redemption in
whole or in part.
Section 2-11. Interest Ri hts Preserved;
ating o Registere Bon s.
Each Bond delivered upon transfar of or in exchange
for or in lieu of any other Bond shall carry all the rights to
interest accrued and unpaid, and to accrue, which were carried
by such other Bond, and each such Bond shall be so dated, t�r.
t_-� ��=__.._=°�h�er�o"'�'u��o�np��i`�,sAthat neither gain nor loss
in interest shall result from such transfer, ' exchange or
substitution. Each Fully Registered Bond shall be dated by the
Trustee as -of the last interest payment date preceding the date
of authentication to which interest on the Bond has been paid
or made available for payment, unless � the date of
authentication is an interest payment date to which interest
has been paid or made available for payment, in which case the �
Bond shall be dated as of the date of authentication., �-�.i�,a�
t�,,,�d�.�e,..�-aut}renti�att`ioa"�"s prior°'�o�e�-�fia�nt�err,est,._._
PaY��a�--a�-toer.-t�e-�datz��e�Co�apvn-=-�onda�-of-�-the�same�
s�c�a.es�...�.nP..wlaich�-case=-snch�'�=�es�istered-aHoad-�s'�a�.l. be-�da}p.�
� . as�o�-•the�-�ia�te�cf issiie =.cf_.s�ch-_CouponA.-�onds.��„
35
, • •
ARTICLE TFiREE
REDEMPTION OF BONDS BEFORE MATURITY
� ������
Section 3-1 . Redemption. ryv���
� Subject to the provisions of ctions �3-2 and 3-4:
(1) O tional Redem tion. Bonds maturing on or after
September , are eac subject optional redemgtion and
prepayment, upon request by the Pa tnership to the Trustee, on
September 1, 1993, and any intere t payment date thereafter, in
whole or in part, and if in part . principal
amount (or such portion thereof as is redeemed as provided in
Section 3-4(3) ) plus accrued interest and a premium, express��
as a percentage of principal amount, set forth in the following
table for the designated redemption dates:
Redemption Date preicu.um
.s��c�j
Septeiaber 1, 1993 and March 1, 1994 3 .,��-li.��.
September 1, 1994 and March 1, 1995 .,hti2�J
September 1, 1995 and Mareh 1, 1996 $ �-��J�
September 1, 1996 and therea£ter ne ���-P
�B�-k3�-�
(2) Calamity�Redemption. In the event -of (i) ama e or
destruction of the Pro 'ect b fire or other casua t
' to the extent provided in Section
.04(1) (B) of the Loan reemen or on�mna ion o t e Project
or any part thereof to he extent provided in Section
8.04(1),�C„�, of the Loa Agreemen and (ii) purchase of
Pro 'ect by the Cit ursuant to Les't�e� all Bonds shall be
�redeemea by the Is er on the the neat su ceeding interest
payment date, or f timely notic of call annot be given
� before such dat�, on the next s eceeding i terest payment date,
at 100� of the�principal amou to be rede med, without any
premium, plus'` a:crued interes to the rede tion date.
�
(3) f:�'Scheduled Mandato Red tion. Bonds maturing on
Septembe�r , s a e re eeme y ot on March 1 and
September 1 at their prin ipal amount (or uch portion thereof
as is redeemed as provid d in Section 3-4( ) ) , without any
premium, plus accrued i erest thereon to uch redemption date
. in the foZlowing years nd principal amoun (after credit as
;.
�provided below) : _
�/ � � �
�' . eti /'� �, v�
� � � �
� � � � .
. �� �,.�
36
, .
Mandatory Redemption Schedule
Redemption Date Principal Amount
March 1, 1999
September Z, 1.999 _ � _ ,
. MarcYi 1, 2000 � . � -
September 1, 2000
March 1, 2001
September 1, 2001
March l, 2002
September 1, 2002
March 1, 2003 - -
or, if less than such amount is then Outstanding, an amount
equal to the aggregate principal amount of the Bonds then
Outstanding.
Bonds maturing on September 1, 2008 shall be redeemed
� by lot on March 1 and September 1 at their principal amount (or
such portion thereof as is redeemed as provided in Section
3-4(3) ) , without any premium, plus accrued interest thereon to
such redemption date in the following years and principal
araounts (after credit as provided below) : -
__ Mandatory Redemption Schedule
_ Redemption Date Principal Amount
March l, 2004
September 1, 2004 .
March 1, 2005 �
September 1, 2005 •
March 1, 2006
September 1, 2006
March 1, 2007 �
September 1, 2007
� March l, 2008
or, if less than such amount is then Outstanding, an amount
equal to the aggregate principal amount of the Bonds then
Outstanding.
37
, • � .
The Issuer, or the Partnership on behalf of the
Issuer, may, at its option to be exercised on or before the
thirtieth day next preceding any date specified in the
Mandatory Redemption Schedules above, deliver to the Trustee
written notice which shall (a) specify a principal amount of
such Bonds delivered to the Trustee therewith, and/or (b)
. specify a principal �amo�nt of such Bonds previously redeemed�
(otherwise than pursuant to the above Mandatory Redemption
Schedules) or purchased and cancelled by the Trustee and not
theretofore applied as a credit against any redemption of Bonds
pursuant to the above Mandatory Redemption Schedules, and (c)
instruct the Trustee to apply the principal amount of such
Bonds so delivered or previously redeemed or purchased and
cancelled for cr�dit against the principal installments to be
prepaid pursuant to the Mandatory Redemption Schedules. Each
. such Bond so delivered or previously redeemed or purchased and
cancelled shall be credited by the Trustee in chronological
order at I00� of the principal amount thereof against the next
succeeding and future principal installments to be prepaid
pursuant to the Mandatory Redemption Schedules.
(4) Except as provided in this Section 3-1, the Bo�ds
shall not be subject to redemption prior to their stated
maturity date.
Section 3-2. Notice of Redemption. . .
� To effect the redemption of the Bonds under Section
3-1, the Trustee shall promptly give notice within the time, in
the manner and with the effect provided by this Section 3-2.
Notice of redemption shall be mailed not less than twenty (20)
days prior to the redemption date by the Tr�stee to the Payi.ng
Agent and the Registered Holders of Bonds to be redeemed or
Holders who have listed their names, addresses and the serial
nurnbers of their Bonds with the Trustee as provided in Section
� 4-6, and shall be published at least once at least 15 days
prior to the date fiaed for redemption in a daily or weekly
financial journal or newspaper of general circulation in
Minneapolis or Saint Paul, Minnesota. Published notice shall,
however, be effective without such mailed notice and no defect
in or failure to give mailed. notice shall affect the validity
� of the proceedings fo= redemption of any Bond. Such notice
38
shall state the subsection under Section 3-1 pursuant to which
the Bonds are being called for redemption, and unless all Out-
standing Bonds are to be redeemed, each such notice shall refer
� to the Bonds to be redeemed by their numbers and maturities and
the date on which . and the place where they shall be presented -
� for redemption. On .or be-fore the date fixed for redemption,
. funds .sufficient to redeem such Bonds, including accrued •
interest thereon to the redemption date and any premium, shall
be deposited with the Paying Agent. The Bonds thus called
shall not, on or after the specified redemption date, bear any
interest and, except for the purpose of payment, shall not be
entitled to the lien of the Indenture and the Assignment of
Leases and Rents or the benefits of the Loan Agreement.
Section 3-3. Cancellation.
�..-
All Bonds, urimature coupons"'��er=�°
-�a-�^nissg-the�e�'w.. which have been redeemed shall be cancelled by
the Trustee and shall not be reissued. The Trustee shall
deliver to the Issuer either such cancelled Bonds a�d Cou�Oas.
or a certificate of a Responsible Agent certifying as to the
destruction thereof�hpa in eres �iilp�iris"`�ne-�tnd:�
payat2�1��"""a't��e of redeniption which.apper�a°�:h"""� Bo onds""`sc�.
c�lled_..for-redemption°-°�iia�- aonfinue^to be payable to the `
Fiolders ,severaTZ.y and respectively untiT° the-°presentation and
..st�ead�nf.,��uch_...cQU�cns� . �.'�=-�---�
Section 3-4. Method of Redemption.
� (1) To effect the redemption of the Bonds under
subsection (1) or (2) of Section 3-1, the Partnership, at least
30 days before the redemption date, shall notify the Issuer and
Trustee of its intention to effect such redemption and shall •
provide the Trustee with funds suffici•ent for such purpose.
(2) The Trustee, on or before the twentieth day preceding
any specified redemption date shall, if the Bonds are to be
. redeemed by lot, make the selection in such manner as the
Trustee determines to be fair and appropriate, which may
include random selection by lot.
(3) To effect the partial redemption of Bonds under
subsection (1) of Section 3-1 after receipt by the Trustee of
notice from the Partnership, as provided herein, or to effect
• the redemption of Bonds under subsection (3) of Section 3-2,
39
i � �
ARTICLE FOUR
GENERAL COVENANTS
Section 4-1. Pa ent of Princi al, Premium
� ��an Interest. .
Solely from the monies derived from the Loan Agree-
ment and to the extent provided herein from proceeds of the
Bonds, tempora=y investments, or amounts recovered under the
Partnership Note, Lease or Assignment of Leases and Rento, the
� Issuer will duly and punctually pay the- principal of, premium,
if any; and interest on the Bonds in accordance with the terms
of the Bonds and this Indenture. Monies derived froia the Loan
• Agreement include all monies derived fram the Granting Clauses
set forth herein, including, but not limited to, Basic Payments
under the Loan Agreement, and trust funds deposited in the
funds and accounts established under Art�cle Five herein to the
extent and in the manner provided in said Article. Nothing in
. the Bonds or in this Indenture shall be considered as assigning
or pledging funds �r assets of the Issuer other than those
covered by the Granting Clauses set forth herein.
Section 4-2. Performance of and Authorit for -
ovenants.
The Issuer covenants that it will faithfully perform
at all times any and all of its covenants, undertakings, stip-
ulations and provisions contained in this Indenture, in any and
every Bond executed, authenticated and delivered hereunder and
in all proceedings of its governing body pertaining thereto;
that it is duly authorized under �he Constitution and laws of .
the State of Minnesota, including particularZy and wit2zout
limitation the Act, to issue the Bonds authorized hereby, to
execute t3zis Indenture, to loan the Bond proceeds to the
Partnership and to assign� and pledge the payments from the Loan
Agreement in the manner and to the extent herein �et forth;
� that all action on its part for the issuance of the Bonds and
the execution and delivery of this Indenture has been duly and
effectively taken; and that the Bonds in the hands of the
Holders thereof are and will be valid and enforceable
obligations of the Issuer according to the terms thereof.
41
. , �'zc'�� �� •
Section 4-3. Instrumen s of Further Assurance.
The Issuer covenants at it has not made, .done,
executed or suffered, and will �ot make, do, execute or suffer,
any act or thing whereby its iziterest in the Loan Agreement or
any part thereof is now or at;�any time hereafter impaired,
. change�i or encumbered in any iinanner whatsoever, .except as may
be expressly permitted herei� or in the documents described in
Section 2-5; and that it wiY`l �do, execute, acknowledge and
deliver or cause to be done; executed, acknowledged and
delivered, such instruments supplemental hereto and such -
further acts, instruments �iand transfers as the Trustee may
reasonably require for the better assuring, transfer.ring,
pledging, assigning and eonfirming unto the Trustee all and
singular the sums assigned and pledged hereby to the payment of
the principal of and intrerest on the Bonds.
Section 4-4. Recording and Filing. lL������,
The Trustee ovenants that solely from ava' able Addi-
tional Charges it wil cause the Ground Lease, the
G�, the Sal Assignment, the Lease, the Assignment of
Leases and Rents this Indenture, all supplements thereto and
aIl related f' ancing statements, to be kept, recorded and
filed in s manner and in such places as may be require�3 by
law in er to preser�e and protect fully the �security of the
Hold s of the Bonds and the rights of the T=ustee hereunder
a under any other instruments aforesaid.
Section 4-5. Books and Records.
� The Trustee covenants that so long as any Outstanding
Bonds issued hereunder and secured by this Indenture shall be
unpaid the Trustee will keep proper books or records and
accounts, in which full, true and correct entries will be made
� of all its financia2 dealings or transactions in relation to �
the Project and the paymex�ts derived from the Loan Agreement,
the Partnership Note, this Indenture and the Assigrunent of .
Leases and Rents. At reasonable times and under reasonable
regulations established by the Trustee, such books shall be
open to the inspection of Holders and such accountants or other
agencies as the Trustee may fram time to time designate.
Section 4-6. List of Bondholders.
To the extent that su�ch information is made available
to the Trustee, it will keep on file at its office a list of
the names and addresses of the last known Holders of all Bonds
and the serial numbers of the Bond believed to be held by each
42 �
of such last known Holders. Any Bondholder may request that
his name and address be placed on said list by filing a written
request therefor with the Trustee, which request shall include
� a statement of the principal amount of Bonds held by such Hold-
er and the serial numbers of such Bonds. The Trustee shall be
under no responsibility with regard to the accuracy of said
. list. • At reasonable times and under reasonable .reculations -
established by the Trustee, said list may be inspected and
copied by Holders (or a designated representative thereof) of
ten percent (10$) or more in principal amount of the then Out-
standing Bonds, such authority of any such designated represen-
tative to be evidenced to the satisfaction of the Trustee.
Section 4-7. Rights Under Loan Agreement.
The Loan Agreement sets forth covenants and obliga-
tions of the Issuer and the Partnership, and reference is
hereby made to the same for a detailed statement of said
covenants and obligations. The Issuer agrees to cooperate in
the enforcement of all covenants and obligations of the
� Partnership under the Loan Agreement and agrees that the
Trustee in its name or in the name of the Issuer may enforce
all rights of the Issuer and all obligations of the Partnership
under and pursuant to the Loan Agreement and on behalf of the
Holders, whether or not the Tssuer has undertaken to enforce
such rights and obligations. �
Section 4-8. Ri hts Under Lease and Assi ent
• o eases an Rents.
/� The Issuer acknowledges that it is not a party to the
Partnership Note, the Lease and Assignment of Leases and Rents
and that such ins ruments further secure payment of the Bonds .
and i.nterest the eon, and reference is hereby made to the same
for a detailed tatement of the obligations of the parties
thereto. The ssuer therefore agrees that, unless specifically
prohibited un er this Ind�nture, the Trustee in its name may
enforce all ligations under and pursuant to such instruments
and as here'n provided, on behalf of the Holders and without
the consen of the Issuer.
��
�
�
�
e�,, �.,-� _�,�,�.�,�'`�� 1�-��- _
� . - � � �
P��fs�� ►-��� � I� '
43
' e9��S�,'" J. .
ARTICLE FIVE �,�„�
FUNDS AND ACCOUNTS � �
. Section 5=1. =Tru'st Funds Pled and
Assi ne to the T ustee
and Lease Recei Fund.
(1) The proceeds of the Bonds and 11 payments, revenues
and income receivable by the Issuer und r the Loan Agreement
and pledged and assigned by this Inden re to the Trustee,
together with the balance of the Trust Estate, are to be paid
directly to the Trustee and, subject o the provisions of
Section 8-6, deposited by it in the F nds described in this
Article Five and held in trust for e purposes set forth
herein� and shall not be subject to y lien, levy, garnishment
or attachment by any creditor of th Issuer or the Partnership
� nor shall they be subject to any as ignment or hypothecation by
the Partnership.
(2) There is hereby created Lease Receipt` Fund. All .
Basic Rent and all Additional Rent paid to the Trustee u der
Sections 6.1 and 6.2 of the Lease hall be credited upon . _
�receipt to the Lease Receipts Fund oa-rearh
Av�u��!1� The Trustee shall ,transfer or pay-from the Lease
Receipts Fund the followi. amounts in the following order:
(A) To th Bond Fund such nortion of the Basic Rent
which, together the available balance therein, equals the
principal and i erest to become due on the next suc eedin
Maturity Date• . �'�'���,��.. l? ���..�a"'`d�
r
�B) T 'd�/(� Additional Rent paid to
he Trust�e pursuant to ' Section 6.4 of the Lease��.o �::o nk.c�e.a,�c..�
d
(C) To the Partnership y balance then remaining in
the ase Receipts Fund, less suc sums as are then
Tru�tee pursuant to Section 4.0 o the Loan A reement.
� / Section 5-2. Constr ction Fund.
(1) There is hereby cr ated a Construction Fund. e
. proceeds of the Bonds, exc t any sums required by Se ions 5-3
and 5-4 hereof to be depos ted in the Bond Fund and%the Reserve
Fund, shall be deposited n the Construction Fu and shall be
disbursed by the Trustee from the Constructio Fund in accor-
dance with the applicab e provisions of Art' le 3 of the Loan
Agreement. , 1 '
� � xl��J4✓� � -
c� � � � `�-�C �
�� � 1 ��'�'�' � ,
.�.�� � „�'
� � � -
c..�
(2) Any sums in the Construction Fund in excess of any
amount required to pay all Costs of the Project shall be
� transferred to the Bond Fund at the time or times and in the
manner provided in Article 3 of the Loan Agreement; provided
that all interest earnings derived from the investment of the
_ Bond proceeds held 'in the Construction Fund shall be used � .
solely to pay interest on the Bonds and for that purpose shall
be credited to the Bond Fund�each Februar� 15 and August 15.
Section 5-3. Revenue Bond Fund, Series 1983
Saint Paul Civic Center Pro�ect.
(1) There is hereby created a Bond Fund. All interest
which has accrued on the Bonds from their date of issue to the
date of Bond Closing shall be deposited in the Bond Fund.
Thereafter the Trustee shall make the following deposits ia the
Bond Fund on the dates indicated or upon receipt or upon
becoming subject to t ansfer to the Bond Fund, as the case may
be:
(A) on Fabruary 1 and August 1 of each year Basic
- Rent paid under the Lease as provided in Section 5-1(2) (A) and
any sums in the Reserve Fund to be transferred to the Bond Fund
as provided in Section 5-4(3j ; -
._ (B) On February 15 and August 15 af each year any
sum.s in the Construction Fund to be transferred to the Bond
• Fund as provided in Section 5-2(2) ;
(C) On February 20 and August 20 of each year Basic
Payments (whether paid when due or as prepayments) required by
Section 4.02 of the Loan Agreement (other than Basic Payments .
required to be added to or to restore the Reserve Fund) and any
interest thereon not paid when due;
(D) Any payment made by the Partnership under the
_ Partnership Note or received by the Trustee from the
Certificates of Deposit pursuant to Section 5-3(5) ;
(E) Any payments made by the Partnership under
Section 8.02 of the Loan Agreement; and
(F) All other sums required by the Loan Agreement,
. the Lease, the Assignment of Leases and Rents, or this
Indenture, to be paid into the Bond Fund or otherwise intended
to pay any principal, premium, or interest due on the Bondr-�
U
(2} Moneys in the Bond Fund shall be used and with wn
by the Trustee solely to pay the interest on Honds ey
become due and payable, including accrued int�e�est on any Bonds
_.----
. _4 .
�„�.�e�.� � �- �. ���� ��� �J �`-� ,� ��
� �� � � � ,��
�� ��- �� �'� ,��� ��
� � � ,�'�� _
��. S—�lC3J.FD �,c�� ���c;�,rk, �
`fl•.� �i�.c,�x-c-c- �i ff^� �.�.�-+, .
redeemed before maturity pursuant to this Zndenture and
including interest accruing on any Bond after its stated
maturity, if not then paid or redeemed, and, to the extent that
payment of such interest is lawful, interest upon overdue
installments of interest at the rate borne by the Bonds; to pay
the principal arnount of the Bonds at their respective stated
maturities; to redeem arid prepay Bonds in accordance with
Article Three and to pay any� penalty or prem`ium due thereon; to
discharge all Outstanding Bonds as provided in Article Seven;
or to purchase Bonds to the extent and in the manner required
under Section 5-6 hereof provided that:
(A) In no event shall regularly scheduled Basic
Payments deposited in the Bond Fund be deemed available to
purchase or prepay Bo;zds unless the Trustee first determines
that such sums are not required to pay the debt service on the
Bonds intended under the Loan Agreement to be paid from such
Basic Payments; and in no event shall Basic Rent, earnings
derived from the investment of Bond proceeds or Basic Rent or
any surplus Bond proceeds be used by the Trustee to prepay or
purchase Bonds without the consent of the Partnership.
(B) Any surplus construction fLnds transferred to
the Bond Fund as provided in Section 5-2 (2) in excess of
S (and interest earned thereon) shall be used by
t e Trustee a to redeein the largest number of Bonds callable,
without premium or penalty, under the ternes of this Indenture
at the first opportunity or (b) to pay that portion of the
annual principal due on the Bonds in an amount that bears the
same ratio. to the annnal principal due that the total of such
surpZus construction funds bear to the face amount of the
Bonds; and such funds transferred to the Bcnd Fund shall not be
invested by the Trustee to produce a yield greater than the
yield on the Bonds, as required by Internal Revenue Service
Revenue Procedure 7�-5, Revenue Procedure 81-22 and 26 CFR
� 601.201 (and any subsequent amendments, modifications or �
replacements thereof) ; provided that, if the Trustee receives
an opinion of Bond Counsel that the eaemption from federal
incozne taxation of interest on the Bonds will not be
jeopardized, the funds may be invested at a yield greater than
the yield on the Bonds or the balance may be applied to meet
� current debt service requirements and accordingly become a part
of the balance in the Bond Fund which may be credited against
current installments of Basic Payments as provided in Section
. 4.02(1) of the Loan Agreement.
� � If at any time the balance in the Bond FunB exceeds
the total amount of principal and interest to be paid on the
Bonds in the then current Bond year plus 1/12th of the total
46
amount of principal and interest paid and to be paid on the
Bonds in the current Bond year, the excess over such amount
� shall be invested only to the extent and within the limitations
permitted by Section 103(c) of the Code and applicable regula- _
tions. � -
(4) Under the Lease and Loan Agreements� tYie respective
obligations of the City and tYie Partnership to pay Basic Rent
or Basic Payments depends on the available balance in the Bond
Fund at the ti.me such payments are due. The Trustee shall
therefore/�certify in writing to the Citv� on each Januarv 15 and
July 15 tYie available balance expected to be in the Bond Fund
on in February 1 and August 1, as the case may be,
and to th� Partnership on eac e rua i5 and Au st 15 tfi
avai d 'n the f.��s' �k;*�q
int ' on an credit of Constr ' o..�Fund ?nt�rest
. 0 - . p
S
(�5 In the event that either on February 23 or August 23
� of ariy year the Partner has not made ic Pa ent as
reauired bv Artic� P d n?^�-}hA_r.^an A,$reements that the
balance in the Bond Fund is insufficient to pay principal or
interest to become due on the Bonds on the next succeeding
�je��s,c,,,� Maturity Date and so long as the Partnership Note secured- by
��,*�,� the Certificates of Deposit remains outstanding, the Trustee
,,�.•, shall present to the Bank a sight draft under the Certificates
�u�,(�i� �.6w,�of Deposit for an amount equal to the lesser of (i) the
1 deficiency �in the Bond Fund or (ii) the principal amount of an
C�rtificate of Deposit and shall deposit the Certificate of
Deposit proceeds into the Bond Fund.
Section 5-4. Reserve Fund. .
(1) There is hereby created a Reserve Fund. 'I'he Trustee
shall deposit in the Reserve Fund, forthwith upon receipt of
the proceeds of the Bonds; the sum of $ . Thereafte=,
the Trustee shall deposit in the Reserve Fun any moni.es to be
deposited therein pursuant to Section 5-1(2) (B) and any other
- �nies paid to the Trustee under the Loan Agreement or this
Indenture for credit or transfer to the Reserve Fund.
(2) Subject to the provisions of Section 8-6, amounts on
hand in the Reserve Fund shall be transferred by tYie Trustee to
. the Bond Fund if, on any Maturity Date, the amount then on hand
in the Bond Fund ia not sufficient to pay the principal,
premium, if any, and interest then due, whether at maturity or . /
upon redemptior� V
47
/ �o"•w.� � ",-� � `
. , . J_ � ,, , /_ � TU � G�.% . -
'�N�yG/1" �
f�
(3) Sums in e Reserve Fund not used to cure any deficit
in the Bond Fund as provided in subsection (2) shall be held in
the Reserve Fund in trust to be applied toward paymer�t of the
final installments f principal and accrued interest to become
due on the Bond�'3�or toward discharge of all Outstandir�g Bonds
as provided in �`ticle Seven; provided that any sums (including
. ,3;, ;. interest earnings) in tli�e Reserve Fund in �excess of the Reserve
�.,�'�---Seguirement shall be transferred to the Bond �Fund,,�on February 1
:� l�c,�� fand�,ugust 1 of each vear qand �used to make current payments o
, ;,%;principal or interest or�the Bonds, in which event a
� _ , / : commensurate reduction in Basic Rent shall be made without
� ��,Q'r notice to or conser.t of the Bondholders.
,��U -
(4) If at any time the balance in the Reserve Fur.d
exceeds $ , the excess over such amount shall be
invested only to the extent and within the limitations
permitted by Section 103 (c) of the Code and applicable
regulations.
Section 5-5. Notification of Bond Insurer and
Insurance Trustee. _
In the event that on the business day prior to
any Maturity Date sufficient monies are not available to pay
all Bond principal and interest due at maturity or stated� d�ate
for payment on such date, the Trustee shall immediately notify
AMBAC and United States Trust Company of New-York or its
successor as "Insurance Trustee" under Municipal Bond Insurance
Policy No. of AMBAC of the amount of the expected
deficiency. The Trustee shall repeat such notice on such
Maturity Date.
Section 5-6. Purchase or Prepayment of Bonds
at Request of Com any.
� � Pursuant to written request from a Representative of
the Partnership, and upon �deposit by the Partnership in the
Bond Fund of sums in excess of regularly scheduled Basic
Payments or Basic Rent and other payments then and theretofore
required to be so deposited, which, together with any other
available funds in the Bond Fund requested to be so used by
� said Reps�esentative, are sufficient to prepay under Seetion
' or �`9a or purchase one or more Bonds, as provided in
N1 i Section 8.02 of the Loan Agreement, the Trustee shall endeavor
, �, to prepay in accordance with tlieir terms and the provisions of
Sections 3-2 and 3-4 or purchase on terms satisfactory to the
Partnership, as the case may be, so many of the Bonds as the
stun deposited and any other available funds will permit. All
Bonds purchased by the Trustee shall be cancelled as soon as
48 �
i
' Y
received unless otherwise directed in the request of the
Partnership Representative.
� Section 5-7. Deposit of Funds with Paying Agent.
(1 ) The Trustee sha�ll transfer and remit sums from the
. Bond F.und to the Paying =Agent on or before each .Maturity Date, .
from the balance then on hand in the Bond Fund, sufficient to
pay all principal, interest and redemption premiums then due on
Bonds. The Paying Agent shall hold in tsust for the Holders of
such Bonds all sums so transferred to it until paid to such
Holders or otherwise disposed of as herein provided.
(2) Znterest on each Bond shall (a) cease on its maturity
date, or on any prior date an which it shall have been duly
called for redemption as herein provided, provided that f�nds
sufficient for the payment thereof with accrued interest and
any redemption premi.um have been deposited with the Paying
Agent on or before the maturity date or redemption date, as the
case may be, and in the case of redemption, that the require-
� ments of Article Three have been complied with, or (b) shall
cease on any date after maturity on which such deposit has been
made, inciuding accrued intezest to the date of deposit and
interest, to the extent perrnitted by law, on overdue
installments of interest at the rate borne by such Bond, '�'i8
t.d�e-�:a�,er,,�s�,co��os�ta�r�i-ng--a fte�-n�se�e�t-�redesnpt�.�at2
s�a11,.1�eccine�°�nri.d, and the Holder shall have" no further rights
with respect to the Bonds .or-�ot��s or under this Indenture
except to receive the payment so deposited.
(3) If there is any Paying Agent who is not the Trustee,
the Trustee will cause such Paying Agent to execute and deliver
to it an instrument in which such Paying Agent shall agree with .
the Trustee, subject to the provisions of this Section 5-7,
that such Paying Agent will:
(a) hold all sums held by it for the payment of prin-
. cipal of (and premium, if any) or interest on Bonds in
trust for the benefit of the Holders of such Bonds until
such sums shall be paid to such Holders or otherwise
disposed of as herein provided; and -
(b) at any time during the continuance of any
default in the making of any such payment of principal
. (and premium, if any) or interest, upon the written
request of th� Trustee forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
TYie Trustee, acting as. Paying Agent, shall also be bound by the
� terms of the foregoing requirements.
49
ARTICLE SIX
INVESTMENTS .
Section 6-1 . Investments by Trustee.
(1) Except during the continuance of an Event of Default,
and subject to the provisions �of Section 6-2, monies held for
the credit of the Funds established by Article Five shall be
held by the Trustee as required by law and shall at the written
request, or verbal request confirmed in writing, of the
Representative of the Partnership, to the extent practicable
and permitted by the Act, be invested as received and reinvest-
ed by the Trustee in such securities as are authorized by law
(including iavestments in securities authorized by Minaesota
Statutes, Section 471.56 through a comman trust fund or similar
fund maintained by a bank eaclusively for the collective
_ investment and reinvestment of monies contributed thereto by
the bank in its capacity as trustee, certificates of deposit,
and repurchase agreements) ; provided that sums held in the Bond
Fund and the Reserve Fund may only be 3.nvested in Permitted
Investsaents. The type, amount and maturity of such investments
sYiall be as specified by the Representative of the Partnership,
subject to the approval of . the Trustee; provided that sums -in
the Bond Fund may in any event onZy be invested in securities
which mature or are subject to redemption or 'repurchase at the
option of the Trustee on or pri�or to the date or dates on which
the Trustee anticipates. that cash funds will be required.
(2) The Trustee shall sell and reduce to cash funds , o�t
more than five davs before such cash is needed a sufficient
portion of investments under the provisions of this Section
whenever the cash balance in the Fund for which the investment
_ was made is insufficient for its current requirements.
Securities so purchased as an investment of money shall be held
by the Trustee, shall be �egistered i.n the name of the Trustee
if registration is required, and shall be deemed at all times a
part of the applicable Fund, and the interest accruing thereon
and any profit realized from such investments shall be credited
to the Fund from which the investment was ma.de. Any loss
� resulting fram such investment shall be charged to the Fund
from which the investment was made, subject to any transfer to
another Fund as herein provided.
(3) The Trustee may purchase from or sell to itself, �or
_ through any affiliated company, as principa� or agent,
securities herein authorized so long as such purchase cr sale
is at fair market value.
50 �
Section 6-2. Return on Investments.
(1) The Trustee will not use the proceeds of the
. Bonds or other sums pledged to the payment of the Bonds,
directly or indirectly, to acquire any securities or .
obligations the acquisition of which would cause any of the
. Bonds .to be an "arbitrage bond" �as defined in . Section 103 (c) of •
the Internal Revenue Code and any applicable �regulations there-
under, and for this purpose the Trustee, in order to restrict
yield on investments, may invest in SLGS {and accordingly is
hereby authorized to act as agent of the Issuer for such
purpose) and may assurae (unless otherwise specified in writing
by the Partnership or the Issuer) that the yield on the Bonds
is . The Trustee shall be fully protected in
relying on an opinion of Bond Counsel with respect to whether
the acquisition of any securities or obligations would have t1z�
effect prohibited by this Section.
(2} The Trustee shall not invest any Restricted
Construction F'unds to produce a yield greater than the yield on
� the Bonds.
(3) The provisions of this Section 6-2 shall survive
discharge and release of the Indenture.
Section 6-3. Computation of Balances in Fund.
(1) In computing the assets of any Fund established
hereunder, � investments and accrued but unpaid interest thereon
shall be deemed a part thereof, and sucli investments, other
than in the Reserve Fund, shall be valued at par value, or at
the redemption price thereof, if then redeemable at the option
of the holder; provided that in any event for purposes of .
determining whether any balance in a Fund may oniy be invested
at a restricted yield to comply with Section 103 (c) of the Cade
and the Federal arbitrage regulations, any investments in the
Fund shall be valued at their par value or the price at which
they were purchased, whichever is the greater.
(2) In camputing tlze amount in the Reserve Fund for
purposes of determining whether the Reserve Requirement has
been satisfied, obligations purchased as an investment of
monies therein shall be valued at par if purchased at par or at
amortized value if purchased at other than par. Amortized
. value means the value as of any given tin►e obtained by dividing
the premium or discount at which such obligation was purchased
by the number of remaining interest payment dates on such
obligation after purchase, by multiplying that amount by the
number of interest payment dates that have occurred between the
51
purchase date and the date of valuation and deducting the
amount calculated from the purchase price if the obligation was
purchased at a premium and adding the amount thus ca�culated to
the purchase price if the obligation was purchased at a
discount. Valuation of the Reserve Fund shall be made �
l�of each Bond Year. �
4k -e-Q--c� I
�"``r G�,��-�' /
s2 �
ARTICLE SEVEN "
DISCHARGE OF LIEN
Section 7-1 . Pa ent of Bonds 'a�d' ;
_ Sat�s action and Discharge o
. . . -Bonds and Obligation to . -
Bondholders.
Whenever the conditions specified in either clause
(A) or clause (B) of the following subsection (1) and the
conditions specified in the following subsections (2) , (3) and
(4) , to the extent applicable, shall exist, namely:
(1) either
(A� a11 Bonds aar3.o.a-3�i--e�t'pbmrs;�i , ' �g
.._.�he�-eto have been cancelled by the Trnstee or delivered to the
Trustee for cancellation, excluding, however, - ,
��'' coupon�c��taining to Bonds
called for redempt3:on `and• maturing after the
relevant redemption date,
�i) Bonds ar�d°�cv�pons for whose � -
payment money has theretofore been deposited
__ in trust or segregated and held in' trust by
the Paying Agent and thereafter repaid to the �
Partnership or discharged from such trust, as
' provided in Section 5-7 hereof, and
Ga�`ii) Bonds alleged to have been
destroyed, lost or stolen which have been .
replaced or paid as provided in Section 2-7
hereof, and (1 ) which, prior to the
satisfaction and discharge of this Indenture
as hereinafter provided, have not been
presented to the Paying Agent or the Trustee
with a claim of ownership and enforceability
by the Holder thereof, or (2) whose
enforceability by the Holder thereof has been
determined adversely to the Holder by a court
of cornpetent jurisdiction or other competent
tribunal; or
(B) the _Issuer or the Partnership has deposited or
caused to be deposited as trust funds:
53
at the expense, of the �artnership in the same manner as is
provided by Section 3-2 hereof;
(2) the Issuer or the Partnership has paid, caused to be
paid or made arrangements satisfactory to the Trust�e for the
payment of all other sums payable hereunder and under the Loan
Agreement and the Assignment of Leases and Rents by the Trustee
or the Partnership until the Bonds are so paid;
(3) if any Additional Bonds have been issued the
conditions specified in clause (A) or clause (B) of subsection
(1) above shall also have been met with respect to such
Additional Bonds as if they were also Bonds;
� (4) the Partnership has delivered to the Trustee a report
of an Independent Accountant stating that the payments to be
made on tY�e security referred to in clause (B) of subsection
. (1 ) above will be sufficient to pay when due the principal of,
premium, if any, and interest on the Bonds and any Additional
Bonds to be defeased;
54 �
t12en, except as otherwise provided in Sections 6-2 and 7-5, the
rights of the Bondholders shall be limited to the cash or cash
and securities deposited as provided in clause (A) or (B) above
� and upon the Partnership' s request the rights and interest
hereby granted or granted by the Loan Agreement and the �
Assignment of Leases and -Rents to or for the benefit of the
. Trustee or Bondholders shall cease, terminate .and become null -
and void, and the Issuer and the Trustee shall, at the expense
of the Partnership, execute and deliver such instruments of
satisfaction and transfer as raay be necessary, and forthwith
the estate, right, title and interest of the Trustee in and to
all of the Project and in and to all rights under the Loan
Agreement, this Zndenture and the Assignment of Leases and
Rents (except the monies and/or securities deposited as
required above and except as may otherwise be provided in
Sections 6-2 and ?-5) , shall thereupon be discharged and
satisfied; except that in any event the obligations of the
Partnership under Sections 7.04 and 7.07, of the Loan Agzeement �
shall survive.
� Section 7-2. Cancellation of Surrendezed Bonds,2tnd--
�0.,��-,�.�-��"''.�° . -
The Issuer or �y may at any time surrender to
the Trustee for cancellation by the Trustee any Bonds � -
previously� authenticated and delivered hereunder, t�r w""'"""ith
a�.�a.�.-c,°uPa��__ ____. ___- ----� �'�i
i s-.ed�iri"�an'�man�ner��r, and such Bonds as3c�-
C�mPa�r``;�:q y
�eenponc., upon such surrender and cancellation, shall be deemed
to be paid and retired.
Section 7-3. Payment of Bond� .
Any Bonds �pons ���r��-��n�^�-}�erct.�o shall be
deemed paid, if the conditions set forth in clause (A)_ or. (B)
of subsection (1) of Sect�.on 7-1 and, if clause (B) is
ap licable and securities are deposited in trust, subsection
(4�, have been satisfied with respect thereto even though other
Bonds may reinain Outstanding.
Sectioa 7-4. Application of Deposited Money.
All money, obligations and income thereon deposited
with the Trustee pursuant to Section 7-1 for the purpose of
. paying the principal, premium, if any, and interest on Bonds
and any Additional -Boncls shall be applied by the Trustee solely
for such purpose.
55
Section 7-5. Completion of Project.
(1) If (a) provision should be made under this .Article
Seven for discharge of the Bonds prior to completion of the
Project, (b) the Project has not been abandoned, (c) proceeds
of the Bonds (including interest thereon) not applied towards
. payment of the Bonds remain in the Construction ,Fund, and (d)
provision is not otherwise made for disposition of such Bond
proceeds in a separate agreement to which the Issuer is a
party, then the Trustee shall continue to administer the
Construction Fund for purposes of applying such Bond proceeds
towards payment of Project Costs as provided in the Indenture
untiZ such Bond proceeds are exhausted or the Project is
completed, whereupon any surplus Bond proceeds in the
Construction Fund shall be remitted to the Partnership.
(2) The provisions of this Section 7-5 shall survive the
release and discharge of this Indenture.
56 �
ARTICLE EIGHT
� DEFAULT PROVISIONS AND REMEDIES
. Section 8-1. �Events of Default. , . .
Subject to �the provisions of Section 8-10, any of the
following events is hereby defined as and declared to be and to
constitute an Event of Default (whatever the reason for such an
Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule
or regulation of any administrative or governmental body) :
(1) If default shall be made in the due and punctual pay-
ment of any interest on any Outstanding Bond hereby secured; or
(2) If default shall be made in the due and punctual pay-
ment of the principal of any Outstanding Bond hereby secured,
whether at the stated maturity thereof or at the date fixed for
redemption thereof, or upon the maturity thereof by declara-
tion, plus redemption premium, if any; or
(3) If default si�all be made in the due and punctual
payment of any other monies required to be paid to the Trustee
under the provisions hereof and such default shall have con-
_ tinued for� a period of thirty (30) days after written notice
thereof, specifying such default, shall have been given by �he
Trustee to the Issuer, and the Partnership, or to the Issuer,
, the Partnership and the Trustee by the Holders of not less than
twenty-five percent (25$) in aggregate principal amount of the .
then Outstanding Bonds; or .
(4) If default shall be made in the performance or observ-
ance of any other of the Covenants, agreements or conditions on
the part of the Issuer in this Indenture, or in the Bonds con-
� tained, and such default shall have continued for a period of
thirty (30) days after written notice thereof given in the
manner provided in clause (3) above; or
�5) If an Event of Default as defined in the Loan
Agreement, Lease or Assignment of Leases and Rents has occurred
. and is continuing or amounts due under the Partnership Note are
not paid when due. _ �
57
Section 8-2. Acceleration.
Intentionally omitted. .
Section 8-3. Remedies.
. (.1) Upon the occurrence of an Event �of .Default, the
Trustee may proceed to pursue any available remedy by suit at
. law or in equity to enforce all rights of the Bondholders,
including without limitation the right to the payment of the
principal or premium, if any, and interest on the then
Outstanding Bonds and the Trustee' s rights under the Loan
Agreement, Lease,_ Partnership Note and the Assignment of Leases
and Rents, but without the right to accelerate payment on the
Bonds. Upon the occurrence of an Event of Default under the
Loan Agreement, the Trustee may also er,force any and all rights
of the Sssuer thereunder. �
(2) If an�• Event of Default shall have occurred, and if
it shall have been requested so to do by the Holders of twenty-
five percent (25$) in aggregate principal amount of the then
Outstanding Bonds, and if it shall have received an indemnity
bond as provided in Section 9-1 hereof, the Trustee shall be
obliged to exercise such rights and powezs conferred on the
Trustee by this Section and under the Assignment of Leases-and
Rents, as the Trustee (being advised by Indepe�dent Counsel) ,
shall sieem most expedient in the interests o� the Bondholders;
provided, however, that the Trustee ' shall have the right to
decline to comply with any such request if the Trustee shall be
advised by Independent Counsel that the action so requested may
not lawfully be taken or if the Trustee in good faith shall
determine that such action would be unjustly prejudicial to the
Bondholders not parties t� such request.
(3) No remedy by the terms of this Indenture conferred
� upon or reserved to the Trustee (or to the Bondholders) is �
intended to be exclusive of any other remedy, but each and
every such remedy shall be cumulative and shall be in addition
to any other remedy (i) given to the Trustee or to the Holders
hereunder or (xi) now or hereafter existing at law or in equity
or by statute.
(4) No delay or omission to exercise any right or powez
accruing upon any Event of Default shall impair .any such right
. or gower or shall be construed to be a waiver of any such Event
of Default, or acquiescence therein; and every such right and
power may be exercised from time to time and as often as may be
deemed expedient.
' 58 �
(5) No waiver of any Event of Default hereunder, whether
by the Trustee or by the Holders, shall extend to or shall
affect any subsequent Event of Default or impair any rights or
• remedies consequent thereon.
Section 8-4. Direction of Proceedings
. . -By Bondholders. , . -
The Holders of a majority in aggregate principal
amount of the then �utstanding Bonds shall have the right, at
any time, by an instrument or instruments in writing executea
and delivered to the Trustee, to direct the method and place
within Minnesota of conducting alI proceedings to be taken in
connection with the enforcement of the terms and conditions of
this Indenture, the Loan Agreement and the Assignment of Leases
and Rents or for the appointment of a receiver or any other
proceedings hereunder; provided, that such direction shall not
be otherwise than in accordance with the provisions of law and
of this Indenture.
� Section 8-5. Waiver of Stay or Extension
Laws.
Upon the occurrence of an Event of Default, to the
extent that such rights may then lawfully be waived, neither
the Issuer. nor anyone �laiming through it or u�der it shall or
will set up, claim, or seek to take advantag� of any
appraisement, valuation, stay, extension or redemption laws now
or hereafter in force, in order to prevent or hinder the _
enforcement of this Indenture, but the Issuer, for itself and
all who may claisa through or under it, hereby waives to the
eatent that it lawfully may do so, the benefit of all such laws
and al.l right of appraisement and redemption to which it may be .
entitled under the laws of the State of Minnesota.
Section 8-6. Prior�ty of Payment and
� A�cation of Monies.
� All Bonds issued hereunder and secured hereby. shall
be equally and ratably secured by and payable from the Bond
Fund, without priority of one Bond over any other, except as
otherwise expressly provided herein. Upon the occurrence of an
Event of Default all monies collected pursuant to action taken
under the Loan Agreement or the Assignment of Leases and Rents
. (other than sums payable directly to the Issuer under Section
9.03 of the Loan Agreenient) after payment of the cost and
expenses of th� proceedings resulting in the collection of such
monies (including any such eosts and expenses incurred by the
59
Issuer) and of the expenses, liabilities and advances incurred
or made by the Trustee and after any other prior application of
such monies has been made as is required by Zaw shall be
deposited in such Fund or Funds described in Article Five as
the Trustee deems appropriate; and all monies in the Bond Fund
(and at the discretion of� the Trustee except when otherwise
. requir.ed hereunder any other Fund described in Article Five) ,
excluding however any monies held in trust for the payment o�� •
Bonds '-�r�a � t �erv�i-0s�e. �ome v�`""°
payable prior to such Event of Default, shall be applied as ��
� follows:
(1) Unless the principal of all the Bonds shall have
become or shall have been declared due and payable, all such
monies shall be applied:
FIRST: To the payment of the persons entitled there-
to of all installments of interest then due on the Bonds, in
the order of the n�aturity of the installments of such interest
and, if the amount available shall not be sufficient to pay in
full any particular installment, then to the payment ratably,
according to the amounts due on such installment, to the per-
sons entitled thereto, without any discrimination or privilege;
SECOND: To the payment of the persons entiticd �here-
to of the unpaid principal of and redemption premium, if any,
on any__ of the Bonds which shall have become due (other than
Bonds which have matured or have otherwise become payable prior
to such Event of Default and monies for the payment of which
are held in trust pursuant to the provisions of this Indenture)
in the order of their due dates and, if the amount available
shall not be sufficient to pay in full the unpaid principal and
redemption premium, if any, on Bonds due on any particular due
date, then to the payment ratably, according to the amount of
principal and premium, if any, due on such date, to the persons
� entitled thereto without any discri.mination or privilege; and -
THIRD: To the payment of interest and premium, if
any, on arid the principal of the Bonds, and to the redemption
of Bonds, as thereafter inay from time to time become due, all
in accordance with the provisions of Article Five of this
� � Indenture.
(2) If the principal of all Bonds shall have become due
. or shall have been declared due and payable, all such monies
shall be applied to the payment of the principal, redemption
premium,� if any, and interest then due and unpaid upon the
60 �
Bonds, without preference or priority of principal or any
redemption premium over interest or of interest over principal
or any redemption prezaium, or of any installment of interest
• over any other installment of interest, or of any Bond over any
other Bond, ratably, according to the amounts due resgectively
for principal and interest,_ to the persons entitled thereto
. without ariy discrimination or privilege. . . .
(3) If the principal of� all the Bonds shall have been
declared due and payable, and if such declaration shall there-
after have been rescinded and annulled under the provisions of
this Article, then, subject to the provisions of paragraph (2)
of this Section in the event that the _principal of all the
Bonds shall later become due or be declared due and payable,
the monies shal.l be applied in accordance with the provisions
of paragraph {1) of this Section.
Whenever monies are to be applied by the Trustee
pursuant to the provisions of this Section, such monies shall
be applied by it at such times, and from time to time, as the
� Tzustee shall determine, having due regard to the amount of
such monies available for application and the likelihood of
additional monies becoming available for such application in
the future. Whenever the Trustee shall apply such funds, it
shall (i) fix the date (which shall be an interest payment-date
unless it shall deem another date more suitable) upon which
sueh application is to be made and upon such" date i.nterest on
the amounts of principal to be paid on such dates shall cease
_ to accrue and (ii) on or before such date set aside the monies
necessary to effect such application. The Trustee shall give
such notice by publication or mailing as it may deem
appropriate of the deposit with it of any such monies and of
the fixing of any such date. Neither the Trustee nor any .
Paying Agent shall be re ui to make payment to the Holder of
any on until such Co��oa-cr Bond shall
be presented to the Trustee for apprcpriate endorsement or for
cancellation if fully paid.
Whenever all Bonds and interest thereon have been
paid ur�der the provisions of this S�ction 8-5, and all expenses
and charges of the Trustee and the Issue= have been gaid, any
balance remaining shall be paid to the person entitled to
receive the same; and if no other person sha�l be entitled
thereto, the balance shall be paid to the Partnership.
61
Section 8-7. Remedies Vested in Trustee.
All rights of action (including the right to file
proof of claim) under this Indenture or under any of the Bonds
may be enforced by the Trustee without the possession of any of .
the Bonds or the production thereof in any trial or other
. proce�dings relating thereto, and any such suit .or proceeding.
instituted by the Trustee shall be brought in its name as
Trustee without the necessity� of joining as plaintiffs or
defendants any Holders of the. Bonds, and any recovery of
judgment shall be for the equal benefit of the Holders of the
Outstanding Bonds to the extent and in the manner provided
herein. The Issuer and the Trustee hereby agree, without in
any way liiuiting the effect and scope thereof, that the pledge
and assignment hereunder to the Trustee of all rights included
within the Trust Estate shall constitute an agency �ppointment
coupled with an interest on the part of the Trustee which, for
all purposes of this Indenture, shall be irrevocable and shall
survive and continue in full force and effect notwithstanding
the bankruptcy or insolyency of the Issuer or its default
hereuader or on the Bonds.
Section 8-8. Rights and Remedies of
' Holders.
No Holder of any Bond shall have any- right to insti-
tute a�ny suit, action or proceeding in equity or at law for the
enforcement of this Indenture, the Loan Agreement, the Lease,
the Partnership Note or the Assignment of Leases and Rents or
for the execution of any trust hereof or any remedy hereunder
ar thereunder or for the appointment o.f a receiver, unless:
(i) a default thereunder shall have become an Event of Default
and the Holders of twenty-five percent (25$) in aggregate
principal antount of the then Outstanding Bonds shall have made
written request to the Trustee and shall have offered it reason-
- able opportunity either to proceed to exercise the powers -
hereunder granted or to institute such action, suit or
proceeding in its own name; (ii) such Holders sr.all have
' offered to indemnify the Trustee as provided in Section 9-1 and
(iii) tY�e Trustee shall thereafter fail or refuse to exercise
within a reasonable period of time the remedies hereunder
� granted, or to institute such action, suit or proceeding in its
own name. Such notification, request and offer of i.ndemnity
are hereby declared in every such case at the option of the
. Trustee to be conditions precedent to the execution of the
powers and trusts of this Indenture, and to any action or cause
62 �
of action for the enforcement of this Indenture, the Loan
Agreement, the Lease, the Partnership Note or the Assignment of
Leases and Rents, or for the appointment of a receiver or for
• any other remedy hereunder; it being understood and intended
that no one or more Holders of the Bonds shall have any right
in any manner whatsoever to affect, disturb or prejudice the
- lien of this Indenture, �the Lease, the Partnership Note and the -
Assignment of Leases and Rents, by its, his or their action or
to enforce any right thereunder except in the manner herein
provided, and that all proceedings at law or in equity shall be
instituted, had and maintained in the manner herein provided
and for the equal benefit of the Holders of all then
Outstanding Bonds; provided, however, that nothing in this
Section 8-8 shall be construed to preclude any Bondholder fro�a
enforcing, or impair the right of any Bondholder to enforce,
the pa��ent ,�y the Trustee of the principal of, and interest
and premium, if any, on any Bond o c on
at or after its date of maturity, if and to the extent that
• such payment is required to be made to such Bondholder by the
Trustee from available funds in accordance with the terms
� hereof.n
Section 8-9. Termination of Proceedings.
In case the Trustee shall have proceeded to enforce
any right under this Indenture, the Loan Agree�ent, the Lease
or the-- Assignment of LeaseS and Rents by the' appointment of a
receiver, by entry and possession or otherwise, and such
proceedings shall have been discontinued or abandoned for any
reason, or shall have been determined adversely to the Trustee,
then and in every such case the Issuer and the Trustee shall be
restored to their fornner positions and rights hereunder with
respect to the property herein conveyed, and all rights, �
remedies and powers of the Trustee shall continue as if ne such
proceedings had been taken.
Section 8-10. Waiver of an Event of Default.
The Trustee may in its discretion waive any .Event of
Default hereunder and its consequences, and shall do so upon
written request of the Holders of (1) a majority in aggregate
principal amount of aIl t3�e Bonds then Outstanding in respect
of which default in the payment of principal and/or interest
exists, or (2) a majority in aggregate principal amount of all
• the Bonds then Outstanding in the ease of any other Event of
Default; provided, -however, that there shall not be waived (A)
any Event of Defau2t in the payment of the principal of or
premium on any Outstanding Bonds on the redemption date or at
the date of maturity specified therein or (B) any Even� of
63
Default in the payment when due of the interest on any such
Bonds, unless prior to such waiver all arrearages of interest,
with interest (to the extent permitted by law) at the rate
borne by the Bonds in respect of which such Event of Default
shall have occurred, and all arrearages of payments of
principal and premium, if any, with interest (to the extent
. permitted �by Zaw) at the rate borne by the Bonds in respect of
which such Event of Default �shall have occurred, and all
expenses of the Trustee and Paying Agents in connection with
such Event of Default, shall have been paid or provided for.
No such waiver or rescission shall extend to any subsequent or
other Events of Default, or impair any right consequent
thereon. _ -
Section 8-I1. Partnership as Agent of Issuer.
(1} Anything herein to the contrary notwithstanding, no
default under Section 8-1 (3) or (4) of this Indenture��shall
constitute an Event of Default until actual notice of such
default by registered or certified mail shall be given by the
Trustee to the Issuer and the Partnership, and the Partnership
and the Issuer shall have had the time permitted by the
applicable subsection after receipt of such notice to correct
said default or cause said default to be corrected and the
Issuer or Partnership shall not have corrected said default or
caused said default to be corrected within said time; provided,
however, if said default occurs under Sectior� 8-1 (4) and is
such that it cannot be corrected within the time permitted by
Section 8-1(4) , it shall not constitute an Event of Default if
. corrective action is instituted by the Issuer or Partnership
within said time and diligently pursued until the default is
corrected.
(2) With regard to any alleged default concerning which
notice is given to the Partnership under the provisions of this
� Section 8-11, the Issuer hereby names and appoints the �
Partnership as its attorn�y-in-fact and agent with full
authority to perform any covenant or obligation of the Issuer
alleged in said notice to constitute a default, in the name and
stead of the Issuer with full power to do any and all things
and acts to the same extent that the Issuer could do and
� perform any such things and acts and with power of
substi�ution; provided that the Partnership shall give the
Issuer notice of its intention so to perform on .behalf of the
. Issuer, and p=ovided further that, except for an alleged
default under the Lease the Issuer may a any time, y a
wri ing a resse o the Partnership, cancel, withdraw, limit
or modify the appointment hereby made.
64
ARTICLE NINE
THE TRUSTEE �
Section 9-1. Acceptance of the Trustee.
The Trustee, prior to the occurrence of an Event of
Default, undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture; and no .implied
covenants or obligations should be read into this Indenture
against the Trustee. In case an Event of Default has occurred
the Trustee agrees to perform such trusts as an ordinarily
prudent trustee under a corporate mortgage, but in any such
event, only upon and subject to the _`ollowing express terms and
conditions:
(1) The Trustee may execute any of the trusts or powers
hereof and perform any of its duties by or through attorneys,
agents, receivers, or employees, but shall be answerable for
the conduct of the same in accordance with the standard
specified above, and shall be entitled to advice of counsel �
concerning all matters of trusts hereof and duties hereunder,
and may i.n all cases pay such reasonable compensation to any
attorney, agent, receiver or employee retained or employed by
it in connection herewith. T'he Trustee ma� act upon tlze written
opinion or written advice of any attorney, surveyor, engineer
or accountant selected by it in the exercise of reasonable care
or, if selected or retained by the Issuer, approved by the
Trustee in the exercise of such care, provided that the only
legal advice or opinion that the Trustee may rely upon for
purposes of securing advice or an opinion relating to the tax
exempt status of the Bonds is given by a firm of nationaily
recognized bond counsel experienced in tax exempt industrial
revenue bond financing. The Trustee shall not be responsible
for any lo5s or damage resulting from any action or nonaction
in good faith in reliance� upon such opinion or advice.
(2) The Trustee shall not be responsible for any recital .
herein, or in the Bonds (except with respect to the certificate
of the Trustee endorsed on the Bonds) or for the investment of
monies as herein provided, except as provided in Section 6-2,
or for insuring the Project or collecting any insurance monies,
or for the validity of the execution by the Issuer of th�s In-
denture, or of any supplemental indentures or instruments of
further assurance, or for the sufficiency of any security far
65
the Bonds issued hereunder or intended to be secured hereby, or
for the value of title of the property herein conveyed, if any,
or otherwise as to the maintenance of the security hereof;
� except as otherwise provided in Section 4-4 and except that in
the event the Trustee enters into possession of a part or all
of the property conveyed pursuant to any provisions of this
. Indenture, or the Assignment of Leases and Rents, it shall use -
due diligence in preserving such property. The Trustee may,
but shall be under no duty to, =equire of the Partnership full
information and advice as to the performance of the covenants,
conditions and agreements in the Loan Agreement, Lease and
Assignment of Leases and Rents as to the condition of the
Project and the performance of all other obligations thereunder
and shall use its best efforts, but without any obligation, to
advise the Issuer and the Partnership of any impending Event of
Default known to the Trustee.
(3) The Trustee shall not be accountable for the use or
application by the Issuer or the Partnership of any .of the -
Bonds or the proceeds thereof (except as herein expressly
� provided) or for the use or application of any money paid over
by the Trustee in accordance with the provisions of this
Indenture or for the use and application of money received by
any Paying Agent. The Trustee may become the owner of Bonds
and coupons secured hereby with the same rights it would �have
if not Trustee. .
(4) The Trustee shall be protected in acting upon any
` written notice, order, requisition, request, consent, certi-
ficate, opinion (including an opinion of Independent Counsel or
- Bond Counsel) , affidavit, letter, telegram or other paper or
document reasonably believed by it to be genuine and correct
and to have been signed or sent by the proper person or .
persons. Any action taken by tYie Trustee pursuar:t to this
Indenture upon the request or authority or consent of any
person who at the time of making such request or giving such
authority or consent is the Holder of any Bond, shall be
conclusive and bi:�ding upon all future Holders of the same Bond
and upon Bonds issued in exchange therefor or in place thereof.
(5) As to the existen�e or non-existence of any fact er
as to the sufficiency or authenticity of any instrument, paper
or proceeding, the Trustee shall be entitled to rely upon a
certificate of the Issuer signed by authorized officer under
. the seal of the Issuer as sufficient evidence of the facts
66
stated therein as the same appear from the books and records
under the Authorized Officer' s custody or control or are
otherwise known to him. The Trustee may accept a ce�tificate
of an authorized officer of the Issuer under the seal of the
Issuer to the effect that a motion, resolution or ordinance in
the form therein set forth has been adopted by the governing
. body of the Issuer as conclusive evidence that such motion,
resolution or ordinance has been duly adopted, and is in full
force and effect, and may accept such motion, resolution or
ordinance as sufficient evidence of the facts stated therein
� and the necessity or expediency of any particular dealing,
transaction or action authorized or approved thereby, but may
at its discretion, secure such further evidence deemed
necessary or advisable, but shall in no case be bound to secure
the same.
(6) The Trustee shall not be answerable except for its
negligence or willful default.
. (7) The Trustee shall not be personally liable for any
debts contracted or for damages to persons or to personal
property injured or damaged, or for salaries or nonfulfillment
of contracts during any period in which it may be in possession
of or managing the real and tangible personal property as in
this Indenture provided. -
(.8) At any and all reasonable times, the Trustee, and its
duly authorized agents, attorneys, experts, engineers, account-
ants and representatives, shall have the right fully to inspect
any and alI of the property comprising the Project, includi.ng
all books, papers and records of the Issuer pertaining to the
Project and the Bonds, and to take such memoranda from and in
regard thereto as may be desired.
(9) The Trustee shall not be required to give any bond or
surety in respect to the execution of said trusts and pcwers or �
otherwise in respect to the premises.
(10) Notwithstanding anything elsewhere in this Indenture ---
contained, the Trustee shall have the right, but shall not be
required, to demand, in respect to the authentication of any
� Bonds, the withdrawal of any cash, the release of any property
or any action whatsoever within the purview of this Indenture,
any showings, certificates, opinions (including .opinions of
. Independent Counsel) , appraisals or other information, or
67 � .
corporate action or evidence thereof, in addition to that by
the terms hereof required as a condition of such action by the
Trustee, deemed desirable for the purpose of establishing the
• right of the Issuer to the authentication of any Bonds,. the
withdrawal of any cash, the release of any property, or the
taking of any other actio� by the Trustee.
(11) Before taking any action hereunder, the Trustee may
require that it be furnished an indemnity bond satisfactory to
it for the reimbursement of all expenses to wYiich it may be put
and to protect it against all liability except liability which
is adjudicated to have resulted from the negligence or willful
default of the Trustee, by reason of any action so taken by the
Trustee.
Section 9-2. Trustee' s Fees, Char es
an Expenses.
The Trustee and any Paying Agent shall be entitled to
payment and/or reimbursement for reasonable fees for services
� rendered hereunder and all advances, counsel fees and other
expenses reasonably and necessarily made or incurred by the
Trustee in and about the execution of the trusts created by
this Indenture and in and about the exercise and perfosmance of
the powers and duties of the Trustee hereunder and for the-
reasonable. and necessary costs and expenses incurred in defend-
ing any liability in the premises of any character whatsoever
�(unless such liability is adjudicated to have resulted from the
negligence -or willful default of the Trustee) . Zn this regard
the Issuer has made provisions in Section 4.03 of the Loan
Agreement for the payment of said fees, advances, counsel fees,
costs and expenses and reference is hereby made to said Loan
Agreement for the provisions so made; and the Issuer shall not .
otherwise be liable for the payment of such sums. Upon an
Event of Default, but only upon an Event of Default, the Trus-
tee shall have a first lien with right of payment prior to
payment on account of interest on or principal or premiuin, if
any, of any Bond and upon the money received by it hereunder or
� under the Lease and Assignment of Leases and Rents for said
fees, advances, counsel fees, costs and expenses incurred by
it.
� Section 9-3. Notice to Holders
o De ault.
The Trustee shall give to the Bondholders
-Mand--�addr written notice of all Events of
Default known to the Trustee, within ninety (90) days after the
occurrence of an Event of Default; provided that, except in the
68
case of an Event of Default in the payment of the principal of
or interest on any of the Bonds, the Trustee shall be protected
in withholding such notice if and so long as the Boaxd of
Directors, the executive committee or a trust committee of
directors or chief executive officer of the Trustee in good
faith determine that the withholding of such notice is in the
. interest of the Holders: .
Section 9-4. Intervention by Trustee.
In any judicial proceeding to which the Issuer is a
party and which in the opinion of the Trustee and its counsel
has a substantial bearing on the interest of owners of Bonds,
the Trustee may intervene on behalf of Holders and shall do so
if requested in writing by the owners of at least twenty-five
percent (25$) of the aggrega�e principal amount of Outstanding
Bonds. The rights and obligations of the Trustee under this
Section are subject to the approval of a court of competent
jurisdiction in the premises.
Section 9-5. Successor Trustee.
Any corporation, association or agency into which the
Trustee may be converted or merged, or with which it may be
consolidated, or to which it may sell or transfer its trust
business and assets as a whole or substantially as a whole, or
any corporation or association resulting froia any such conver-
sion, sale, merger,. consolidation or transfer to which it is a
party, ipso facto, shall be and become successor Trustee and
Paying Agent hereunder and under this Indenture and vested with
all of the title to the Trust Estate, and all the trusts,
powers, discretions,, immunities, privileges and all other
matters as was its predecessor, without the execution or filing
of any instrument or any further act, deed or eonveyance on the
. part of any of the parties hereto, anything herein to the
contrary notwithstanding.
Section 9-6. Resignation by the Trustee.
The Trustee and any successor trustee may at any time
resign from the trusts hereby created by giving thirty (30)
days written notice to the Issuer and to the Partnership and by
First class mail to each Holder of Bonds as shown by the list
of Holders maintained pursuant to Section 4-6 hereof, and such
. resignation shall take effect at the end of such thirty (30)
days, or upon the ea=lier appointment of a successor trustee by
the Holders or by the Issuer. Such notice to the Issuer and
the Partnership may be served personally or sent by registered
mail.
69 �
Section 9-7. Removal of Trustee.
The Trustee may be removed at any time by an
. instrument or concurrent instruments in writing delivered to
the Trustee, to the Partnership and to the Issuer, and signed
by the Holders of a majority in aggregate principal amount of
. then Outstanding Borids or siQneci bv the Partnership and the .
Issuer;
_ � .
Section 9-8. Appointment of the Successor Trustee.
In case the Trustee he�eunder shall resign or_ be
removed, or be dissolved or shall be in- course of dissolution
or liquidation, or otherwise become incapable of acting here-
under, or in case it shall be taken under the control of any
public officer or officers, or of a receiver appointed by a
court, a successor may be appointed by the Holders of a major-
ity in aggregate principal amount of the then Outstanding
Bonds, by an instrument or concurrent instruments in writing
signed by such Holders, or by their attorney-in-fact, duly
. authorized. _ Nevertheless, in case of such vacancy the Issuer
by resolution of its governing body may appoint a temporary
trustee to fill such vacancy until a successor trustee shall be
appointed by the Holders in the manner above provided; and any
such temporary trustee so appointed by the Issuer shall inm�edi-
ately and without further act be superseded by.the Trustee so
appointed by such Holders. Every such Trustee appointed
pursuant to the provisions of this Section 9-8 shall be a trust
company or .bank having trust powers and 2iaving a reported
capital and surplus not less than $1,000,000, if there be such
an institution willing, qualified and able to accept the trust
upon reasonable or customary terms.
Section 9-9. Acceptance by Successor Trustees.
Every successor Trustee appointed hereunder shall
execute, acknowledge and c�eliver to its predecessor, to the
Partnership and also to the Issuer, an instrument in writing
accepting such appointment hereunder, and thereupon such
successor, without any further act, deed or conveyance shall
become fully vested with all the estates, properties, rights,
powers, trusts, duties and obligations of its predecessors as
Trustee and Paying Agent; but such predecessor shall,
nevertheless, on the written request of the Issuer, or of its
, successor Trustee, execute and deliver an instrument
transferring to such successor Trustee all the estates,
properties, rights, powers and. trusts of such predecessor
70
, '
hereunder, and every predecessor Trustee shall deliver all
securities and monies held by it as Trustee hereunder to its
successor. Should any instrument in writing from the Issuer be
required by any successor Trustee for more fully and certainly
vesting in such successor the estates, rights, powers and �
duties hereby vested or intended to be vested in the
. predecessor trustee, any and all such instruments in writing
shall, on request, be executed, acknowledged and delivered by
the Issuer. The resignation of any Trustee and the instrvment
or instruments removing any Trustee and appointing a successor
hereunder, together with all other instruments provided for in
this Article, shall be forthwith filed and/or recorded by the
successor Trustee in each recording office where the Indenture
shall have been filed and/or recorded.
Section 9-10. Ri ht of Trustee to Pa
Taxes an Other Charges.
In case any tax, assessment or governmental or other
charge upon any part of. the P=oject is not paid, to the extent,
if any, that the same is legally payable, the Trustee may pay
such tax, assessment or governmental charge, without prejudice,
however, to any rights of the Trustee or the Bondholders h�re-
under arising in consequence of such failure; and any amount at
any time so paid under this Section or Section 5.04 of the-Loan
Agreement with interest thereon from the date of payment at the
rate established for such advances under Section 4.03 (4) of the
Loan Agreement, shall be repaid to the Trustee upon demand out
of Additional Charges under the Loan Agreement, and shall
become so much additional indebtedness secured by the
, Indenture, and the same shall be given a prefarence in payment
over any of the Bonds, but the Trustee shall be under no
obligation to make such payment unless it shall have been
requested to do so by the Holders of a�t least twenty-five
percent (25$) of the aggregate principal amount of the then
Outstanding Bonds and shall have been provided with adequate �
indemnity for the purpose' of such pa�ment. Any such payment
shall be made upon five (5) days' prior written notice to the
Partnership unless the delay occasioned by any such written
notice could result in the forfeiture or termination of any
right.
Section 9-11. Trustees Protected in Rel in
pon Reso utions.
The resolutions, orders, requisitions, opinions, cer-
tificates and other instruments provided for in this Indenture
may be accepted by the Trustee as conclusive evidence of the
facts and conclusions stated therein and shall be full warrant,
protection and authority to the Trustee.
71 �
, '�
Section 9-12. Successor Trustee as Custodian
o Bond Fun and Paying Agent.
• In event of a change in the office of Trustee the
predecessor trustee which has resigned or been removed shall
cease to be custodian of the funds prescribed in Article Five
, and shall cease to act as the Paying Agent for principal and •
interest on the Bonds, and the successor trustee shall be and
become such custodian and Paying Agent.
Section 9-13. Co-Trustee.
At any time or times, for the- purpose of ineeting any
legal requirements of any jurisdiction in which any part of the
Trust Estate may at the time be located, the Issuer and the
Trustee shall have the power to appoint, and, upon the request
of the Trustee or of the Holders of at least fifty-one percent
(51�) in aggregate principal amount of the then Outstanding
Bonds, the Issuer shall for such purpose join with the Truste�
in the execution, delivery and performance of all instruments
and agreements necessary or proper to appoint one or more
persons approved by the Trustee either to act as co-trustee or
co-trustees, jointZy with the Trustee of all or any part of the
Trust Estate, or to act as separate trustee or separate trus-
tees of all or any pazt of t�e Trust Estate, and to vest in
such person or persons, in such capacity, such right to the
Trust �state or any part thereof, and such rights, pawers,
duties, trusts or obligations as the Issuer and the Trustee may
consider necessary or desirable subject to the re.maining
p�ovisions of this Section 9-13.
If the Issuer shall not have joined in such appoint-
ment wi,thin fifteen (15) days after the receipt by it of a .
request so to do, or in case an Event of Default shall have
occurred and be continuing, the Trustee alone shall have power
to make such appointment.
The Issuer shall execute, acknowledge and deliver all
� . such instruments as may be required by any such co-trustee or
separate trustee for more fully confirming such title, rights,
powers, trusts, duties and obligations to such co-trustee or
separate trustee.
Every co-trustee or separate trustee shall, to the
. extent germitted by law but to such extent only, be appointed
subject to the following terms, namely:
72
� , .
(1) The Bonds shall be authenticated and delivered, and
all rights, powers, trusts, duties and obligations by this
Indenture conferred upon the Trustee in respect of the custody,
control or management of monies, papers, securities and other
personal property shall be exercised solely by the Trustee.
. (.2) All rights, powers, trusts, duties .and obligations
conferred or imposed upon the trustees shall be conferred or
imposed upon and exercised or performed by the Trustee, or by
the Trustee and such co-trustee or co-trustees or separate
trustee or separate trustees jointly, as shall be provided in
the instrument appointing such co-trustee or co-trustees or
separate trustee or separate trustees, except to the extent
that, under the law of any jurisdiction in which any particular
aet or acts are to be performed, the Trustee sha12 be incompe-
tent or unqualified to perform such act ar acts, in which event
such act or acts shall be performed by such co-trustee or co-
trustees or separate trustee or separate trustees.
(3) Any request in writing by the Trustee to any co-trus-
tee or separate trustee to take or to refrain from taking any _
action hereunder shall be sufficient warrant for the taking, or
the refraining from taking, of such action by such co-trustee
or separate trustee.
(4) Any co-trustee or separate trustee may delegate to
, the Trustee the exercise of any right, power; trust, duty or
obligation, discretionary or other�rise.
(5) The Trustee at any time, by an instrument in writing,
with the concurrence of the Issuer, may accept the resignation
of or remove any co-trustee or separate trustee appointed under
this Section 9-I3, and, in case of a continuing Event of
Default tlle Trustee shall have power to accept the resignation
of, or rernove, any such co-trustee or separate trustee witliout
the concurrence of the Issuer. Upon the request of the Trus-
tee, the Issuer shall join with t2�►e Trustee in the execution,
delivery and performance of all instruments and agreements
necessary or proper to effectuate such resignation or removal.
A successor to any co-trustee or separate trustee so resigned
or removed may be appointed i.n the manner provided in this
� Section 9-13.
(6) No trustee hereunder shall be personally liable by
. reason of any act or omission of any other trustee hereunder.
73 �
� ,`
(7) Any demand, request, direction, appointment, removal,
notice, consent, waiver or other action in writing delivered to
the Trustee shall be deemed to have been delivered to each
� co-trustee or separate trustee.
(8) Any monies, papers, securities or other items of
. personal property received by any such co-trustee or separate -
trustee hereunder shall forthwith, so far as �may be permitted
by law, be turned over to the� Trustee.
Upon the acceptance in writing of such appointment by
arry such co-trustee or separate trustee, it or he shall be
vested with such interest in and to the- Trust Estate or any
part thereof, and with such rights, powers, duties or ohli-
gations, as shall be specified in the instrument of appointment
jointly with the Trustee (except insofar as local law makes it
necessary for any such co-trustee or separate trustee to act
alone) subject to all the terms of this Indenture. Every such
acceptance shall be filed with the Trustee. Any ca-trustee or
separate trustee may, at any time by an instrument in writing,
� constitute the Trustee, its or his attorney-in-fact and agent,
with full power and authority to do all acts and things and to
exercise alI discretion on its or his behalf and in its or his
name.
In case any co-trustee or separate trustee shall die,
become__ incapable of acting, resign or be removed, the title to
the Trust Estate, and all rights, powers, trusts, duties and
obligations of said co-trustee or separate trustee shall, so
f�r as permitted by law, vest in and be exercised by the
Trustee unless and until a successor co-trustee or separate
trustee shall be appointed in the manner herein provided.
Section 9-14. Obligation to. Trustee As
To Reporting.
, The Trustee shall cause to be filed any reports
lawfull� required by any public agency to be filed under the
Minnesota Securities Law or any other applicable security laws
and, any other reports lawfully required by any public agency
to be filed under the Act or any other applicablE state law.
For this purpose the Trustee is entitled to require the
Partnership to cause to be furnished to the Trustee whatever
information is necessary to comply with such reporting
. requirements at the Partnership' s sole e�cpense.
74
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Section 9-15. Successor Paying Agent.
The provisions of Sections 9-5 through 9-9 .with
respect to removal, resignation and appointment of a successor
trustee shall be equally applicable to resignation, removal and
appointment of a successor to the Paying Agent. The Trustee
. shaZl be eZigible for appointment as successor to the Paying�
Agent.
Section 9-16. Confirmation of the Trustee.
(1) At any time while Bonds remain Outstanding under this
Indenture and in any of the following circumstances, to the
extent permitted by law, to-wit:
. (A) The Trustee is in doubt as to w'nether or not the
Indenture or any Related Document or instrument requires �
Bondholders' consent or the consent of the Partnership, or the
Issuer in connection W1LY1 any proposed action;
(B) The Trustee has substantial doubt as to whether
its consent to a proposed action, although authorized, should
in the particular circumstances be given;
(C) The Trustee' s consent is sought or deemed -
necessary in connection with a proposed action� which is not
specif�cally dealt� with or contemplated by the Indenture or any
other Related Document, or it is unclear whether tYie Indenture
or other Related Document is int�nded to deal with the proposed
action;
(D) There is a disagreement between any of the
parties to the Indenture or any other Related Document as to
whether a proposed action may be taken� or is requir�d to be
taken;
(E) Z*here appears to be a conflict, ambiguity or
inconsigtency between or among the provisions of the Indenture
- - and any other Related Document other than as provided for i.n
Sections 10-1 and 11-1 hereof;
(F) There is doubt as to whether or not a proposed
action falls within one of the provisions of Sections 10-1 and
11-1 hereof authorizing such action w:ithout Bondholders'
. conaent;
75 �
(G) Bondholders ' consent is required by this
Indenture or Related Document but consent cannot be obtained
because:
(i) it is not possible to comply with
requirements of this� Indenture or any other
. Related Document as to the �notice to be given to -
Bondholders with respect to the proposed matter
requiring consent, or �
(ii) if action is to be taken at a meeting of
Bondholders, the requisite number of Bondholders
(the quorum) necessary to be present at a meeting
in order for a proposed action to be taken was not
present at such meeting or any adjourned meeting;
(H) The Trustee wishes to depart from the procedures
set forth in Section 12-3 for purposes of calling or conducting
a meeting of the Bondholders;-
. or in any other eventuality in which it shall be necessary to
determine a question arising under or to construe this
Indenture or any other Related Document, the Trustee may, and
upon request of the Issuer, the Partnership or the Holders of
25$ or more in principal amount of Outstanding Bonds shallr
proceed in. accordance with the provisions of Minnesota
Statutes, Section 501.33 through 501.38, as amended.
If Bondholder's consent cannot be obtained because of
the circumstances described in (1) (G) above a court of cont-
petant jurisdiction may amend or suppiement the Loan Agreement
or Indenture or any other Related Document upon a proper
showing of the necessity therefor. .
(2) In construing and interpreting the Indenture and any
other Related Document, the objective shall always be to
ascertain and effectuate the intention of the parties. So far
as possible and appropriate, and to the extent that it does not
conflict with the provisions of the Zndenture or the other
Related Documents, the principles of statutory construction
enunciated in Sections 645.16, 645.17, 645.18, 645.19 and
• 645.20, Minnesota Statutes, as amended, shall be applied in the
interpretation and construction of the Indenture and otller
Related Documents.
76
(3) '�he Trustee or successor Trustee shall not be
answerable for actions taken in compliance with any final order
of the court. The Trustee or successor Trustee shall not be
entitled to require an indemnity bond pursuant to Section 9-1,
Subdivision (11) , prior to taking any action directed by final
order of the court. �
� 77
ARTICLE TEN
SUPPLEMENTAL INDENTURES
Section 10-1 . Su lemental Indentures Not
Requiring Consent o Bondholders.
The Issuer and the Trustee may, fram ti.me to time and
at any time, without the consent of, or notice to, any of the
Holders or AMBAC, and when so required by this Indenture shall,
enter into an indenture or indentures supplemental to this
Indenture as shall not be inconsistent with the terras and
provisions hereof (which supplemental indenture or indentures
shall thereafter form a part hereof) , so as to thereby (1)
permit the issuance of Additional Bonds where permitted by
Section 2-6, (2) cure any ambiguity or formal defect or
omission in this Indenture or in any supplemental indenture,
(3) grant to or confer upon the Trustee for the benefit of the
Holders any additional rights, remedies, powers, authority or
security that may lawfully be granted to or conferred upon the
Holders or the Trustee, (4) more precisely identify the Trust
Estate, or any other property which may become a part of the
Trust Estate, (5� subject to the lien and pledge of this
Indenture additional revenues, properties or collateral, (6)
evidence the appointment of a separate trustee or a co-trustee
or the succession of a new Trustee and/or Paying Agent
hereunder, (7) modify, eliminate and/or add to the provisions
of this Indenture to such extent as shall be necessary to
prevent any interest on the Bonds from becoming taxable under
tY�e Federal income tax laws o� to effect the qualification of
this Indenture under the Trust Indenture Act of 1939, as then
amended, or under any similar Federal statute hereafter
enacted, and to add to this Indenture such other provisions as �
may be expressly permitted by said Trust Indenture Act of 1939,
excluding howener the provisions referred to in Section
316(a) (2) of said Trust Indenture Act of 1939, (8) make any
other change which is required by any provision of this
Indenture or which is deemed by the Trustee necessary to ,
reconcile the Indenture with the Related Documents, or any
araendments thereto, or (9) make any other change which �in the
judgment of the Trustee is necessary or desirable and will not
materially prejudice any non-consenting Holder of a Bond or
coupon appertaining thereto.
. Section 10-2. Supplemental Indentures Requiring �
_ Consent of Holders.
Exclusive of supplemental indentures covered by Ser
tion 10-1 hereof and subject to the terms and provisions con-
tained in this Section, and not otherwise, the Trustee, upon
78
;
receipt of an instrument evidencing the consent to the below-
mentioned supplemental indenture by the Holders of not less
than fifty-one percent (51$) of the aggregate principal amount
of the then Outstanding Bonds, shall join with the Issuer but
only with the consent of AMBAC in the execution of such other
indenture or indentures _supplemental hereto as shall be deemed
- necessary and desirable °for the purpose of modifying, altering,
amending, adding to or rescinding, in any particular, any of
the terms or provisions contained in this Indenture or in any
supplemental indenture; provided, however, that nothing herein
- contained shall permit or be construed as permitting (1) an
extension of the maturity of the principal or of the interest
on any Bond issued hereunder, or (2) a reduction in the
principal amount of any Bond or the rate of interest thereon,
or (3) a privilege or priority of any Bond or Bonds over any
other Bond or Bonds except as may be otherwise expressly �
provided herein, or (4) a reduction in the aggregate principal ,
amount of the Bonds required for consent to such supplemental
indenture, or (5) modifying any of the provisions of this
Section without the consent of the Holders of one hundred
percent (100$) of the principal amount of all Bonds adverse3y
affected thereby ( "100$ Bondholders ' Consent" ) .
� If at any time the Issuer shall request the Trustee to
enter into any such supplemental indenture for any of the -
purposes of this Section which does not require 100$ Bondhold-
ers ' Consent, the Trustee shall, upon being �atisfactorily
indemnified with respect to expenses, cause notice of the
proposed execution of such supplemental indenture to 'be pub-
li�hed one time in a financial newspaper or periodical of
general circulation published i.n Minneapolis or Saint Paul,
Minnesota. Such notice shall briefZy set forth the nature of
the proposed supplemental indenture and shall state that copies
thereof are on file at the principal office of the Trustee for
. inspection by all Bondholders. The Trustee shall not, however,
be subject to any liability to any Bondholder by reason of its �
failure to publish such notice, and any such failure shall not
affect the validity of such supplemental .indenture when
consented to and approved as provided in this Section. If the
Holders of not less than fifty-one percent (51$) in aggregate
principal amount of the then 0utstanding Bonds at the time of
the execution of any such supplemental indenture shall have
consented to and approved the execution thereof as herein
provided, no Holder of any Bond shall have any right to object
. to any of the terms and provisions contained herein or the
operation the=eof, _or in any manner to question the pro�riety
79 �
of the execution thereof, or to enjoin or restrain the Trustee
or the Issuer from executing the same or from taking any action
pursuant to the provisions thereof. Upon the execution of any
� such supplemental indenture as in this Section permitted and
provided, this Indenture shall be and is deemed to be modified
and amended in accordance� herewith.
Anything herein to the contrary notwithstanding, a supple-
mental indenture under this Article Ten which adversely affects
the right of the Partnership under the Loan Agreement or the
Assignment of Leases and Rents shall not become effective
unless and until the Partnership shall have consented in
writing to the execution and delivery .of such supplemental
indenture. In this regard, the Trustee shall cause notice of
the proposed execution and delivery of any such supplemental
indenture, together with a copy of the proposed supplemental
indenture, to be mailed by certified or registered mail to the
Partnership at least fifteen (15) days prior to the proposed
date of execution and delivery of any such supplemental
indenture.� -
Section 10-3. Rights of Trustee.
If, in the opinion of the Trustee, any supplemental
indenture provided for in this Article affects the rights, -
duties or immunities of the Trustee under this �Indenture or
otherw�se, the Trustee may, in its discretion, decline to
execute such supplemental indenture, except to the extent that
this may be required in the case of a supplemental indenture
entered into under Section 10-1. The Trustee shall be entitled
to receive, and shall be fully. protected in relying upon, an
opinion of Independent Counsel as conclusive evidence that any
such supplemental indenture conforms to the requirements of .
this Indenture. .
80
ARTICLE ELEVEN
AMENDMENTS TO RELATED DOCUMENTS .
Section 11-1 . �mendments Not Requiring
. � - Bondholder Consent.
The Issuer and/or the Trustee may, without the -
consent of or notice to the Bondholders or AMBAC consent to any
amendment, change or modification of any of the Related
Docu.*nents:
(1) which may be required or permitted without Bondholder
consent by the provisions of the Related Documents or this
Indenture;
(2) for the purpose of curing any ambiguity or formal
defect or omission;
(3 ) to reconcile any Related Documents with any amendment
or supplement to the Indenture; or
� (4) to effect any other change in a Related Document
which, in the judgment of the Trustee, will not materially-
prejudice any non-consenting Holder of a Bond or any coupon
appertaining thereto; '
Section 11-2. Amendments Requiring
Bondholder Cansent.
Except for (1) amenclments, changes or modifications
to facilitate the issuance of Additional Bonds where permitted
by Section 2-6, (2) amendments, changes or modifications as
provided in Section 11-1, and (3) amendments, changes or modifi-
cations penaitted by any Related Docwaent, neither the Issuer
nor the Trustee shall consent to any other amendm�nt, change or
modification of any Related Document, without consent of AMBAC
and publication of notice and the written approval or consent
of the Holders of not less than fifty-one percent (51$) in
aggregate principal amount of the then Outstanding Bonds given
� and procured as provided in this Section; provided that in no
event shall such amendment, change or modification relieve the
81
Company, of the obligation under any Related Documents to raake __
when and as due any payments required for the payment of
principal, interest and any premium due or to become du� cn the
Bonds unless the consent of the Holders of all Bonds adversely �
affected thereby is �firs�t secured. If at any time the Issuer
� and the Partnership shall request the consent of� the Trustee to '
any such proposed amendment, ehange or modification of any
Related Documents to which the Issuer is a party or the
Partnership shall request consent of the Trustee to any such
proposed amendment, change or modificatioz of any other Related
Document to which the Issuer is not a party, the Trustee shall,
upon being satisfactorily indemnified with respect to expenses,
cause notice of sucr. proposed amendment, change or modification
to be published in the same manner as provided in Section 10-2
hereof with respect to supplemental i�dentures. Such notice
shall briefly set forth the nature of such proposed amendment,
change or modificatian and shall state that copies of the
instrument embodying t3ze same are on file at the principal
office of the Trustee for inspection by all Holders. The
� Trustee shall not, however, be subject to any liability to any
Holder by reason of its failure to publish such notice, and any
such failure shall not affect the validity of such amendment,
change or modification when consented to and approved as
provided in this Section. If the Holders of not less than
fifty-one percent (51$) in aggregate principal. 'amount of the
then Oiitstanding Bonds at the time of the execution of any such
amendment shall consent to the execution thereof as herein
provided and AMBAC shall give written consent, no Holder of any
Bond sYiall have any right to object to any of the terms anc�
provisions contained therein, or the operation thereof, or in
any manner to question the propriety of the execution ther�of,
or to enjoin or restrain the Trustee or the Issuer from �
executing the same or from taking any action pursuant to the
provisions thereof. Ugon the execution of any such amendment,
the applicable Related Document there'by amended shall be deemed
to be modified and amended in accordance therewith. Nothing in
� this Section contained shall permit or be construed as
permitting any reduction (i) in the payments =equired to be
made by Sections 4.02 or 4.03. of the Loan Agreement or (ii)
change in the stated maturities of the Bonds.
82
. �
. � .
ARTICLE TWELVE
MISCELLANEOUS
� ' Section 12-1. Consent of Holders. � �
Any consent, request, direction, approval, objection
or other instrument required by this Indenture to be signed and
executed by the Holders may be in any number of concurrent
writings'of similar tenor and must be signed or executed by
such Holders in person or by agent appointed in writi.ng. Proof
of the execution of any such consent, request, direction,
approval, objection or other instrument or of the writing
appointing any such agent and of the ownership of Bonds, if
made in the followi.ng manner, shall be sufficient for any of
the purposes of this Indenture, and shall be conclusive in
favor of the Trustee with regard to any action taken by it
under such request or o�her instrument, namely:
(1) The fact and date of the execution by any person of
any such writing may be proved by the certificate of any offi-
cer in any jurisdiction who by law has power to take acknowl-
edgements within such jurisdiction that the person signing such
writing acknawledged before him the execution thereof, or by an
affidavit of any witness to such eaecution.
(2) The fact of the holding by any person of Bonds and
the �amounts and numbers of such Bonds, and the date of the
holding of the same, aiay be proved by a certificate executed by
any trust company, bank cr banker, wherever situated, statiag
that at the date thereof the party naraed therein did exhibit to
an officer of such trust company or bank or to such banker, as
- the property of such party, the Bonds, if such certificate
shall be deemed by the Trustee to be satisfactory. The Trustee
may, in its discretion, require evidence that such Bonds have
been deposited with_-a baak, banker or trust company, before
�aking any action based on such ownership. �
� For all purposes of this Indenture and of the proceed-
ings for the enforcement thereof, such person shall be deerned
to continue to be the Holder of such Bond until the Trustee
shall have received notice in writing to the contrary.
Section 12-2. Rights Under Indenture.
With the exception of rights herein expressly confer-
red, nothing expressed or mentioned in or to be implied from
this Indenture or the Bonds is intended or shall be construed
83
�
to give any person or company other than the parties hereto,
and the Holders of the Bonds and coupons, any legal or
� equitable right, remedy, or claim under or in respect to this
Indenture or any covenants, conditions and provisions herein
contained;. this Indentur� and al� of the covenants, conditions
� and provisions hereof being intended to be and being for the '
sole and exclusive benefit of �the parties hereto and the
Aolders of the Bonds and coupons hereby secured as herein
provided.
Section 12-3. Meetings of Bondholders. �
(1) A meeting of Bondholders may be called at any
ti:ne and from time to time pursuant to this Section to
facilitate az�y of the followi.ng purposes:
(A) to give any notice to the Issuer, the
Partnership or the Trustee, or to give any directions
to the Trustee, or to consent to the waiving of any
� default under this Indenture, or to take any other
action authorized to be taken by tlze Bondholders
under this Indenture;
(B) to remove the Trustee or to appoint a suc-
cessor trustee pursuant to Sections 9-7 and 9-8 of
'- this Indenture;
, � (C) to consent to the execution of a supple-
mental indenture pursuant to Section 10-2 hereof, or
to consent to the ezecution of an amendment, change
or modification of the Loan Agreen�nt and Assignment
of Leases and Rents, or any of �them, pursuant tc �
Section 11-2 he=eof; or '
(D) to take any other action authorized to be
taken by or on behalf of the Aoldets of any specified
� aggregate principal amount of the Bonds under any
other provision of this Indenture or under applicable
law.
(2) Meetings of Bondholders may be held at such
place or places as the Trustee or, in case of its failure to
act, the Bondholders calling the meeting, shall from tune to
' time determine.
84
� �,
� � .
(3) The Trustee may at any time call a meeting of
Bon�olders to be held at such time and at such place• as the
Trustee shall determine. Notice of every meeting of
Bondholders setting forth_ the time and the place of such
meeting and in general terms the� action proposed to be taken at
� such meeting, shall be published at least thre�e times in a news-
paper or financial journal of �general circulation among dealers
in municipal securities in the Minneapolis-St. Paul, Minnesota,
Metropolitan area. The first publication of such notice shall •
be not less than 30 nor inore than 180 days prior to the date
fixed for such m�eting. If all of the Outstanding Bonds are at
that time registered as to principal or �are Fully Registered
Bonds, notice by first class mail to the Eiolders of such Bonds
shall be sufficient and published notice need not be given.
(A) At the time of the first publication of such
� notice, the Trustee shall also mail, postage prepaid, a
copy of such notice to t2ie registered owner of each Bond
registered as to principal or of each Fully Registered
Bond at the address shown on the registration books and to
each Holder listed as provided in Section 4-6, at the
� address shown on sucYi �ist. Any failure of the Trustee to
mai]. such notice, or any defect therein shall not,
hawever, in any way impair or affect the validity of any
such meeting. . _ �
(B) In the event that the Holc�ers of at least 10� in
aggregate principal amount of the Outstanding Bonds shall ,
have requested the Trustee to call a meeting of the
Bondholders by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and
the Trustee shall not have accomplished the first publica-
tion of notice of such meeting within 20 days after
� receipt of such request, then such Bondholders may deter-
mine the tune and the place for such meeting and may call
such meeting to take any action authorized in parag=aph
(1) of this Section by giving notice of such meeting in
acco=dance with the provisions of paragraph (3) .
. (4) To be entitled to vote at any meeting of
Bonc�iolders, a person shall be a Holder of one or n�ore Bonds
Outstanding, or a person appointed by an instrument in writing
as proxy for a Bondholder by such Bondholder. The only persons
� who shall be entitled to be present or to speak at any meeting
� of Bondholders sha11 be the persons entitled to vote at such
meeting and their counsel and any representatives of the
Trustee and its Counsel and any representatives of the
� Partnership and its counsel and any representatives of the
Issuer and its counsel and any representatives of the Bank and
its counsel.
85
(5) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as
' it may deem advisable for any meeting of Bondholders in regard
to proof of the holding of Bonds and of the appointment of
proxies and in regard to the .appointment and duties of
� inspectors of votes, the submission and examination of proxies, '
certificates and other evidence .of the right to vote, and such
other matters concerning the conduct of the meeting as it shall
deem appropriate. Except as otherwise permitted or required by
any such regulations, the holding of Bonds shall be proved in
the manner specified in Section 12-1 of this Indenture and the
appointment of any proxy shall be proved in the manner
specified in said Section or by having the signature of the
person executing the proxy witnessed or guaranteed by any bank,
banker or trust company authorized by said Section to certify
to the holding of Bonds.
(A) The Trustee or, if the Bondholders have called
the meeting, the Bondholders shall, by an instrument in
� writing, appoint a temporary chairman of the meeting. A
permanent chairman and a permanent secretary of the
meeting shall be elected by vote of the Holders of a
majority of the Bonds represented at the meeting and
entitled to vote. -
-- • (B) At any meeting such Bondholder or proxy shall be
entitled to one vote for each $5,000 of principal arnount
, of Outstanding Bonds held or represented by hi.ua or her;
provided, however, that no vote shall be cast or counted
at any meeting in respect of any Bond challenged as not
Outstanding and ruled by the chairman of the meeting to be
not Outstanding. The chairman of the meeting shall have �
no right to vote, except as a Bondholder or proay.
(C) At any meeting of Bondholders, the presence af
persons holding or representing Bonds in an aggregate
- principal amount sufficient under the appropriate
provision of this Zndenture to take action upon the
business for the transaction of which such meetiag was
called shall constitute a quorum. Any meeting of
Bondholders duly called pursuant to this Section may be
adjourned from time to time by vote of the Holders (or
proxies for the Holders) of a majority of the Bonds
' represented at tre meeting and entitled to vote, whether �
or not a quorum shall be present; and t2�e iueeting may be
held as so adjourned without further notice.
86
(6) The vote upon any resolution submitted to any
meeting of Bondholders shall be by written ballots on• which
shall be subscribed the signatures of the Bondholders or of
their proxies and the number or numbers of the Bonds
Outstanding held or �repr:esented by them. The permanent .
� chairm�n of the meeting shall appoint two inspectors of votes
who shall count all votes cas� at the meeting for or against
any resolution and who shall make and file with the secretary
of the meeting their verified written reports in duplicate of
all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of �ach meeting of Bondholders
shall be prepared by the secretary of the meeting. The
origi.nal reports of the �_nspectors of votes on any vote by
ballot taken at such meeting, and affidavits by one or more
persons having knowledge of the facts setting forth a copy of
the notice of the meeting and showing that said notice was
published or mailed as provided in this Section shall be
attached to such record. Each copy shall be signed and
verified by the affidavits of the permanent chairman and
secretary of the meeting and one such copy shall be delivered
to the Issuer, another ta the Pa=tnership and another to the
Trustee to be preserved by the Trustee, which copy shall have
attached thereto the ballots voted at the rneeting. Any reccrd
so signed and verified shall be conclusive evidence of the -
matters therein stated. _ �
(7) At any time prior to the preparation of the
record of the meeting in accordance with the terms of this
Section for delivery to the Trustee evidencing the taking of
ariy action by the Holders of the percentage in aggregate
principal amount of the Bonds specified in this Indenture in
connection with such action, any Holder of a Boad the number of
�hich is included in the Bonds, the Aolders of which have
� consented to such action, may, by filing written notice with .
the Trustee at its principal corporate trust office and upon
proof of holding as provided in Section 12-1 of this Indenture,
revoke such consent so far as it concerns such Bond. Except as
. aforesaid, any such conseat given by the Holder of any Band
shall be conclusive and binding upon such Aolder and upon all
� future Holders and owners of such Bond and of any Bond issued
in exchange therefor or in lieu thereof, irrespective of
whether ar not a.ny notation in regard thereto is made upon such
Bond. Any action taken by the Holders of the percentage in
" aggregate principal amount of t2�e Bonds specified in this
Indenture in connection with such action shall be conclusively
binding upon the Issuer, the Partnership, the Trustee and the
Holders of all the Bonds.
87
(8) Nothing in this Section 12-3 is intended to
limit or prevent the Trustee from taking any action permitted
� under Section 9-16 of this Indenture, including but not limited ,
to the Trustee's right to .apply to a court of competent juris-
diction for confirmatioh of- appointment, or for instructions in
� accordance with the provisions of Minnesota Statutes, Section '
501.33 through 501 .38, as amended.
Section I2-4. Severability.
If any provision of this Indenture shall be held or
deemed to be or shall, in fact, be inoperative or unenforceable
as applied in any particular case in ar.y jurisdiction or juris-
dictions or in all jurisdictions or in all cases because it
conflicts with any provisions or any constitution or statute or
rule of public policy, or for any other reason, such circum-
stances 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 provisions herein
� contained invalid, inoperative or unenforceable to any extent
�whatever.
The invalidity af any one or more phrases, sentences,
clauses or paragraphs in this Indenture contained shall not
affect the �remaining portions of this Indenture or any part
thereof.
. Section 12-5. Notices.
Al1 notices, certificates or other communications
hereunder shall be sufficiently given and shall be deemed given
when mailed by first class mail, postage prepaid, with proper �
address as indicated belaw. The Issuer, the Partnership, aad
the Trustee, the City and AMBAC may, by written notice given by
each to the others, desighate any address or addresses to which
notices, certificates or other conm�unications to them shall be
- sent when required as contemplated by this Zndenture. Until
otherwise provided by the respective parties, all notices, .
certificates and communications to each of them shall be
addressed as follvws:
To the Issuer: Housing and Redevelopment
. Authority of the City of ,
' Saint Paul, Minnesota
- 25 West Fourth Street
12th Floor, City Hall Annex
Saint Paul, Minnesota 55102
88
� -4
FIRST TRUST COMPANY OF SAINT PAUL
As Trustee •
. . . ' g�, .
�Its
Attest:
Assistant Vice President
and Trust Officer
(s�)
Indenture of Trust dated as of June l, 1983, by and between the
Housing and Redevelopment Authority of the City of Saint Paul
and First Trust Company of Saint Pau2.
91
�
To the Partnership: Civic Center Partners
Limited Partnership •
710 Lumber Exchange Building
Minneapolis, Minnesota 55401
� Tb the Trustee: � First Trust Company of
Saint Paul
332 Minnesota Street
Saint Paul, Minnesota 5510i
To AMBAC: American Municipal Bond Assurance
Corporation
One State Street Plaza
New York, New York 10004
� Attention: Municipal Underwriter
Department
To City: Director, Finance and Management
� Services
- 15 West Kellogg
City Sall and Courthouse
- Saint Paul, Minnesota 55IO2
Section 12-6. Counterparts.
'" This Indentuze may be simultaneously executed in �
several counterparts, each of which shall be an original and
all of which shall constitute but one and the same instrument.
Section 12-7. Limitation of Liability. ,
To the extent permitted by law, no prcvision, coven-
ant or agreement contained in this Indenture or the Bonds oz
, - interest coupons, or any obligation herein or therein imposed
upon the Issuer or the City, or the breach thereof, shall
constitute or give rise to or impose upon the Issuer or the
City or any of their officers, employees or agents a pecuniary
liability or a charge upon the Issuer' s or City's general
credit or taxing powers. In making the agreements, provisions
and covenants set forth in this Indenture, the Issuer and the
City have not obliga.ted themselves except with respect to the
Loan Agreement and the application of the revenues therefrom as
hereinabove provided. •
Section 1"2-8. Amounts Remaining in Funds.
Upon expiration or sooner termination of the Loan
Agreement as provided therein and .after adequate provision has
been made to discharge the Bonds in accordance with Article
89
.
,.. . .. . � ��/��v_
Seven and make all other payments r uired hereunder and under
the L�an Agreement and Assignment �f Leases and Rents, the
' Trustee forthwith shall, pay al remaining amounts in the Funds
established in Article Five eof to the Partnership.
- � IN WITNESS � OF, the Issuer has caused these '
presents to be signe in its name in its behalf by its
Chairman, Secretary. and Director, Department of Finance and
Management Services and has caused its corporate seal to be
hereunto affixed, and to evidence its acceptance of the trusts
hereby created the Trustee has caused these presents to be
signed in its name and behalf by its duly authorized officer�,
and has caused its official seal to be hereunto affixed, all as
of the day of June, 1983.
FiOUSING AND REDEVELOPMENT
AUTHORITY OF THE CITY OF
� SAINT PAUL, MINNESOTA
By -
� airman �
Approved as to foria:
� ' By
Secretary
Assistant City Attorney
BY �
Executive Director
BY
Director, Department of Finance
and Management Services
(SEAL)
Indenture of Trust dated as of June 1, 1983, by and between the
Housing and Redevelopment Authority of the City of Saint Paul
and First Trust Company of Saint Paul. ,
90
:, -�
EXHIBIT A
� Legal Description
of Project Premises
.
6�6��-�
.. . �'� �li.s,�
ASSIGNMENT OF LEASES AND RENTS
THIS ASSIGNMENT OF LEASES AND RENTS (the "Assign-
ment" ) is made as of this lst day of June, 1983, between Civic
Center Partners Limited Partnership, a Minnesota limited
partnership (the "Partnership" ) , and the First Trust Company of
__..
Saint Paul (the "Trustee" ) , its successors and assigns.
WITNESSETH:
WHEREAS, the Partnership is the owner of a leasehold
estate in certain real property located in the County of
Ramsey, State of Minnesota, described in Exhibit A, attached
hereto and incorporated herein by reference {the%"Land" ) ; and
WHEREAS, the Partnership is the owner of the .
buildings, fixtures and improvements located on the�Land as of
the date of the execution and delivery of this Assignment (the
"Facilities" ) ; and
WHEREAS, the Partnership and the Housing and -
Redevelopment Authority of the City of Saint Paul, Minnesota �
(the "Issuer") , have agreed that the Issuer will issue its
, ��c'�.o �9�'�
1�Revenue Bonds (Saint Paul Civic Center PrCject) ,
! �
in the principal amount of
And No/100 Dollars ($ ) , of even
date herewith, (the "Bonds") , pursuant to an Indenture of Trust
of even date herewith (the "Indenture" ) executed by the Issuer
to the Trustee and loan the proceeds thereof to the Partnership
(the "Loan" ) pursuant to a Loan Agreement between the Issuer
and Partnership, of even date herewith, (the "Loan Agreement") ,
to finance the cost of acquisition of the Land, the Facilities
and construction of certain �mprovements {all of which are more
specifically identified in the Loan Agreement, and are herein- �
after collectively referred to as the "Project" ) ; and
WHEREAS, under the terms of the Loan Agreement the
Partnership is required to make payments (the "Basic Payments")
to repay the Loan and to pay certain costs (the "Additional
Charges") relating to the Project; and
WHEREAS, the Trustee has agreed to act as trustee for
the Bondholders pursuant to the Indenture;��and
WHEREAS, the Partnership has entered into a Lease
4�.�.�'���St�a�",
Agreement dated June 1, 198�with the City of Saint Paul (the
"City") �'�.�e.�} under which the Partnership is entitled
to receive certain Basic Rent and items of Additional Rent (as
defined in the Lease) with respect to the Project; and
.
2
WHERF.AS, the City has entered into a Depository
Agreement dated June 1, 1983 with The First National Bank of
Saint Paul (the "Depository Bank") (the "Depository Agreement" )
under which the City will deposit certain funds from which the
Depository��Bank will pay to the Trustee the Basic Rent and
Additional Rent in the amounts and at the times required by the
Lease;
WHEREAS, the Partnership, may, from time to time here-
after, during s.uch time as the Bonds remain Outstanding under
the Indenture, enter into other leases and other agreements
under which the Partnership is entitled to rents with respect
to all or part of the Project with various persons or entities;
and
WHEREAS, the Issuer and Trustee have required the
execution of this Assignment.
� NOW THEREFORE, in consideration of the foregoing, and
for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the
Partnership, the Partnership hereby grants, transfers and
assigns to the. T�ustee:
Granting Clause l.
All of the Partnership' s right, title and interest in
and to the "Leases" . The term "Leases" a� used in this
Assigninent shall be deemed to include the Lease, and any and .
3
all amendments thereto, and any and all other leases or
subleases now or hereafter placed during the term of this
Assignment upon, and any and all amendments thereto and any
other agreement under which the Partnership is entitled to rent
with respect to, all or part of the Project.
Granting Clause 2.
All Basic Rent and all Additional Rent payable to the
Partnership under the Lease, and all other rents, income,
.
receipts, revenue and profits arising from the Leases,
including all Basic Rent and Additional Rent under the Lease;
// and all renewals and extensions thereof together with all
rents, income, receipts, revenue, profits, issues, and benefits
from the use and occupation of the Project, including any sums
payable to the Partnership by reason of physical damage to or
4�• ,s��rb j ���j�r��' g � �rw
condemn tion of tl�'e Pr ect� whether acc in efor or after
termination of the Leases �/ any of them. 9�9 '
The Leases and al�. Basic Rent�� Additional Rent and
other rents, income, receipts, revenue, profits, issues,
benefits and guarantees��assigned hereby are hereinafter
sometimes collectively referred to as "Collateral. "
�
4
Article I .
THIS ASSIGNMENT is made for the purpose of providing addi-
tional security for and shall secure:
A. The payment of Basic Payments due under the Loan
Agreement.
B. The payment of Additional Charges due under the
Loan Agreement.�/
C. The performance and discharge of each and every
obligation, covenant and agreement of the Partnership��contained
� in the Loan Agreement.
.
5
Article II . ;
THE PARTNERSHIP WARRANTS AND REPRESENTS to the
Trustee (i) that the Partnership is. the sole owner of the
entire lessor's interest in the Lease; (ii) that the Lease is a
valid and binding contract of the Partnership, enforceable
against the Partnership in accordance with its terms and has
not been altered, modified or amended in any manner whatsoever
except as herein set forth; (iii) that neither the Partnership
nor the City��are in default under any of the terms, covenants
or conditions of the Lease; (iv) that no Basic Rent or
Additional Rent reserved in the .Lease has been assigned or
C�� .
anticipated and that no Basic Rent or Additior� Rent for any
/\.
period subsequent to the date of this Assignment has been
collected in advance of the time when the same becomes due
under the terms of the Lease; (v) that the Partnership is not
prohibited under any agreement with any other person or under
any judgment from the execution and delivery of this Assignment
and the performance of each and every condition herein
contained; (vi) that no action has been brought or threatened
which in any manner is likely to interfere with any of the
Partnership' s obligations hereunder or under the Lease; (vii)
that the copy of the Lease which has been furnished by the
Partnership to the Trustee is a true and complete copy and the
.
6
Lease is in full force and effect and unmodified; (viii) that
the Collateral is free and clear of any and all liens, security
interests and encumbrances except those expressly excepted in
this Assignment or in the Loan Agreement, the Indenture or the
Lease; and (ix) that the Partnership has full power and
authority to execute and deliver this Assignment and that said
execution and delivery has been duly authorized and does not
conflict with or constitute a default under any law, the Lease
or any other agreement or instrument binding upon the �
Partnership or the Project.
�
7
• . /
Article III. z
THE PARTNERSHIP COVENANTS with the Trustee (i) to
' observe and perform all the. obliga.tions .imposed upon the
lessors under the Leases. and not to do or permit to be done
anything to impair the Trustee' s security; (ii) not to collect
any of the rent, income or profits arising or accruing under
the Leases or from the Project;��(iii) except for an assignment
subject to the terms of this Assignment, not to execute any
other assignments of lessor' s interest in the Leases or
assigraments of rents arising or accruing from the Leases or
from the Project; (iv) not to subordinate the Leases to any
encumbrance or to permit, consent or agree to such
subordination without the Trustee's prior written consent; (v)
�'�G js'Y'�.�vst-� �./. //,a .
�t to alter, modify or change tlze terms of the Leases or give
� .
any consent or exercise any option required or permitted by
such terms without the prior written consent of the Trustee;
(vi) not to cancel or terminate the Leases or to accept a ,
surrender thereof or to convey, transfer, suffer or permit a
conveyance or transfer of the Project or portion thereof or of
- any interest therein so as to effect, directly vr indirectly,
proximately or remotely, a termination or diminution of the
obligations of lessees thereunder; (vii) not to alter, modify
or change tl�e terms of any guaranty of the Leases or cancel or
terminate such guaranty without the prior written consent of `
8
the Trustee; (viii) at the Trustee' s request to execute and
deliver all such further assurances and assignments in the
Project as the Trustee sha21 from time to time require,
including without limitation assignments of leases not yet
executed; (ix) to keep the Leases free from any liens,
encumbrances or security interests whatsoever, other than the
security interest hereunder, or as may otherwise be expressly
permitted by the prior written consent of the Trustee and
promptly to pay or discharge all taxes assessed against the
Leases and all liens which may attach thereto; (x) to maintain
the Leases in full force and effect, and to give prompt written
notice to the Trustee of any claim of default under the Leases
� together with a true and complete copy of any such claims; and
(xi) to enforce the Leases in accordance with their terms and
in accordance with the Loan Agreement and the Indenture, and to
appear in and defend any action or proceeding arising under or
in any manner connected with any of the Collateral.
Article IV.
THIS ASSIGNMENT is made on the following terms,
covenants and conditions:
. 9
Section 4.01.�� The Trustee shall have the right to
collect at the time of, but not prior to, the date provided for
the payment thereof, all rents, income, receipts, revenue, and
profits arising under the Leases or from the Project described
therein and apply such payments as provided in the Loan
Agreement and the Indenture. With respect to the Lease, the
Trustee shall collect such payments from the Depository Bank or
the City. ��
Section 4.02. Upon the occurrence of an Event of
Default under the terms and conditions of any of the Leases and
without regard to waste, adequacy of the security, or solvency
. of the Partnership, the Trustee may collect alI rents, profits
and other income from the occupiers of the Project upon the
filing by the Trustee, in the office of the County Recorder
or, in the case of registered property, in the office of the
Registrar of Titles, for the County in which the Project is �
located, of a notice of the occurrence of said Event of DefauTt
and the service of said notice of default upon the occupiers of
the Project, and may exercise any or all of the Lessor' s rights
under the Leases. The Trustee shall apply all rents, profits
and other income so collected, from the date of filing and
service upon the occupiers of notice of default, in the same
manner as provided in the Loan Agreement and the Indenture.
10
Section 4.03. The Trustee shall not be Iiable for
�
any loss sustained by the Partnership resulting from the
Trustee' s failure to let the Project after default or from any
other act or omission of the Trustee in managing the Project
� after default unless such loss is caused by the willful
misconduct and bad faith of the Trustee.
Section 4.04. The Trustee shall not be obligated to
perform or discharge any obligation, duty or liability under
the Leases or under or by reason of this Assignment and the
Partnership shall, and does hereby agree to, indemnify the -
Trustee for, and to hold the Trustee harmless
from, any and all liability, loss or damage which may or might
be incurred under the Leases or under or by reason of this
Assignment and frorn any and all claims and demands whatsoever
whicll may be asserted against the Trustee by reason of any
alleged obligations or undertakings on its part to perform or
discharge any of the terms, covenants or agreements contained
in the Leases. Should the Trustee incur any such liability
under the Leases or under or by reason of this Assignment or in
defense of any such claims or demands, the amounts thereof,
including costs, expenses and reasonable attorneys' fees, shall
be secured hereby and by the Loan��Agreement, the Indenture and
the Lease, and the Partnership shall reimburse the Trustee £or .
` such amounts immediately upon demand. It is further understood
11
that this Assignment shall not operate to place responsibility
either for the control, care, management or repair of the
Project upon the Trustee or for the carrying out of any of the
terms and conditions of the Leases; neither shall this
Assignment operate to make the Trustee responsible or liable to
the Partnership for any waste committed on the Project by the
tenants or any other parties, or for any dangerous or defective
condition of the Project or for any negligence in the
management, upkeep, repair or control .of the Project resulting
in loss or injury or death to any tenant, licensee, employee or
stranger.
Section 4.05. Upon payment in full of the Bonds and
interest thereon and all sums due under the Loan Agreement and
the Indenture, this Assignment shall become and be void and of
no effect, but the affidavit, certificate, letter or statement
of any officer, agent or attorney of the Trustee showing any
part of such obligations to remain unpaid shall be and consti-
tute conclusive evidence of the validity, effectiveness and
continuing force of this Assignment and any person may, and is
hereby authorized to, rely thereon. The Partnership hereby
authorizes and directs the lessaes named in any Leases now in
effect or any other or future lessee or occupant of the Project
to pay over to the Trustee all rents, income and profits
ari`sing or accruing under the Leases or from the Project and to
continue so to do until otherwise notified by the Trustee.
12
Section 4.06. The Partnership, or any lessee
thereof, may at any time and from time to time, in their sole
discretion and at their own expense, install items of movable
machinery, equipment or other property in or upon the Project
in addition to that needed for completion of the Project under
Section 3.01 of the Loan Agreement. All such items shall
remain the sole property of the Partnership, or
such lessee, in which the Trustee shall have no interest, and
may be modified or removed by the Partnership or lessee at any
time while such items are not needed for the continuance of the
� operation of the Project, provided that the Partnership or
less�e shall repair and restore any and all damage to the
Project resulting from the installation, modification or
removal of any such items. Nothing in this Assignment shall
prevent the Partnership or such lessee after delivery of the
Indenture from purchasing items to be installed pursuant to
this Section 4.06 under a conditional sale or Iease-purchase
contract, or subject to a vendor' s lien or security agreement,
to secure the purchase price thereof, provided that no such
lien or security interest shall attach to any part of the
Project. The Partnership shall notify the Trustee of any
installation of equipment or machinery pursuant to this Section
4.06 and shall provide the Trustee with a description of such
items. '
13
Section 4.07. Except pursuant �to the terms of the
Lease or the terms of any other Leases which have been approved
by the Trustee, the Partnership will not, without the prior
consent of the Trustee, remove or permit the removal or sell or
otherwise surrender its right to possession of any item of�
equipment or fixtures attached or affixed to the Project unless
(1) the Partnership first determines that such item has become
inadequate, obsolete, worn out, unsuitable, undesirable or
unnecessary for the operation of the Project and that such
disposition wili not otherwise materially impair the operating
unity or structural unity of the Project, and (2) if the
estimated fair market value of such item exceeds $ ,
the Partnership (1) either (a) substitutes for such item
fixtures or��equipment of substantially equivalent utility to
that replaced or (b) pays to the Trustee €or deposit in the
/� Bond Fund as Restricted Cons•truction Funds (as those terms are
defined in the Indenture) a sum equal to the fair market value
of the item to. be replaced and (2) notifies the Trustee of the
action the Partnership intends to take with respect thereto,
_.____—
��provided that if any item of�equipment or fixtures are removed
under the provisions of this Section the Partnership or lessee
shall repair and restore any and all damage to the Project
resulting from the removal of such items. This Assignment
�
14
shall immediately attach to and constitute a lien or security
interest against any substituted item without further act or
deed of the Partnership.
Section 4.08. Except as provided in Sectian 8.Q1 of
i he Loan Agreement and in this Section 4.08, the Partnership_
shall not sell, encumber or otherwise dispose of and obtain a
release from this Assignment of any part of the Project. The
Partnership shall have the right, from time to time, to sell,
encumber or otherwise dispose of and obtain a release from this
Assignment of any part of the��Land not containing any permanent
structure necessary for the total operating unity and
efficiency of the Project and the Trustee shall, from time to
time, release from this Assignment such part of the Project so
sold, encumbered or disposed of, but only upon receipt by the
Trustee of the following:
(a) A request for such release from the
Partnership;
(b) A certificate of the Partnership, signed
also as to clause (1) of this subsection (b) by a
registered land surveyor and as to clause (4) of
this subsection (b) by an independent engineer
stating or setting forth in substance as follows:
(1) thef�portion of thef/Land to be
_!
released;
.
15
(2) the release price, which shall be
equal to the sale price received bv the_
�artnership for the property to be released;
(3) that the property to be released is
not necessary for the total operating unity
and efficiency of the Project for the purpose
for which it was intended; �
(4) that the release will not
materially impair the structural integrity of
the Project or the usefulness of the Project
for these purposes and will not inhibit �.
adequate means of ingress to or egress from
the Project; '
(5) that there exists no Event of
Default under the Loan Agreement or the � "
._.___�
Lease; and
(6) that all conditions precedent
herein provided for relating to such release
have been complied with;
(c) A survey prepared by a registered land
surve�or describing and showing the%Land, after
�^
giving effect to suGh release;
(d) Cash equal to the release price as
certified pursuant to subsection(b) (2) hereof; and
(e) An opinion of Independent Counsel (as
defined in the Loan Agreement) sta�ing that the
_ certi£icates, opinions and other instruments and
cash which have been or are therewith delivered to
and deposited with the Trustee conform to the
requirements of the Assignment and that, upon the
basis of such application, the property may`be
16
� lawfully released from the �ien of this Assignment
and that all conditions precede�t herein provided
for relating to such release have been satisfied.
Simultaneously with the release of any real progerty
as provided in this Section 4.08, the cash, in the amount
specified in subsection (d) f shall be deposited by the
Partnership in the Bond Fund as Restricted Construction Funds
(as defined in the Indenture) .
Section 4.09. The Trustee may take or release other
security for the payment of said indebtedness, may release any
party primarily or secondarily liable%for sueh security and may
apply any other security held by the Trustee to the
satisfaction of such indebtedness without prejudice to any of
the Trustee' s rights under this Assignment.
Section 4.10. Nothing contained in this Assignment
and no act done or omitted by the Trustee pursuant to the
powers and rights granted to the Trustee hereunder shall be
deemed to be a waiver by the Trustee of the Trustee' s rights �
and remedies under the Loan Agreement, Indenture and this
�m�ex�t�.� This Assignment is made and accepted without
prejudice to�an��the rights and reme ies possessed by the
°��e s Gd��c.Z"�e{� ���►er��+.�.r s"rrt.
Trustee ui�fder the term�,�ea€. The right of the Trustee to
�
collect said indebtedn�ss and to enforce any other security
. �
17
' held by the Trustee may be exercised by the Trustee either
prior to, simultaneausly with, or subsequent to any action
taken by the Trustee hereunder.
y
Section 4.1h. In case of any conflict between the
terms of this Assignment and the terms of the Loan Agreement,
the terms of the Loan Agreement, shall prevail, but whenever
possible, the provisions hereof shall be deemed supplemental to
and not in derogation of the provisions of the Loan Agreement.
Section 4.1� Neither this Assignment nor any
provisions hereof may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed
by the party against whom enforcement of the change, waiver,
discharge or termination is sought.
Section 4.1 � Whenever the singular or plural
�
number, or the masculine, feminine or neuter gender is used
herein, it shall equally include the other.
..-�
Section 4.1�� This Assignment shall be governed by
. and interpreted in accordance with the laws of the State of
Minnesota. �
Section 4.1�. Time is of the essence in this
Assignment.
. ,
���� � ���
. ��/. .
�,.• �.�, ...�-� � �
. .
� � -�� -� `�- �`
�. ��-�.�-�- �
� �� � �,. �-I-,
� � �r^ ` a �.++�'�i
C. �9E.�'.rG�4, ''CrL • �
� � � / fi / � -�� � � �
���e ��� �
�.�. �8 -
THIS AGREEMENT, together with the covenants and war-
ranties herei� contained, shall inure to the benefit of the
Trustee and its successors and assigns acting on behalf of the
Bondholders and shall be binding upon the Partnership and the
Partnership' s successors and assigns and any subsequent owner
of the Project.
IN WITNESS WHEREOF, the party constituting the
Partnership has caused this Assignment of Leases and Rents to
be duly executed as of the year and day first above wLitten.
, CIVIC CENTER PARTNERS
� LIMITED PARTNERSHIP, a
Minnesota limited partnership
By Churchill Civic Center, Inc.
Its General Partner
By
Its President
19
�
�
STATE OF MINNESOTA )
) ss.
COUNTY OF RAMSEY )
The foregoing instrument was acknowledged before me
this day of , 1983, by .
the President of Churchill Civic Center, Inc. , a Minnesota
corporation, on behalf of said corporation, the general partner
of Civic Center Partners Limited Partnership, a Minnesota
limited partnership, on behalf of said general partners.
� Notary Public
[Notarial Sea1J
,
20
»
�
:a„
. �.�.
� n
,,�:.
- ��� ; �:` , .
-�` �, � �, .
. �
,
,<
ARTICLE VI - Rent . . . . . . . . . . . . . . . . . . . . . 6-1
Section 6 . 1 Basic Rent; Amount and Payment . . . . . 6-1
Section 6 . 2 Adckitional Rent; Amount and
Payment . . . . . . . . . . . . . . . 6-1
Section 6 .3 Sources for Payment of Rent, etc . . . . 6-1
Section 6 . 4 Late Charges; Additional Rent . . . . . 6-2
Section 6 . 5 Nature of Lessee' s Obligation . . . . . 6-2
ARTICLE VII - Other Obligations of Lessee . . . . . . . . . 7-1
Section 7 . 1 Limitations On Use . . . . . . . . . . . 7-1
Section 7 . 2 Maintenance and Repair . . . . . . . . . 7-1
Section 7 .3 Taxes, Assessments and Other
Governmental Charges . . . . . . . . . . 7-2
Section 7 . 4 Liens; Easements; Releases . . . . . . . 7-3
Section 7 . 5 Modification of Leased Premises . . . . 7-4
Section 7 . 6 Installation of Lessee 's Equipment . . . 7-5
� Section 7 . 7 Permitted Contests . . . . . . . . . . . 7-5
Section 7 . 8 Advances . . . . . . . . . . . . . . . . 7-6
ARTICLE VIII - Insurance and Inclemnification . . . . . . . 8-1
Section 8 . 1 Insurance Requirement . . . . . . . . . 8-1
Section 8 .2 Self Insurance . . . . . . . . . . . . . 8-1
Section 8 .3 General Liability Insurance . . . . . . 8-2
Section 8 . 4 Requirements For All Insurance . . . . . 8-2
Section 8 . 5 Administration of Claims, Etc . . . . . . 8-3
Section 8 . 6 Indemnification . . . . . . . . . . . . 8-3
Section 8 . 9 Lessor ' s Liability Insurance . . . . . 8-3
ARTICLE IX - Condemnation and Casualty . . . . . . . . . . 9-1
Section 9 . 1 Lessee To Oppose Condemnation . . . . . 9-1
Section 9 . 2 Condemnation or Casualty; Use of
Net Proceeds . . . . . . . . . . . . . . 9-1
Section 9 .3 Condemnation; Duty to Purchase . . . . . 9-1
Section 9 . 4 Restoration . . . . . . . . . . . . . 9-2
Section 9 . 5 Temporary Taking . . . . . . . . . . . . 9-3
ARTICLE X - Lessee' s Options . . . . . . . . . . . . . . . 10-1
Section 10 . i Purchase Option . . . . . . . . . . . . 10-1
Section 10 . 2 Right of First Refusal . . . . . . . . . 10-1
Section 10 .3 Procedure Upon Purchase . . . . . . . . 10-2
Section 10 . 4 Rights of Purchaser . . . . . . . . . . . 10-4
ARTICLE XI - Assignment and Subleasing . . . . . . . . . . 11-1
Section ll . l Assignment by Lessor . . . . . . . . . . 11-1
Section 11 . 2 Assignment and Subleasing by
Lessee . . . . . . . . . . . . . . . . li-i
Section 11 .3 Restrictions on Mortgage or Sale
By Lessee . . . . . . . . . . . . . . . li-1
-ii-
,
. P.RTICLE XII - Events of Default and Remedies . . . . . . . 12-1
Section 12 . 1 Events of Default 'by Lessee
Def ined . . . . . . . . . . . . . . . 12-1
Section 12 . 2 Lessor ' s Remedies on Default . . . . . . 12-2
Section 12 .3 Use of Leased Premises By Lessor
On Default . . . . . . . . . . . . . . 12-5
Section 12 . 4 Delay; Notice . . . . . . . . . . . . . 12-5
Section 12 . 5 No Remedy Exclusive . . . . . . . . . . 12-5
Section 12 . 6 Attorney' s Fees and Expenses . . . . . . 12-6
Section 12 . 7 No Additional Waiver Implied by
One Waiver . . . . . . . . . . . . . 12-6
Section 12 . 8 Default or Termination; Effect on
Title . . . . . . . . . . . . . . . 12-6
Section 12 . 9 Lessor ' s Covenant Against Waste,
Etc . . . . . . . . . . . . . . . . . 12-6
Section 12 . 10 Default by Lessor; Lessee' s
Remedies . . . . . . . . . . . . . . . 12-6
ARTICLE XIII - Ground Lease; No Merger;
No Subordination . . . . . . . . . . . . . . 13-1
' Section 13 . 1 Ground Lease and Agreements . . . . . . 13-1
Section 13 . 2 No Merger . . . . . . . . . . . . . . . I3-1
Section 13 . 3 No Subordination . . . . . . . . . . . . 13-1
ARTICLE XIV - Administrative Provisions . . . . . . . . . . 14-1
Section 14 . 1 Notices . . . . . . . . . . . . . . . . 14-1
Section 14 . 2 Applicable Law; Interpretation . . . . . 14-1
Section 14 .3 Lessor and Lessee Representatives . . . . 14-2
Section 14 . 4 Binding Effect . . . . . . . . . . . . . 14-2
Section 14 . 5 Severability . . . . . . . . . . . . . . 14-2
Section 14 . 6 Amendments , Changes and
Modifications . . . . . . . . . . . . 14-2
Section 14 . 7 Further Assurances and Corrective
Instruments . . . . . . . . . . . . . . 14-2
Section 14 . 8 Estoppel Certificates . . . . . . . . . 14-2
Section 14 . 9 Execution In Counterparts . . . . . . . 14-2
Section 14 . 10 Financial Information . . . . . . . . . 14-3
Section 14 . 11 . Immunity From Liability . . . . . . . . 14-3
Section I4 . 12 . Lease Not Debt . . . . . . . . . . . . . 14-3
Section 14 . 13 Interpretation . . . . . . . . . . . . . 14-3
S I GNATiJR.ES . . . . . . . . . . . . . . . . . . . . . . . . 14-3
ACKNOWI.EDGMENTS . . . . . . . . . . . . . . . . . . . . . . 14-4
EXHIBITS
-iii-
l
THIS AGREEMENT, dated as of June 1 , 1983 , by and
between the Civic Center Partners Limited Partnership, as
lessor (hereinafter called Lessor) , and the City of Saint Paul ,
a municipal corporation of the State of Minnesota, as lessee
(hereinafter called the Lessee) ;
W I T N E S S E T H:
WHEREAS, Lessee is authorized by the Constitution and
laws of the State and its City Charter to enter into lease
agreements in order to provide land, buildings and other
structures anci i�provements necessary for its governmental or
propr.ietary purposes; and
WHEREAS, Lessee has determined that it is necessary
and desirable to acquire the Land and Facilities and certain
Improvements thereto for use by Lessee in the operation of a
program of public recreation and playgrounds pursuant to
Minnesota Statutes, Sections 471 . 15 to 471 . 191 , by leasing it
pursuant to this Lease;
WHEREAS, Lessor owns Facilities suitable for this
purpose and is willing to provide moneys for the construction
of said Improvements, and to lease the Land and Facilities and
said Improvements to Lessee pursuant to this Lease; and
WHEREAS, Lessee' s Civic Center Authority has agreed to
carry out certain of Lessee ' s obligations under this Lease,
including the construction of the Improvements and the
operation and maintenance of the Leased Premises, on behalf of
Lessee;
NOW THEREFORE, in the joint and mutual exercise of
their powers, and in consideration of the mutual covenants
herein contained, the parties hereto recite and agree as
follows :
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ARTICLE I
DEFINITIONS AND EXHIBITS
Section 1 . 1 Definitions . Unless the context
otherwise requires, the terms defined in this Section shall,
for all purposes of this Lease and the Exhibits attached
hereto, have the meanings herein specified.
Additional Rent : All amounts which Lessee is required
to pay pursuant to this Lease (excluding Basic Rent, amounts
payable upon purchase of the Leased Premises, amoun�s payable
to maintain and repair the Leased Premises pursuant to Section
7 .2, amounts payable for restoration of the Leased Premises
pursuant to Article IX, and amounts payable as liquidated
damages pursuant to Section 12 .2) , together with every fine,
penalty, interest and cost which may be added for non-pa�ment
or late payment thereof .
Aqreemen�s : The Indenture, the Loan Agreement, the
Assignment of Leases and Rents and any other agreement which is
entered into by Lessor for the purpose of securing any
obligations issued to finance the cost of the Facilities and
the Improvements , and any duly authorized and executed
amendment thereto.
Assiqnment of Leases and Rents : The Assignment of
Leases and Rents dated June 1 , 1983 , by and between Lessor as
assignor and the Trustee as assignee, and any duly authorized
and executed amendment thereto .
Authorizinq Resolution: Resolution No. adopted by
Lessee' s governing body on June , 1983 , and any permitted and
duly adopted amendment thereto, which resolution authorizes the
execution and delivery of this Lease by officers of Lessee and
provides for the payment of Lessee ' s obligations thereunder,
and which is hereby incorporated herein by reference.
Basic Rent : The rental payments required to be paid
by Lessee, on the dates and in the amounts set forth in the
attached Exhibit D.
Bond Fund. The fund so designated and established in
Section 5-3 of the Indenture.
Casualty Occurrence: Any occurrence described in
Sections 9 .3 and 9 . 4 hereof .
Civic Center Authority: The Civic Center Authority of
the City of Saint Paul and its successors and assigns .
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Civic Center Lease Fund: The fund so designated and
established in Section 4 . 01 of the Authorizing Resolution,
which is to be held and administered by the Depository Bank
under the Depository Agreement .
Completion Dates : With respect to the Improvements or
a designated part thereof, the date or dates upon which the
construction and installation of the Improvements or each such
part thereof is required to be completed as specified in the
attached Exhibit C.
Construction Contract : Any construction contract
entered into by and between Lessee and a private contractor
providing for the acquisition, construction or installation of
the Improvements or any part thereof, and any duly authorized
and executed amendment or change order thereto or subcontract
thereunder .
Construction Fund: The fund so designated and
established in Section 5-2 of the Indenture.
Contractor : Any person or entity (other than Lessee
or Lessor) entering into a Construction Contract .
Cost of the Improvements : All costs and expenditures
relating to the Improvements which under the Indenture and the
Loan Agreement may be paid from the Construction Fund, the
estimated types and amounts of which are as shown in the
attached Exhibit C.
Deferred PaYment Notes : Deferred Payment Notes (Saint
Paul Civic Center Project) Nos . 1 and 2, dated June , 1983 ,
issued by the HRA to the Lessee pursuant to the Sale Agreement,
and any and all securities pledged by the HRA to secure the
payment of Deferred Note No. 1 .
Demand Note: The Demand Note (Saint Paul Civic Center
Project) , dated June , 1983 , issued by the HRA to the Lessee
pursuant to the Sale Agreement, and any and all securities
pledged by the HRA to secure its payments .
Depository Bank: The First National Bank of Saint
Paul , acting under and pursuant to the Depository Agreement,
and any successor acting thereunder .
Depositorv Aqreement : The Depository Agreement dated
as of June 1, 1983 , by and between the Lessor and the
Depository Agent, and any duly authorized and executed
amendment thereto .
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Event of Default bv Lessee: Any one or more of the
events described in Section 12 . 1 .
Event of Default by Lessor : Any one o�r more of the
events described in Section 12 . 9 .
Facilities : The buildings, fixtures and improvements
including Project Equipment and personal property as described
in Exhibit C to the Loan Agreement located on the Land as
defined by the Loan Agreement as of the date of execution and
delivery of the Lease between the Partnership and the City of
Saint Paul .
Fiscal Year : The twelve month fiscal and budgetary
period of Lessee which begins on January 1 in each year and
ends on December 31 of the same year .
Force Majeure: Acts of God; strikes , lockouts or
other labor disturbances; unavailability of labor or materials;
acts of public enemies; orders or restraints of any kind of the
government of the United States of America or the State or
their respective departments , agencies or officials, or any
civil or military authority; insurrections, riots; landslides ;
earthquakes; fires; storms; droughts; floods; e�losions;
breakage or accident to machinery, transmission pipes or
canals; or any other cause or event not reasonably within the
control of Lessee and not proximately caused by its negligence .
Ground Lease : The Ground Lease dated June 1, 1983, by
and between Lessee and the HRA, whereby Lessee has leased the
Land to the HRA for an initial term of forty �40) years, and
any duly authorized and executed amendment thereto; and the
Ground Lease Assignment dated June 1, 1983 , by and between the
HRA and Lessor, whereby the HRA has assigned its interest in
the Ground Lease described above to Lessor, and any duly
authorized and executed amendment thereto .
HRA: The Housing and Redevelopment Authority of the
City of Saint Paul and its successors and assigns .
Improvements : The physical alterations, changes,
modifications and additions, including any Profect Equipment,
to be made to the Facilities by Lessee as agent of Lessor,
which are generally described in the attached Exhibit B, and
which are to be more particularly described in the Plans and
Specifications and Construction Contracts .
Indenture: The Indenture of Trust dated as of June 1 ,
1983, by and between the HRA and the Trustee, and any duly
authorized and executed amendments thereto.
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Independent Cou�sel : An attorney duly admitted to the
practice of law before the highest court of the State who is
not a full-time employee of Lessor or Lessee. '
Land: The real property described in the Ground Lease
and the attached Exhibit A, but not the Facilities or the
Improvements .
Lease: This Lease Agreement and all duly author�zed
and executed amendments thereto .
Lease Term: The twenty-five year and three month
period commencing on June 1, 1983, and ending on September 1,
2008, for which this Lease is to be in effect .
Lease Security Fund: The Fund so designated and
established in Section 4 . 02 of the Authorizing Resolution,
which is to be held and administered by the Depository Bank .
under the Depository Agreement .
Leased Premises : The Land, the Facilities, the
Improvements hereafter constructed on and to the Land and
Facilities, and any alteration, change, modification or
addition made to any of the foregoing during the Lease Term,
whether by Lessee or Lessor; but excluding Lessee ' s personal
property or equipment located on or in the Land, Facilities and
Improvements in accordance with this Lease.
Lessee: The City of Saint Paul , Minnesota, and any
successor entity.
Lessee Representatives : The persons at any time
holding the positions of Director, Department of Planning and
Economic Development and Managing Director of the Civic Center
Authority; or, in lieu of the Planning Director, any other
person authorized to act on behalf of the Lessee' s governing
body under or with respect to this Lease, as evidenced by a
certificate conferring such authority executed by the Mayor and
given to Lessor or a Lessor Representative.
Lessor : Civic Center Partners Limited� Partnershi�
Group, a Minnesota limited partnership, and its successors� and
assigns .
Lessor Representatives : The President of the General
Partner of Lessor; or, if none, any person authorized to act on
behalf of Lessor under or with respec� to this Lease, as
evidenced by a certificate conferring such authority executed
by the General Partner of Lessor, given to the Lessee or a
Lessee Representative; or, if none, any general partner or
officer of Lessor .
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Loan Aqreement : The Loan Agreement dated as of
June 1 , 1983, by and between the HRA and the Lessor, and any
duly authorized and executed amendments thereto .
Net Proceeds : Any insurance proceeds or condemnation
award paid with respect to the Leased Premises , remaining after
payment therefrom of all expenses incurred in the collection
thereof; and, if Lessee elects to provide self-insurance under
Section 8 . 2, any moneys Lessee is required to pay in the event
of a casualty or loss resulting from a risk covered by
self-insurance.
Net Proceeds of the Lodginq Tax: All moneys received
by Lessee from the tax on transient lodging in the City of
St . Paul imposed by Minnesota Laws 1982, Chapter 523, Article
�V, or any similar tax on transient lodging authorized to be
imposed by Lessee under any state law or its City Charter, less
any costs of administration or enforcement thereof required to
be paid by Lessee.
Net Revenues of the Leased Premises : All revenues
derived by the Civic Center Authority from the operation,
lease, rental or use of the Leased Premises or any activities
conducted by the Authority or any other person on, in or about
the Leased Premises, less all costs incurred by the Authority
for the administration, operation, maintenance and repair of
the Leased Premises , excluding depreciation, and less the
amount thereof needed for establishment and maintenance of a
working capital reserve in an amount not exceeding such costs
to be incurred by the Authority for a 90-day period, as �
estimated by the Authority and approved by the City Council
annually; plus, until August, 1984, $707, 000 of the moneys
transferred from Lessee' s Civic Center Retained Earnings Fund
to its Civic Center Lease Fund, which sum the Depository Bank
is required to return to Lessee on said date if Lessee is not
then in default under the Lease.
Permitted Encumbrances : The encumbrances on the Land
described in the attached Exhibit E.
Plans and Specifications : The plans and
specifications for the Improvements to be prepared by the
Project Engineer or Architect and approved by Lessee.
Proceeds of the Tax Increment Note: All Tax
Increments and other moneys of the HRA required to be used to
make the payments due under the Tax Increment Note.
Proiect EncTineer or Architect : With respect to the
parking facilities comprising part of the Improvements, the
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firm of Breivik-Reigstad Incorporated of St . Paul, Minnesota,
and any successor or any substitute firm appointed by Le�see;
and with respect to all other facilities comprising part of the
Improvements, the firm of Bergstedt, Wahlberg, Berquist,
Rohkol, Inc . (BWBR Architects) of St . Paul , Minnesota, and any
Successor or any substitute firm appointed by Lessee.
Pro�ect Equipment : Any and all ( i) fixtures of
tangible personal property now or hereafter attached or affixed
to the Project and (ii) any additions to, replacements of and
substitutions for any of the foregoing as may be permitted of
required by the Loan Agreement; but excluding property
installed pursuant to Section 4 . 06 of the Assignment of Leases
and Rents and any other property which is taken by Condemnation.
Purchase Agreement: The Purchase Agreement dated as
of June 1 , 1983, by and between the Lessee as seller and the
HRA as buyer, relating to the Facilities .
Rent or Rental Payments : The Basic Rent and the
Additional Rent and all payments of each.
Rental Payment Date: The date on which any payment of
Basic Rent is due and payable as specified in Exhibit D.
Reserve Fund. The fund so designated and established
in Section 5-4 of the Indenture .
Sources : The Net Revenues of the Leased Premises, the
Net Proceeds of the Lodging Tax, and the moneys and securities
from time to time on hand in the Civic Center Lease Fund and
the Lease Security Fund.
State: The State of Minnesota.
State and Federal Law(s) : The Constitution and any
law of the State and any rule or regulations of any agency of
the State; and the Constitution and any law of the United
States, and any rule or regulation of any federal agency.
Tax Increments : All Excess Tax Increments pledged by
the HRA to the payment of the Tax Increment Note as described
and provided in HRA Resolution No. authorizing the
issuance of the Note.
Tax Increment Note: The Special Obligation Tax
Increment Revenue Note (Saint Paul Civic Center Project) , dated
as of June 1 , 1983 , issued by the HRA to Lessee pursuant to the
Purchase Agreement .
s
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Trustee: The First Trust Company of Saint Paul acting
under and pursuant to the Trust Agreement, or any duly
appointed successor trustee under the Indenture.
Section 1 . 2 Exhibits .
The following Exhibits are attached to and by
reference made a part of this Lease:
Exhibit A: A legal description of the Land subject to
this Lease.
Exhibit B: A description of the Facilities now
located on the Land and the Improvements to be constructed
thereto or installed therein.
Exhibit C. A statement of the estimated cost of the
Improvements and each element thereof and a construction
schedule showing the Completion Dates by which the various
elements of the Improvements are to be commenced and completed.
Exhibit D: A schedule showing the dates on which and
the amounts in which the payments of Basic Rent are due during
the Lease Term.
Exhibit E: A list of Permitted Encumbrances .
Exhibit F: A schedule showing the dates on which the
Issue is permitted to purchase the Leased Premises from the
Lessor pursuant to Article IX hereof, and the applicable
purchase price on each such date.
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ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES
.
Section 2 . 1 Representations of Lessee. Lessee
represents, covenants and warrants as follows :
(a) Lessee is a municipal corporation and
political subdivision of the State, duly organized and
existing under the Constitution and laws of the State and
its City Charter .
(b) Lessee is authorized under the Constitution
and laws of the State and its City Charter to enter into
this Lease and the transactions contemplated hereby, and to
perform all of its obligations hereunder .
(c) The officers of Lessee executing this Lease
have been duly authorized to execute and deliv�r this Lease
under the terms and provisions of ordinances and
resolutions of Lessee' s governing body, or by other
appropriate official action.
(d) In authorizing and executing this Lease,
Lessee has complied with all applicable State and Federal
Laws .
(e) Lessee will not pledge, mortgage or assign
this Lease, or its duties and obligations hereunder to any
other person, firm or corporation, and Lessee will not
sublease the Leased Premises except in accordance with
Article XI hereof .
(f) The Leased Premises will be used during the
Lease Term only to carry out the governmental purposes of
Lessee, and in accordance with the terms of this Lease.
� (g) The Land is presently zoned B-4 in part and
B-5 in part under Lessee' s zoning ordinance, and may now be
used for all uses . established for such zoning
classifications .
Section 2 . 2 Representations of Lessor . Lessor
represents, covenants and warrants as follows :
(a) Lessor is a limited partnership duly
organized, existing and in good standing under the laws of
the State and is authorized to do business in the State;
has full and complete power to enter into this Lease, and
to enter into and carry out the transactions contemplated
by, and to carry out its obligations under, this Lease; is
possessed of full power to own and hold real and personal
property, and to lease and sell the same; and has duly
authorized the execution and delivery of this Lease.
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(b) Neither the execution and delivery of this
Lease, nor the fulfillment of or compliance with the terms
and conditions thereof, nor the consummation of the
transactions contemplated thereby, conflicts with or
results in a breach of the terms, conditions or provisions
of Lessor ' s Certificate of Limited Partnership or
Partnership Agreement, or any restriction or any agreement
or instrument to which Lessor is now a party or by which
Lessor is bound, or constitutes a default under any of the
foregoing, or results in the creation or imposition of any
lien, charge or encumbrance whatsoever upon any property or
assets of Lessor other than the rights of Lessee hereunder .
(c) Lessor ' s General Partner is authorized to
execute and deliver this Lease on behalf of Lessor .
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ARTICLE III
CONTRUCTION AND FINANCING OF IMPROVEMENTS
Section 3 . 1 Cost of Improvements; Deposit of Moneys .
Lessor and Lessee agree that the Cost of the Improvements is
estimated to be $10, 000, 000; such estimate comprising the items
specified in Exhibit C. In order to insure Lessee that moneys
sufficient to pay such estimated cost will be available for
this purpose when required, within 30 days after the execution
of this Lease Lessor shall deposit with the Trustee a sum not
less than $10 , 000, 000 for deposit in the Construction Fund
established by the Indenture. •
Section 3 .2 Acquisition of Improvements; Payment of
Cost . Lessee shall, as agent of Lessor, design, acquire,
construct and install the Improvements; provided that the
parties agree that the Civic Center Authority shall perform all
duties and exercise all rights of Lessee under this Article
III , on behalf of Lessee. Moneys in the Construction Fund held
by the Trustee shall be made available by Lessor to Lessee for
payment of the Cost of the Improvements , promptly upon request
by Lessee by following the procedures provided in the
Indenture; provided t�at Lessee shall prepare and furnish all
documentation and obtain all approvals thereof and signatures
thereon necessary to comply with the provisions of Article III
of the Indenture relating to the disbursement of moneys from
the Construction Fund. In the event the moneys in the
Construction Fund are not sufficient to pay the entire Cost of
the Improvements, unless Lessor consents to the payment of such
additional cost by Lessee, Lessee shall alter or amend the
Plans and Specifications and Contracts for the Improvements so
that the moneys in the Construction Fund are sufficient to pay
the remaining Cost of the Improvements . Thereafter the Leased
Premises shall include only the Land, the Facilities and the
Improvements as so altered or amended. Notwithstanding the
foregoing, Lessee shall have the right to complete the
Improvements described in Exhibit C or to make additional
improvements to the Leased Premises in accordance with Section
7 . 05 .
Section 3 .3 Completion of Improvements; Lessee
Damages . Lessee shall cause the Improvements to be completed
and placed in service on or before the Completion Dates and
each Construction Contract shall specify a completion date not
later than the applicable Completion Date. Lessee understands
that unless the Improvements are completed and plaeed in
service on or before the Completion Dates, Lessor will not be
able to claim certain deductions and/or credits on its Federal
and State income tax returns for the period ending on such
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Dates; and that as a result Lessor will suffer certain losses .
Except in the event of Force Majeure which prevents Lessee and
any Contractor from completing the Improvements or any part
thereof on or before the Completion Dates, Lessee shall be
liable to Lessor for any foreseeable loss, damages and expenses
incurred by Lessor as a result thereof . Any amount received by
Lessor under Section 3 . 7 shall, to the extent thereof,
extinguish Lessee' s liability hereunder .
Section 3 . 4 Construction Contract; Completion
Certificate. Lessee, as agent of Lessor, shall enter into all
contracts necessary for the acquisition, design, construction
and installation of the Improvements . All Construction
Contracts entered into by Lessee shall be "fixed price"
contracts, and shall contain provisions for the payment of _
liquidated damages in the event of failure to complete the work
specified therein on time. The determination of the Project
Engineer or Architect as to whether the Improvements or any
part thereof has been substantially constructed, installed and
completed in accordance with the Plans and Specifications and
the Construction Contracts relating thereto shall be final as
between Lessor and Lessee . Upon substantial completion of the
Improvements in accordance with the Plans and Specifications
and such Construction Contracts, as determined by the Project
Engineer or Architect, Lessee shall complete, execute �and
deliver to Lessor and the Trustee, a Completion Certificate.
Section 3 . 5 Chanqe Orders . Lessee shall not
authorize any change order to a Construction Contract which
will extend the completion date for the Improvements beyond the
dates specified in Section 3 . 3 , or will increase the Cost of
the Improvements beyond the amount available in the
Construction Fund to pay such Cost, without the written
approval of Lessor; provided that such approval shall not be
unreasonably withheld.
Section 3 . 6 Builder ' s Risk. Lessee shall maintain,
or require any Contractor to maintain, in force during the
entire construction period of the Improvements, builders ' risk,
comprehensive liability, workmen' s compensation and other
insurance required by law or customarily maintained with
respect to like construction.
Section 3 . 7 Enforcement of Contruction Contracts;
Contractor Damaqes . Lessee agrees to enforce each Construction
Contract against the Contractor in accordance with its terms,
unless such enforcement with respect to a particular breach
thereof is waived by Lessor . In the event Lessee receives
damages from any third party for delays in construction of the
Improvements, whether liquidated or otherwise, the amount
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thereof in excess of the cost of collection shall be paid to
the Trustee for deposit in the Construction Fund if the
Improvements have not been completed and paid for, or shall be
paid to Lessor if the Improvements have been completed and paid
for . Upon completion of the Improvements and payment of all
other costs thereof, Lessee shall cause to be paid to Lessor so
much of the moneys held in the Construction Fund (other than
the proceeds of any tax-exempt bonds) as is necessary to
compensate Lessor for any foreseeable damages suffered by it as
a result of any delay in the completion of the Improvements .
Section 3 . 8 Ownership of Facilities and
Improvements . Lessee acknowledges that the Facilities and the
Improvements are owned by the Lessor .
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ARTICLE IV
LEASE OF LEASED PREMISES
Section 4 . 1 Lease of Leased Premises; Title and
Condition. In consideration of the Rent and covenants herein
stipulated to be paid and performed by Lessee and upon the
terms and conditions herein specified, Lessor hereby leases and
subleases to Lessee, and Lessee hereby leases and subleases
from Lessor, the Leased Premises consisting of : (a) the Land;
(b) the Facilities now located on the Land; and (c) the
Improvements to be constructed and installed in accordance with
Article III .
The Facilities are leased to Lessee, and the Land is
subleased to Lessee, in their present condition without
representation or warranty by Lessor and subject to the rights
of parties in possession, to the existing state of title, to
all applicable legal requirements now or hereafter in effect,
and to Permitted Encumbrances . Lessee has examined the Land
and the Facilities and title thereto and has found all of the
same to be satisfactory for the purposes of this Lease.
Section 4 . 2 Possession, Use and Enjoyment . Lessee,
through its Civic Center Authority which will operate and
maintain the Leased Premises on behalf of Lessee, intends to
operate the Leased Premises primarily as a convention and trade
show facility, or a sports facility, or both, and related
parking facility, as defined in Section 103(b) of the United
States Internal Revenue Code and the regulations relating
thereto, but may use the Leased Premises for any lawful purpose
consistent with such conditions, restrictions and other
encumbrances, if any, to which the Leased Premises and/or
Lessor ' s rights and interest therein are subject at the time of
execution and delivery of this Lease which does not cause the
interest on any bonds issued to finance the acquisition or
construction of the Leased Premises to become subject to
federal income taxes, including cultural events, performances,
and meetings . Prior to making any other primary use of the
Leased Premises, Lessee shall obtain and furnish to Lessor an
opinion of an attorney or firm of attorneys nationally
recognized as bond counsel stating that the proposed use of the
Leased Premises will not render such interest subject to
federal income- taxes . Such opinion, however , if incorrect,
shall not render the proposed use permissible under this
Lease. During the Lease Term, so long as Lessee shall observe
and perform all covenants, agreements and obligations required
of Lessee to be observed and performed hereunder , and if no
Event of Default by Lessee has occurred and is continuing,
Lessor hereby covenants to provide Lessee with the quiet use
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and enjoyment of the Leased Premises, and Lessee shall
peaceably and quietly have and hold and enjoy the Leased
Premises, without suit, trouble or hindrance from Lessor,
except as expressly set forth in this Lease. Lessor will , at
the request of Lessee and at Lessee ' s cost, join in any legal
action in which Lessee asserts its rig�t to such possession and
enjoyment, to the extent Lessor lawfully may do so.
Section 4 .3 Lessor ' s Access. Lessee agrees that
Lessor shall have the right at all reasonable times to examine
and inspect the Leased Premises . Lessee agrees that Lessor
shall also have such rights of access to the Leased Premises as
may be reasonably necessary to cause the proper maintenance
thereof in the event of failure by Lessee to perform its
obligations hereunder .
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ARTICLE V
LEASE TERM; EXTENSION; TERMINATION
Section 5 . 1 Lease Term. This Lease shall be in
effect for a term commencing on the date hereof and ending on
September 1 , 2008, unless terminated prior to said date as
provided in Section 5 . 2 .
Section 5 .2 Termination o£ Lease Term. The Term of
this Lease shall expire or terminate only upon the occurrence
of the first of the following events :
(a) expiration of the Lease Term;
(b) exercise by Lessee of its option to purchase the
Leased Premises pursuant to Article X;
(c) the occurrence of an Event of Default by Lessor
and the declaration of the termination of this
Lease by a court of competent jurisdiction.
Section 5 .3 Surrender of Leased Premises . Upon the
expiration or termination of the Lease Term, or upon exercise
by Lessor of its right to take possession of the Leased
Premises under Section 12 . 2, Lessee shall surrender the Leased
Premises to Lessor in the condition in which it was originally
received from Lessor, except as repaired, rebuilt, restored,
altered or added to as permitted or required hereby, ordinary
wear and tear excepted, and shall surrender all equipment
regularly used or held for use in the operation and maintenance
of the Leased Premises . Lessee shall have the right to remove
from the Leased Premises at or prior to such expiration or
termination all other personal property located therein which
is not owned by Lessor, but Lessee shall repair any damages
caused by such removal . Personal property not so removed
within 60 days after such expiration or termination shall be
deemed abandoned by Lessee and at Lessor ' s option shall become
the property of Lessor . Lessor may cause such personal
property to be removed from the Leased Premises and disposed
of, but the cost of such removal and disposition shall be paid
by Lessee.
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ARTICLE VI
RENT
Section 6 . 1 Basic Rent; Amount and Payment . Lessee
agrees to pay to Lessor during the Lease Term, but only from
the sources specified in Section 6 .3, Basic Rent in the amounts
and on the Rental Payment Dates specified in Exhibit D;
provided that Lessee shall be entitled to a credit against the
Basic Rent due on any Rental Payment Date occurring on or
before March 1, 1998 only, in an amount equal to the amount
then on hand in the Bond Fund held by the Trustee under the
Indenture, exclusive of Restricted Construction Funds as
defined in the Indenture or other moneys deposited in the Bond
Fund pursuant to Section 8 . 02 or 8 . 04 of the Loan Agreement and
interest earned thereon. All installments of Basic Rent shall
be paid to the Trustee for the account of Lessor in lawful
money of the United States . Under the Indenture the Trustee is
required to invest each such installment of Basic Rent during
the period from the Trustee' s receipt thereof until the last
day of February or August thereafter following. Neither Lessor
nor the Trustee shall be liable for any loss which may be
incurred by reason of any such investment , and any such loss
shall be made up by Lessee from the sources specified in
Section 6 .3 .
Section 6 . 2 Additional Rent; Amount and Payment .
Lessee shall pay all items of Additional Rent, but only from
the sources specified in Section 6 . 3 , directly to the person or
entity to whom owed when due. If Lessee shall fail to pay any
item of Additional Rent when due, Lessor shall have all rights,
powers and remedies with respect thereto as are provided herein
or by law in the case of non-payment of Basic Rent and shall
have the right to pay any overdue Additional Rent on b�half of
Lessee.
Section 6 . 3 Sources for Pavment of Rent, Etc . All
Basic Rent and all Additional Rent coming due under the terms
of this Lease shall be payable solely from the sources
specified in this Section, and shall not be or constitute a
charge upon the full faith and credit or general taxing powers
of Lessee; and neither Lessor nor any other person or entity
shall ever have the right to compel the levy of ad valorem
property or other taxes or the use of other moneys of Lessee
for this purpose, other than moneys specifically pledged for
this purpose.
Lessee shall pay all Basic Rent and all Additional
Rent when due from the following sources : (a) moneys and
securities from time to time on hand or required to be
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transferred to the Civic Center Lease Fund; and (b) to the
extent that the foregoing are insufficient for this purpose,
the moneys and securities from time to time on hand in the
' Lease Security Fund.
In and by the Authorizing Resolution, Lessee ' s
governing body has established and agreed to maintain the Civic
Center Lease Fund and the Lease Security Fund, and has pledged
and appropriated the Net Revenues of the Leased Premises, the
Net Proceeds of the Lodging Tax, the Tax Increment Note and the
proceeds thereof, the Deferred Payment Notes and the proceeds
thereof, the Demand Note and the proceeds thereof, and certain
other moneys for their support . Lessee covenants and agrees
that, unless and until all obligations of Lessee under this
Lease are paid or discharged, it will not alter, amends or
repeal the Authorizing Resolution or any covenant made therein,
and will at� all times comply with and carry out all such
covenants .
Lessee has entered into the Depository Agreement with
the Depository Bank whereby the Lessee has transferred the
Civic Center Lease Fund and the Lease Security Fund to the
Depository Bank, and has transferred or will immediately
transfer ali moneys and securities pledged and appropriated to
said Funds to the Depository Bank as received, for investment
and application in accordance with the authorizing Resolution
and the Depository Agreement . Lessee agrees to keep the
Depository Agreement in effect and to comply with all
provisions thereof during the Term of this Lease .
Section 6 . 4 Late Charqes; Additional Rent . Lessee
shall pay to the Trustee on all overdue installments of Basic
Rent and Additional Rent, interest at the rate of 18 . 00s per
annum from the due date therof to the date of payment . If any
installment of Basic Rent due on February 1 is paid later than
the immediately following February 28, or if any installment of
Basic Rent due on August 1 is paid later than the immediately
following August 31, and as a result thereof the Trustee is
required to liquidate any investment in the Reserve Fund for an
amount (excluding accrued interest) less than its original cost
(excluding accrued interest) , Lessee shall also pay to the
Trustee as an item of Additional Rent an amount equal to the
difference between the original cost and the sale price of such
investment .
Section 6 . 5 Nature of Lessee' s Obligation. As
between Lessor and Lessee the obligation of Lessee to make all
Rental Payments from the sources specified in Section 6 .3 or
any other payments required hereunder shall be absolute and
unconditional in all events; and notwithstanding any dispute
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between Lessee and Lessor or any other person, Lessee shall
make all Rental Payments and other payments required hereunder
when due and shall not wlthhold any Rental Payment or other
payment pending final resolution of such dispute nor shall
Lessee assert any right of set-off or counterclaim against its
obligation to make such Rental Payments or other payments
required under this Lease, except as expressly provided in this
Lease with respect to contests of items of Additional Rent .
Lessee' s obligation to make Rental Payments or other payments
shall not be abated through accident ar unforseen circumstances
or due to the failure of Lessee to complete the Improvements or
any other cause. However, nothing herein shall be construed to
release Lessor from the performance of its obligations
hereunder; and if Lessor should fail to perform any such
obligation, Lessee shall have the rights specified in Section
12 . 9 .
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ARTICLE VII
OTHER OBLIGATIONS OF LESSEE
Section 7 . 1 Limitations On Use. Lessee shall
exercise due care in the use, operation and maintenance of the _
Leased Premises, and shall not use, operate or maintain the
Leased Premises improperly, carelessly, in violation of any
State and Federal Law or its City Charter or ordinances, or for
a purpose or in a manner contrary to that contemplated by this
Lease, applicable insurance contracts, the Ground Lease, or the
Agreements . Lessee shall comply with all of the foregoing
insofar as applicable to the operation, maintenance and use of
the Leased Premises, and if such compliance requires changes or
additions to be made to the Leased Premises, such changes or
additions shall be made by Lessee at its expense. Lessee shall
obtain or cause to be obtained all permits and licenses
necessary for the operation, maintenance and use of the Leased
Premises .
Section 7 . 2 Maintenance and Repair . Lessee
acknowledges that it has received and accepts the Land and
Facilities in their present condition. Lessee, at its own
expense, will equip the Leased Premises and will maintain all
parts of the Leased Premises in good repair , appearance and
condition, except for ordinary wear and tear, and will take all
action and will make all structural and non-structural ,
foreseen and unforeseen, and ordinary and extraordinary changes
and repairs which may be required to keep all parts of the
Leased Premises in good repair and condition. Lessor shall not
be required to maintain, repair or rebuild all or any part of
the Leased Premises . Lessee waives any and all rights to
require Lessor to maintain, repair or rebuild all or any part
of the Leased Premises, or to make repairs at the expense of
Lessor pursuant to any State or Federal Law at any time in
effect .
In the event that all or any part of the Improvements
shall encroach upon any property, street or right-of-way
adjoining or adjacent to the Leased Premises, or shall violate
any agreements ( including the Agreements, if any) or condi�ions
affecting the Leased Premises or any part thereof, or shall
hinder or obstruct any easement or right-of-way to which the
Leased Premises are subject, then, promptly after written
request of Lessor or of any person so affected (unless such
encroachment, violation, hindrance, obstruction or impairment
is a Permitted Encumbrance) , Lessee shall , at its e�ense,
either (a) obtain valid and effective waivers or settlements of
all claims, liabilities and damages resulting therefrom, or
(b) make such changes, including alteration or removal , to the
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Improvements and take such other action as shall be necessary
to remove or eliminate such encroachments, violations,
hindrances, obstructions or impairments, (c) initiate
appropriate legal action to remove such encroachments,
violations, hindrances, obstructions or impairments .
Section 7 .3 Taxes, Assessments and Other Governmental
Charqes . Except as expressly limited by this Section, Lessee
� shall pay all taxes and other charges of any kind whatsoever
which are at any time lawfully assessed or levied against the
Leased Premises or this Lease, or with respect to the use of
the Leased Premises or any part thereof, or with respect to the
Rental Payments, or which become due during the Term of this
Lease with respect to any of the foregoing, whether assessed �
against Lessee or Lessor . Lessee shall also pay when due all
gas, water, sewer, steam, electricity, heat, power, telephone,
and other charges incurred in the operation, maintenance, use,
occupancy and upkeep of the Leased Premises, and all special
assessments and charges lawfully made by any governmental body
for public improvements that may constitute a lien on the
Leased Premises; provided that with respect to special
assessments or other governmental charges that may lawfully be
paid in installments over a period of years, Lessee shall be
obligated to pay only such installments as are required to be
paid during the Term of this Lease as and when the same become
due. Lessee shall not be required to pay any Federal , state or
local income, inheritance, estate, succession, transfer, gift,
franchise, gross receipts, profit, excess profit, capital
stock, corporate, or other similar tax payable by Lessor, its
successors or assigns , or any partner of Lessor, unless such
tax is made in lieu of or as a substitute for any tax,
assessment or charge which is the obligation of Lessee under
this Section. Lessee may levy special assessments on the
Leased Premises with respect to local improvements, but such
special assessments shall not exceed the special benefit to the
Leased Premises resulting from such local improvements .
Lessee shall file, from time to time, with the
appropriate public agencies, including Ramsey County,
Minnesota, all forms and documents necessary to obtain
exemptions permitted by law, of the Leased Premises from real
estate and/or possessory interest taxes . Lessor wil1 , at
Lessee' s request, cooperate with Lessee to obtain such
exemptions and will execute such forms and documents as may be
reasonably requested by Lessee which are delivered to Lessor by
Lessee and are required to be signed by Lessor . Lessee shall
endeavor to deliver such documents to Lessor not less than 30 '
days prior to the applicable filing date. In the event that
Lessor does not return such forms and documents to Lessee
within 20 days after its receipt thereof, Lessee shall , within
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five days thereafter, give Lessor telephonic notification that
such forms and documents previously delivered have not been
returned to Lessee by Lessor (which telephonic notification
shall be confirmed promptly in writing) . If Lessor shall
negligently fail to return such forms_ and documents within an
additional 10 days after Lessor has been notified by Lessee of
such failure and a loss of tax exemption resuits therefrom,
Lessor shall pay, prior to delinquency thereof, any real estate
taxes which are levied upon or assessed against the Leased
Premises as a result of such failure.
Section 7 . 4 Liens; Easements; Releases . Lessee shall
not, directly or indirectly, create, incur, assume or suffer to
exist any mortgage, pledge, lien, charge, encumbrance or claim
on or with respect to the Leased Premises or the Rental
Payments, other than the respective rights of Lessor and Lessee
as herein provided and Permitted Encumbrances . Except as
expressly provided in Section 7 .3 and this Section, Lessee
shall promptly, at its own expense, take such action as may be
necessary duly to discharge or remove any such mortgage,
pledge, lien, charge, encumbrance or claim if the same shall
arise at any time. In the event Lessee fails to take
reasonable action for this purpose, Lessee shall reimburse
Lessor for any expense incurred by Lessor for this purpose.
Nothing contained in this Lease shall be construed as
constituting the consent or request of Lessor, express or
implied, to or for the performance by any contractor, laborer,
materialman, supplier or vendor of any labor or services or for
the furnishing of any materials for any construction,
alteration, addi�ion, repair or demolition of or to the Leased
Premises or any part thereof . Notice is hereby given that
Lessor will not be liable for any labor, serviaes or materials
furnished or to be furnished to Lessee, or to anyone holding
the Leased Premises or any part thereof through or under
Lessee, and that no mechanic ' s or other lien for any such
labor, services or materials shall attach to or affect the
interest of Lessor in and to the Leased Premises .
Lessor will , from time to time, at the request of
Lessee and at Lessee' s cost and expense, cooperate and join
with Lessee in granting easements and other rights in the
nature of easements, releasing existing easements or other
rights in nature of easements which are for the benefit of the
Leased Premises , executing amendments to any covenants and
restrictions affecting the Leased Premises, and executing and
delivering to any person any instrument appropriate to confirm
or to the effect that such grant, release, dedication,
transfer, petition or amendment is not detrimental to the
proper conduct of the operations of Lessee in the Leased
Premises, the consideration, if any, being paid for such grant,
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release, dedication, transfer, petition or amendment, and that
such grant, release, dedication, transfer, petition or
amendment does not materially impair the use of the Leased
Premises or reduGe its value; a duly authorized and binding
undertaking of Lessee that Lessee will remain obligated
hereunder to the same extent as if such grant, release,
dedication, transfer, petition or amendment had not been made,
and that Lessee will perform all obligations of Lessor under
such instrument; an opinion of Independent Counsel that
proposed grant will not cause a default under the Ground Lease
or the Agreements; and such other instruments, certificates and
opinions of counsel as Lessor may reasonably request . The
consideration, if any, received by Lessor or Lessee for such
grant, release, dedication, transfer, petition or amendment
shall be paid to and retained by Lessor .
Section 7 . 5 Modification o£ Leased Premises . Lessee
may, and in conformity with the provisions of this Section,
� make additions, alterations and improvements the Leased
Premises and construct additional improvements provided that :
(a) the market value of the Leased Premises shall not be
lessened thereby; (b) such work shall be expeditiously
completed in a good and workmanlike manner and in compliance
with all applicable State and Federal Laws and the requirements
of all insurance policies required to be maintained by Lessee
hereunder; (c) no Facilities or Improvements shall be
demolished unless Lessor ' s prior consent shall have been
obtained, which consent shall not be unreasonably withheld;
(d) Less acknowledges that all all such additions, alterations ,
or improvements shall be and remain part of the realty and the
property of Lessor and shall be subject to this Lease, and that
Lessee is not entitled to any credit or offset for the cost
thereof; and (e) the cost of such additions, alterations or
improvements is either financed by Lessor or such cost is paid
or financed by Lessee and Lessor has given its written consen�
to such additions, alterations and improvements and the
Lessee ' s financing thereof, which shall not unreasonably be
withheld. Lessor ' s consent shall be given if in the opinion of
Independent Counsel the proposed transaction would not result
in the loss of deductions for depreciation or of tax credits
claimed or to be claimed by Lessor with respect to the Leased
Premises .
So long as no Event of Default by Lessee shall have
occurred and be continuing, Lessee may, from time to time
during the Lease Term, request Lessor to reimburse Lessee for
the actual or estimated costs to Lessee of making alterations
or additions to the Facilities or Improvements or constructing
additional improvements of the same nature and for the same use
as the Improvements (but not including the costs of any
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- maintenance or repair required by this Lease to be made by
Lessee) and the cost of acquiring any easements required by
virtue of such alterations , additions or construction, provided
that such costs have been or will be incurred during a period
which shall not be longer then 24 consecutive months and which
shall not have ended earlier than six months prior to the date
of such request and that the costs specified in any such
request shall aggregate at least $500, 000 . Any such request
shall be signed by Lessee and shall describe such alterations ,
additions and additional improvements (and in case easements
are being acquired, such request shall describe such easements
and specify the terms of acquisition thereof to Lessee) , state
the date or estimated date of substantial completion thereof,
certify in reasonable detail the costs or estimated costs for
which reimbursement is requested and certify that all such
alterations, additions and additional improvements have been or
will be constructed in conformity with the requirements of this
Section. Lessor agrees to use its best efforts, upon receipt
of such request, to arrange to finance the reimbursement of
such costs on terms and conditions satisfactory to Lessor and
Lessee; provided, however, that Lessor shall be under no
, obligation to do so, and Lessor ' s failure to do so shall not
constitute a breach of this Lease .
Section 7 . 6 Installation of Lessee ' s Equipment .
Lessee may at any time and from time to time, in its sole
discretion and at its own expense, install or permit licensees
to install items of equipment in or upon the Leased Premises,
which items shall be identified by tags or other symbols
affixed thereto as property of Lessee. All such items so
identified shall remain the sole property of the Lessee or
licensee, as the case may be, in which Lessor shall have no
interest, and subject to the provisions of Section 5 .3 with
respec� to Lessee ' s equipment, may be modified or removed at
any time provided that Lessee shall repair and restore any and
all damage to the Leased Premises resulting from the
installation, modification or removal of any such items .
Nothing in this Lease shall prevent Lessee from purchasing
items to be installed pursuant to this Section under a
conditional sale or lease-purchase contract , or subject to a
vendor ' s lien or �security agreement, as security for the unpaid ,
portion of the purchase price thereof, provided that no such
lien or security interest shall attach to any part of the
Leased Premises . �
Section 7 . 7 Permitted Contests . Lessee shall not be
required, nor shall Lessor have the right, to pay, discharge or
remove any tax, assessment, levy, fee, rent, charge, lien or
encumbrance, or require Lessee or take action on behalf of
Lessee to comply with any State or Federal Laws applicable to
7-5
the Leased Premises or the use thereof, as long as Lessee shall
contest the existence, amount or validity thereof by
appropriate proceedings which shall prevent the colleetion of
or other realization upon the tax, assessment, levy, fee, rent,
charge, lien or encumbrance so contested, and which also shall
prevent the sale, forfeiture or loss of the Leased Premises or
any Basic Rent, any Additional Rent or any other sum required
to be paid by Lessee hereunder to satisfy the same or any State
or Federal Law, and which shall not affect the payment of any
Basic Rent, any Additional Rent or any other sum required to be
paid by Lessee hereunder; provided that such contest shall not
subject Lessor (or any partner therein) to the risk of any
•criminal liability or any material civil liability. Lessee
shall give such reasonable security to insure ultimate payment
of such tax, assessment, levy, fee, rent, charge, lien, or
encumbrance and compliance with applicable laws and to prevent
any sale or forfeiture of the Leased Premises, the Basic Rent,
any Additional Rent or any other sum required to be paid by
Lessee hereunder by reason of such non-payment or
noncompliance. The provisions of this Section 7 . 7 sha11 not be
construed to permit Lessee to contest the payment of Basic
Rent, Additional Rent or any other sums payable by Lessee to
Lessor hereunder .
Section 7 . 8 Advances . If Lessee shall fail to
perform any of its obligations under this Article, Lessor may,
but shall not be obligated to, take such action as may be
necessary to cure such failure, including the advancement of
money, and Lessee shall be obligated to repay all such advances
on demand, with interest at the rate of 18% per annum or the
maximum rate permitted by law, whichever is less, from the date
of the advance to the date of repayment .
7-6
, P,RT I CLE V I I I
INSURANCE AND INDEMNIFICATION
Sec�tion 8 . 1 Insurance Requirement . Except as
provided in Section 8 . 2, Lessee shall procure and keep in force
at all times during the Lease Term, the following types and
amounts of insurance relating to the Leased Premises :
(a) Property insurance against loss from or
damage by vandalism, fire, and lightning and other risks
which at the time are included under the standard
"extended coverage" endorsement, in amounts sufficient to
prevent Lessor or Lessee from becoming a co-insurer of any
loss but in any event in amounts not less than 100� of the
actual replacement value of the Facilities and
Improvements, exclusive of foundations and excavations .
(b) Workers ' compensation insurance to the
extent required by the law of the State and to the extent
necessary to protect Lessor and the Leased Premises against
workers ' compensation claims .
(c) Explosion insurance in respect of any
boilers and similar apparatus located in the Leased
Premises in the minimum amount of $500 , 000 , or from time to
time in such greater amounts as are then customary for
property similar in use to the Leased Premises .
(d) Only with respect to the public parking
facilities comprising part of the Leased Premises, rental
loss or business interruption insurance in an amount
sufficient to replace all revenues lost from the operation
thereof for a period of twelve ( 12) months after the
occurrence of the insured event .
(e) From time to time, such other insurance, in
such amounts and against such risks, as is commonly
obtained in the case of property similar in use to the
Leased Premises and located in the locality in which the
Leased Premises is located, including flood, earthquak�
and, when and to the extent obtainable from the United
States Government or any agency thereof, war-risk insurance.
Section 8 . 2 Self Insurance. So long as Lessee
maintains at least an investment grade rating as determined by
Standard & Poor ' s Corporation or Moody' s Investors Service,
Inc . , Lessee may self-insure up to the amount of $500 ,000
against each of the risks described in Section 8 . 1 , paragraphs
(a) and (c) , and to the extent of such self-insurance Lessee
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shall not be required to maintain the insurance required
thereunder; and may self-insure the risks described in Section
8 . 1 , paragraph (b) . Lessee' s determination to provide
self-insurance with respect to each such risk shall be
evidenced by a certificate describing the same executed by a
Lessee Representative and delivered to Lessor and the Trustee. �
The provisions of Section 8 . 4 shall not apply to any
self-insurance provided by Lessee. If Lessee elects to
self-insure in accordance with the provisions of this Section,
in the event of an occurrence which would have been covered by
the insurance described in Section 8 . 1, paragraph (a) or (c) ,
amounts equal to the amounts of self-insurance with__respect to
the occurrence or to the amount of the loss, whichever is less,
shall be made available by Lessee within sixty (60) days after
the occurrence, and shall be applied, transferred or used in
the same manner as Net Proceeds of insurance are to required to
be handled under Article IX hereof; provided that nothing
herein shall prevent or affect Lessee' s right to contest the
amount of any such loss .
Section 8 . 3 General Liability Insurance. Lessee may
but shall not be required to obtain general public liability
insurance insuring either itself or Lessor with respect to
claims for bodily injury or property damage arising out of the
use or condition of the Leased Premises . However, Lessee shall
require each person, partnership or corporation shich it
permits to use or occupy all or any part of the Leased Premises
for any purpose to obtain and furnish to Lessee prior to
commencing such use or occupancy, or publishing in any public
media information relating thereto, general gublic liability
insurance against claims for bodily injury, death or property
damage occurring on, in or about the Leased Premises and
adjoining streets and sidewalks, in the minimum amounts of
$500, 000 for bodily injury to or death of any person, $500, 000
for property damage, and $1, 000 , 000 for bodily injury, death
and property damage resulting from any one occurrence, or from
time to time in such greater amounts as are then customary for
property similar in use to the Leased Premises .
Section 8 . 4 Requirements for All Insurance. All
insurance required hereby may be provided by a rider to an
existing policy or under a separate policy. All insurance
policies (or riders) required hereby shall be taken out and
maintained with responsible insurance companies organized under
the laws of one of the states of the United States and
qualified to do business in the State; shall contain a
provision that the insurer shall not cancel or revise coverage
thereunder without giving written notice to the insured parties
at least thirty (30) days ' before the cancellation or revision
becomes effective; and, with respect to policies described in
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Section 8 . 1 , paragraphs (a) and (c) , shall have an endorsement
in favor of the Trustee; and, with respect to policies
� described in Section 8 .3 , shall name Lessee and Lessor as
additional insured parties . Lessee shall •deposit with Lessor
policies (and riders) evidencing any such insurance procured by
it, or a certificate or certificates of the respective insurers
stating that such insurance is in full force and effect .
Before the expiration of any such policy (or rider) , Lessee
shall furnish to Lessor evidence that the policy has been
renewed or replaced by another policy conforming to the
provisions of this Article, unless such insurance is no longer
obtainable in which event Lessee shall notify Lessor of this
fact . Lessee shall not obtain or carry separate insurance
concurrent in form or contributing in the event of loss with
that required in Section 8 . 1 hereof to be furnished by Lessee
unless such insurance meets all requirements of this Article.
Lessee shall immediately notify Lessor whenever any such .
separate insurance is obtained and shall deliver to Lessor
policies or certificates of insurance evidencing the same.
Section 8 . 5 Administration of Claims , Etc . Neither
Lessor nor the Trustee nor Lessee shall be required to
prosecute any claim against or contest any settlement proposed
by any insurer, but any of them may prosecute any such claim or
contest any such settlement . In the event of a contest by
Lessee, it shall be at Lessee ' s expense, and Lessee may bring
such claim or contest in the name of Lessor, Lessee or both,
and Lessor will join therein at Lessee ' s written request upon
the receipt by Lessor of an indemnity from Lessee against all
costs, liabilities and expenses in connection with such claim
or contest .
Section 8 . 6 Indemnification. Lessee hereby assumes
responsibility for and agrees to indemnify and reimburse Lessor
(and any partner of Lessor) for all liabilities, obligations ,
losses, damages, penalties, claims, actions, costs and expenses
( including reasonable attorney' s fees) of whatsoever kind and
nature, imposed on, incurred by or asserted against Lessor (or
any partner o£ Lessor) that in any way relate to or arise out
of a claim, suit or proceeding based in whole or in part upon
the condition, use, non-use, operation or maintenance of the
Leased Premises, or that arise out of Lessee ' s failure to
comply with the terms of this Lease or Lessor ' s interest in the
Leased Premises, to the maximum extent permitted by law.
NOTWITHSTANDING THE FOREGOING, LESSEE"S LIABILITY TO LESSOR
UNDER THIS SECTION 8 . 6 SHALL BE LIMITED TO THE AMOUNTS
SPECIFIED IN MINNESOTA STATUTES, CHAPTER 466 .
8 . 7 . Lessor ' s Liability Insurance. Lessor may obtain
general public liability insurance with respect to the Leased
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Premises providing �overage in at least amounts of $
for bodily injury to or death of any person and $
for any one occurrence, and $ for property �
damage. Upon receipt of a premium statement for such
insurance, Lessor shall furnish a copy thereof to Lessee,
together with a copy of the policy, whereupon Lessee shall pay
directly to Lessor or the insurer, the entire premium if the
coverages are those shown above, or an amount of the premium
which would have been payable if the policy provided the
coverages shown above but actually provides greater coverages .
If requested by Lessee, and if Lessee agrees to pay the entire
premium for such insurance, Lessor shall request the insurer to
name the Lessee as an additional insured under the policy.
8-4
ARTICLE IX
CONDEMNATION AND CASUALTY
Section 9 . 1 Lessee to Oppose Condemnation. Lessee
agrees to use all governmental powers and other legal means at
its disposal �o oppose the taking of all or any portion of the
Leased Premises or any interest therein by exercise of the
power of eminent domain, by whomever sought to be exercised,
unless such opposition is waived by Lessor in writing. Lessee
also agrees that it will not during the Lease Term or for a
period of one tl) year thereafter exercise its power of eminent
domain for the purpose of, acquiring any interest of Lessor or
Trustee in the Leased Premises .
Section 9 . 2 Condemnation or Casualtv; Use of Net
Proceeds . Subject to the provisions of Sections 9 .3 and 9 . 4,
and except as hereinafter provided, Lessee hereby irrevocably
assigns to Lessor any award, compensation or insurance payment
to which Lessee may become entitled by reason of Lessee ' s
interest in the Leased Premises (a) if the use, occupancy or
title of the Project or any part thereof is condemned or is
taken, requisitioned or sold in, by or on account of any actual
or threatened eminent domain proceeding or otner action by any
person having the power of eminent domain, or (b) if the Leased
Premises or any part thereof is damaged or destroyed by fire,
flood or other casualty. Lessor and Lessee shall appear in any
such proceeding or action, to negotiate, prosecute and adjust
any claim for any award, compensation or insurance payment on
account of any such damage, destruction, taking, requisition or
sale or their respective interests in the Leased Premises�.
Lessor shall collect any such award, compensation or insurance
payment; notwithstanding the foregoing, any separate award made
to Lessee for its fee title to the Land, its leasehold interest
in the Leased Premises, or as reimbursement for its relocation
expenses or lost goodwill shall be paid directly to Lessee.
All amounts paid in connection with any such damage,
destruction, condemnation, taking or sale shall be applied
pursuant to this Article IX. Lessor shall pay all reasonable
costs and expenses in conneetion with each such proceeding,
action, negotiation, prosecution and adjustment, and shall be
reimbursed therefor out of any award, compensation or insurance
payment received.
Section 9 .3 Condemnation or Casualty; Duty To
Purchase. If a condemnation or taking or casulaty occurrance
shall, in the judgment of Lessee, render the Leased Premises
unsuitable for restoration to its fair market value or to the
same functional utility as a public facility prior to such
occurrence, then Lessee shall , not later than 60 days after
9-1
such occurrence, deliver to Lessor notice of its intention to
terminate this Lease on the next Rental Payment Date whi�h
occurs not less than 150 days after the delivery of such
notice, accompanied by (a) a certificate of Lessee describing
the event giving rise to such termination and stating that it
was determined that such event has rendered the Leased Premises
unsuitable for restoration to its fair market value prior to
such occurrence or to the same functional utility as a public
facility, and (b) an opinion of counsel , in form and in
substance reasonably satisfactory to Lessor, to the effect that
termination of this Lease will not be in violation of any
agreement to which Lessee is a party, and (c) an irrevocable
offer (and Lessee shall hereby be deemed to have made an
irrevocable offer) , to purchase Lessor ' s interest in the Leased
Premises and in the Net Proceeds, if any, payable in connection
with such occurrence (or the right to receive the same when
made, if payment thereof has not yet been made) on such Rental
Payment Date, at a price determined in accordance with Exhibit
F, and Lessee shall deliver a written confirmation of such
irrevocable offer to Lessor along with such notice to terminate
this Lease . If Lessor shall reject such offer by notice given
to Lessee not later than the 20th day prior to such Rental
Payment Date, Lessee shall in the case of a casualty occurrance
restore the Leased Premises to the same functional utility it
had prior to such occurrence, or int he case of a condemnation
or taking this Lease shall terminate on such Rental Payment
Date, except with respect to obligations and liabilities of
Lessor and Lessee hereunder, actual or contingent, which have
arisen on or prior to such Rental Payment Date, upon payment by
Lessee of all Basic Rent, Additional Rent and other sums �hen
due and payable hereunder to and including such Rental Payment
Date, and the Net Proceeds shall be divided between Lessor and
Lessee as their respective interests may appear . Unless Lessor
shall have rejected such offer in accordance with this
paragraph, Lessor shall be conclusively presumed to have
accepted such offer, and, on such Rental Payment Date, shall
convey the Leased Premises to LeSSee or its designee, as is,
and pursuant to and upon compliance with Section 10 .3 shall
assign to Lessee or its designee aIl of Lessor ' s interest in
the Net Proceeds .
Section 9 . 4 Restoration. If, after an occurrence of
the character referred to in Section 9 . 2, or if Lessee is
required to restore the Leased Premises in accordance with
Section 9 .3 , Lessee does� not determine within 60 days after the
occurrence that the Leased Premises has been rendered
unsuitable for restoration and has not given notice of its
intention to terminate this Lease as provided in that Section,
then this Lease shall continue in full effect, and Lessee
� shall, at its expense, rebuild, replace or repair any damage to
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the Leased Premises caused by such event so as to restore the
Leased Premises to the fair market value thereof and (as nearly
as practicable) to the condition thereof immediately prior to
such occurrence. Subject to the provisions of Article VIII and
this Article, the Net Proceeds payable in connection with such
occurrence shall be paid to the Trustee for deposit in the
Construction Fund and made available to and used by Lessee for
this purpose in the manner provided in Article III hereof and
the Indenture with respeet to the construction of the
Improvements . Any Net Proceeds remaining after final payment
has been made for such work shall be disposed of inaccordance
with the Indenture. If the cost of any work required to be
done by Lessee pursuant to Section 9 . 4 shall exceed the amount
of such Net Proceeds, if any, the deficiency shall be paid by
Lessee.
Section 9 . 5 Temporary Takinq. In the event of any
temporary requisition, condemnation or taking by eminent
domain, this Lease shall remain in full effect and Lessee shall
be entitled to receive the Net Proceeds allocable to such
temporary requisition, condemnation or taking; except that such
portion of the Net Proceeds allocable to the period after the
expiration or termination of the Lease Term shall be paid to
Lessor .
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ARTICLE X
LESSEE ' S OPTIONS
.
Section 10 . 1 Purchase Option. If no Event of Default
has occurred and is continuing, and if this Lease is still in
effect, Lessee shall have the option to purchase the Leased
Premises, including Lessor ' s leasehold interest in the Land, on
March 1 , 1998 and on September 1 , 2008, but on no other date.
Said option shall be exercisable upon not less than 180 days '
prior notice to Lessor and the Trustee, at a price equal to the
fair market value of the Leased Premises, taking into account
the rights and obligations of Lessor and Lessee under this
Lease and the Ground Lease; provided that if the option is
exercised on March 1 , 1998 the price shall not be less than
$ and shall not exceed $ The portion of
such value attributable to the remaining period of this Lease
shall be determined on the income method of appraisal . For
purposes of this paragraph "fair market value" shall mean the
amount that would be paid by a willing buyer to a wiliing
seller , neither under a compulsion to buy or to sell, and shall
be as determined by Lessor and Lessee or , if Lessor and Lessee
fail to agree on the price by November 1 , 1997 or May 1, 2007,
respectively, as determined by appraisers selected in the
following manne� : Lessor and Lessee shall each appoint an
appraiser and the fair market value shall be as determined by
the two appraisers so appointed. If the two appraisers so
appointed are unable to agree upon fair market value, a third
appraiser selected by the two appraisers appointed by the
parties hereto shall determine which appraiser is closer to the
actual fair market value, which appraisal shall control . All
appraisers shall be members in good standing of the American
Institute of Real Estate Appraisers or any organization
succeeding thereto. Lessor and Lessee each shall bear the
costs of their respective appraisers and shall divide equally
the cost of the third appraiser .
Section 10 . 2 Riqht of First Refusal . If at any time
during the Term of this Lease Lessor shall receive and be
willing to accept a bona fide offer from a third party to
purchase Lessor ' s interest in the Leased Premises, other than a
bid or offer to purchase such interest at any sale incidental
to the exercise of any remedy provided for in the Indenture, or
if Lessor shall offer to sell its interest in the Leased
Premises to any third party, Lessor shall , if no Event of
Default hereunder shall have occurred and be continuing,
promptly transmit to Lessee prior to accepting any such third
party offer its written offer to sell such interest to Lessee
upon the same terms and conditions as are set forth in the
third party offer or its offer to a third party, as the case
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may be (except that closing shall occur 90 days a£ter timely
acceptance of the offer by Lessee) , together with a true copy
of such offer, and shall give Lessee 30 days to accept such
offer . If Lessee shall accept such offer by written notice to
Lessor within such time, the offer and acceptance shall
constitute a contract between them for the sale by Lessor and
the purchase by Lessee of Lessor ' s interest in the Leased
Premises . The conveyance of Lessor ' s interest to a third party
shall be made subject to this Lease, and this Lease shall
continue in full force and effect . If Lessee shall reject such
offer or shall fail to accept such offer within the 30 day
period provided above, subject to Lessee ' s right to approve or
disapprove as described below, Lessor shall have the right to
sell Lessor ' s interest in the Leased Premises pursuant to, but
only upon the terms and conditions of, the offer to or from the
third party as provided above. Lessee shall have the right to
approve or disapprove such third party, based upon its
experience and business reputation, but approval Lessee shall
not be unreasonably withheld. If Lessor shall fail to close on
such sale within 90 days after the closing date provided in,
and upon the other terms and conditions of, such offer, Lessor
shall no longer have the right to sell its interest in the
Leased Premises unless it shall have first again complied with
the provisions of this Section. Any sale made to a third party
pursuant to this Section shall require such third party to
assume all existing contracts and obligations of Lessor
relating to the operation and maintenance of the Leased
Premises .
Section 10 . 3 Procedure Upon Purchase. If Lessee
shall purchase the Leased Premises or any portion thereof
pursuant to this Lease, Lessor need not convey any better title
thereto than existed on the date of the commencement of the
term hereof, and Lessee or its designee shall accept such
title, subject, however , to the state of title to the Leased
Premises on the date on which this Lease commenced, the
condition of the Leased Premises on the date of purchase, all
charges, liens , security interests and encumbrances on the
Leased Premises and all applicable requirements of Federal and
State Law, but free of the lien of the Indenture and of
charges, liens , security interests and encumbrances resulting �
from acts of Lessor taken without the consent of Lessee. Upon
the date fixed for any purchase by Lessee of the Leased
Premises or any portion thereof hereunder, Lessee shall pay to
Lessor or to any person designated by Lessor in writing from
time to time the purchase price therefor specified herein
together with all Basic Rent, Additional Rent and other sums
then due and payable hereunder to and including such date of
purchase, and Lessor thereupon shall assign its leasehold
interest in the Land and convey fee title to the Facilities and
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Improvements and any modifications thereto to Lessee, and sha11
deliver to Lessee any other instruments necessary to convey the
interests therein as described in this Section and to assign
any other property then required to be assigned by Lessor
pursuant hereto . Lessee shall pay all charges incident to such
conveyance and assignment, including, but not limited to,
reasonable counsel fees, escrow fees, recording fees, title
insurance premiums and all applicable taxes (other than any
income or franchise taxes of Lessor) which may be imposed by
reason of such conveyance and assignment and the delivery of
said deed and other instruments . Upon the completion of any
purchase by Lessee of the entire Leased Premises (but not of
any lesser interest than the entire Leased Premises) not prior
thereto (whether or not any delay or failure in the completion
of such purchase shall be the fault of Lessor) , this Lease
shall terminate, except with respect to obligations and
liabilities of Lessee hereunder, actual or contingent , which
have arisen on or prior to such date of purchase.
In the event that Lessee has exercised its option to
purchase the Leased Premises on March 1, 1998 pursuant to
Section 10 . 1 and on such date there has been no determination
of the fair market value of the Leased Premises pursuant to
Section 10 . 1 , Lessee shall pay to the Trustee on such date an
amount equal to the minimum purchase price due under Section
10 . 1 and shall pay to the Depository Bank for deposit in the
Civic Center Lease Fund pending a final determination of the
purchase price pursuant to Section 10 . 1, an amount equal to the
difference between the minimum purchase price and the maximum
purchase price due under Section 10 . 1 . The Lessee shall cause
the amount paid to the Depository Bank to be invested in
securities which are general obligations of or are guaranteed
by the United States maturing in not more than one hundred
eighty (180) days pending such determination, and when the
purchase price has been determined shall cause so much therof
as is owed to Lessor to be paid to it together with the
interest earned thereon from March 1, 1998 to the date of
payment .
In the event that Lessee has exercised its option to
purchase the Leased Premises on September 1 , 2008 pursuant to
Section 10 . 1 and on such date there has been no determination
of the fair market value of the Leased Premises pursuant to
Section 10 . 1, Lessee' s option shall continue in force until
such determination i.s made, whereupon Lessee shall pay to
Lessor the purchase price payable under Section 10 . 1 (as
subsequently determined in the manner provided therein)
together with interest thereon at the rate of 12� from the date
of purchase to the date of payment; provided that Lessee shall
continue to pay Basic Rent and Additional Rent at the rates
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payable immediately prior to September 1 , 2008 until such
purchase is completed and shall receive a credit against the
amount due of all Basic Rent paid since the normal date of
purchase.
Section 10 . 4 Riqhts of Purchaser . Any person
purchasing the Lessor ' s �rights in the Leased Premises (or any
interest in Lessor) , shall have the same (but no greater)
rights under this Lease as Lessor . •
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ARTICLE XI
ASSIGNMENT AND SUBLEASING
Section 11 . 1 Assiqnment by Lessor . All of Lessor ' s
right, title and/or interest in and to this Lease and the
Rental Payments and other amounts due hereunder has been
assigned to the Trustee by the Assignment of Leases and Rents,
and may be assigned and reassigned in whole or in part to one
or more assignees or subassignees by Lessor at any time, wihout
the consent of Lessee. Any additional assignment shall not be
effective with respect to Lessee unless and until Lessee shall
have received a duplicate original of the document by which the
assignment is made. Lessor shall not assign its obligations
hereunder and shall continue to perform such obligations during
the term of this Lease.
Section 11 . 2 Assiqnment and Subleasing by Lessee.
Neither this Lease nor Lessee' s interest in the Leased Premises
may be assigned by Lessee without the written consent of
Lessor . However , the Leased Premises may be subleased by
Lessee, in whole or in part, without the consent of Lessor ,
subject , however, to each of the following conditions :
(a) This Lease and the obligation of Lessee to
make Rental Payments hereunder , shall remain
obligations of Lessee.
(b) No sublease by Lessee shall cause the Leased
Premises to be used for a purpose other than a
governmental function of Lessee authorized under the
provisions of the Constitution and laws of the State.
(c) No sublease or use thereunder shall cause
the interest payments due on any bonds issued to
finance the acquisition and construction of the Leased
Premises by Lessor to become subject to federal income
taxes .
Section 11 .3 Restriction on Mortqage or Sale by
Lessee. Except as provided in Section 11 . 2, Lessee will not
mortgage, sell , assign, transfer or convey the Leased Premises
or any portion thereof during the Term of this Lease, without
the written consent of Lessor .
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/
ARTICLE XII
EVENTS OF DEFAULT AND REMEDIES
Section 12 . 1 Events of Default bv Lessee Defined.
The following shall be "Events of Default by Lessee" under this
Lease and the term "Event of Default by Lessee" shall mean,
whenever used in this Lease, with respect to the Leased
Premises , any one or more of the fol.lowing:
(a) the failure by Lessee to pay any Rental
Payment or other payment required be paid under this
Lease at the time specified herein and the
continuation of said failure for a period of ten (10)
days after telephonic or telegraphic notice given by
Lessor or the Trustee that the payment referrred to in
such notice has not been received, such telephonic or
telegraphic notice to be subsequently confirmed in
writing, or after written notice; provided, however,
that Lessee ' s failure to pay any Rental Payment shall
not be an Event of Default if and so long as such
failure is caused solely by facts and circumstances �
beyond Lessee ' s control which make the Sources pledged
and appropriated for the payment of such Rental
Payments insufficient for this purpose.
(b) the failure by Lessee to observe and perform
any covenant, condition or agreement on its part to be
observed or performed, other than as referred to in
paragraph (a) of this Section, for a period of thirty
(30) days after written notice stating it is a "Notice
of Default by Lessee" and specifying such failure and
requesting that it be remedied has been given to
Lessee by Lessor or the Trustee, unless Lessor or the
Trustee shall agree in writing to an extension of such
time prior to its expiration; provided, however, that
if the failure stated in the notice cannot with
reasonable diligence be corrected within the
applicable period, Lessor or the Trustee will not
unreasonably withhold its consent to an extension of
such time if corrective action is instituted by Lessee
within the applicable period and diligently pursued
until the default is corrected;
(c) the filing by Lessee of a voluntary petition
in bankruptcy, or the failure by Lessee promptly to
lift any execution, garnishment or attachment of such
consequence as would impair the ability of Lessee to
carry on its governmental or proprietary function, or
the adjudication of Lessee as a bankrupt, or the
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making of an assignment by Lessee for the benefit of �
its creditors, or the entry by Lessee into an
agreement of composition with its creditors, or the
approval by a court of competent jurisdiction of a
petition applicable to Lessee in any proceedings
instituted under the pravisions of the Federal
Bankruptcy Statute or a State bankruptcy statute, or
under any similar acts which may hereafter be enacted;
and
(d) the abandonment of the Leased Premises by
Lessee for a period of 30 consecutive days .
The provisions of paragraph (b) of this Section are subject to
the following limitation: ( 1) if by reason of force ma�,eure
Lessee is wnable in whole or in part to carry out its
obligations under this Lease with respect to the Leased
Premises, other than its obligation to pay Rental Payments with
respect thereto which shall be paid when due notwithstanding
the provisions of this paragraph, Lessee shall not be deemed in
default during the continuance of such inability; and (2) the
unlawful acts of persons using the Leased Premises shall not be ,
considered actions of the Lessee, but Lessee shall make
reasonable effort to prevent or control unlawful acts by
persons using the Leased Premises , and shall repair any damage
caused by such persons in accordance with the terms of this
Lease;
Section 12 . 2 Lessor ' s Remedies on Default . Whenever
any Event of Default by Lessee shall have happened and be
continuing, Lessor, or the Trustee as assignee of Lessor, shall
have the right, subject to the provisions of Minnesota
Statutes, Chapter 502 and the Federal Bankruptcy Statute and
any State bankruptcy statute, if applicable, to take one or any
combination of the following remedial steps :
(a) Lessor shall have the right to terminate the
Lease and re-enter and take possession of the Leased
Premises by giving Lessee notice of termination
specifying the date of termination which shall be a
date not less than 30 days after such notice is
served. Unless such Event of Default by Lessee is
remedied prior to the specified termination da�e this
Lease and the estate hereby granted shall expire and
terminate on such date as fully and completely and
with the same effect as if such date were the date
herein fixed for the expiration of this Lease, and all
rights of Lessee hereunder shall expire and terminate,
but Lessee shall remain liable as hereinafter provided.
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(b) Lessor shall have the immediate right,
whether or not this Lease shall have been terminated
pursuant to paragraph (a) , after following the notice
procedure set forth in paragraph (a) , to re-enter and
repossess the Leased Premises by such summary
proceedings, ejectment, or other legal action or in
any peaceable manner Lessor determines to be necessary
or desirable and the right to remove peaceably all
persons and property therefrom, unless such Event of
Default by Lessee is remedied before initiation of
summary proceedings, efectment, or other Legal
Action. Lessor shall be under no liability by reason
of any such re-entry, repossession or removai . No
such re-entry or repossession of the Leased Premises
shall be canstrued as an election by Lessor to
terminate this Lease unless a notice of such
termination is given to Lessee pursuant to paragraph
(a) , or unless such termination is decreed by a court
or other governmental tribunal of competent
jurisdiction, or unless one hundred eighty ( 180) days
elapse after Lessor ' s re-entry or repossession of the
Leased Premises without reletting by the Lessor or
re-entry by the Lessee as provided in subsection (c)
below.
(c) At all times after the re-entry or
repossession of the Leased Premises as herein
authorized, whether or not this Lease shall have been
terminated pursuant to paragraph (a) , Lessor shall use
reasonable efforts to relet the Leased Premises for
the account of Lessee, in the name of Lessee or Lessor
or otherwise, without notice to Lessee, for such term
or terms and on such conditions and for such
conditions and for such uses as Lessor , in its
absolute discretion, may determine; provided that such
reletting shall be made subject to Lessee ' s right to
regain possession of the Leased Premises under State
or Federal Law; provided further, that if Lessor has
not relet the Leased Premises for the account of the
Lessee within one hundred eighty ( 180) days of
re-entry or repossession twhere this Lease has not
been terminated) , Lessee may at its option and without
further proceedings re-enter and take full possession
of te Leased Premises under this Lease without
affecting or altering the relative rights and
obligations of the Parties , except that Lessor shall
not initiate any Action to terminate the Lease or
re-enter the Leased Premise for 180 days thereafter .
Lessor may collect and receive any rents payable by
reason of such reletting, but shall not be liable for
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any failure to relet the Leased Premises or for any
failure to collect any rent due upon any such
reletting if it has exercised reasonable diligence in
so doing.
(d) No termination of the Lease Term pursuant to
paragraph (a) , by operation of law or otherwise, and
no re-entry or repossession of the Leased Premises
pursuant to paragraph (b) or otherwise, and no
reletting, shall relieve Lessee of its liabilities and
obligations hereunder, all of which shall survive such
expiration, termination, re-entry, repossession or
reletting.
(e) In the event of any expiration or
termination of the term of this Lease or re-entry or
repossession of the Leased Premises by reason of the
occurrence of an Event of Default by Lessee, Lessee
will pay to Lessor a11 Basic Rent, Additional Rent and
other sums required to be paid by Lessee to and
including the date of such expiration, termination,
re-entry or repossession; and, thereafter, Lessee
shall , until the end of what would have been the Term
of this Lease in the absence of such expiration,
termination, re-entry or repossession, and whether or
not the Leased Premises shall have been relet, be
liable to Lessor for , and shall pay to Lessor, as
liquidated and agreed current damages ( it being agreed
that it would be impracticable or extremely difficult
to fix the actual damages) : ( i) all Basic Rent,
Additional Rent and other sums which would be payable
under this Lease by Lessee in the absence of such
expiration, termination, re-entry or repossession,
less ( ii) the net proceeds, if any, of any reletting
effected for the account of Lessee pursuant to
paragraph (c) ( including any items of Additional Rent
paid on account of such reletting) , after deducting
from such proceeds all Lessor ' s e�enses in connection
with such reletting ( including, but not limited to�,
all repossession costs, brokerage commissions, �
reasonable attorneys ' fees and expenses, employees '
expenses, alteration costs and e�enses of preparation
for such reletting) . Lessee will pay such current
damages on the days on which Basic Rent would be
payable under this Lease in the absence of such
expiration, termination, re-entry or repossession, and
Lessor shall be entitled to recover the same from
Lessee on each such day.
12-4
.
(f) At any time after any such expiration or
termination of the Lease Term or re-entry or
repossession of the Leased Premises by reason of the
occurrence of an Event of Default by Lessee, whether
or not Lessor shall have collected any current damages
pursuant to paragraph (e) , Lessor shall be entitled to
recover from Lessee, and Lessee will pay to Lessor on
demand, as and for liquidated and agreed final damages
for Lessee' s default and in lieu of all current
damages the date of such demand ( it being agreed that
it would be impracticable or extemely difficult to fix
the actual damages) , an amount equal to the excess, if
any, of (i) all Basic Rent, Additional Rent and other
sums which would be payable under this Lease from the
date of such demand (or, if it be earlier, from the
date to which Lessee shall have satisfied in full its
� obligations under paragraph (e) to pay current
damages) for what would be the then unexpired Lease
Term in the absence of such expiration, termination,
re-entry or repossession, discounted at the rate per
annum provided below, over (ii) the then fair rental
value of the Leased Premises ( including any item of
Additional Rent) that would be paid by a willing
lessee to a willing lessor , neither under a compulsion
to enter into a lease, and not taking into account the
remaining portion of the Lease Term, discounted at the
rate of % per annum. If any law adopted prior to
the date of this Lease shall limit the amount above
agreed upon, Lessor shall be entitled to the maxirnum
amount allowable under such law.
(g) Any damages payable to Lessor pursuant to
paragraph (e) or paragraph (f) of this Section shall,
to the extent that they represent Basic Rent or
Additional Rent , be payable solely from the Sources
specified in Section 6 .3 .
Section 12 . 3 Use of Leased Premises Bv Lessor on
Default . In the event Lessor is authorized to take possession
of the Leased Premises or terminate this Agreement under
Article XII , Lessee will permit Lessor to use, operate and
maintain the Leased Premises for any lawful purpose compatible
with the uses and zoning of the Land for the balance of the
term of the Ground Lease.
Section 12 . 4 Delay; Notice. No delay or omission to
exercise any right or power accruing upon any Event of Default
by Lessee shall impair any such right or power or shall be
construed to be a waiver thereof, but any such right and power
may be exercised from time to time and as often as may be
deemed expedient .
12-5
.>
Section 12 . 5 No Remedy Exclusive. No remedg herein
conferred upon or reserved to Lessor is intended to be
exclusive and every such remedy shall be cumulative and shall
be in addition to every other remedy given under this Lease or
now or hereafter existing at law or in equity. No delay or
omission to exercise any right or power accruing upon any Event
of Default by Lessee shall impair any such right or power or
shall be construed to be a waiver thereof, but any such right
and power may be exercised from time to time and as often as
may be deemed expedient .
Section 12 . 6 Attorneys ' Fees and Expenses . In the
event either party to this Lease should default under any of
the provisions hereof and the nondefaulting party should employ
attorneys or incur other expenses for the collection of moneys
or the enforcement of performance or observance of any
obligation or agreement on the part of the defaulting party
herein contained, the defaulting party agrees that it will on
demand therefor pay to the nondefaultir�g party the reasonable
fees of such attorneys and such other expenses so incurred by
the nondefaulting garty.
Section 12 . 7 No Additional Waiver impiied by One
Waiver . In the event any agreement contained in this Lease
should be breached by either party and thereafter waived by the
other party, such waiver shall be limited to the particular
breach so waived and shall not be deemed to waive any other
breach hereunder .
Section 12 . 8 Def ault or Termination; Effect on
Title. Neither the occurrence of any Event of Default by
Lessee under Section 12 . 1 , nor the exercise by Lessor of any
remedy reserved to it in Section 12 .2, shall in any way affect
the ground lessor ' s fee title to the Land, or the fee title to
the Land of any successor transferee of ground lessor .
Section 12 . 9 Lessor ' s Covenant Aqainst Waste, Etc .
Lessor covenants and agrees that in the event it becomes
entitled to and assumes possession and use of the Leased
Premises pursuant to Section 12 . 2, it will at all times keep
the Leased Premises in good repair, working order and
condition; and will refrain from committing any waste with
respect thereto .
Section 12 . 10 Default by Lessor; Lessees ' s Remedies .
The following shall be "Events of Default by Lessor" under this
Lease and the term "Event of Default by Lessor" shall mean,
whenever used in this Lease, with respect to the Leased
Premises, any one or more of the following:
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.
(a) the failure by Lessor to deposit moneys with
_ the Trustee or make application to the Trustee for the
payment of costs incurred by Lessee in accordance with
Sections 3 . 1 and 3 . 2;
(b) the failure by Lessor to provide Lessee .with
quiet use and enjoyment of the Leased Premises and to
join in a quiet title action in accordance with
Section 4a2;
(c) the failure by Lessor to give its consent in
accordance with Sections 3 . 5 or 7 . 5;
(d) the failure by Lessor to grant easements
with respect to the Leased Premises in accordance with
Section 7 .4;
(e) the failure by Lessor to perform its
obligations under Sections 9 . 2, 9 .3, 10 . 1, 10 . 2, 10 .3 ,
11 . 1 and 12 .2(c) of this Lease; and
� (f) the creation of any lien on the Leased
Premises by Lessor except as specifically permitted
herein.
In the event of the failure by Lessor to observe and perform
any covenant, condition or agreement on i�s part to be observed
or performed, for a period of thirty (30) days after written
notice specifying such failure and requesting that it be
remedied has been given to Lessor by Lessee, Lessee shall have
the right to commence an action at law or in equity seeking any
one or more of the following: (a) to compel the specific
performance of such covenant, condition or agreement; or (b) to
compel the payment of damages by Lessor .
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ARTICLE XIII
GROUND LEASE; NO MERGER; NO SUBORDINATION
Section 13 . 1 Ground Lease and Aqreements . During the
Terms of this Lease Lessee will duly and punctually observe and
perform, at its expense, all covenants, terms and conditions
imposed by the Ground Lease upon the lessee thereunder
( including, without limitation, the payment of all rents and
other sums) and by the Agreements, if any, upon Lessor, and
Lessee agrees to indemnify and hold Lessor (and any partner
therein) from and against any liability arising under any such
instruments . If any event shall occur which, pursuant to the
terms of the Ground Lease or the Agreements, if any, with� or
without the passage of time, shall enable the lessee under the
Ground Lease to terminate the same, Lessee shall notify Lessor
thereof within five f5) days after Lessee shall have become
aware of the occurrence thereof . Notwithstanding any such
right of termination, Lessee shall take no action to terminate
the Ground Lease or the Agreements, if any, and shall take such
action, if any, as shall be necessary to maintain the estate of
Lessor in the Land, If any event shall occur which, pursuant
to the terms of the Ground Lease or the Agreements, if any,
with or without the passage of time, shall enable the lessor
under the Ground Lease to terminate the same or to impair or
restrict the rights of the lessee thereunder, Lessee shall
notify Lessor within five ( 5) days after Lessee shall have
become aware of the occurrence thereof and shall take such
action, if any, as shall be necessary to maintain the rights of
Lessor in the Land and to enable the full enjoyment of such
rights as they existed prior to such impairment or restriction.
Section 13 . 2 No Merger . There shall be no merger of
this Lease or of the leasehold estate hereby created with
either the Ground Lease or the fee estate in the Leased
Premises by reason of the fact that the same person acquires or
holds, directly or indirectly, this Lease or the leasehold
estate hereby created or any interest herein or in such
leashold estate as well as either or both (a) the Ground Lease
or the leasehold estate thereby created or any interest in the
Ground Lease or such leasehold estate or (b) the fee estate in
the Leased Premises or any interest in such fee estate.
Section 13 .3 No Subordination. Lessor and Lessee
hereby agree that this Lease and the Lessee ' s interest in the
Leased Premisess created hereby are not subject and subordinate
to the lien and interest of the Trustee under the Indenture,
and that so long as Lessee is not in default hereunder it shall
have the right to possession and use of the Leased Premises and
the other rights granted to it hereunder .
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ARTICLE XIV
ADMINISTRATIVE PROVISIONS
Section 14 . 1 Notices . All notices, certificates or
other communications hereunder shall be sufficiently given and
shall be deemed given when mailed by certified or registered
mail , postage prepaid, with proper address as indicated below.
Lessor and Lessee may, by written notice given by each to the
other, designate any address or addresses to which notices,
certificates or other communications to them shall be sent when
required as contemplated by this Lease. Until otherwise
provided, all notices, certificates and communications to each
of them shall be addressed as follows :
To the Lessor : Civic Center Partners Limited
Partnership
Suite 710 Lumber Exchange Building
5th St . & Hennepin Ave.
Minneapolis, Minnesota 55401
To the Lessee: City of Saint Paul
City Hall
St . Paul , Minnesota 55102
Attention: Director, Department
of Planning and Economic
Development
and
St . Paul Civic Center Authority
St . Paul Civic Center
St . Paul , Minnesota 55102
Attention: Managing Director
Section 14 . 2 Applicable Law; Interpretation. This
Lease shall be interpreted in accordance with and governed by
the laws of the State of Minnesota. The words "herein" and
"hereof" , and words of similar import, without reference to any
particular article, section, paragraph or clause, refer to this
Lease as a whole rather than to any particular article, section
or subdivision hereof . References in this Lease to any
particular article, section, paragraph or clause hereof are to
the article, section, paragraph or clause of this Lease as
originally executed. The table of contents and the captions or
headings of this Lease are for convenience only and in no way
define, limit or describe the scope of interest of this Lease,
and are not a part of this Lease. Unless the context hereof
clearly requires otherwise, the singular shall include the
plural and vice versa, and the masculine shall include the
feminine and vice versa.
14-1
i
N
Section 14 .3 Lessor and Lessee Representatives .
Within 30 days after the execution of this Lease, Lessor and
Lessee shall each notify the other of the names, addresses and
telephone numbers of the persons serving as Lessor Representa-
tives or Lessee Representatives, respectively. In performing
their duties and exercising their ri.ghts under this Lease,
Lessor and Lessee shall be entitled to rely upon statements,
representations or determinations given to them in writing by a
Lessee Representative or a Lessor Representative as the case
may be.
Section 14 . 4 Bindinq Effect . This Lease shall inure
to the benefit of and shall be binding upon Lessor and Lessee
and their respective successors and assigns .
Section 14 . 5 Severabilitv. In the event any
provision of this Lease shall be held invalid or unenforceable
by any court of competent jurisdiction, such holding shall not
� invalidate or render unenforceable any other provision hereof .
Section 14 . 6 Amendments, Chanqes and Modifications .
This Lease may be amended or any of its terms modified only by
written document duly authorized, executed and delivered by
Lessor and Lessee.
Section 14 . 7 Further Assurances and Corrective
Instruments . Lessor and Lessee agree that they will , from time
to time, execute, acknowledge and deliver, or cause to be
executed, acknowledged and delivered, such supplements hereto
and such further instruments as may reasonably be required for
correcting any inadequate or incorrect description of the
Leased Premises hereby leased or intended so to be, and for
carrying out the expressed intention of this Lease.
Section 14 . 8 Estoppel Certificates . Lessee will ,
from time to time, upon 20 days ' prior request by Lessor,
execute, acknowledge and deliver to Lessor a certificate of
Lessee stating that this Lease is unmodified and in full effect
(or, if there have been modifications, that this Lease is in
full effect as modified, and setting forth such modifications)
and the dates to which Basic Rent, Additional Rent and other
sums payable hereunder have been paid, and either stating that
to the knowledge of the signer of such certificate no default
exists hereunder or specifying each such default of which the
signer has knowledge. Any such certificate may be relied upon
by the Lessor and the Trustee, and any prospective mortgagee or
purchaser of the Leased Premises .
Section 14 . 9 Execution in Counterparts . This Lease
may be simultaneously executed in several counterparts, each of
14-2
w
which shall be an original and all of which shall constitute
but one and the same instrument .
Section 14 . 10 Financial Information. During the Term
of the Lease, except as limited by law, Lessee annually will
provide to Lessor upon request, current financial statements,
budgets, proof of appropriation for the ensuing Fiscal Year and
such other financial information relating to the ability of
Lessee to continue to pay the Rental Payments from the sources
required under this Lease as may be requested by Lessor .
Section 14 . 11 Immunitv From Liabilitv.
Notwithstanding any other provision of this Lease, no general
partner or limited partner of Lessor, and no officer or
employee of Lessee, shall be subject to suit in his personal
capacity for the enforcement of any provision of this Lease.
Section 14 . 12 Lease Not Debt . This Lease shall not
constitute an obligation or indebtedness of the Lessee within
the meaning of any State statute or the City Charter .
Section i4 . 13 . Interpretation. Except as
' specifically provided herein, nothing herein is intended to
restrict the exercise by Lessee of any of its police powers, or
to confer any rights upon any person or entity other than
Lessor and Lessee and their lawful successors and assigns .
IN WITNESS WHEREOF, Lessor has caused this Lease to be
executed by its General Partner, and Lessee has caused this
Lease to be executed in its name by its duly authorized
officers and sealed with its corporate seal; as of the date
first above written.
CIVIC CENTER PARTNERS LIMITED
PARTNERSHIP, LESSOR
By Churchill Civic Center,
Inc . , General Partner
By
Its President �
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.�
CITY OF ST. PAUL, MINNESOTA,
LESSEE
BY
Its Mayor
(SEAL)
And
Its Director, Department of
Finance and Management
• services
And .
Its City Clerk
The Civic Center Authority of the City of St . Paul has approved
and accepts the terms of this Lease.
CIVIC CENTER AUTHORITY
By
Its Chairman
STATE OF MINNESOTA)
)ss .
COUNTY OF R.AMSEY )
On this day of June, 1983 , before me, a Notary
Public within and for said Coun�y, personally appeared John J.
Fauth, to me personally known, who, being by me duly sworn, did
say that he is the President of Churchill Civic Center, Inc . , a
Minnesota corporation which is the General Partner of Civic
Center Partners LIMITED PARTNERSHIP and which is a party to the
foregoing Lease Agreement; that said Lease Agreement was signed
by him on behalf of The Churchill Company, upon authorization
of its Board of Directors, as such General Partner; and he
acknowledged said Lease Agreement to be the free act and deed
of said General Partner .
(Notarial Seal)
Notary Public
14-4
• R
•
STATE OF MINNESOTA)
) ss .
COUNTY OF RAMSEY )
On this day of June, 1983, before me, a Notary
Public within and for said County, personally appeared the
Honorable George Latimer, Peter G. Hames, and Albert B. Olson
to me personall.y known, who, being each by me duly sworn, did
say that they are respectively the Mayor, Director, Department
of Finance and Management Services and City Clerk of the City
of St . Paul , the municipal corporation of the State of
Minnesota which is a party to the foregoing Lease Agreement;
that the seal affixed to said Lease Agreement is the corporate
seal of the City; that said Lease Agreement was signed and
sealed by them on behalf of the City by authority of its City
Council; and said Mayor, Director and City Clerk acknowledged
said Lease Agreement to be the free act and deed of the City.
(Notarial Seal)
Notary Public
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f � Draft No. 3
June 17, 1983
DEPOSITORY AGREEMENT
This Depository Agreement, dated as of June 1 , 1983 ,
by and between the City of Saint Paul , a municipal corporation
and political subdivision of the State of Minnesota hercinafter
called "the City" , and '�he First National Bank of Saint Paul,
in St . Paul, Minnesota, a national banking association
organized under the laws of the United States hereinafter
called "the Depository Bank" .
WITNESSETH that, in the joint and mutual exercise of
their powers, and in consideration of the mutual covenants
herein contained, the parties hereto recite and agree as
follows:
Section 1 . Recitals .
1 . 01 The City has entered into a Lease Agreement
dated as of June 1 , 1983 (the Lease) with Civic Center Partners
Limited Partnership (the Partnership) , providing for the lease
by the City of certain Land, Facilities and Improvements
located in the City and described in the LeaSe and hereinafter
called the "Leased Premises . " Under the Lease the City is
required to pay to the Partnership or its assigns, Basic Rent
due at the times and in the amounts specified in Exhibit B to
the Lease, commencing on August 1 , 1983 and ending on August 1 ,
2008, and to pay certain items of Additional Rent . A duplicate
original of the Lease has been furnished to the Depository Bank.
1 . 02 In order to finance the acquisition of the Land
and Facilities and the construction of the Improvements by the
Partnership, the Housing and Redevelopment Authority of the
City of Saint Paul (the HRA) has issued $ Revenue
Bonds, Series 1983 (Saint Paul Civic Center Project) , dated as
of June 1, 1983 (the Bonds) , under and pursuant to an Indenture
of Trust dated as of June 1 , 1983 (the Indenture) , executed by
the HRA and the First Trust Company of Saint Paul as trustee
(the Trustee) ; and has agreed to loan the proceeds of the Bonds
to the Partnership under and pursuant to a Loan Agreement dated
as of June 1, 1983 (the Loan Agreement) , by and between the HRA
as lender and the Partnership as borrower .
1 . 03 Under the Loan Agreement the Partnership has
agreed to make loan repayments sufficient to pay the principal
of and interest on the Bonds not payable from Bond proceeds, by
paying to the Trustee certain Basic Payments on February 20 and
August 20 of each year, commencing August 20, 1983 , and to pay
certain Additional Charges to the Trustee if and when due; and
has undertaken certain other obligations . Under the Loan
Agreement such Basic Payments are payable from the Partnership
Note and certain Certificates of Deposit (as defined therein)
pledged as security therefor, and the Basic Rent and the items
of Additional Rent payable to the Partnership under the Lease.
The HRA has assigned its rights under the Loan Agreement to the
Trustee, for the payment and security of the Bonds, and the
Partnership has authorized, executed and delivered to the
Trustee the Partnership Note and an Assignment of Leases and
Rents dated as of June 1, 1983, whereby it has agreed to make
payments on the Partnership Note directly to the Trustee and
has acknowledged and confirmed the obligation of the City to
make payments of Basic Rent and of items of Additional Rent
otherwise payable to the Partnership, directly to the Trustee.
1 . 04 The City by its Resolution No . has
established a Civic Center Lease Fund and a Lease Security
Fund, has provided for the administration thereof, and has
provided for the support thereof by pledging and appropriating
the Net Revenues of the Civic Center, the Net Proceeds of the
Lodging Tax, the Tax Increment Note and the proceeds thereof,
the Deferred Payment Notes and the proceeds thereof, the Demand
Note and the proceeds thereof (all as defined therein) and
certain other moneys for their support . A certified copy of
City Resolution No . has been furnished to the Depository
Bank. Under the Lease and said Resolution No . the Basic
Rent and the Additional Rent due under the Lease are payable
primarily from moneys on hand in the City' s Civic Center Lease
Fund; and, to the extent necessary, from moneys on hand in the
Lease Security Fund.
1 . 05 The City desires to employ the Depository Bank
to receive, hold, invest, account £or moneys and securities
pledged and appropriated to the City' s Civic Center Lease Fund
and the Lease Security Fund, and to disburse such moneys and
securities in payment of the Basic Rent and the Additional Rent
due under the Lease in accordance with the terms of the Lease.
The Depository Bank is willing to perform such functions on
behalf of the City, on the terms and conditions hereinafter set
forth.
1 . 06 The City and the Depository Bank each have
authority to enter into this Agreement and have duly. authorized
its execution and delivery.
Section 2 . "
2 . 01 The Depository Bank shall establish two separate
and special Funds , designated as the Civic Center Lease Fund
and the Lease Security Fund (together the Funds) ; shall deposit
in each Fund all moneys and securities paid to it by the City
for deposit therein; shall keep such moneys and any securities
purchased therewith separate from all other moneys and
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securities on deposit with it; and shall secure the amount of
all uninvested moneys on hand in each Fund by the deposit in a
Federal Reserve Bank of direct obligations of the United States
of America in a principal amount always not less than the total
amount of uninvested money in the Fund. The Depository Bank
shall pay interest on any uninvested cash in each Fund at the
times and in the amounts paid on regular daily interest savings
accounts of its other customers .
2 . 02 The Depository Bank shall hold at interest or
invest in certificates of deposit or securities eligible for
the investment of municipal sinking funds under Minnesota
Statutes, Section 475 . 66, the moneys on hand in the Funds from
time to time, as directed in writing by the Director, of the
City' s Department of Finance and Management Services . If no
written investment direction is received the money shall be
held at interest in accordance with Section 2 . 01 . Neither the
Depository Bank nor the Partnership shall be responsible for
the return on or safety of such investments . Al1 interest on
cash and all gain or loss from any investment shall be credited
or debited to the Fund for which it is held, as the case may be.
Section 3 . Civic Center Lease Fund.
3 . 01 The Depository Bank acknowledges receipt from
the City of the Tax Increment Note, the Deferred Payment Notes,
and $ in cash or securities £or deposit in the Civic
Center Lease Fund. The City agrees to pay into the Fund as
received from the Net Revenues of the Civic Center and the Net
Proceeds of the Lodging Tax, such amounts as are needed to pay
all Basic Rent and all items of Additional Rent when due, and
all proceeds of the Tax Increment Note and the Deferred Payment
Notes as reeeived, all in accordance with said Resolution
No.
3 . 02 The moneys and investments on hand in the Civic
Center Lease Fund from time to time, while held by the
Depository Bank, shall be used solely for the payment of the
Basic Rent and the Additional Rent required to be paid under
the Lease when due, and the payment of the purchase option
price due under Article IX or X of the Lease in the event the
City is required to purchase the Leased Premises under said
Article IX or exercises its option to purchase the Leased
Premises under said Article X. The Depository Bank shall remit
to the Trustee out of the Fund to the full amount of the Fund
the moneys needed to pay each payment of Basic Rent and any
item of Additional Rent payable to the Partnership under
Section 6 . 04 of the Lease when due without further order or
authorization by the City; and shall pay all other items of
Additional Rent payable by the City to the person to whom owed,
upon written request by the City. The Depository Bank shall
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also : ( i) upon receipt of written authorization from the City,
remit to the Trustee out of the Fund, to the full amount of the
Funds, the moneys needed to purchase the Leased Premises in
accordance with the Lease; and ( ii) upon receipt from the
Trustee or the Holders of not less than 25% of the Bonds
Outstanding at any time under the Indenture (as verified by the
Trustee) , of notice that an Event of Default has occurred and
is continuing under the Lease, and of a request that all moneys
and investments on hand in said Fund be paid to the Trustee
pursuant to the Lease, pay and transfer to the Trustee as soon
as practicable all moneys and investments then on hand in the
Fund. The Depository Bank shall not have any responsibility
for the lawfulness of said notice and request or for the
application or use by the Trustee or the Holders of the Bonds
of the moneys and investments so transferred.
3 . 03 Notwithstanding any other provision of this
Agreement, if on August 1 , 1984 no Event of Default by the City
has been declared and is continuing under the Lease, the
Depository Bank shall pay to the City from moneys on hand in
the Civic Center Lease Fund, the sum of $707, 000 .
Section 4 . Lease Security Fund.
The Depository Bank acknowledges receipt from the City
of the Demand Note for deposit in the Lease Security Fund. The
moneys and securities on hand in the Fund shall be used solely
for the purposes specified in the said Resolution No . ,
including the elimination of any deficiency to make payments
from the Civic Center Lease Fund under Section 3 . 02 hereo£, to
pay Basic Rent or Additional Rent, or to purchase the Leased
Premises in accordance with the Lease. Moneys to be disbursed
from the Fund for the purposes specified in said Resolution
No . , after then meeting deficiencies in the Civic Center
Lease Fund, shall be disbursed only upon receipt of written
request by the City certifying that each requested disbursement
is for such purposes, and describing the items of expense to be
paid.
Section 5 . Compensation For Services .
The Depository Bank shall be entitled to receive
solely from the Civic Center Lease Fund, the sum of $
per year as and for its compensation for all services to be
performed by it under this Agreement, and may withdraw the
amount of such compensation from the Fund each year on the date
or dates on which sufficient cash becomes available in the Fund
to pay such compensation. This fee shall remain fixed for five
years, but shall be subject to reasonable adjustment thereafter
by the Depository Bank.
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Section 6 . Benefit of Aqreement; Enforcement .
6 . 01 This Agreement is made by the City for the
benefit of the Partnership, the Trustee, the Holde'rs of the
Bonds issued under the Indenture, and their successors and
assigns, and except as provided in Section 7 is not revocable
or subject to modification by the City.
6 . 02 The entities and persons designated in Section
6 . 01 other than the City shall constitute third party
beneficiaries of this Agreement, and shall be entitled to
enforce performance and observance by the City and the
Depository Bank and their respective agreements and covenants
set forth herein as fully and completely as if said third party
beneficiaries were parties hereto.
Section 7 . Termination of Agreement .
If the City purchases the Leased Premises under
Article IX or X of the Lease, or upon expiration of the term of
the Lease, the City may at its option terminate this Agreement
by giving written notice of termination to the Depository Bank
and the Partnership, specifying a date of termination not less
than 15 days after the notice is given. On the date of
termination the Depository Bank shall, subject to the rights of
the Partnership under the Lease, and the duties of the
Depository Bank under Section 3 hereof, transfer to the City
all moneys and investments on hand in the Funds and all records
relating thereto; and the Depository Bank, upon making such
transfer , shall be relieved of all further responsibilities
under this Agreement, which shall thereupon be terminated.
Section 8 . Limitation of Responsibilities .
8 . 01 The performance by the Depository Bank of its
duties under this Agreement shall be deemed performance by the
City of the same duties assumed by it under the Lease; but the
City shall not be responsible for the satisfactory per£ormance
of such duties by the Depository Bank, and shall not be liable
for the failure of the Depository Bank to perform such duties
as required, or for any expenses incurred by the Depository
Bank under this Agreement . •
8 . 02 The Depository Bank shall not be responsible for
the performance of any duties in connection with the contracts
described or the moneys deposited in the Civic Center Lease
Fund or the Lease Security Fund except those expressly imposed
upon it hereunder .
_5_
Section 9 . Administrative Provisions .
9 . 01 The Depository Bank shall keep accurate and
complete books and records showing all receipts, interest
earnings, investments, gains and losses and disbursements made
in the Funds, and shall furnish a statement -thereof for each
six-month period ending on June 30 and December 31 to the
Trustee and the City, within 15 days after the end of such
period; and shall furnish to the City confirmation showing each
investment transcaction in the Funds within 5 business days
after such transaction is completed.
9 . 02 The Depository Bank, upon failure of the Cit� to
pay to it on or before each January 1 and July 1, commencing
January 1, 1984, moneys sufficient to pay the Basic Rent due
under the Lease on the immediately following February 1 of
August 1 as the case may be, shall immediately give mailed
notice of such fact to the Partnership and the Trustee.
9 . 03 Al1 notices required to be given under this
Agreement shall be given in the manner and with the effect
specified in Article XIV of the Lease to the person or entity
entitled to receive it at the address shown in the Lease or, if
none, at its current address, or at such address as such person
or entity may provide in writing to the Depository Bank.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the day and year first above written.
THE FIRST NATIONAL BANK OF
SAINT PAUL
BY
Its
CITY OF SAINT PAUL
Form Approved
By
George Latimer, Mayor
Assistant City Attorney
And
Peter Hames ,
Director of Department of
� Finance and Management
Services
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And
Albert Olson, City Clerk
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. .
�� DRAFS �l3/8 3 �
. � �/,,-/��
LOAN AGREEMENT .
BETWEEN .
HOUSING AND REDEVELOPMENT AUTHORITY
OF THE CITY OF SAINT PAUL, MINNESOTA
AND
CIVIC CENTER PARTNERS LIMITED PARTNERSHIP
$
REVENUE BONDS, SERIES 1983
_ (SAINT PAUL CIVIC CENTER PROJECT)
DATED: JUNE l, 1983
The i.nterest of the Housing and Redevelopment Authority of the
City of Saint Paul, Minnesota in this Loan Agreement has been
assigned to the First Trust Company of Saint Paul, in Saint
Paul, Minnesota.
This instrument was drafted by:
. � � BRIGGS AND MORGAN
- Professional Association
2200 First National Bank Building
Saint Paul, Minnesota 55101
�a.. _ a
i� �.-.s.;t
-s-- . . . . . .. . .
_ . . . . .... .
' '. . ' ' ' ' -' ... .. � - . _ ." . •. . .
. .'-: _-'. . . . . '. ... - ,- ' � � -
_ . . - . -TP.BLE �F CONTENTS . .
. - _ ... . . . - -: _ - - - . P,age _
.. ARTICLE 1 - Definitions; Exhibits �and Miscellaneous. . . . . . .� 1 •
. Section 1.01. Definitions. . . :. . . . . . . . . . . .. . . . . . . . . . . 1
_ � - � Section 1.02. ExYiibits. . . . : :.:. . :�.�. . ... . . . . . . . . . . . . . . . 8
- - . Secti�n 1-.03. .�Par�nership'.s A�ts s-. .-. ... . .: . • •: • • • • . • • 9
Section 1.04. �Rules of Interpretation. . . . . . . . . . . . . . . 9
ARTICLE_2 - Representations_ of._ Issuer and Partnership. . . . . 10
.. Section 2.01. �Representations ,by-the. Issuer. . . . . . . . . l�
Section 2.-02. ' Representations by tYie Partnership. . . . 11
ART�CLE 3� - Completion of Project. . .. . . . . . . . . . . . . . . . . .. . . . 15
_ _ Section 3.01. Acquisition, Construction� and
� � � Equipping of Project by Partnership. . . 15
� Section 3.02. Payment of Cost. . . . . . . . . . . . . . . . . . . . . . . 16
` • Section 3.03. AuthoFization by Issuer. . . . . . . . . . . . . . . ' 1$
Section 3.04. Issuance of Bonds. . . . . . . . • • • • • • • • • • • • • 19
Section 3.05. Disbursements from Construction Fund. . 20
Section 3.06. Establishment of Completion Date. . . . . . 22
Sectioa 3.07. Payment and Performance Bond. . . . . . . . . . � 24
- Seetion 3.08. �Enforcement of Contract. . . . . . . . . . . . . . . 24
Section 3.09. Title Assurances. . . . . . . . :. . . . . . . . . . . .. 25
. ARTICLE 4 - The Loan, Basic Payments aad Additional
Charges and Additional Financing. :. . . . . . . . . . . . 26
Section 4.01. The Loan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 4.02. Basic Payments. . . . . . . . . . . . . . . . . . . . . . . . 26
Section 4.03. Additional Charges. . . . . . . . . . . . . . . . . . . . 28
Section 4.04. Partnership's Obligations --
Uaconditional. . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 4.05. Partnership's Remedies. . . . . . . . . . . . . . . . 29
. Section 4.06. Additional Financing. . . . . . . . . . . . . . . . . . 30
ARTICLE 5 - Project Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
- Section 5.01. Project Operation and Maintenance. . . . . 32
Section 5.02. Sale or Lease of Project. . . . . . . . . . . . . . 32
Section 5.03. Assignment of Leases .
� and Rents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 5.04. Advances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
• Section 5.05. Alterations to the Project and
- Removal of Project Equipment. . . . . . . . . . 33
Section 5.06. Tie-Ins. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
- Section 5.07. Taxes and Other Governmental Charges. . 34
Section 5.08. Insurance Requirements. . . . . . . . . . . . . . . . 34
Section 5.09. Self Insurance. . . . . . . . . . . . . . . . . . . . . . . . 35
Section 5.10. Requirements for All Insurance. . . . . . . . 36
Section 5.11. Administration of Claims, Etc. . . . . . . . . 36
.^, � '
��,�-�..��_'-
- - _ • . � . . � . page
. ._. _:. _. _ .
_ - _ . � - . .
-- � � � � ARTICLE 6� - Dainage, _.Destruction and Conr�emnation. . . . . . ,-... . . 38
_ . Section. 6.01. - Damage a�d: Destruction-. :. . . . . . . . . . . . . . . _38 '
�_ -� � � Section 6.02. Conc�emnation�. . . . . . . : .=. . . . . . . .. .. . . . . . ... 38
' �Section 6.03. Application- of� Net Proceeds.�. . . . . . • • • • • 3S
- � ARTICVE 7 - - Partnership'�s_ Coveriar�ts�:'. .-. :. . . . .-. . :�. . . . . . . .�. . . 39
. - - . Sectivn 7:01• Covenant.for.:tha .B�ene�it of- the
Tr�stee and the Bondholders. . . . . . . . . . . . 39 �
Section 7.02.- Inspection and Access. . . . . . . . . . . . . . . . . . 39
� • Section• 7.03. Annual Statement, Audit, Certificate
: .- - � ��f .Comp�iance and Other Reports. . . . . . . . 40
� �� Section` 7:04. �Indemnit� by Partnership'. . . . . . . . . . . . . . . 40
� - Section 7.05. - Status of Partnership. . . . . . . . . . . . . . . . . . 42
. - -Sect�on`7.06. Filing of Financing Statements. . . . . . . . . 43
Section 7.07. Assurance of Taa Exemption. . . . . . . . . . . . . 43
" . . ARTICLE �8 - Partnership`s Options. . . . . . . . . . . . . .. . . . . . . . . . . . . 45
� Section 8.01. Assignment and Transfer. . . . . . . . . . . . . . . . 45
Section 8.02. Prepayment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 .
� Section 8.03. Direction of Investments. . : . . . . . . . . . . . . 46
Section 8.04. Terznination of Loan Agreement. . . . . . ... . . 46
� - ARTICLE -9 - Events. of Defau�lt. and Remedies. . ... . . . . . . . . . . . . . 49
Section 9.01. Events of Default. . . . . . . . . . . . . . . . . . . . . . 49
` - Section 9.02. Remedies. . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . 50
Section 9.03. Disposition of Funds. . . . . . . . . . . . . . . . . . . _50
Section 9.04. Nonexclusive Remedies. . . . . . . . . . . . . . . . . . 51
Section 9.05. Attorneys ' Fees . and Expenses. . . . . . . . . . . 51
Section 9.06. Effect of Waiver. . . . . . . . . . . . . . . . . . . . . . . 51 "
Section 9.07. Waiver of Stay or Extension. . . . . . . . . . . . 51
- Section 9.08. Issuer May File Proofs of Claim. . . . . . .:. 52
� - " Section 9.09. Restoration of Positions. . . . . . . . . . . . . . . 52 .
Section 9.10. Suits to Protect the Project. . . . . . . . . . . 52
Section 9.11. Performance by Third Parties. . . . . . . . . . . 53
Section 9.12. Eaercise of the Issuer' s Remedies by
Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
- Section 9.13. Limited Recourse. . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE 10 - General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 10.01. Amounts Remaining in Funds. . . . . . • • • • • • • 54
Section 10.02. Notices. . . . . . . . . . . . . . . .'. . . . . . . . . . . . . . . . 54
' Section 10.03. Binding Effect. . . . . . . . . . . . . . . . . . . . . . . . . 55
� Section 10.04.- Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Secti:on 10.05. Amendments, Changes and Modifications. . 55
Section 10.06. Execution Counterparts. . . . . . . . . . . . . . . . . 55.
� Section 10.07. Required Approvals. . . . • • • • • • • • • • • • • • • • • 55
. . . __ __ . . . . . .. .._ . . .__ . . .. .. ._ . _.. . _ . . . _ .. .._ .. .. _ ._. _.. . . . _.
i,�.�. aAfv .
1'�- . ' . . � ' ' ._ " .
. - . . _' . . ' ' ' . _ . - - . . . . • _ ./' ' ._
. _. : _ " � - -� : Page
� Section 10.08.- Limitation on Municipality Liability. . . _ 56
_:,� . _ _ .
- �� Section 10..09 Representations of Partnership. . . .. . . . . 56
Section 10.10. Joint and S.everal Guaranty of � ,
" � Individual Part�ers � �
�_ � _ _ � � - " Intentiona�ly .Omitted. . . . . . : . . . . . . . :. .. 56
� Section 10,11. Payment_of- Interest._C�sts After
� Di;scharge of Indenture -
. Intentionally Omitted. . . . . . . . . . . . . . . . . . 57
- Section 10.12. Survivorship of Obligations. . . . . . . . . . . . 57
SIGNATURES. .�. ...-. . . . . . .: . . . .�:.. . . . .=. . .�: . .. . ..: .°. . . . . .�. . . . . . . . . 55-58
E�iIBIT _ - � - - -
L�._`'::�::: .
..- � LOAN' AGREEMENT "
- : � � • -� THIS- LOAN-AGREEMENT is� made `and� �entered into� -as of
_ _ tl�e .first day of June, 1�-983; by. and between the Housing and - ,
� Redevelopment Authority of the City of Saint Paul, Minnesota, a
body corporate and politic organized and egisting under the
. laws of the State of .Minnesota (the� "Issuer") , and Civic. Center
� - .� - Partners Limited Partnership, a Mi�nnesota limited partnership �
- (t�e. "Partnership") ._� _: .. � , _ _ - -= _ .
WHEREAS,' tYie Issuer and the Partnership, each in
consideration of the: zepresentations, covenants and agree.�nents
. of the otlier as set �£orth herein, .mutually .represent, covenant
� and agree as� follaws: � - .
. - - - . � ARTICLE 1 -
. - . DEFZL�TITIONS, EXHIBITS AND MISC�T•A�OUS
� � Section 1.01. Definitions.
The terms used herein, unless the context hereof �
shall require otherwise, shall have the following meanings, and
am other, terms defined in the Indenture (as �said terms are
- herein d"efined) sha11 have -#�ie -same meanings when used herein
as. assigned them in the Indenture unless the context or use
- thereof indicates another or different meaning or intent. -� �
Act: the Municipal Zndustrial Development Act, Minnesota .
Statutes, Chapter 474, as amended; -
Additional Bonds: Additional Bonds issued uader the
- provisions of the Indenture; . � '
Additional Charges: the payments required by Section
4.03; �
Agzee.z►ent: this Loan Agreement between the Issuer and the
� Partnership as the same may from time to time be amended or
� supplemented as provided herein and in the Indenture;
. AMBAC: the American Municipal Bond Assurance Corporation,
a New York corporation, its successors or assigns;
� Architect: the�chitect designated in the Lease between
the Partnership and e Issuer;
l. , _ _
� �� � - . .Assignment of Leases and. Rents: t�e Assignment of Leases
-. . and .Rents of even date herewith- from the: Partnership �to the �
� Trustee; _ � . . _ _ . . .
- � Bank�: The- Firs.t �Natio�al Bank of Saint Paul; � - -
Bankruptcy Code:. the Un�,ted States Bankruptcy Reform Act
- of 1978 or any similar or succeeding federal bankruptcy law;
� " � Sasic Fayments: _ tlie� pay:aents required by Section 4.02;
- - ° - - - - - _ . _. � -
Bond Closin :. the date on which there is delivery of and
paymeat or t e Bonds;�
-- Bond Counsel: the firm of Briggs and Morgan, Professional .
Association, of Saint Paul and Minneapolis, Minnesota, or any
- other finu of nationally recognized bond couasel�experienced in
• tax �eaempt -industrial revenue bond financing selected by the
- Trustee and acceptable to the Issuer and tYie Partnership;
Bond Fund: the fund so designated in Section 5-3 of the
Indenture, from k1lzich the principal of and interest, and
premium, if any, on the Bonds are payable; _
Bond Register: the register maintained by the Trustee
_ pursua�t_ to Section 2-10 of the Zndentur�; ' -
Bonds:• the Aousing and Redevelopment Authority of the _
City of Saint Paul, Minnesota, Revenue Boads, Series 1983
(Saint Paul Civic Center Project) to be issued by the Issuer �
pursuant to the Indenture;
Business Day: any day other thaa� a Saturday or Sunday or
other day on which commercial banks in the city in which the
principal corporate trust office of the Trustee is located� are
not open for business;
� Certificates of Deposit: the Certificates of Deposit
issued by the Bank dated as of the Bond Closing each redeemable
in the amount of $350,000 to secure payments due under the
- Partnership Note;
City: the City of Saint Paul, Minnesota, and any
� successor entity; .
� 2
��:z. w� � - . . .
� - - - Civic Center .Authority:. -. the Civic �Center.Authority of the
� . City,its successors and assigns; � . .
_ � .- . _ . � - �Coiapletion Date� - -the date on whicl�:�the :�roject .is . .
" completed as provided� in and. in aceordance with Section 3.06;
Condemnationz the word� Condemnation or phrase "eminent
domain" as used herein shal-1 include the taking or requisition
�_ � by goyesruaerital authority or by a _person, firm or corporation
� acting under goyernmental authority and:a_ conveyance made under
threat of Condemnation, .provided �such conveyance is made with
the approval of the Trustee, which approval shall not be
unreasonably withheld-, and Condencnation award shall mean pay-
� ment fo� property condemned- or-conveyed under threat of Condem-
� � nation; _. :- .. _ . � �
�: . .
� - - - = �
�; - Construction Contract: any contract or contracts betweea .
� the Partnership or the City on behalf of the Partnership and
- - , -. .any ttiird party, iacluding architectural, engineering and
- consulting agreements, for the acquisition, construction and _
. installation of the Improvements to the Facilities and any "
amenda�ents or supplements thereto made and filed as required �
under Section 3.01(2) ;
_ Construction Fund:- the fund so designated in Section 5-2
- of the•-I-ridenture:�- .� -. . . � �
� Cost, Cost of the Project or Project Costs: the cost
,� . -- -
� � items enumezated in Section 3.02;
�
� Discharge Date: the date on which all Outstanding Bonds •
� are discharged under Article Seven of the Indenture;
,�
� _ Event of Default: any of the events set forth in Section �
:� - .
� 9.O1;
fi; .
Facilities: the buildings, fiatures and improvements
Iocated on the Land as of the date of execution and deliv of
the Lease
Gr nd Lease: the Ground Lease dated Juae l, 1 83, by and
betwe the City of Saint Paul and the Issuer, whereby the City
• of S nt Paul has leased the Land to the Issuer or an initial
. te of,�forty (40) _years and any duly author ed and executed
am ndment thereto;
� ��
.�' P�' �-
�� � : .
� � �� . ,
� �
P ��� �
. � • 3
` - -� . Ground Lease Assignment: . the- Ground Lease _Assignment
� � : dat,ed June 1, 1983, by and. between the Issuer and the -
� • Partners'hip whereby tYie Issuer has �assigned its interest in the'
_
� � �� � -Ground Lease to the Partnership,_„and any_.du�y authorized and
- executed �amenclment �hereto;; , � - � :
� Holder or Bondholder: any bearer of any Unregistered Bond
or coupon or the Registered Holder of any Registered Bond;
- - � � Improvements: -the� physical-. alterations, changes,
- modifications and additions;� includina�"�anv�-Proiect- Equipment�
to be made to the Facilities by the Partnership pursuant to the
Lease, which are gene=al7,y described in the attached Exhibit B;
_ -� Indenture:. the Indenture of Tr-ust betweea the Issuer and
the Trustee, of even date. Yierewith as� the same may from time to
- - time be amended or -supplemented as therein provided.
- - Independent Accountant: a certified public accountant or
. • � � firm of certified public accountants registered and qualified
to practice as such urider the laws of the State of Minnesota,
. and not regularly employed by the Issuer or the Partnership,
except to perform independent audits of the books and records
• of either or both of them or other similar periodic revie�as•;
Independent Counsel: any attorney�.designated by the
Trustee; duly admitted to practice law before the highest court
of any state who may be counsel to the Partnership or the
Issuer but who may not be an officer or a full time employee� of
the Partnership or the Issuer(any opinion of Independent
Counsel shall be a written opinion signed 'by such Counsel) ;
Internal Revenue Code or Code: the Internal Revenue Code
of 1954, as amended;
� Issuer: the .Housing and Redevelopment Authority of the
. City of S nt Paul, Minnesota, its successors and assigns;
. Land: the real property described in the Ground Lease and
the attached Exhibit A but not the Facilities or Improvements;
Lease: the Lease eement of even date herewith between
the Partnership, as lessor and t e ity, as lessee�`relatin to
• the Land, the Facilities and the Improvements;
Loan: the loan of Bond proceeds from the Issuer to the
Partnership described in Section 4.01 of this Agreement; -
4 --
�:::-�:�_....__.- .
� � � -� . Mandatory Redemption Schedule: . tl�e schedule�-of principal
� - : installments pursuant to which Bonds maturing in the years 2003`
� � � and- 2008 are required �to be..prepaid� as pr.ovided in Section
. ._. _, :. . _ .
__ . � . 3=1.(.3). of- the .Indenture; _ . . :.. .-. � - . .
� .- �- Maturity I3ate: the� date 'on which principal of and � - -
interest and premium, if any; .on the Bonds is due whether at
J maturity, a scheduled interest payment date, or upon
. redemption, l �or otlzerwise;. . � -
. . '
- - - -� Managing General �Partner s� �the 'Ctiurchi-11,iC'vic Center,
Inc. , ��a Minnesota corpbration and any successor partner
identified as managing ge�eral partner under the Partnership's
- partnership agreement;: . - - - .- - _
Net Proceeds: with respect to any property insurance
� payment or Condemaation award for all or any partion of. the
- Project, the amount rem�aining therefrom after• payment of all
- ,eapens�es incurred by the Partnership, Trustee and Issuer in the
. ~ collection thereof;
Original Purchaser: the bank, investment banker, bond
dealer, or other person wYro acts as underwriter or otherwise
purchases the Bonds frma the Issuer; •
Outstanding- Bonds: . as of the date -of determination, all
Bonds t2ieretofore issued and delivered under the Zndenture
eacept: .
(A) Bonds theretofore cancelled by the Trustee or
Paying Agent or delivered to the Trustee or Paying Agent cancel-
led or for cancellation;
(B) Bonds for which payment or rede�ption moneys or
securities (as provided ia Article �Seven of the Indenture)�� �
shall have been theretofore deposited with the Trustee �or
Paying Agent in trust for the Holders of such Bonds; provided,
hawever, that if such Bonds are to be redeemed, notice of such
zedemption shall have been duly given pursuant to the Indenture
or irrevocable action shall have been taken to call such Bonds
� . for redemption at a stated redemption date; and
. _ (C) Bonds in eachange for or in lieu of which other
• Bonds shall have been issued. and delivered pursuant to the
Indeature; -
provided, however, that in determining whether the Holders of
the requisite principal amount of Outstanding Bonds have given
any request, demand, authorization, direction, notice, consent
5
or waiver hereunder, Bonds owned by the Issuer or the
Partnership shall be disregarded and deemed not to be Out-
standing Bonds except that in determining whether the Trustee
shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent, or waiver, only
. Bonds which the T��ru�stee -knows to be owned shall be disregarded• •
L �.�, ,�,�:, y,-� 5`
Partnership: L Civic Center Partners Limit d Partnership, a
Minnesota limited�partnership, its successors nd assigns, and
any surviving, resulting or transferee partne ship or other
entity which may assume its obligations under this Agreement;
G��--r,a�c `�/�r'`'?'.c../' � ���
Partnershin Note: the $3, 500,000 Partnership�IJote�to be
issued by the Partnership to the Trustee at Bond Closing and
secured by the Certificates of Deposit;
Paying Agent: First Trust Company of Saint Paul, in St.
Paul, Minnesota, or any other entity designated pursuant to the
Zndenture as the agent of the Issuer and the Trustee to receive
and disburse the principal of and interest on the Bonds;
Payment Date: the Maturity Date, Purchase Date or
Discharge Date, as the case may be;
Petition in Bankraptcy: any petition filed to initiate a
proceeciing under the Bankruptcy Code in whicYz the Partnership
�is the debtor, whether such petition is filed by or against the
artnership;^ _
/�
Plans and Specifications: the plans and specifications
for the acquisition, construction and installation of the
Improvements to the Facilities, and any modifications thereof .
and additions thereto made and filed in accordance with the
provis ions of Section 3.O1(1)��`��
Project: the leasehold �a�d in the Land granted under
the Ground Lease and the Facilities and Improvements together
� with aIl additions to, replacements of and substitutions for
the foregoing which may be made as permitted or required by
this Agreement, but excluding any real estate taken by
Condemnation; /�
/ \
Project Costs: see Cost;
�
6
��, f t � �
. � - Project Equipment: �any and al� �(i) . fixtur-es `or -tangible
� � personal }�roperty .now .or hereafter attac�ed or affixed to the
• -_ = Project, and (ii) any additions �o, � replacements of and
- - - � substitutions` for any of �he- foregoing as� may�be permitted or . -
_ required by this Agreement,_ �ut excluding. ��operty installed _
- pursuant to Section .4.06 of the Assignment� of. Leases and Rents
and any other property/�taken�by- Condemnation;�
I \ �
- � - - .Project� Supervisor:. �who shall�have full authority to� sign
� . ar�r .eertif�cate �or stateraent_of any_ kind �author3zed by this -
Agreement to be given .by the Project Supervisor to the Issuer
or the Trustee, both =.of whom may rely on any certificate or
statement so• signed as. that of the Project Supervisor and shall
not: be affected by any�.notice to the contrJary; �rovided,
� how�:ver, that if the original Pro�ect Supervisor, or any
successor appointed_hereunder, should �become unavailable, .
_ unabl-e or-unwilling to take any action or make any certificate
_ provided for in this Agreement, a successor (who need not be an
: - - ` architect or engineer) sllall be appointed by the Partnership,
� subject to acceptance by the Issuer and the Trustee, and if the
Partnership fails to make such designation within ten days
� �following such event, the Trustee may appoint as such successor
any architect or engineer licensed under the laws of the State
of Minnesota; . � �
- Purchase Dates ��the date on which any Outstanding Boads
are purchased pursuant to Section 5-6 of the Indenture;
Registered Holder: the person in whose name a Registered�
Bond is registered in t2ie Bond Register;
Representative: tY►e Secretary of the Issuer or Managing
Director of the Civic Center Authority� on behalf of the Issuer,
_ - or a duly suthorized general partner of the Partnership, or any
other person at any time designatecl to act on behalf of the
issuer or the Partnership, as the case may be, as evidenced by
a written certificate furnished to the other party and the
Trustee, containing the specimen signature of such person and
signed for the Partnership by a general partner� for the
. - Issuer by �SecretaryJt.�ereof; �-v
Reserve Fund: the Fund so designated in Section 5-4 of
the Indenture; �
. 7
� .�,0-�"7.�..c�.�/�7�., I%�+ .��c L.=e�i�
•\ r.��`'-"G . ^ V�, �ti`+ �f��Z?
• � \ r�,,,�,� t{ o� .,�'.z-�.. ' ^r�:%�-�
� �Wi�%�.wl�.:� �
- Reserve Reauirement: _ the sum specified as the Reserve
Requirement under the Indenture;
. ' � �
Restricted Construction Funds�`~any Bond proceeds,
including interest thereon, . which are required to be
� transferred on the Completion Date from the Construction Fund •
to the Bond Fund and which the Trustee is required. under
Section 5-3 (f) (B) of the Indenture to apply towards�'the
prepayment o pro rata payment of principal of the Bonds.;
Sale Agreement: the Sale Agreement of even d�h�e�r�ew�th�b
between the I suer and the Partnership.t'� G���.
�rt
p�,�. �c f�-�- Po�...fr.a�...�%pi
Term of this Agreement: the period of time co�nencing on
the Date of this Agreement and terminating on the final
maturity date of the Bonds or upon earlier termination of this
Agreement under Section 8.04;
Trustee: First Trust Company of Saint Paul, in St. Paul,
Minnesota, and any co-trustee or successor trustee appointed,
qualified and then acting as such under the provisions of the �
Indenture;
Unpaid Bonds: all Outstanding Bonds and any other Bonds
wlzich have �not matured and have not been redeemed or purchased
and cancelled under the Indenture;
Unre ed B no regis ere _
prin ' ;
Working Capital Expense: Project Costs or other expenses
which are paid or reimbnrsed from Bond proceeds, including �
earnings thereon, and which the Znternal Revenue Service treats
as working capital or inventory under Section 103(b) of the
Internal Revenue Code. ,
. Section 1.02. Exhibits.
The following Exhibits are attached to and by
reference made a part of this Agreement:
(1) Exhibit A: legal description of the�L�
(2) Exhibit B: description of Improvements.
. -
(3) Exhibit C: /� list of personal property included in the _
Facilities. r - "
8 -
� Section 1.03. Partnership's Acts.
Where the Partnership is permitted or required to do
or accomplish any act or thing hereunder, the Partnership may .
cause the same to be done� or accomplished by a third party
. selected by the Partnership with the same forc,e .and effect as
if done or accomplished by the Partnership.
Section 1.04. Rules of Interpretation.
(1) This Agreement shall be interpreted in accordance
with and governed by the laws of the State of Minnesota.
(2) Z`he words "herein" and "hereof" and "hereunder" aad
words of similar import, without reference to any particular
section or subdivision, refer to this Agreement as a whole
rather than to any particular section or subdivisian of this
Agreement.
(3) References in this Agreement to any particular
article, section or subdivision hereof are to the designated
article, section or subdivision of this Agreement as originally
�executed. _
(� The Table of Contents and titles of articles and
sections herein are for convenience only and �are not a part of
this Ag=eement.
(5) Unless the context hereof clearly requires otherwise,
the singular shall include the pZural and vice versa and the
masculine shall include the femini.ne and vice versa.
(� Articles, sections, subsections and clauses mentioned
by number only are those so numbered which are contained in
this Agreement. , �
9
- ARTICLE 2
� REPRESENTATIONS OF ISSUER AND PARTNERSHIP
. - Section 2.01. - Representations by the Zssuer. -
The Issuer makes the following representations as the
basis for its covenants herein:
(1) The Issuer is a body corporate and politic organi.zed
and existing under the laws of the State of Minnesota and is
authorized to issue the Bonds to finance the Cost of the
Project pursuant to the Act;
(2) In authorizing the Project the Issuer' s purpose is,
and in its judgment the effect thereof will be, to promote the
public welfare by: the attraction, encouragement and develop-
ment of economically sound industry and commerce in the
downtown area of the City of Saint Paul so as to prevent, so
far as possible, the emergence of blighted and marginal lands
and areas of chronic unemployment and to aid in the
redevelopment of areas of existing blight, marginal land and
persistent unemployment; the development of industry to use� the
available resources of the community to strengthen the downtown
area's__base as a regional employment, retail, entertainment and
recreational center, in order to retain the benefit of the .
community' s existing investment in educational and public
service facilities; halting the m4vement of talented, educated
personnel of mature age to other areas and thus preserving the
economic and human resources needed as a base for providing
governmental services and facilities; providing accessible .
employment opportunities for residents in the area; and the
expansion of an adequate_ tax base to finance t2�e increase in
the amount and cost of governmental services, including
educational services for the School District serving the
_ community i.n which the Project is situated;
(3) The Project has been approved by the Co�aissioaer of
Energy, Planning and Development of the State� of Minnesota as
tending to further the purposes and policies of t2ze Act;
� (4) The issuance and sale of the Bonds, the execution and
� delivery of this Agreement and the Indenture, and the
performance of all .covenants and agreements of the zssuer
contained in this Agreement and the Indenture and of all other
acts and things required under the Constitution and Iaws of the
State of Minnesota to make this Agreement, the Indenture and
10
� the Bonds valid and binding obligations of the Issuer in
accordance with their terms, are authorized by the Act and have
been duly authorized by resolutions of the governing body of
the Zssuer adopted at meetings thereof duly called and held on .
Apzil 21, 1983 and � _ by the affirmative vote of
• not less than a majority of its members; . .
(5) Under the provisions of the Indenture the Issuer' s
interest in this Agreement and certain payYaents due hereunder
are pledged and assigned to the Trustee as security for the
paym�ent of the principal of and interest and premium, if any,
on the Bonds; -
(6) The Issuer has authorized the Partnership, in
accordance witY► the provisions of the Act and subject to the
terms and conditions set forth in Article 3 of this Agreement,
which terms and conditions the Issuer has detenained to be
necessary, desirable and proper, to provide for the
acquisition, construction and installation of the Project under
the PZans and Specifications by such means as shall be
available to the Partnership and in the manner determined by
the Partnership, and with or without advertisement for bids as
may be required for the construction, acquisition and
installation of Zmprovements by the Issuer; and has ratified,
confirmed and approved all actions heretofore taken by the
Partner-ship consistent wi.th and in anticipation of such
authority; and
(7) No public official of the Issuer or the CitY has
either a direct or indirect financial interest in this
Agreement nor will any public official of t11e Issuer o e
�i= either directly vr indirectly benefit financially from
this P,greement within the meaning of Minnesota Statutes,
. Sections 462.432 and 471.87. .
Section 2.02. Representations by the Partnership.
The Partnership makes the following representations as the
basis for its covenants herein:
(1) The Partnership is a limited partnership duly
organized and existing and in good standing under the laws of
the State of Minnesota, and duly authorized to conduct its
� business in the State of Minnesota and has full and complete
power to enter into this Agreement, the Lease, and the
Assignment of Leases and Rents� and � use the Project for the
purpose set forth in this Agre+ement �and by proper partnership
i � ,• ,�,
f,�-c � ';'��"` °`
11 ��.� ,�✓`re.s.�.G : �� ,�
1 ����d��/���/��/' (/<'A .
. ������,{�(/���V ,� /i
r'P/..��. �.
- � � ^� �i4�Z.�s+,�.i�.
�
... �„ _
, l
` � /�
;
agreement duly signed by the Managing General Partner h s
authorized the execution and delivery of this Agreement� the
• Lease, the Partnership Note and the P.ssignment of Leases and
Rents and has approved the Indenture;
. (2) The execution �and delivery of this Agr.eement, the •
Lease, the Partnership Note and tlie Assignment of Leases and
Rents, the consummation of the transactions contemplated
thereby, and the fulfillment of the terms and conditions
thereof do not and will not conflict with or result in a breach
of any of the terms or conditions of the Partnership's
partnership agreement, any restriction or any agreement or
instrument to which the Partnership or any general partner is
now a party or by which it is bound or to which any property of
the Partnership or any general partner is subject, and do not
and wi.11 not constitute a default under any of t]Ze foregoing,
or in violation of any order, decree, statute, rule or
regulation of any court or any state or federal regulatory body
having jurisdiction over the Borrower or its properties,
including the Project, and do not and will not result in the
creation or imposition of any lien, charge or encumbrance of
any nature upon any of the property or assets of the
Partnership or any general partner contrary to the terms of any
instrument or agreement to which the Partnership or any gen8zal
partner is .a party or b�► which it is bound;
r•f�e�`",,.�:'�'�
(3) The design� and q�'lan of the Project comprises Land and
Facilities •including Equipment and Improvements useful in
connection with the operation of a revenue-pro3ucing enterprise
as contemplated by Section 474.02, subdivision la of the Act
and the Project does not include any property to be sold or
affixed to or conswned in the production of property for sale .
nor does it include any housing facility to be rented or used
as a permanent residence. or any facility to be used as a place
of worship or for any other sectarian purpose; and subject to
the other provisions of this Agreement, it is presently
. intended and reasonably expected that the�Improvements to be
p�rchased from the proceeds of the Bonds 'will be perrn�inently
located and exclusively used on the Land and that the
Partnership will lease the Project to the City of Saint Paul to
operate the Project t2iroughvut the Term of this Agreement.
(4) The proceeds of the Bonds, together with any other
• funds to be contributed to the Project by the Partnership or
otherwise in accordance with this Agreement, will be sufficient
to pay the cost of acquiring and completing the Project in a
manner sui�able for operation as required in Article 3;
12
- � " u tantiall all" of the roceeds of the Bonds will
(5) S bs y p
be used for the acquisition, construction, reconstruction, or
improvements of land or property of a character subject to the
allowance for, depreciativn within the meaning of Section .
103(b) (6) of the Code and-will be expended for Facilities of
. the type described in Se�ction 103(b) (4) (B) , (C.) and (D) of the
Znternal Revenue Code provided that nothing herein shall
prevent the Issuer from qualifying the Bonds under a different
exemption if and to the extent such exemption is permitted by
law and consistent with the objects and purposes of the Act;
(6) Comparable private financing for the Project was not
found 'sy the Partnership to be reasonably available, and the
Project is econoiaically more feasible with the availability of
the financing herein authorized;
(7) A major inducement to the Partnership to acquire and
co�istr'uct the Project was the source of financing provided
under the Act and the assurance the Partnership received from
the Issuer that such financing would be made available to the
Partnership; and any Praject Costs Y�eretofore incurred by the
�Partnership for �hich the Partnership shall hereafter seek
reimbursement as provided in Section 3.05, were incurred in
anticipation of reimburseznent from the proceeds of r�venue �
bonds of the Issuer if such proceeds should become available on
terms acceptable to the Fartnership; and the �Partnership
investigated the possibility of such financing prior to incur-
ring such Project Costs.; and the Partnership did not commence
acquisition or construction of the Project prior to April 21; -
1983, the date on which the Issuer gave preliminary approval of
the Pro�ect and the fa.nancing thereof in whole or part through
revenue bonds;
(8) The entire Cost of the Project is estimated to be at
least equal to the face amount of the Bonds, less the amount of
Bond proceeds deAOSited_i.n the Reserve Fund, but the
Partnership acknowledges that the Issuer has made no warranty
or representation, either express oz implied, that the amount
in the Construction Fund will be sufficient to pay such Costs
or that the Project will be suitable to the Partnership's
needs;
(9) The Partnership is not in the trade or business of
� selling properties such as the Project and therefore the
Partnership has no -intention now or in the foreseeable future
to voluntarily sell, surrender or otherwise transfer, in whole
or part, its interest in the Project except as provided in the
Lease: .
13
(10) There are no actions, suits, or proceedings pending
or, to the knowledge of the Partnership, threatened against the
• Partnership or any general partner or any property of the
Partnership in any court or before any federal, state,
municipal or other goveriunental agency, which, if decided
� adversely to the Partnership or general partner would have a •
material adverse effect upon the Partnership or upon the
business or properties of the Partnership; and the Partnership
is not i.n default with respect to any order of any court or
governmental agency;
(11) The Partnership is not in default in the payment of
the principal of or interest on any indebtedness for borrowed-
money nor in default under any instrument or agreement under
and subject to which any indebtedness for borrowed money has
been issued;
(12) The Partnership has fiZed all federal and state
income tax returns which, to the knowledge of the officers of
the Partnership, are required to be filed and have paid all
taxes shown on said returns and all assessments received by �
them to the extent that they have become due;
(13) The Partnership has reviewed and approved the �
provisions �of the Indenture; and
(14) No public official of the Issuer or the CitY has
eithe=a direct or indirect financial interest in this
' Agreement nor will any public official of the Zssuer or th_e � �
C,ity either directly or indirectly benefit financially� from
this P,greement within the meaning of Minnesota Statutes,
Section 462.432 and 471.87. -
(15) The Partnershig represents and covenants that it
shall comply with the Lease• and the Sale Agreement.
14
• ARTICLE 3
COMPLETION OF PROJECT .
� Section 3.01. Ac uisition, Construction and
� Equipping o Pro�ect y Partnership.
(1) Plans and Specifications and Architect' s Contract.
Plans and Specifications shall be prepared for construction and
installation of the Improvements by the -Architect and shall be
approved by the Partnership and appropriate public officials of
the City and shall be filed with the Trustee,�before a
nstr�;ction Contract is entered into or assigned as
hereina ter provided. The contract with the Arc�iitect shall
provide that the Architect will perform its obligations therein
for the Trustee at the Trustee's request should the Trustee
desire to succeed to the Partnership's and CitY's interests in
such contract after default by the Partnership. The Plans and
Specifications may be modified and amended pursuant to the
�ternes and conditions of the Sale Agreement and Lease. All such
modifications or amendments shall be filed with the Trustee.
�-�t�
(2) Construction Contract. The Partnership shall cause
the City, as agent of the Partnership, to enter into one or
more Construction Contracts in accordance with the terms and
c n�itions of t�e Sale Agreement and Lease for construction and
installation oftZmprovemen s an a copy of�each Construction� -
Contract shall be filed with Trustee before�anv work coaunence�
thereunder; and for this purpose an�existing Construction
Contract between the City and any third party shall be assigned
to the Partnership and then reassigned. to the City as agent of
the Partnership. Eac Construction Contract shall provide that
� the Contractor will perform its obligations therein for the
Trustee at the Trustee's request should the Trustee desire to
succeed to the Partnership's and City`s interests in the
Construction Contract after de au t by the Partnership. �� Eacl?
Construction Contract may be amended or supplemented if such
amendments or supplements are deemed�b�y, the City to be
necessary or desirable and will not cause the total Project
Costs to exceed the then remaining bala.zce in t2ze Construction
Fund and other funds available to pay such Costs. All such
. amendments or supplements shall be filed with the Trustee.
15
(3) Installation and Construction. The Partnership will
cause the Improvements to be installed and constructed b� the
• C t�, substantially in accordance with the Plans and
Specifications and in accordance with the terms and conditions
of the,�Sale Agreement and� Lease and wholly within the boundary
• lines �of the�. � . � -
(4) Survey. On or before Bond Closing the Partnership
will file wi.th the Trustee a plat or survey prepared by a
registered land surveyor, addressed and certified to the
Trustee, containing the correct legal description of and
showing the dimensions, area, and the location of all
improvements, easements, encroachments and other visible
encumbrances upon .the Land and a certificate of the registered
land surveyor or the Archi�ect showing that the Facilities as
laid out, are within the lot lines of the Land.
(5) Completion. The Partnership will cause the Project
to be completed by the City by the Completion Date, provided
that if the Project is �not completed by that date there shall
be no resulting liability on the part of the Issuer and no
abatement or diminution in the payments required to be made by
the Partnership under Article 4; and
(6) Insurance and Payment and Performance Bonds. The
Partnership will cause insurance and payment and performance
bonds to be procured and maintained in accordance with the
terms and conditions of the Sale Aareement and Lease during
construction of the Improvements and as required in Section �
3.07 of this Agreement.
(7) Title Assurances and Recording. The Partnership will .
cause to be delivered at the Bond Closing such policy or binder
as is required under Section 3.09 and to be executed, recorded
and filed in the office o€ the County Recorder of Ramsey
County, Minnesota, and at any other place or places required by
. Bond Counsel before Bond_Closing, the Assignment of Leases and
Rents, all financing statements and any title curative
documents that the Trustee, the�Partners in or Bond Counsel may
deem necessary or desirable to perfect or protect title of the
Partnership to the Project and the riQhts and interests of th�
Trust the Assignment of Leases and Rents�and the�
ndenture.
Section 3.02. Payment of Cost.
The Partnership and Iss�� agree�that all of the
following items�1wi11 be reimbu from Bond '�roceeds to tbe
/ �
16
WHITE- - CITV CIERK ��� � ��
`,� PINK - FINANCE � (
CANARV - DEPARTMENT GITY OF SAINT PAITL F1eci1N0. „' �
BLUE - MAVOR
City Atthy/JTH . .
Co ncil Resolution
Presented By ��'z�
Referred To Committee: Date
Out of Committee By Date
RESOLUTION OF THE CITY OF SAINT PAUL
APPROVING AND AUTHORIZING EXECUTION
OF THE SAINT PAUL CIVIC CENTER PROJECT
BINDING LETTER OF INTENT
WHEREAS, by its Resolution, Council File No. 279841, adopted
February 15 , 1983 , the City Council authorized an investment
banking services contract for the purpose of preparing a sale-
leaseback financing program for the Civic Center Parking Ramp
and Auditorium Improvement Project, by its Resolution C .F. No .
280374 adopted May 26 , 1983 , the City Council approved the
Seventh Place Redevelopment Project Financing Plan For the Civic
Center Improvement (the Saint Paul Civic Center Auditorium and
Parking P�amp Improvement Project) hereafter referred to as the
"Project" , and by its Resolution, Council File No . 280457 , adopted
June 9, 1983 , authorized execution and delivery of the Ground
Lease of the land underlying the Civic Center and of the Purchase
Agreement relating to the sale of the Civic Center facilities to
the Housing and Redevelopment Authority of the City of Saint Paul ,
Minnesota (HRA) as part of the Civic Center sale-leaseback trans-
action and Project ; and
WHEREAS , it now appears desireable that the HRA, the City
and the Civic Center Partners Limited Partnership (Partnership)
obligate themselves , each to the others to complete the several
actions and contractual agreements constituting the Project trans-
action which are specifically identified in the document entitled,
Saint Paul Civic Center Project Binding Letter of Intent, which
has been considered at this meeting, now therefore , be it
COU[VCILMEN Requested by Department of:
Yeas Nays
Fletcher
ceu� In Favor
MasanZ
Nicosia
schetbei __ Against BY
Tedesco
Wilson
Form Approved by City Attorn y
Adopted by Council: Date
Certified Yassed by Council Secretary BY
R
BS,
App ed y Nlavor. Dat '`�� A o y Mayor for ub i uncil
By BY
�
M�H1T6. - CITY CLERK
PINK - FINANCE COURCII �
CANARV - DEPARTMENT GITY OF SAINT PAITL File NO. �����+��
BLUE - MAVOR i�_ j
�
Coun il Resolution
Presented By
Referred To Committee: Date
Out of Committee By Date
-2-
RESOLVED by the Council of the City of Saint Paul that the
Saint Paul Civic Center Project Binding Letter of Intent is hereby
approved and the proper City officers are hereby authorized to
execute and deliver the same on behalf of the City of Saint Paul.
COU[VCILME[V Requested by Department of:
Yeas Nays �
Fletcher
ceu� In Favor
Masanz r
Nicosia 91
Scheibel __ Ag81IlSi BY
Tedesco
Wilson
JUN 1 6 1983 Form Approv by City ttorn y
Adopted by Council: Date �
Certified Pa ed b Council retar BY �
gy,
� JUN i 19
A�p by A�lavor: _ Approved by Mayor for Submission to Council
BY BY
PlIBLISNEQ JUN 2 5 1983
, � �' � �� b
SAINT PAUL CIVIC CENTER PROJECT
BINDING LETTER OF INTENT
T0: City of Saint Paul
City Hall
Saint Paul, Minnesota 55102
Housing and Redevelopment Authority
of the City of Saint Paul, Minnesota
25 West Fourth Street
12th Floor, City Hall Annex
Saint Paul, Minnesota 55102
Civic Center Partners Limited
Partnership
Suite 710
Lumber Exchange Building
5th Street and Hennepin Avenue
Minneapolis , Minnesota 55401
Gentlemen:
The purpose of this Binding Letter of Intent ("Letter")
is to evidence the contractual "commitments among ourselves with
respect to the sale of the Saint Paul Civic Center Arena,
Auditorium, Concourse, and related parking and tunnel access
facilities (the "Civic Center") first by the City of Saint
Paul, Minnesota ("City") to the Housing and Redevelopment
Authority of the City of Saint Paul, Minnesota ("HRA") , and
second by the HRA to Civic Center Partners Limited Partnership
("Partnership") . Said sales are to be accompanied by a
simultaneous ground lease of the land underlying the Civic
Center between the City and the HRA which wi11 be assigned
to the Partnership. The above transactions will be
.
simultaneously accompanied by a lease of the Civic Center and
land from Partnership, as Lessor, to City, as Lessee. The
above summarized series of transactions is known as the Saint
Paul Civic Center Project ("Project") and is described in
detail by the documents, contracts and agreements (the "Documents")
that are listed below and are Exhibits to this Letter.
This Letter is intended to memorialize the obligations
of the parties in order to satisfy certain "binding contract" f
requirements imposed by pending and anticipated federal legis=
lation which could materially impact the viability of the Project.
The reasons for this memorialization in no way affect our intent
to be bound by this Letter.
We have undertaken negotiations for the past 15 months
with respect to the Project and on April 21, 1983 the HRA
adopted an inducement resolution giving its preliminary approval
of the Project. We have reached agreement as to all material
terms of our respective undertakings . We recognize that all
Documents have reached a state of substantial agreEment and
we recognize that certain minor modifications to the Documents
may�be required so as to conform the written Documents to our
agreements on final review of the Documents .
In consideration of our mutual promises herein, we hereby
agree to authorize, execute, deliver and perform in accordance
with their terms, documents, contracts, leases and agreements
that are substantially the same in form and substance as the fol-
lowing documents attached hereto as Exhibits :
2.
,
1 . Purchase Agreement ;
2. Ground Lease ;
3 . Sale Agreement ; .
4. Ground Lease Assignment ;
5 . Lease ;
6 . Depository Agreement ;
7 . Loan Agreement ;
8 . Indenture ; and
9 . Assignment of Leases and Rents .
The City, HR.A and Partnership further agree to adopt all
resolutions and take all actions necessary to carry out the
Project , and to issue any instruments required by the terms of
' the Documents .
We agree to use our best efforts in finalizing the Documents
in a manner acceptable to all of us . We recognize that there may
be negotiations over certain minor provisions in the Documents
and we agree to use our best efforts , acting in good faith, to
resolve any issues consistently with normal governmental , legal
and commercial p,ractices .
Notwithstanding anything to the contrary in this Letter , �
we agree to the following two conditions precedent , which relate
to issues that are beyond our control :
l . The City and the HRA will have no obligations
under this Letter if the rental rate payable
by City under its lease with Partnership is not
at a' level that , with respect to the improvements
3 .
t .
�
contemplated by said lease , will generate a
net financing cost to City of 2 . 5% or less ,
in comparison with a hypothetical undertaking
by City of said improvements utilizing its
own financing . The computation of the City' s
net financing cost shall be made in accordance
with Exhibit A, attached hereto . The City' s
rental rate , for purposes of this computation,
is based on the Partnership ' s agreement to
provide $3 . 5 million to the Project over a
S year period.
2. The Partnership will have no obligations under
this Letter if the City and the HRA are relieved
of their obligations under the aforementi�oned
condition or if the Partnership does not receive
a satisfactory opinion as to the availability
of the rehabilitation tax credit with respect to
the improvements being undertaken on the Saint
Paul Auditorium from its independent counsel .
4.
By execution of this Letter , we each represent that we
have undertaken all official action required for making this
contractual commitment and that we are duly authorized to make
these contractual commitments . The commitments made pursuant
to this Letter are binding and are specifically enforceable
by any of us . None of these commitments may be altered, amended,
or withdrawn without written documentation executed by all of us .
Dated: June 16 , 1983
Very truly yours ,
Form Approved: CITY OF SAINT PAUL
By
ssist t City ttorney M r
By
Its City Clerk
By
Its Director , Department of
� Finance & Management Services
. 5 .
HOUSING AND REDEVELOPMENT AUTHORITY
OF THE CITY OF SAINT PAUL
By � ?� �
And By � � '
CIVIC CENTER PARTNERS LIMITED
PARTNERSHIP
By Churchhill Civic Center, Inc. ,
i s gene 1 partner
;
�,
By �w
6 . �
EXHIBIT A
SAINT PAUL CIVIC CENTER PROJECT
BINDING LETTER OF INTENT
Computation Methodology for Determining the Achievement
of a New Overall City Financing Cost to the City for Improvements
for the First 30 Semiannual Lease Payment of Not More than
Two and One-half Percent
Computation of the average coupon rate on a hypothetical
. general obligation bond issue having :
a) a principal amount sufficient to produce net proceeds
of $10 , 000 , 000 ; and
b) serial bonds maturing in each year of the bond issue;
which produces a stream of debt service payments , which, when
discounted at a rate of 8%, resu�ts in a net present value equal
to an amount computed as the net present value, usinj a discount
rate of 8%, of the following :
City lease payments less :
1) earnings on the Debt Service Reserve Fund;
2) earnings on the Civic Center Lease Security Fund;
3) earnings on the HR.A Development Fund (net sales
proceeds invested by the HR.A without restriction) ;
4) the principal amount available in the HRA Develop-
ment Fund after the 30th lease payment date, less
� the amount due to the City in Deferred Payment
Note �k2 ; and
5) any monies deposited at closing from bond proceeds
in the Civic Center Lease Fund .
v� � " � .
��� �� ��
� . �,,,�� (��,���tiz,c�
��c�c�� � -
� ,� �O ���
���, -�z--
�
.' } � � �� � � �
SAINT PAUL CIVIC CENTER PROJECT
BINDING LETTER OF INTENT
T0: City of Saint Paul
City Hall
Saint Paul, Minnesota 55102 .
'::�
Housing and Redevelopment Authority
of the City of Saint Paul, Minnesota -
25 West Fourth Street
12th Floor, City Hall Annex
Saint Paul, Minnesota 55102
Civic Center Partners Limited
Partnership
Suite 710
Lumber Exchange Building
5th Street and Hennepin Avenue
Minneapolis, Minnesota 55401
�
Gentlemen:
The purpose of this Binding Letter of Intent ("Letter")
is to evidence the contractual commitments among ourselves with
respect to the sale of the Saint Paul Civic Center Arena,
Auditorium, Concourse, and related parking and tunnel access �
facilities (the "Civic Center") first by the City of Saint
Paul, Minnesota ("City") to the Housing and Redevelopment
Authority of the City of Saint Paul, Minnesota ("HRA") , and
second by the HRA to Civic Center Partners Limited Partnership
("Partnership") . Said sales are to be accompanied by a
simultaneous ground lease of the land underlying the Civic
Center between the City and the HRA which will be assigned
to the Partnership. The above transactions will be
simultaneously accompanied by a lease of the Civic Center and
land from Partnership, as Lessor, to City, as Lessee. The
above summarized series of transactions is known as the Saint
Paul Civic Center Project ("Project") and is described in
detail by the documents, contracts and agreements (the "Documents")
that are listed below and are Exhibits to this Letter.
This Letter is intended to memorialize the obligations
of the parties in order to satisfy certain "binding contract"
requirements imposed by pending and anticipated federal legis-
lation which could materially impact the viability of the Project.
The reasons for this memorialization in no way affect our intent
to be bound by this Letter.
We have undertaken negotiations for the past 15 months
with respect to the Project and on April 21, 1983 the HRA
adopted an inducement resolution giving its preliminary approval
of the Project. We have reached agreement as to all ma.terial
terms of our respective undertakings . We recognize that all
Documents have reached a state of substantial agreement and
we recognize that certain minor modifications to the Documents
may be required so as to conform the written Documents to our
agreements on final review of the Documents .
In consideration of our mutual promises herein, we hereby
agree to authorize, execute, deliver and perform in accordance
with their terms, documents, contracts, leases and agreements
that are substantially the same in form and substance as the fol-
lowing documents attached hereto as Exhibits:
2.
1 . Purchase Agreement;
2. Ground Lease;
3 . Sale Agreement ;
4. Ground Lease Assignment ;
5 . Lease;
6. Depository Agreement ;
7 . Loan Agreement;
8 . Indenture; and
9. Assignment of Leases and Rents .
The City, HRA and Partnership further agree to adopt all
resolutions and take all actions necessary to carry out the
Project , and to issue any instruments required by the terms of
the Documents .
We agree to use our best efforts in finalizing the Documents
in a manner acceptable to all of us . We recognize that there may
be negotiations over certain minor provisions in the Documents
and we agree to use our best efforts , acting in good faith, to
resolve any issues consistently with normal governmental , legal
and commercial practices .
Notwithstanding anything to the contrary in this Letter ,
we agree to the following two conditions precedent , which relate
to issues that are beyond our control :
l . The City and the HRA will have no obligations
under this Letter if the rental rate payable
by City under its lease with Partnership is not
at a level that, with respect to the improvements
3 .
contemplated by said lease , will generate a
net financing cost to City of 2 . 5% or less ,
in comparison with a hypothetical undertaking
by City of said improvements utilizing its
own financing. The computation of the City' s
net financing cost sha11 be made in accordance
with Exhibit A, attached hereto . The City' s
rental rate, for purposes of this computation,
is based on the Partnership ' s agreement to
provide $3 . 5 million to the Project over a
5 year period.
2 . The Partnership will have no obligations under
this Letter if the City and the HRA are relieved
of their obligations under the aforementioned
condition or if the Partnership does not receive
a satisfactory opinion as to the availability
of the rehabilitation tax credit with respect to
the improvements being undertaken on the Saint
Paul Auditorium from its independent counsel .
4.
r
By execution of this Letter, we each represent that we
have undertaken all official action required for making this
contractual commitment and that we are duly authorized to make
these contractual commitments . The commitments made pursuant
to this Letter are binding and are specifically enforceable
by any of us . None of these commitments may be altered, amended,
or withdrawn without written documentation executed by all of us .
Dated: June 16 , 1983
Very truly yours ,
Form Approved: CITY OF SAINT PAUL
By
ssist nt City ttorney ts Ma
By Q�, �
Its City Clerk
By
Its Director, Department o
Finance & Management Services
5 .
HOUSING AND REDEVELOPMENT AUTHORITY
OF THE CITY OF SAINT PAUL
By �z�``' � /�"%'�i�
,��
And By �` w �t�
CIVIC CENTER PARTNERS LIMITED
PARTNERSHIP
By Churchhill C�vic Center, Inc. ,
i�s general part
Y���
t
B �� -�-� �'�C,��,
Y ,,``� _ �
.�
�
6.
J � • h
EXHIBIT A
SAINT PAUL CIVIC CENTER PROJECT
BINDING LETTER OF INTENT
Computation Methodology for Determining the Achievement
of a New Overall City Financing Cost to the City for Improvements
for the First 30 Semiannual Lease Payment of Not I�2ore than
Two and One-half Percent
Computation of the average coupon rate on a hypothetical
general obligation bond issue having :
a) a principal amount sufficient to produce net proceeds
of $10, 000, 000; and
b) serial bonds maturing in each year of the bond issue ;
which produces a stream of debt service payments , which, when
discounted at a rate of 8%, results in a net present value equal
to an amount computed as the net present value, using a discount
rate of 8%, of the following:
City lease payments less :
1) earnings on the Debt Service Reserve Fund;
2) earnings on the Civic Center Lease Security Fund;
3) earnings on the HRA Development Fund (net sales
proceeds invested by the HRA without restriction) ;
4) the principal amount available in the HRA. Develop-
ment Fund after the 30th lease payment date, less
the amount due to the City in Deferred Payment
Note �k2 ; and
5) any monies deposited at closing from bond proceeds
in the Civic Center Lease Fund.
�
6/15/83
� - PURCHASE AGREEMENT
THIS AGREEt�ENT is made as of June 1, 1983, by and between
ttie Housing and RedeveZopment Authority of the City of Saint Paul,
Minnesota, a i�Iinnesota municipal corporation (the "HR.A" ) , as
buyer, and the City of Saint Paul, a P�tinnesota municipal
corporation (the "City" ) , as seller.
1 . Sale of Facilities. The City hereby agrees to sell,
and the HRA hereby agrees to purchase, the buildings, fixtures and
iraprovements (the "Facilities" ) lacated on the tracts or parcels
of land described in Exhibit A, hereto (the "Land") for the l�rice
set forth in paragra�h 2 of this Agreement (the "Purchase Price" ) .
The Facilities are comiuonly known as the St. Paul Civic Center
Co�-uplex, and include the Civic Cen��er Arena, the Civic Center
Auditorium and E%hibition Hall, the Meeting Roora Concourse, and
the Civic Center Parking Raiup and Pedestrian Tunnel. The
Facilities also include certain moveable equipment located within
the Facilities, which equip��aent is owned by the City and is used
in the operation and maintenance of the Facilities (the �
"Equipment" ) . A schedule of the equipment is attached hereto as
Exhibit B. The Land, Facilities and Equipment are hereinafter
referred to as tt�e "Project" .
2. Payruent of Purchase Price. The ARA shall pay the City
as consideration for the Facilities the following amounts at the
I
following tir�es: (a) a downpay:�►ent on the Closing Uate of
$ ; (b) periodic payments pursuant to that certain Special
Obligation Tax Increment Note (Saint Paul Civic Cen�er Project)
, . (the "Tax Increment Note") dated June 1, 1983, to be issued on the
Closing Date in the form attached hereto; and (c) payments
pursuant to two deferred payment notes and a demand note dated
June 1, 19�33, to be issued on the Closing Date, in the form
attached hereto and captioned "Deferred Payrnent Note No. 1 (Saint
Paul Civic Center Project) " , "Deferred Payment Note No. 2 (Saint
Paul Civic Center Project) ", and "Denand Note (Saint Paul Civic
Center �ro�ect) " . lleferred Payment Note No. 2 shall only be due
if (i) the City, pursuant to that certain Lease Agreement dnted as
of June l, 1983 between Civic Center Partners Limited Partnership
• (the "Partnership" ) , as Lessor, and the City, as Lessee, (the
"Lease" ) , exercises eit7ier of the City' s options to purchase the
Project on March 1, 1998, or ldarch 1, 2008, and ( ii) no portion of
the proceeds of Deferred Payment Note No. 2 is to be applied to
pay or reiiaburse, either directly or indirectly, the City for any
portion of the minimum purchase option price payable under the
Lease. The Tax Increraent Note, the Deferred Pays�►ent Notes and the
Demand Note shall be secured to the extent provided by and payable
frorn the sources provided in HRA Resolution No. , adopted June
, 1983 .
3. Ground Lease. In consideration of the purchase of the
Facilities by the HRA, and as a condition to such purchase, the
City agrees to lease by ground lease in the form attached hereto
(the "Ground Lease") the Land to the HRA for a tena of forty (40)
years.
2
.
4. Representations and Warranties. The City hereby
expressly covenants, represents and warrants to and with the HRA
as follows:
� . (a) The City has good and narketable title to the
Project, free and clear of any and all Iiens,
encurabrances, security interests, leases, covenants,
restrictions, reservations, agreements, claii:►s or other
charges a€fecting the Project ( "Encurtbrances" ) , other than
those rnatters ( "Perrnitted Encumbrances") listed on Exhibit
C hereto. The Project on the Closing Date shall not be
subject to any Encumbrance other than Perrnitted
Encuribrances. All Facilities are located entirely within
the boundary lines of the Land or legally sufficient
easeruents.
(b} The Project is or will be in substantial
compliance with all laws, municipal ordina7ces, orders and
x-equireraents affecting the Project u�on tize completion of
the Improvements as contemplated by the Lease.
(c) The City shall indeznnify, defend and hold the
HRA forever hannless frara and against any and all
expenses, agreements, obligations, liabilities and clains
( including, but not limited to, attorney fees) in
connection with the Project and/or the operation thereof
existing, arisiny or accruing on or before the Closing
Date.
(cl) The Facilities are directly connected to
rnunicipal sewer and water.
3
(e) There is or will be no substantial structural or
other material defect in the Project ar an� part thereof
upon completion of the Iinprovements as contemplated by the
� Lease.
( fj The City has delivered to the HRA true, correct
and co;aplete co�ies of all agreernents or acceptable
suizuaaries and lists thereof affecting the Project or which
iaay be binding on the purchaser of any part t}iereof,
including but not li�iiited to: leases, occupancy or other
tenancy agree;nents; leasing and managenent agreements;
service contracts whereby the City is the provider or
recipient of serv:�ces with respect to the Project;
iaaintenance agreeraents; utility agree:aents; and docunents
comprising the Permitted Encumbrances. As to such
agreei.lents, the City re�resents that each (i) consists of
the docu,r�ents so delivered and has not been modified,
supplemented or amended in any rsanner whatsoever, ( ii) is
valid, enforceable and in full force and effect, (iii) is
free of any default by the City and, to the best of the
City' s knowledge, the other party or parties thereto, and
(iv) is free of any circumstance which with the giving of
notice or lapse of time, or both, would constitute a
default by the City or, to the best of the City' s
knowledge, the other party or parties thereto.
(g) There are no claims, actions or legal
proceedings, or threat thereof, with respect to the City
which would have a iaaterially adverse effect upon the
Project or the City' s ability to perforn this Agreement.
4
The foregoing covenants, representations and warranties shall
survive the Closing.
5 . Conditions Precedent; Title. In the event any of the
conditions set forth in this paragraph 5 shall not have been
fulfilled, or satisfactory substitute arrangements made therefor,
on or before the Closing Date then, and in any such event, the
HRA, in its sole discretion, may terrainate this Agreenent by
yiviny written notice thereof to the City on or before the Closing
Date. '�he HRA' s obligation to perforrn its part of this Agreement
on the Closing Date is conditioned upon the fulfillment of each of
t�ie following events on or before the (i) expiration of the time
�eriod, if any, expressly set forth in any of the following, or,
(iij if no such time period applies, the Closing Date:
(a) The determination by the HRA that the Land is .
presently zoned to permit, without condition or the
requirernent of obtaining a special use or othe� permit,
the use now made therzof;
(b) The HRA' s receipt of an ALTA Form B-1970 titZe
insurance policy insuring the HRA' s ownership of the
Facilities and the HRA' s leasehold estate in the Land,
subject only to Permitted Encumbrances, containing such
affirinative insurance as the HRA may reasonably request
(including, but not limited to, contiguity of parcels,
zoning, and easeraents and party wall agreements) , and
deleting all standard exceptions to coverage, (the
attorneys fees, title insurance premiums, and abstract
continuation charges incurred pursuant to this
subparagraph shall be paid by the City on the Closing
5
Date, provided the HRA agrees to pay up to $2U,000 of the
title insurance premiwa expense) ;
(c) The HR�' s receivin� estoppel certificates, dated
not more than thirty (30) days prior to the Closing Date,
from each tenant and other person having a continuing
interest in the Project in fona and substance satisfactory
to tlze HRA and containing the inforraation indicated in
parayrap� 4(f) of this Agreement and such other
information as the HRA may reasonably require, together
with a list of all persons having rights, continuing or
otnerwise, in the Facilities;
(d) The City shall have fully kept, performed and
o�served each and every agreeraent and obligation on its
part to be kept, performed and observed hereunder and all
of the City' s representations anci warranties shall be true
and correct in aIl respects on, and as if made on, the
Closing Date.
(e} The HRA shall have received an "as built" survey
of the Project, at the City' s expense, certified to the
HRA as of a current date covering such matters as the HRA
may reasonably require, and showing no matter which would
adversely affect the marketability of title to the
Project.
The fulfillment of the conditions of this paragraph 5 are
for the HRA' s benefit and the HRA may, in its sole discretion,
waive (conditionally or absolutely) the fulfillment of any one or
more of the conditions, or any part thereof, specified herein only
by giving written notice thereof to the City at any tiine and from
6
Date, provided the HRA agrees to pay up to $2U,000 of the
title insurance premiwa expense) ;
(c) The HRA' s receiving estoppel certificates, dated
not more than thirty (30) days prior to the Closing Date,
from each tenant and other person having a continuing
interest in the Project in fona and substance satisfactory
to the HRA and containing the inforraation indicated in
paragraph 4(f) of this Agreement and such other
information as the HRA may reasonably require, together
with a list of all persons having rights, continuing or
otnerwise, in the Facilities;
(d) The City shall have fully kept, performed and
o�served each and every agreeraent and obligation on its
part to be kept, perforrned and observed hereunder and all
of the City' s representations and warranties shall be true
and correct in all respects on, and as if made on, the
Closing Date.
(e) The HRA shall have received an "as built" survey
of the Project, at the City' s expense, certified to the
HRA as of a current date covering such matters as the HRA
may reasonably require, and showing no matter which would
adversely affect the marketability of title to the
Project.
The fulfillment of the conditions of this paragraph 5 are
for the HRA' s benefit and the HRA may, in its sole discretion,
waive (conditionally or absolutely) the fulfillment of any one or
wore of the conditions, or any part thereof, specified herein only
by givin3 written notice thereof to the City at any tiine and from
6
ti;ne to ti�ae oii or before the Closing Date. Notwithstanding
anything to the contrary contained in this Agree�nent, the City
agrees to fulfill and honor its conunitinents and obligations with
_ third parties with respect to the use of the Facilities .
Ei. Daraage or Destruction. In the event the Project or
any part thereof is da�aged or destroyed by fire or other casualty
or cause on or prior to the Closing, the City shall proinptly
notify the HRi3 in writing of tY-ie occurrence thereof. The HRA may,
in its sole discretion, elect at any time on cr before the Clo�ing
either to (a) termir.ate this Agreement by giving written notice
thereaf to the City, or (b) continue this Agree.�ent in full force
and effect by giving written notice thereof to the City, in which
event the HRA shall be entitled to all insurance proceeds paid or
payable as a result of such damage or destruction.
7. Closin�. The �losi.ng of the transaction herein
provided for shall ta;ce place on or before October 1, 1983, in the
of=ices of Briggs and Morgan, 2200 First National Bank Building,
St. Paul, P�linnesota, as mutually agreed to by the parties hereto
(the "Closing Date" ) . At ttie Closing, the City shall execute,
where appropriate, acknowledge, and/or deliver to the HRA the
followiny:
(a) Ground lease of the Land;
(b) General warranty deed to the Facilities
(Minnesota Uniform Blank) , and, at the option of the HRA,
a severance agreeraent and bill of sale as to the
Facilities;
(c) Bill of sale with general warranties of title to
the Equipraent;
7
, (d) Certificate and restateinent of each of t��e
warranties, representations and agreements contained in
paragraYh 5 hereof; and
(e) Legal and actual possession of the Project and
and every part thereof.
All rents, other incor,►e an3 exlnenses shall be prorated as of the
Closing Date.
8. Miscellaneous.
(a) All the terms of this Agreei:ler.t s�ial l be binding
upon, inure to the benefit of, and be enforceable by, the
respective successors and assigns of the parties hereto.
Tlze terrs "City" shall be synonyraous with the te�n "seller"
and shall include all successors and assigns of the City,
and th� tern� "HRA" shall be synonynous with the term
"buyer" and include all successors and assigns of the HRA.
(b) Any notice, request or other co�rununication
raquired or provided to be given under this Agreeinent
shall be in writing and shall be sufficiently given and
. shall be deemed given when delivered personally or when
rnailed by certified mail, return receipt requested,
postage prepaid.
(c) This Agreeizent shall be construed under and
governed by the laws of Minnesota.
(d) The City hereby grants to the HRA, its agents
and independent contractors, the right to enter upon the
Project at reasonable times and fro�n time to time for the
purpose of inspecting and surveying the same and for other
8
. . . . _ • . . , . . ` : -.- .
pur�oses consistent with the HRR' s interest under this
Agreeiaent.
- (e) The City shall continue to operate the Project
consistently with its past practices.
( f) This Ayreement shall not be assigned by either
party without the prior written consent of the other party
hereto.
�g) The covenants, warranties, representations and
agreetnents of the parties as contained in this Agreernent
shall survive the closing and the execution and delivery
of the closing docuraents contenplated hereby.
9. Default; Teriaination. If the HRA shall default in any
ot its obligations under this Agreement, the City may, by written
no�ice s�ecifying the nature of the default and the date on which
this Ayreeinent shali terminate (which da�e shall be not less than
ttiirty (30) days after the giving of such notice) , terminate this
Agreeruent and upon such date, unless the default so specified
siiall have been cured, this Agreement shall terminate. Notwith-
standing any other provision of this Agreer:�ent, each party hereto, "
its successors and assigns, shall have the right of specific
perforraance hereunder, provided action to enforce specific
perfonnance shall be cammenced within six (6) months of the date
such right of action shall arise.
IN AGREEMENT, the parties hereto have caused this Agree-
ment to be duly executed and delivered as of the date first above
written.
9
10
EXAIBIT A
LEGAL DESCRIPTION
EX.�-i I B I T C
PERMITTED ENCUMBRANCES
.
6/15/83
GROUND LEASE
between
THE CITY OF SAINT PAUL, MINNESOTA
Lessor
and
HOUSING AND REDEVELOPriFNT AUTHORITY OF THE
CITY OF. SAINT PAUL, MINNESOTA
Lessee
Dated as of June 1, 1983
TABLE OF CONTENTS
Page
ARTICLE 1 - Definitions and Exhibits . . . . . . . . . . . 1
Section 1 .1 Definitions . . . . . . . . . . . 1
, Section 1 .2 Exhibits . . . . . . . . . . . . . 4
ARTICLE 2 - Representations, Covenants and
Warranties . . . . . . . . . . . . . . . . . 4
Section 2.1 Representations of Lessor and
Lessee . . . . . . . . . . . . . . 4
ARTICLE 3 - Lease of Land . . . . . . . . . . . . . . . . 4
Section 3 .1 Lease of Land; Title and
Condition . . . . . . . . . . . . 4
Section 3 .2 Possession, Use and Enjoyrient . . 5
Section 3 .3 Use By Lessee Upon Termination or
Expiration of Lease . . . . . . . 5
Section 3 .4 Lessor' s Access . . . . . . . . . 5
ARTICI.E 4 - Ground Lease Term; Extension; Termination . . 5
Section 4.1 Ground Lease Term . . . . . . . . 5
Section 4.2 Termination of Ground Lease Term . S
Section 4.3 Surrender of Land . . . . . . . . 6
ARTICLE5 - Rent . . . . . . . . . . . . . . . . . . . . 6
Section 5 .1 Basic Rent; Amount and Payment . . 6
Section 5.2 ?�dditional Rent; Amount and
Payment . . . . . . . . . . . . . 6
Section 5.3 Nature of Lessee' s Obligation . . 7
ARTICLE 6 - Other Obligations of Lessee . . . . . . . . . 7
Section 6.1 Limitations On Use . . . . . . . . 7
Section 6.2 Maintenance . . . . . . . . . . . 7
Section 6.3 Encroachments; Violations . . . . 7
Section 6.4 Taxes, Assessments and Other
Governmen�tal Charges . . a . . . . 8
Section 6.5 Liens . . . . . . . . . . . . . . 8
Section 6.6 Modification of Land . . . . . . . 9
Section 6.7 Installation of Lessee' s
Equipment . . . . . . . . . . . . 9
Section 6.8 Permitted Contests . . . . . . . . 9
Section 6.9 Advances . . . . . . . . . . . . . 10
ARTICLE 7 - Insurance and Zndemnification . . . . . . . . 10
Section 7 .1 Insurance Requirement . . . . . . 10
Section 7.2 Indemnification . . . . . . . . . 10
Page
ARTICLE 8 - Condemnation . . . . . . . . . . . . . . . . 11
Section 8.1 Lessor To Oppose Condemnation . . 11
Section 8.2 Condemnation; Use of Condemnation
Award . . . . . . . . . . . . . . 11
Section 8.3 Temporary Taking . . . . . . . . . 11
ARTICLE 9 - Assignment, Subleasing and Mortgaging . . . . 12
Section 9.1 Assignment, Subleasing and
Mortaging . . . . . . . . . . . . 12
ARTICLE 10 - Events of Default and Remedies; Rights
of Mortgagee . . . . . . . . . . . . . . . . 12
Section 10.1 Events of Default by Lessee
Defined . . . . . . . . . . . . . 12
Section 10.2 Lessor' s Remedies on Default . . . 13
Section 10.3 Delay; Notice . . . . . . . . . . 16
Section 10.4 No Rer�edy Exclusive . . . . . . . 16
Secti�n 10.5 Attorne�' s Fees and Expenses . . 16
Section 10.6 ?�]o Additional �Vaiver Implied by
One ��Taiver . . . . . . . . . . . . 17
Section 10.7 Default by Lessor; I,essee ' s _
Remed?es . . . . . . . . . . . . 17
Section 10.8 Rights of Mortgagees, Sublessees
and the Trustee . . . . . . . . . 17
ARTICLE 11 - Subleases; Lease; No Merger . . . . . . . . 19
Section 11. 1 Subleases . . . . . . . . . . . . 19
Section 11.2 Lease . . . . . . . . . . . . . . 21
Section 11 .3 No Merger . . . . . . . . . . . . 21
ARTICLE 12 - Administrative Provisions . . . . . . . . . 22
Section 12.1 Notices . . . . . . . . . . . . . 22
Section 12.2 Applicable Law; Interpretation . . 22
Section 12.3 Lessor and Lessee Representatives 23
Section 12.4 Binding Effect . . . . . . . . . . 23
Section 12.5 Severability . . . . . . . . . . . 23
Section 12.6 Ar.iendr�ents, Changes and
Modifications . . . . . . . . . . 23
Section 12.7 Further Assurances and Corrective
Instruments . . . . . . . . . . . 23
Section 12.8 Estoppel Certificates . . . . . . 23
Section 12.9 Eaecution In Counterparts . . . . 23
Sectian 12 .10 Mortgagee Protection . . . . . . . 24
Section 12.11 Immunity From Liability . . . . . 24
Section 12.12 Ground Lease Not Debt . . . . . . 24
Page
Section 12 .13 Interpretation . . . . . . . . . . 24
Section 12 .14 Short Form Ground Lease . . . . . 24
Section 12 .15 �ovation in Event of Sale by
Lessor . . . . . . . . . . . . . . 24
_ Section I2 .16 Title to Facilities . . . . . . . 24
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . 25
ACKNOWLEDGMENTS . . . . . . . . . . . . . . . . . . . . . 25
EXHIBITS . . . . . . . . . . . . . . . . . . . . . . . . A
B
C
THIS AGREEMENT is made as of June l, 1983, by and between
the City of Saint Paul, Minnesota, a municipal corporation of the
State of Minnesota, as lessor ( "Lessor" ) , and the Housing and
Redevelopment Authority of the City of Saint Pau1, Minnesota, a
municipal corporation of the State of Minnesota, as lessee
( "Lessee") .
� RECITALS
WHEREAS, Lessor and Lessee are authorized to enter into
lease agreements in order to provide or obtain land, buildings and
other structures and improvements necessary for governmental,
proprietary or redevelopmental purposes;
WHFREAS, Lessor and Lessee have determined that it is
necessary and desirable to enter into this Ground Lease in
furtherance of their respective duties and purposes;
NOW, THEREFORE, in the joint an3 mutual exercise of their
powers, and in consideration of the mutual covenants herein
contained, the parties hereto agree as follows :
ARTICLE 1
DEFINITIONS AND EXHIBITS
Section 1 .1 Definitions. Unless the context otherwise
requires, the terms defined in this SECtion shall, for all
purposes of this Ground Lease and the Exhibits attached hereto,
have the meaninqs herein specified:
Additional Rent: All amounts which Lessee ,is required to
pay pursuant to this Ground Lease, other than Basi�.•Rent, together
with every fine, penalty, interest and cost which may be added for
non-paynent or late payment thereof.
Basic Rent: The rental payments required to be paid by
Lessee, on the dates and in the amounts set forth in Exhibit B "
hereto.
City: The City of Saint Paul, Minnesota.
Civic Center Authority: The Civic Center Authority of the
City of St. Paul.
Event of Default by Lessee: Any one or more of the events
described in Section 10.1.
Event of Default by Lessor: Any one or more of the events
described in Section 10.7 .
THIS AGREEMEt1T is made as of June l, 1983, by and between
the City of Saint Paul, Minnesota, a municipal corporation of the
State of Minnesota, as lessor ( "Lessor" ) , and the Housing and
Redevelopment Authority of the City of Saint Paul, Minnesota, a
municipal corporation of the State of Minnesota, as lessee
( "Lessee" ) .
� RECITALS
WHEREAS, Lessor and Lessee are authorized to enter into
lease agreements in order to provide or obtain land, buildings and
other structures and improvements necessary for governmental,
proprietary or redevelopmental purposes;
WHEREAS, Lessor and Lessee have determined that it is
necessary and desirable to enter into this Ground Lease in
furtherance of their respective duties and purposes;
NOW, THEREFORE, in the joint an3 mutual exercise of their
powers, and in consideration of the mutual covenants herein
contained, the parties hereto agree as follows :
ARTICLE 1
DEFINITIONS AND EXHIBITS
Section l .l Definitions. Unless the context otherwise
requires, the terms defined in this Section shall, for all
purposes of this Ground Lease and the Exhibits attached hereto,
have the meaninqs herein specified:
Additional Rent: Al1 amounts which Lessee ,is required to
pay pursuant to this Ground Lease, other than Basi�.•Rent, together
with every fine, penalty, interest and cost which may be added for
non-paynent or late payment thereof.
Basic Rent: The rental payments required to be paid by
Lessee, on the dates and in the amounts set forth in Exhibit B "
hereto.
City: The City of Saint Paul, Minnesota.
Civic Center Authority: The Civic Center Authority of the
City of St. Paul.
Event of Default by Lessee: Any one or more of the events
described in Section 10.1.
Event of Default by Lessor: Any one or more of the events
described in Section 10.7 .
Facilities: The buildings, fixtures and �mprovements
located on the Land as of the date of execution and delivery of
this Ground Lease.
Fiscal Year: The twelve month fiscal and budgetary period
of the City which begins on January 1 in each year and ends on
December 31 of the same year.
Force Ma 'eure: Acts of God; strikes, lockouts or other
labor disturbances; unavailability of labor or materials; acts of
public enemies; orders or restraints of any kind of the government
of the United States of America or the State or their respective
departments, agencies or officials, or any civil or military
authority; insurrections; riots; landslides; earthquakes; fires;
storms; droughts; floods; explosions; breakage or accident to
machinery, transmission pipes or canals; or any other cause or
event not reasonably within the control of the party charged with
responsibility therefor, and not proximately caused by such
party' s negligence.
Ground Lease: This Ground Lease and all duly authorized
and executed amendments hereto.
Ground Lease Term: The forty year neriod commencing on
June 1, 1983, and ending on May 31, 2023, during which this Ground
Lease is to be in effect.
HRA: The Housing and Redevelopment Authority of the City
of Saint •Paul, Minnesota.
Improvements: The physical alterations, changes,
modifications and additions to be made to the Facilities by Lessor
as agent of the Partnership.
Indenture: The Indenture of Trust dated as of June 1,
1983, by and between the Lessee and the Trustee, and any duly
authorized and executed amendments thereto.
Independent Counsel: An attorney duly admitted to the
practice of law before the highest court of the State who is not
an employee of Lessor or Lessee.
Land; The real property described in Exhibit A hereto,
and all easements, rights and appurtenances thereto but not the
Facilities or the Improvements.
Lease: The operating lease dated as of June 1, 1983,
whereby the Partnership, as lessor, leases the Project to the
City, as lessee.
Lessee: The Housing and Redevelopment Authority of the
City of Saint Paul, Minnesota, and its successors and assigns.
2
Facilities: The buildings, fixtures and �mprovements
located on the Lan� as of the date of execution and delivery of
this Ground Lease.
Fiscal Year: The twelve month fiscal and budgetary period
of the City which begins on January 1 in each year and ends on
- December 31 of the same year.
Force Majeure: Acts of God; strikes, lockouts or other
labor disturbances; unavailability of labor or materials; acts of
public enemies; orders or restraints of any kind of the government
of the United States of America or the State or their respective
departments, agencies or officials, or any civil or military
authority; insurrections; riots; landslides; earthquakes; fires;
storms; droughts; floods; explosions; breakage or accident to
machinery, transmission pipes or canals; or any other cause or
event not reasonably within the control of the party charged with
responsibility therefor, and not proximately caused by such
party' s negligence.
Ground Lease: This Ground Lease and all du�y authorized
and executed amendments hereto.
Ground Lease Term: The forty year period commencing on
June 1, 1983, and ending on May 31, 2023, during which this Ground
Lease is to be in effect.
HRA: The Housing and Redevelopment Authority of the City
of Saint •Paul, Minnesota.
Improvements: The physical alterations, changes,
modifications and additions to be made to the Facilities by Lessor
: as agent of the Partnership.
Indenture: The Indenture of Trust dated as of June 1,
1983, by and between the Lessee and the Trustee, and any duly
authorized and executed amendments thereto.
Independent Counsel: An attorney duly admitted to the
practice of law before the highest court of the State who is not
an employee of Lessor or Lessee.
Land: The real property described in Exhibit A hereto,
and all easements, rights and appurtenances thereto but not the
Facilities or the Improvements.
Lease: The operating lease dated as of June 1, 1983,
whereby the Partnership, as lessor, leases the Project to the
City, as lessee.
Lessee: The Housing and Redevelopment Authority of the
City of Saint Paul, Minnesota, and its successors and assigns.
2
Lessee Representatives: Any person authorized to act on
behalf of Lessee un�er or with respect to this Lease, as evidenced
by a certificate conferring such authority executed by the Lessee,
given to the Lessor or a Lessor Representative, or if no one has
been so authorized by Lessee, any general partner or officer af an
assignee of Lessee.
Lessor: The City of Saint Paul, Minnesota, its successors
and assigns.
Lessor Representatives: The persons at any time holding
the positions of Director, Department of Planning and Economic
Development and Managing Director of the Civic Center Authority;
or, in lieu of the Planning Director, any other person authorized
to act on behalf of the Lessor' s governing body under or with
respect to this Ground Lease, as evidenced by a certificate
conferring such authority executed by th2 Mayor and given to
Lessee or a Lessee Representative.
Mortgage: Any mortgage creating a first mortgage lien on
the leasehold estate created by this Ground Lease and on the
Facilities and Improvements.
Mortgagee: The mortgagee under a Mortgage.
Partnership: Civic Center Partners Limited Partnership, a
Minnesota limited partnership.
Permitted Encumbrances: The encumbrances on the Land
described in Exhibit C hereto.
Project: The Land, the Facilities and the Improvements,
collectively.
Rent or Rental Payments: The Basic Rent and the
Additional Rent and all payments of each.
Rental Payment Date: The date on which any payment of
Basic Rent is due and payable as specified in Exhibit B.
State: The State of Minnesot�a.
State and Federal Law(s) : The Constitution and any law of
the State and any rule or regulation of any agency of the State;
and any law of the United States, and any rule or regulation of
any federal agency.
Sublease: Any lease of the Facilities and sublease of the
Land including the Lease.
Sublessee: Any sublessee under a Sublease.
Tax Increment Note: T'he promissory note dated as of June
1, 1983, issued by the Lessee to the Lessor in consideration of
the transfer of the Facilities from Lessor to Lessee.
3
Trustee: The First Trust Company of Saint Paul acting
under and pursuant to the Trust Agreement, or any duly appointed
successor trustee under the Indenture.
Section 1 .2 Exhibits. T`he following Exhibits are a part
of this Ground Lease:
Exhibit A: The legal description of the Land leased
pursuant to this Ground Lease.
Exhibit R: The method of determining Basic Rent and the
dates on which payments of Basic Rent are due during the Ground
Lease Term.
Exhibit C: The Permitted Encumbrances .
ARTICLF 2
REPRESENTATIONS, COVENANTS AI�7D WARRANTIES
Section 2.1 Representatians of Lessor and Lessee. Lessor
and Lessee hereby represent, covenant and warrant as follows:
(a) Lessor and Lessee are municipal corporations and
political subdivisions of the State, c�uly organized and
existing under the Constitution and laws of the State.
(b) Lessor and Lessee are authorized by applicable
law to enter into this Ground Lease and the transactions
contemplated hereby, and to perform their respective
obligations hereunder.
(c) The officers executing this Ground Lease on
behalf of the Lessor and Lessee have been duly authorized
to execute and deliver this Ground Lease under the terms
and provisions of ordinances and resolutions of the
respective governing bodies of Lessor and of Lessee, or by
other appropriate official action.
(d) In authorizing and executing this Ground Lease,
Lessor and Lessee have complied with all applicable State
and Federal Laws. •
ARTICLE 3
LEASF QF LAI�TD
Section 3 .1 Lease of Land; Title and Condition. In
consideration of the Rent and covenants herein stipulated to be
° paid and performed by Lessee and upon the terms and conditions
4
herein specified, Lessor hereby leases to Lessee, and Lessee
hereby leases from Lessor, the Land but not the Facilities or
Improvements. The Land is leased to Lessee subject only to
Permitted Encumbrances and to all applicable legal requirements
now or hereafter in effect.
. Section 3.2 Possession, Use and Enjo_yment. Lessee shall
be entitled to all of the possession, use and enjoyment privileges
granted the lessee in the Lease. During the Ground Lease Term, so
long as no Event of Default by Lessee has occurred and is
continuing, Lessor hereby covenants to provide Lessee with the
quiet use and enjoyment of the Land, and Lessee shall peaceably
and quietly have, hold and enjoy the Land, without suit, trouble
or hindrance from Lessor, except as expressly set forth in this
Ground Lease. Lessor will, at the request of Lessee, at Lessor ' s
cost, join in any legal action in which Lessee asserts its right
to such possession and enjoyment, to the extent Lessor lawfully
may do so.
Section 3.3 Use By Lessee Upon Termination or Ex iration
of Lease. Upon the termination or expiration of the Lease, Lessee
shall enly use the Land during the Ground Lease Term for any
purpose� the City used the same or able to use the same, during the
Lease Term. Lessor shall not take any action to change the zoning
of the Land in a manner which would diminish or impair Lessee ` s
quiet use and enjoyment of the Land in accordance with zoning and
other ordinances currently in effect at the time this Ground Lease
is executed.
Section 3 .4 Lessor' s Access. Lessee agrees that Lessor
shall have the right at all reasonable times to examine and
inspect the I,and. Lessee agrees that Lessor shall also have such
rights of access to the Land as may be reasonably necessary to
cause the pro�er maintenance thereof in the event of failure by
Lessee to perform its obligations hereunder. In exercising its
rights pursuant to this Section 3 .4, Lessor agrees to use all
reasonable effort not to disturb Lessee' s use and enjoyment of the
Land.
ARTICLE 4
GROUND LEASE TERM; EXTENSION; TERMINATION
Section 4.1 Ground Lease Term. This Ground Lease shall
be in effect for a forty year term commencing on the date hereof
and ending on May 31, 2023, unless terminated prior to said date
as provided in Section 4.2.
Section 4.2 Termination of Ground Lease Term. The Ground
Lease Term sha11 expire or terminate only upon �the occurrence of
the first of the following events:
5
(a) expiration of the Ground Lease Term;
(b) exercise by the City of its option to purchase the
Project pursuant to Article X of the Lease;
(c) the occurrence of an Event of Default by Lessee and
� . the exercise by Lessor of its right to terminate this
Ground Lease pursuant to the provisions hereof; or
(d) the occurrence of an Event of Default by Lessor and
the declaration of the termination of this Ground
Lease by a court of competent jurisdiction.
Section 4.3 Surrender of Land. Upon the expiration or
termination of the Ground Lease Term, or upon exercise by Lessor
of its right to take possession of the Land upon the occurrence of
an Event of Default by Lessee, Lessee shall surrender the Land to
Lessor in the condition in which it was originally received from
Lessor, except as repaired, rebuilt, restored, altered or added to
as permitted or required hereby, ordinary wear and tear excepted.
Lessee shall have the right to remove from the Land at or prior to
such expiration or termination all personal property located
therein which is not owned by Lessor, but Lessee shall repair any
damages caused by such removal. Property not so removed within 60
days after such expiration or termination shall be deemed
abandoned by Lessee and shall hecome the property of Lessor.
ARTICLE 5
RENT
Section 5.1 Basic Rent; Amount and Fayment. Lessee
agrees to pay to Lessor during the Ground Lease Term Basic Rent in
the amounts and on the Rental Payment Dates determined pursuant to
Exhibit B. All installments of Basic Rent shall be paid to the
Lessor in lawful money of the United States at Lessor' s address or
at such other place or to such other person as Lessor from time to
time may designate by notice to Lessee.
Section 5.2 Additional Rent; Amount and Payment. Lessee
shall pay all items of Additional Rent directly to the person or
entity to whom owed when due. If Lessee shall fail to pay any
item of Additional Rent when due, Lessor shall have all rights,
powers and remedies with respect thereto as are provided herein or
by law in the case of non-payment of Basic Rent and shall have the
right to pay any overdue Additional Rent on behalf of Lessee.
Notwithstanding the foregoing, while the Lease is in effect, all
obligations to pay any and all amounts of additional Rent shall be
satisfied by the City. Default by the City with regard to the
payment of Additional Rent shall not be a default by Lessee
hereunder.
6
Section 5.3 �ature of Lessee' s Obligation. Except as
provided in Section 5.2 hereof, as between Lessor and Lessee, the
obligation of Lessee to make all Rental Payments or any other
payments required hereunder shall be absolute and unconditional in
all events, and notwithstanding any dispute between Lessee and
Lessor or any other person, Lessee shall make all Rental Payments
. and other payments required hereunder when due and shall not
withhold any Rental Payment or other payment pending final
resoiution of such dispute, nor shall Lessee assert any right of
setoff or counterclaim against its obligation to make such Rental
Payments or other payments required under this Ground Lease,
except as provided in Section 5 .2 of this Ground Lease and except
as provided with respect to contests of items of Additional Rent.
Lessee' s obligation to make Rental Payments or other payments
shall not be abated through accident or unforseen circumstances or
any other cause. However, nothing herein shall be construed to
release Lessor from the performance of its obligations hereunder;
and if Lessor should fail to perform any such obligation, Lessee
shall have the rights specified in Section 10.7 hereof.
ARTICLE 6
OTHER OBLIGATIONS OF LESSEE
Section 6.1 Limitations on Use. Lessee shall exercise
due care in the use, operation and maintenance of the Land, and
shall not use, operate or maintain the Lan� improperly,
carelessly, or in violation of any State or Federal La�a.
Section 6.2 Maintenance; Operation. Lessee, at its own
expense, will maintain the Project in good repair, appearance ar.d
condition, except for ordinary wear and tea.r an� condemnation and
casualty loss. Notwithstanding the foregoing, upon the expiration
or termination of the Lease, Lessee' s sole obligation to maintain
the Project shall be to maintain the Project in a reasonable state
of repair, except for ordinary wear and tear and condemnation and
casualty loss. IN addition, upon the expiration or termination of
the Lease, Lessee shall use all reasonable effort to operate the
Project, or cause the Project to be operated, consistently with
Section 3 .3, but only if and so long as such operation does not
result in an operating loss to the Lessee.
Section 6.3 Encroachments; Violations. In the event that
all or any part of the Improvements shall encroach upon any
property, street or right-of-way adjoining or adjacent to the
Land, or shall violate any agreements or conditions a.ffecting the
Land or any part thereof, or shall hinder or obstruct any easement
or right-of-way to which the Land is subject, then, promptly after
written request of Lessee or of any person so affected (unless
such encroachment, violation, hindrance, obstruction or impairment
7
is a Permitted Encumbrance) , Lessor shall, at its expense, either
(a) obtain valid and effective waivers or settlements of all
claims, liabilities and damages resulting therefrom or (b) make
such changes, including alteration or removal, to the Improvements
and take such other action as shall be necessary to remove or
eliminate such encroachments, violations, hindrances, obstructions
or imgairments.
Section 6.4 Taxes, Assessments and Other Governmental
Charges. Except as expressly limited by this Section, Lessee
shall pay, as Additional Rent, all taxes and other charges of any
kind whatsoever which are at any time lawfully assessed or levied
against the Land or this Ground Lease, or with respect to the use
of the Land or any part thereof, or with respect to the Rental
Payments, or which become due during the Ground Lease Term with
respect to any of the foregoing, whether assessed against Lessee
or Lessor. Lessee shall also pay when due all gas, water, sewer,
stearn, electricity, heat, power, telephone, and other charges
incurred in the operation, maintenance, use, occupancy and upkeep
of the Land, and all special assessments and charges lawfully made
' by any governmental body for public improvements that may
be enforced by a lien on the Land; provided that with respect to
, spec-i,al assessments or other governmental charges that may -
; lawfully be paid in installments over a period of years, Lessee
t shall be obligated to pay only such installments as are required
to be paid during the Ground Lease Term as and when the sar.�e
� become due. Lessee shall not be required to pay any FederaT,
state or local income, inheritance, estate, succession, transfer,
gift, franchise, gross receipts, profit, excess profit, capital
stock, corporate, or other similar tax payable by Lessor, its
successors or assigns, unless such tax is made in lieu of or as a
; substitute. for any tax, assessment or charge which is the obliga-
tion of Lessee under this Section.
Lessee shall file, or cause to be filed, from time to
time, with the appropriate public agencies, including Ramsey
County, Minnesota, all forms and documents necessary to obtain
exemptions permitted by law, of the Land from real estate and/or
possessory interest taxes. Lessor will, at Lessee' s request,
cooperate with Lessee to obtain such exemptions and will execute
such forms and documents as may be reasanably requested by Lessee
which are delivered to Lessor by Lessee and are required to be
signed by Lessor. .
Section 6.5 Liens. Subject to the provisions of Section
9.1 of this Ground Lease, Lessee shall not, directly or
indirectly, create, incur, assume or suffer to exist any lien,
charge, encumbrance or claim on or with respect to the Land or the
Rental Payments, other than the respective rights of Lessor and
Lessee as herein provided and the Permitted Fncumbrances. Except
as expressly provided in Section 6.3 and this Section, Lessee
shall promptly, at its own expense, take such action as may be
8
is a Permitted Encumbrance) , Lessor shall, at its expense, either
(a) obtain valid and effective waivers or settlements of all
claims, liabilities and damages resulting therefrom or (b) make
such changes, including alteration or removal, to the Improvements
, and take such other action as shall be necessary to remove or
eliminate such encroachments, violations, hindrances, obstructions
or impairments.
Section 6.4 Taxes, Assessments and Other Governmental
Charges . Except as expressly limited by this Section, Lessee
shall pay, as Additional Rent, all taxes and other charges of any
kind whatsoever which are at any time lawfully assessed or levied
against the Land or this Ground Lease, or with respect to the use
of the Land or any part thereof, or with respect to the Rental
Payments, or which become due during the Ground Lease Term with
respect to any of the foregoing, w?,ether assessed against Lessee
or Lessor. Lessee shall also pay when due all gas, water, sewer,
stear,i, electricity, heat, power, telephone, and other charges
incurred in the operation, maintenance, use, occupancy and upkeep
of the Land, and all special assessments and charges lawfully made
� by any governmental body for public improvements that may
be enforced by a lien on the Land; provided that with respect to
, spec�ial assessments or other governmental charges that may
; lawfully be paid in installments over a period of years, Lessee
� shall be obligated to pay only such installments as are required
to be paid during the Ground Lease Term as and when the sar.�e
� become due. Lessee shall not be required to pay any Federal,
state or local income, inheritance, estate, succession, transfer,
gift, : franchise, gross receipts, profit, excess profit, capital
stock, corporate, or other similar tax payable by Lessor, its
successors or assigns, unless such tax is made in lieu of or as a
: substitute for any tax, assessment or charge which is the obliga-
tion of Lessee under this Section.
Lessee shall file, or cause to be filed, from time to
time, with the appropriate public agencies, including Ramsey
County, Minnesota, all forms and documents necessary to obtain
exemptions permitted by law, of the Land from real estate and/or
possessory interest taxes. Lessor will, at Lessee' s request,
cooperate with Lessee to obtain such exemptions and will execute
such forms and documents as may be reasonably requested by Lessee
which are delivered to Lessor by Lessee and are required to be
signed by Lessor. .
Section 6.5 Liens. Subject to the provisions of Section
9.1 of this Ground Lease, Lessee shall not, directly or
indirectly, create, incur, assume or suffer to exist any lien,
charge, encumbrance or claim on or with respect to the Land or the
Rental Payments, other than the respective rights of Lessor and
Lessee as herein provided and the Permitted Fncumbrances. Except
as expressly provided in Section 6.3 and this Section, Lessee
shall promptly, at its own expense, take such action as may be
8
necessary duly to discharge or remove any s�ch lien, charge,
encum5rance or claim if the same shall arise at any time. Lessee
shall reimburse Lessor for any expense incurred by Lessor in order
to discharge or remove any such lien, charge, encumbrance or
claim. Nothing contained in this Ground Lease shall he construed
as constituting the consent or request of Lessor, express or
. implied, to or for the performance by any contractor, laborer,
materialman, supplier or vendor of any labor or services or for
the furnishing of any materials for any construction, alteration,
addition, repair or demolition of or to the Land or any part
thereof. Notice is hereby given that Lessor will not be liable
for any labor, services or materials furnished or to be furnished
to Lessee, or to anyone holding the Land or any part thereof
through or under Lessee, and that no mechanic' s or other lien for
any such labor, services or materials shall attach to or affect
tlie interest of Lessor in and to the Land.
� Section 6.6 Modification of Project. Modification may be
made to the Project pursuant to the Lease. In addition, Lessee
may, at its expense, and in conformity with the provisions of this
Section, make additions to and alterations of the Project and
construct additional i.mprovements thereon procided that: (a) the
market value of the Project shall not be lessened thereby; and (b)
such work shall be expeditiously completed in a good and
workr.tanlike manner and in co�pliance with all applicable State and
Federal Laws.
Section 6.7 Installation of Lessee' s Equi ment. Lessee
�ay at any time and .from time to time, in its sole discretion and
at its own expense, install items of equipment in or upon the
Proje�t.
Section 6.8 Permitted Contests. Lessee shall not be
required, nor shall Lessor have the right, to pay, discharge or
remove any tax, assessment, levy, fee, rent, charge, lien or
encumbrance, or require Lessee to take action on behalf of Lessor
to comply with any State or Federal Laws applicable to the Land or
the use thereof, as long as Lessee shall contest the existence,
amount or validity thereof by appropriate proceedings which shall
prevent the collection of or other realization upon the tax,
assessment, levy, fee, rent, charge, lien or encumbrance so
contested, and which also shall prevent the sale, forfeiture or
loss of the Land or any Basic Rent, any Additional Rent or any
other sum required to be paid by Lessee hereunder to satisfy the
same or any State or Federal Law, and which shall not affect the
payment of any Basic Rent, any Additional Rent or any other sum
required to be paid by Lessee hereunder; provided that such
contest shall not subject Lessor to the risk of any criminal
liability or any material civil liability. Lessee shall give such
reasonable security as may be demanded by Lessor to ensure
ultimate payment of such taz, assessment, levy, fee, rent, charge,
9
lien, or encumt�rance and compliance with applicable laws and to
prevent any sale or forfeiture of the Land, the Basic Rent, any
Additional Rent or any other sum required to be paid by Lessee
hereunder by reason of such non-payment or noncompliance. The
provisions of this Section 6.7 shall not be construed to permit
Lessee to contest the payment of Basic Rent, Additional Rent or
any other sums payable by Lessee to Lessor hereunder.
Section 6.9 Advances. If Lessee shall fail to perform
any of its obligations under this Article, Lessor may, but shall
not be obligated to, take such action as may be necessary to cure
such failure, including the advancement of money, and Lessee shall
be obligated to repay all such advances on demand, with interest
at the rate of 18� per annum or the maximum rate permitted by law,
whichever is less, from the date of the advance to the date of
repaynent.
ARTICLE 7
INSURAI�ICE AND INDEMI�TIFICATION
Section 7.1 Insurance Requirement. LeS�ee shall maintain
such insurance coverages as are commonly obtained and carried by
owners or managers of land similar to the Land. Anything herein
to the contrary notwithstanding, Lessee' s obligations under this
Section 7.1 shall be deeme3 fulfilled if the City or a Sublessee
complies with the foregoing insurance obligations. A Mortgagee
shali have the right to be named as an insured in any fire and
other hazard insurance policies, pursuant to a standard mortgagee
clause or endorsement, and to receive the originals or
certificates of all such policies. Insurance proceeds shall be
held in accordance with the provisions of a Mortgage, and a
Mortgagee shall have the right to participate in any settlement or
adjustment of losses.
Section 7.2 Indemnification. Upon termination or
expiration of the Lease and thereafter while this Ground Lease is
in effect Lessee shall assume all risks and liabilities, whether
or not covered by insurance or self-insurance, for loss or damage
to the Land and for injury to or death of any person or damage to
any property while on, or arising out of activities on, the Land,
whether such injury or death be with respect to agents or
employees of Lessee or of third parties, and whether such property
damage be to Lessee's property or the property of others, arising
out of the condition, use, non-use, operation or maintenance of
the Land. Upon expiration or termination of the Lease, and
thereafter while this Ground Lease is in effect, Lessee shall
assume responsibility for and agree to defend, indemnify and
reimburse Lessor for all liabilities, obligations, losses,
damages, penalties, claims, actions, costs and expenses (including
10
reasonable attorney' s fees) of whatsoever kind and nature, imposed
on, incurred by or asserted against Lessor that in any way relate
to or arise out of a claim, suit or proceeding based in whole or
in part upon the condition, use, non-use, operation or maintenance
of the Land, or that arise out of Lessee' s failure to comply with
the terms of this Ground Lease or Lessor' s interest in the Land,
to the maximum extent permitted by law.
ARTICLE 8
CONDEMNATION
Section 8.1 Lessor to Oppose Condemnation. Lessor agrees
to use all governmental powers and other legal means at its
disposal to oppose the taking of all or any portion of the Project
or any interest therein by exercise of the power of eminent
domain, by whomever sought to be exercised, unless such opposition
is waived by Lessee in writing. Lessor also agrees that it will
not during the term of the Lease plus one year exercise its power
of eminent domain for the purpose of acquiring any interest of
Lessee in the Project.
Section 8.2 Condemnation; Use of Condemnation Award.
Lessor hereby irrevocably assigns to Lessee any award or
compensation to which Lessor may become entitled by reason of
Lessor' s interest in the Land if the use, occupancy or title of
the Land or any part thereof is condemned or is taken, requisi-
tioned or sold in, by or on account of any actual or threatened
eminent domain proceeding or other action by any person having the
power of eminent domain. Lessee shall appear in any such
proceeding� or action, to negotiate, prosecute and adjust any claim
for any award or compensation on account of_ any such taking,
requisition or sale; and Lessee shall collect any such award or
canpensation. Notwithstanding the foregoing, any separate award
made to Lessor for its fee title to the Land shall be paid
directly to Lessor. All amounts paid in connection with any such
condemnation, taking or sale shall be applied pursuant to this
Article 8. Lessee shall pay all reasonable costs and expenses in
connection with each such proceeding, action, negotiation,
prosecution and adjustment, and shall be reimbursed therefor out
of any award or compensation received. Lessor shall be entitled
to participate in any such proceeding, action, negotiation,
prosecution or adjustment.
Section 8.3 Temporary Taking. In the event of any
temporary requisition, condemnation or taking by eminent domain,
this Ground Lease shall remain in full effect and Lessee shall be
entitled to receive that portion of the condemnation award or
campensation remaining after payment of Lessee' s expenses incurred
in connection with the collection thereof allocable to such
temporary requisition, condemnation or taking.
11
ARTICLE 9
ASSIGNMEI�TT, SIJBLEASING AND MORTGAGING
Section 9.1 Assignment, Subleasing and Mortgagin .
Lessee may assign, transfer, sell, mortgage or pledge the whole or
any part of its interest in this Ground Lease, its interest in the
leasehold estate hereby created and the term hereby demised, and
let, as security or otherwise, and sublet the whole or any part of
the Land. Lessee may also assign, mortgage or pledge its interest
in and to any Sublease, including without limitation, the Lease,
and the rentals payable thereunder. Lessee shall, at or prior to
the time of any such assignment, transfer, sale, mortgage, or
pledge, give Lessor notice thereof. Lessor agrees to execute and
deliver, at the request of Lessee, an agreement modifying this
Ground Lease and containing such modifications hereof as may be
required by a Mortgagee, provided that such modifications do not
( i) adversely affect the value of Lessor' s interest in the Land or
increase Lessor' s liability and/or obligations hereunder (ii)
reduce or diminish Lessee's obligations hereunder, or (iii)
release Lessee from any of its obligations hereunder.
ARTICLE 10
EVENTS OF DErAULT AND REMEDIES; RIGHTS OF MORTGAGEE
Section 10.1 Fverts of Default by Lessee Defined. The
following shall be "Events of Default by Lessee" under this Ground
Lease and the term "Event of Default by Lessee" shall mean,
whenever used in this Ground Lease, with respect to the Land, any
one or more of the following:
(a) the failure by Lessee to pay any Rental Payment
or other payment required to be paid under this Ground
Lease at the time specified herein and the continuatian af
said failure for a period of ten (10) days after
telephonic or telegraphic notice given by Lessor that the
payment referred to in such notice has not been received,
such telephonic or telegraphic notice to be subsequently
confirmed in writing, or after written notice;
(b) the failure by Lessee to observe and perform any
covenant, condition or agreement on its part to be
observed or performed, other than as referred to in
paragraph (a) of this Section, for a period of forty-five
(45) days after written notice stating it is a "Notice of
Default by Lessee° and specifying such failure and
requesting that it be remedied has been given to Lessee by
Lessor_, unless Lessor shall agree in writing to an exten-
sion of such time prior to its expiration; provided,
12
however, that if the failure stated in the notiGe cannot
with reasonable diligence be corrected within the
applicable period, Lessor will not unreasonably withhold
its consent to an extension of such time if corrective
action is instituted by Lessee within the applicable
period and diligently pursued until the default is
� _ corrected;
(c) the filing by Lessee of a voluntary petition in
bankruptcy, or the failure by Lessee promptly to lift any
execution, garnishment or attachment of such consequence
as would impair the ability of Lessee to carry on its
governmental or proprietary function, or the adjudication
of Lessee as a bankrupt, or the making of an assignment by
Lessee for the benefit of its creditors, or the entry by
Lessee into an agree�ent of composition with its
creditors, or the approval by a court of competent juris-
diction of a petition applicable to Lessee in any
proceedings instituted under the provisions of the Federal
bankruptcy statute or a state bankruptcy statute, or under
any similar acts which may hereafter be enacted.
The provisions° of paragraph (b) of this Section are subject to the
following limitation: (i) if by reason of force majeure, Lessee
is unable in whole or in part to carry out its obligatians under
this Ground Lease with respect to the Land, other than its �
obligation to pay Rental Payments with respect thereto which shall
be paid when due notwithstanding the provisions of this paragraph, _
Lessee shall not be de�med in default during the continuance of
such inability; and (ii) the unlawful acts of persons (not
officers, employees or agents of the Lessee) using the Project
shall not be considered actions of the Lessee, but Lessee shall
make reasonable effort to prevent or control unlawful acts by
persons using the Pz�oject.
Notwithstanding the foregoing provisions of this Section
10.1, (i) the happening of an act or occurrence described in this
Section 10.1 shall not constitute an Event of Default by Lessee _.
under this Ground Lease if the happening of such act or occurrence
also constitutes an event of default on the part of the City under
the Lease, and (ii) the events of default referred to in Section
10.1(c) shall apply only with respect to the owner from time to
time of the Lessee' s leasehold estate.
Section 10.2 Lessor' s Remedies on Default. ��Thenever any
Event of Default by Lessee shall have happened and be continuing,
Lessor shall have the right, subject to the provisions of the
Federal bankruptcy statute and any State bankruptcy statute, if
applicable, to take one or any combination of the following
remedial steps:
13
(a) Lessor shall have the right to terminate this
Ground Lease and re-enter and take possession of the Land
by giving Lessee notice of termination specifying the date
of termination which shall be a date not less than 30 days
after such notice is served. Unless such Event of Default
by Lessee is remedied prior to the specified termination
_ date this Ground Lease and the estate hereby granted shall
- expire and terminate on such date as fully and completely
and with the same effect as if such date were the date
herein fixed for the expiration of this Ground Lease, and
all rights of Lessee hereunder shall expire and terminate,
but Lessee shall remain liable as hereinafter provided.
(b) Lessor shall have the immediate right, whether
or not this Ground Lease shall have been terminated
pursuant to Paragraph (a) , after following the notice
procedure set forth in paragraph (a) , to re-enter and
repossess the Land by such summary proceedings, ejectment,
or other legal action or in any peaceable manner Lessor
determines to be necessary or desirable and the right to
remove peaceably alI persons and property therefrom,
unless such Event of Default by Lessee is remedied before
initiation of summary procedings, ejectment, or other
legal action. Lessor shall be under no liability by
reason of any such re-entry, repossession or removal . No
such re-entry or repossession of the Land shall be
construed as an election by Lessor to terminate this
Ground Lease unless a notice of such termination is given
to Lessee pursuant to paragraph (a) , or unless such
termination is decreed by a court or other governmental
tribunal of competent jurisdiction, or unless one hundred
eighty (18�) days elapse after Lessor' s re-entry or
repossession o£ the Land without reletting by the Lessor
or re-entry by the Lessee as praovided in subsection (c)
below.
(c) At all times or from time to time after the
re-entry or repossession of the Land as herein authorized,
whether or not this Ground Lease shall have been
terminated pursuant to paragraph (a) , Lessor shall use
reasonable efforts to relet the Land for the account of
Lessee, in the name of Lessee or Lessor or otherwise,
without notice to Lessee, for such term or terms and on
such conditions and for such conditions and for such uses
as Lessor, in its absolute discretion, may determine;
provided that such reletting shall be made subject to
Lessee' s right to regain possession of the Land under
State or Federal Law; provided further, that if Lessor has
not relet the Land for the account of the Lessee within
one hundred eighty (180) days of re-entry or repossession
(where this Lease has not been terminated) , Lessee may at
14
its aption and without further proceedings re-enter and
take full possession of the Land under this Lease without
affecting or altering the relative rights and obligations
of the parties, except that Lessor shall not initiate any
action to terminate the Lease or re-enter the Land for one
hundred eighty (180) days thereafter. Lessor may collect
and receive any rents payable by reason of such reletting,
but shall not be liable for any failure to relet the Land
or fnr any failure to collect any rent due ugon any such
reletting.
(d) No termination of the Ground Lease Term pursuant
to paragraph (a) , by operation of law or otherwise, and no
re-entry or repossession of the Land pursuant to paragraph
(b) or otherwise, and no reletting, shall relieve Lessee
of its liabilities and obligations hereunder, all of which
shall survive such expiration, termination, re-entry,
repossession or reletting, if it has exercised reasonable
diligence in so doing.
(e) In the event of any expiration or termination of
the term of this Ground Lease or re-entry or repossession
of the Land by reason of the occurrence of an Event of
Default by Lessee, Lessee will pay to Lessor all Basic
Rent, Additional Rent and other sums required to be paid
by Lessee to and including the date of sueh expiration,
termination, re-entry or repossession; and, thereafter,
Lessee shall, until the end of what would }�ave been the
Term of this Grour.d Lease in the absence of such
expiration, termination, re-entry or repossession, and
whether or not the Land shall have been relet, be liable
to Lessor for, and shall pay to Lessor, as liquidated and
agreed current damages (it being agreed that it would be
impracticable or extremely difficult to fix the actual
damages) : (i) all Basic Rent, Additional Rent and other
sums which would be payable under this Ground Lease by
Lessee in the absence of such expiration, termination,
re-entry or repossession, less (ii) the net proceeds, if
any, of any reletting effected for the account of Lessee
pursuant to paragraph (c) (including any items of
Additional Rent paid on account of such reletting) , after
deducting from such proceeds all Lessor' s expenses in
connection with such rel'etting (including, but not limited
to, all repossession costs, brokerage commissions,
reasonable attorney' s fees and expenses, employees '
expenses, alteration costs and expenses of preparation for
suh reletting) . Lessee will pay such current damages on
the days on which Basic Rent would be payable under this
Lease in the absence of such expiration, termination,
re-entry or repossession, and Lessor shall be entitled to
recover the same from Lessee on each such day.
15
(f) At any time after any such expiration or
termination of the Graund Lease Term or re-entry or
repossession of the Land by reaso� of the occurrence of an
Event of Default by Lessee, whether or not Lessor shall
have collected any current damages pursuant to paragraph
(e) , Lessor will be entitled to recover from Lessee, and
Lessee shall pay to Lessor on demand, as and for
liquidated and agreed final damages for Lessee' s default
and in lieu of all current damages after the date of such
demand ( it being agreed that it would be impracticable or
extremely difficult to fix the actual damages) , an amount
equal to the excess, if any, of (i) all Rasic Rent,
Additional Rent and other sums which would be payable
under this Ground Lease from the date of such demand (or,
if it be earlier, from the date to which Lessee shall have
satisfied in full its obligations under paragraph (e) to
pay current damages) for what would be the then unexpired
Ground Lease Term in the absence of such expiration,
termination, re-entry or repossession, discounted at the
rate per annum provided below, over (ii) the then fair
rental value of the Land (including any item of Additional
Rent ) that would be paid by a willing lessee to a willing
lesso�, neither under a compulsion to enter into a lease,
and not taking into account the remaining portion of the
Ground Lease Term, discounted at the rate of $ per
annum. If any law adopted prior to the date of this _
Groun� Lease shall limit the amount above agreed upon,
Lessor shall be entitled to the maximum amount allowable
under such law.
Section 1�.3 Delay; Notice. No delay or omission to
exercise any ri_ght or power accruing upon any Event of Default by
Lessee shall impair any such right or power or shall be construed
to be a waiver ther.eof, but any such right and power may be
exercised from time to time and as often as may be deemed
expedient.
Section 10.4 No Remedy Exclusive. No remedy herein
conferred upon or reserved to Lessor is intended to be exclusive
and every such remedy shall be cumulative and shall be in addition
to every other remedy given under this Ground Lease or now or
hereafter existing at law or in equity. No delay or omission to
exercise any right or power accr.uing upon any Event of Default by
Lessee shall impair any such right or power or shall be construed
to be a waiver thereof, but any such right and power may be
exercised from time to time and as often as may be deemed
expedient.
Section 10.5 Attorney' s Fees and Expenses. In the event
either party to this Ground Lease should default under any of the
provisions hereof and the nondefaulting party should employ
attorneys or incur other expenses for the collection of moneys or
the enforcement of performance or observance of any obligation or
16
agreement on the part of the defaulting party herein contained,
the defaulting party agrees that it will on demand therefor pay to
the nondefaulting party the reasonable fees of such attorneys and
such other expenses so incurred by the nondefaulting party.
Section 10.6 No Additional Waiver Im lied by One Waiver.
In the event any agreement contained in this Ground Lease should
be breached by either party and thereafter waived by the other
party, such waiver shall be limited to the particular breach so
waived and shall not be deemed to waive any other breach.
hereunder.
Section 10.7 Default by Lessor; Lessee' s Remedies. The
following shall be "Events of Default by Lessor" under this Ground
Lease and the term "Event of Default by Lessor" shall mean,
whenever used in this Ground Lease, with respect to the Land, any
one or more of the following:
(a) the failure by Lessor to provide Lessee with
quiet use and enjoyment of the Land in accordance with
Sections 3 .2 and 3 .3;
(b) the failure by Lessor to perform its obligations
under this Ground Lease; and
(c) the creation of any lien on the Land by Lessor.
In the event of the failure by Lessor to observe and perform any
covenant, condition or agreement on its part to be observed or
performed, for a period of thirty (30) days after written notice
specifying such failure and requesting that it be remedied has
been given to Lessor by Lessee, Lessee shall have the right to
commence an action at law or in equity seeking any one or mo��e of
the following: (a) to compel the specific performance of such
covenant, cond?tion or agreement; (b) to compel the payment of
damages by Lessor; or (c) to declare Lessor in default an3
terminate this Lease.
Section 10.8 Rights of Mortgagees, Sublessees and the
Trustee. Notwithstanding anything to the contrary in the
foregoing provisions of this Article 10, a Mortgagee, Sublessee
and the Trustee (the "Protected Parties") shall be entitled to the
following rights and protections�:
(a) If Lessee shall be in default in the observance
or performance of any covenant in this Ground .Lease beyond
any applicable period of grace referred to herein, Lessor
shall send written notice of such default to the
Protected Parties at such address as the Protected Parties
have designated by notice to Lessor. Each of the
Protected Parties shall have 30 days after delivery of
such written notice from Lessor within which to cure or
17
remove such default, except that if such default cannot
with diligence be cured within such 30 day period, the
Protected Parties shall have a reasonable time thereafter
to effect a cure, provided that such parties, or one of
them, proceed promptly to cure the same and thereafter
prosecute the curing of such default with diligence.
- Notwithstanding any other provision of this Ground Lease,
Lessor shall not have any right pursuant to this Ground
Lease or otherwise to terminate this Ground Lease due to
such default unless Lessor shall have first given written
notice thereof to the Protected Parties and unless
Protected Parties shall have faiZed to cure or remove, or
cause to be cured or removed, such defaalt within the time
required by this subparagraph (a) .
(b) Lessor shall accept performance by the Protected
Parties or any of them of any covenant, agreement or
obligation of Lessee contained in this Ground Lease with
the same effect as though performed by Lessee.
(c) Lessor shall have no rights in and to the
rentals payable to Lessee und�r any Sublease of all or any
part of the Project, which rentals may be assigned by
Lessee to a Mortgagee.
(d) If this Ground Lease shall be terminated for any
reason (other than pursuant to Article 8) , or in the e.vent
of the rejection or disaffirmance of this Ground Lease
pursuant to bankruptcy law or other law affecting
creditor' s rights, Lessor shall enter into a new lease of
the Land with a Mortgagee, or any party designated by a
Mortgagee, not less than ten (10) nor more than thirty
(30) days after the request of a Mortgagee referred to
below, for the remainder of the Ground Lease Ter�,
effective as of the date of suh termination, rejection or
disaffirmance, upon all the terms and provisions contained
in this Ground Lease, provided, that such Mortgagee makes
a written request to Lessor for such new lease within .
ninety (90) days after the effective date of such
termination, rejection or disaffirmance, as the case may
be, and such written request is accompanied by a copy of
the new lease, prepared at Mortgagee ' s expense, duly
executed and acknowledged by the Mortgagee, or the party
designated by the Mortgagee to be the Iessee thereunder,
and the Mortgagee cures all defaults under this Ground
Lease which can be cured by the Mortgage or its agent and
pays to Lessor all Basic Rent and Additional Rent which
would at the time of such execution and delivery be due
and payable by Lessee under this Ground Lease but such
rejection, disaffirmance or termination, less net amounts
received by Lessor under Section 10.2, if any. If the
18
Mortgagee, or the party so designated by the Mortgagee,
shall have entered into a new lease with Lessor pursuant
to this subparagraph (d) , then any default under this
Ground Lease which, because the default is personal to
Lessee hereunder (sLCh as bankruptcy) , cannot reasonably
be cured by suh new lessee, shall be deemed cured. Any
new lease made pursuant to this subparagraph (d) shall
have the same priority of lien as this Ground Lease and
sha11 be accompanied by a conveyance of Lessor' s title, if
- any, to the Facilities and Improvements (free of any
mortgage or other lien, charge or encumbrance created or
suffered to be created by Lessor) for a term of years
equal in duration to the term of the new lease. The
provisions of this subparagraph (d) shall survive the
termination, rejection or disaffirmance of this Ground
Lease and shail continue in full effect thereafter to the
same extent as if this subparagraph (d) were a separate
and independent contract made by Lessor, Lessee and the
Mortgagee and, from the effective date of such
termination, rejection or disaffirmance of this Ground
Lease to the date of execution and delivery of such new
lease, the P�sortgagee may use and enjoy the leasehold
estate created by this Ground Lease without hindrance by
Lessor.
(e) The rights and remedies afforded a Mortgagee -
under this Section 10.8 are cumulative and not exclusive.
(f) This Ground Lease shall not be modified or
surrendered without the prior written consent of a
Mortgagee and any modification or surrender without such
�onsent shail be void and of no effect.
(g) Except where otherwise indicated the provisions
of this Section 10.8 are for the benefit of the Protected
Parties and may be relied upon and shall be enforceable by
the Protected Parties and any one o£ them. Neither a
Mortgagee nor any other holder or owner of the
indebtedness secured by a Mortgage shall be liable upon
the covenants, agreements or obligations of Lessee
contained in this Ground Lease, unless and until a
Mortgagee or such holder or owner becomes the Lessee
hereunder. '
ARTICLE 11
SUBLEASES; LEASE; NO MERGER
Section 11 .1 Subleases. So long as a Sublease shall be
in effect:
19
(a) Lessor and Lessee shall not agree between
themselves to any termination (except as expressly
provided in Article 8 hereof) , surrender or modification
of this Ground Lease without the prior written consent of
a Sublessee, unless the City assumes the obligations of
the Sublessor under such Sublessee' s sublease, in which
� - event such consent shall not be required;
(b) Lessor will give to the Sublessee a copy of any
notice or other communication given by Lessor to Lessee at
the same time such notice or communication is given to
Lessee, and Lessor will not exercise any right, power or
remedy with respect to any default hereunder and no notice
to Lessee of any default and no termination of this Ground
Lease by Lessor in connection therewith shall be
effective, unless Lessor shall have given to the Sublessee
written notice or a copy of its notice to Lessee of such
default or any such termination, as the case may be;
(c) Unless the Sublessee is the City in which event
this subparagraph shall not be apPlicable, Lessor will not
exercise any right, power or remedy with respect to any
Fvent of Default by Lessee hereunder until the expiration
of any grace period provided with respect thereto, plus 15
days after the date Lessor has given to the Sublessee
written notice ot the expiration of the applicable grace
period with respect to such default;
(d) Lessor will not exercise any right, power or
remedy with respect to any default referred to in clause
(c) , if the Sublessee, within the 15 day period referred
to in clause (c) , . shall give to Lessor written notice that
it intends to undertake the correction of such default or
to cause the same to be corrected, and the Sublessee shall
thereafter prosecute diligently the correction of such
default; and
(e) The performance by the Sublessee of any of the
terms and provisions of this Ground Lease on Lessee' s part
to be performed shall be deemed to be performance thereof
by Lessee.
Lessee shall cause Subleases to 'contain language to the following
effect: If the Ground Lease shall terminate for any reason other
than as specifically provided for in Article 8 thereof, or the
Ground Lease shall have been rejected or disaffirmed by Lessee
thereunder or any trustee or receiver thereof pursuant to
bankruptcy or insolvency law or other law affecting creditor' s
rights and if the Mortgagee (or its designee) shall not have
entered into a new lease or acquired the interest of the Lessee
thereunder, and if in either event the lessor' s interest in the
Sublease has been transferred to Lessor in accordance with Section
11.3 of this Ground Lease, the Sublessee shall attorn to Lessor.
20
Upon Lessor ' s acceptance thereof, Lessor and such Sublessee shall
contin�se any such Sublease in full force and effect as a direct
lease from the Lessor to such Sublessee on the same terms and
conditions as in the Sublease, including without limitation, the
obligations to pay Basic Rent, Additional Rent and all other sums
payable under the Subiease for the period after the termination,
rejection or disaffirmance of this Ground Lease, and all of the
terms and conditions of such Sublease shall be binding upon the
Lessor and such Sublessee to the same extent as if Lessor and such
Sublessee had been the original lessor and lessee, respectively,
under the Sublease. Lessor agrees that if the Sublessee shall
attorn to Lessor, Lessor shall accept such attornment and
thereafter continue any such Sublease in full force and effect as
a direct lease from Lessor to such Sublessee on the same terms and
conditions as in the Sublease, including, without limitation, the
obligation to pay Basic Rent, Additional Rent and any other sums
payable under such Sublease for the period after the termination,
rejection or disaffirmance of this Ground Lease and that all of
the terms and conditions of the Sublease shall be binding upon
Lessor and the Sublessee to the same extent as if Lessor and
Sublessee had been original lessor and lessee, respectively, under
tlie Sublease. Lessor agrees that the provisions of this Section
11 .1 shall be for the benefit �f the Sublessee, and that any such
Sublessee may rely thereon in entering into such Sublease.
Section 11 .2 Lease. Lessor will duly and punctually
observe and perform, at its expense, all covenants, terms and
conditions imposed by the Lease upon the City thereunder
( including, without limitation, the payment of all rents and other
sums) , and Lessor agrees to indemnify and hold Lessee harmless
from and against any liability arising under any such instruments .
Section 11 .3 No Merger. There shall be no merger of this
Ground Lease or a Sublease or of the, leasehold estate created
hereby or thereby with the fee estate in the Land or any part
thereof by reason of the fact that the same person may acquire or
hold, directly or indirectly, whether through termination of this
Lease or otherwise, this Ground Lease or a Sublease or the
leasehold estate created hereby or by a Sublease or any interest
in this Ground Lease or a Sublease or in such leasehold estate(s)
and the fee estate in the Land or any interest in such fee estate.
If while a Mortgage is in effect or any period of redemption from
foreclosure thereof is unexpired, this Ground Lease is terminated,
whether voluntarily, involuntarily or by operation of law, the
termination of this Ground Lease shall not terminate the Sublease
but shall rather transfer to Lessor (unless the Mortgagee elects
to make a lease pursuant to Section 1Q.8 of this Lease) the
Improvements, Lessee' s estate and the Lessor' s interest in the
Sublease, subject to (i) the non-merger provisions of this Ground
Lease and the Sublease and (ii) the lien of the Mortgage or the
rights of the Purchaser at foreclosure. If the Lessee' s estate is
transferred to Lessor in accordance with the terms of this Section
21
11 .3, then, notwithstanding any provision of this Ground Lease to
the contrary, all obligations under this Ground Lease with respect
to such Lessee' s estate shall be deemed to have been performed in
full, and such Lessee' s estate shall not be subject to forfeiture
or termination nor shall Lessee be subject to dispossession for
any reason whatever.
ARTICLE 12
ADMINISTRATIVE PROVISZO�S
Section 12.1 �otices. All notices, certificates or other
co�munications hereunder shail be sufficiently given and sha11 be
deemed given when mailed by certified or registered nail, postage
prepaid, with proper address as indicated below. Lessor and
Lessee may, by written notice given by each to the other,
designate any address or addresses to which notices, certificates
or other communications to them shall be sent when required as
contemglated by this Ground Lease. Until otherwise provided, all
notices, certificates and communications to each of them shall be
ad�ressed as follows:
To the Lessor: Director, Finance and Management Service
15 west Kellogg
City Hall and Courthouse
Saint Paul, Minnesota 55102 "
To the Lessee: Housing and Redevelopment Authority of
the City of Saint Paul, Minnesota
25 West Fourth Street
12th Floor, City Hall Annex
Saint Paul, Minnestoa 55102
Section 12.2 Applicable Law; Interpretation. This Ground
Lease shall be interpreted in accordance with and governed by the
laws of Minnesota. The words "herein" and "hereof", and words of
similar import, without reference to any particular article,
section, paragraph or clause, refer to this Ground Lease as a
whole rather than to any particular article, section or subdivi-
sion hereof. References in this Ground Lease to any particular
article, section, paragraph or clause hereof are to the article,
section, paragraph or clause of this Ground Lease as originally
executed. The table of contents and captions or headings of this
Ground Lease are for convenience only and in no way define, limit
or describe the scope of interest of this Ground Lease, and are
not a part of this Lease. Unless the context hereof clearly
requires otherwise, the singular shall include the plural and vice
versa, and the use of any gender shall include all other genders .
22
Section 12.3 Lessor and Lessee Representatives. Within
30 days after the execution of this Ground Lease, Lessor and
Lessee shall each notify the other of the names, addresses and
telephone numbers of the persons serving as Lessor Re�resentatives
or Lessee Representatives, respectively. In performing their
duties and exercising their rights under this Ground Lease, Lessor
. and Lessee shall be entitled to rely upon statements,
representations or determinations given to them in writing by a
Lessee Representative or a Lessor Representative as the case may
be.
Section 12.4 Binding Effect. This Ground Lease shall
inure to the benefit of and shall be binding upon Lessor and
Lessee and their respective successors and assigns.
Section 12 .5 Severability. In the event any provision of
this Ground Lease shall be held invalid or unenforceable by any
court of competent jurisdiction, such holding shall not invalidate
or render unenforceable any other provision hereof.
Section 12 .6 Amendments, Changes and Modifications. This
Ground Lease may be amended or any of its terms modified only by
written document duly authorized, executed and delivered by Lessor
and Lessee.
Section 12 .7 Further Assurances and Corrective Instru-
ments. Lessor and Lessee agree that they will, from time to time,
execute, acknowledge and deliver, or cause to be executed,
acknowledged and delivered, such supplements hereto and suh
further instruments as may reasonably be required for correcting
any inadequate or incorrect description of the Land hereby leased
or intended so to be, and for carrying out the expressed intention
of this Ground Lease.
Section 12 .8 Estoppel Certificates. Lessor and Lessee
will, fro� time to time, upon 20 days prior request by the other
party, execute, acknowledge and deliver to the requesting party a
certificate stating that this Ground Lease is unmodified and in
full effect (or, if there have been modifications, that this
Ground Lease is in full effect as modified, and setting forth such
modifications) and the dates to which Basic Rent, Additional Rent
and other sums payable hereunder have been paid, and either
stating that to the knowledge of� the signer of such certificate no
default exists hereunder or specifying each such default of whih
the signer has knowledge. Any such certificate may be relied upon
by the party receiving the same and any prospective mortgagee or
purchaser of the Land.
Section 12.9 Execution in Counterparts. This Ground
Lease may be simultaneously executed in several counterparts, each
of which shall be an original and all of which shall constitute
but one and the same instrument.
23
� - `
' �
Section 12.10 Mortgagee Protection.
shall cooperate in includin Lessor
amendment from g ln this Ground Lease b and Lessee
time to time any provision which ma y Su�table
requested by a Mortgagee for the Y reasonably be
Mortgagee protection provisions contained�f lmPZementing an
allowinq such Mort a in this Ground Lease and
. the lien of g gee reasonable means to protect or
a Mortgage on the occurrence of a preserve
terms of this Ground default
execute and deliver Lease. Lessor and Lessee each aqreeetothe
recordin �and to acknowledge, if necessar
9 purposes) any agreement necessar y� for
amendment; provided, however, that an y tO effect an
any way affect the Ground Lease Term y such amendrnent sha11uch
Ground Lease nor otherwise in an °r Rentai pa not in
affect an Y material res ec�ents under this
y rights of Lessor under this Ground Peaseadversely
Section I2.11 Immunit
any other provision of this Ground Leasebility. Notwithstanding
of Lessor or Lessee, shall be ' nO officer or
capacit subject to suit �P1oyee
y for the enforcement of an in his personal
Lease. y provision of this Ground
Section 12.�2 Ground Lease Not Debt.
shall not constitute an obligation or
within the meanin indebtednesssof rthed Lease
9 of any applicable law Lessee -
, ordinance or regulation.
Section 12 .13. Interpretation.
provided herein, nothin Except as ,,pecifically
exercise b 9 herein is intended to restrict the
y Lessor of any of its police
rights upon any person or entity other p°Wers, or to confer any
their lawful successors and than Lessor and Lessee and
assigns.
Section 12.14 Short Form Ground Lease.
shall offer this Ground Lease for recordation Neither
records, but a party
copy of th�. S�e shall be in the public land
Clerk. Either filed with the City
execute Party, at the written request of the other
a short form or memorandum of . shall
which shall contain a description of theaLandn recordable
term, incorporate b form
Lease and referenceytheference onl the length of the
y the provisions of this Ground
file with the Cit fact that a copy of the Ground Lease is on
y Clerk.
Section 12 .15 Novation in Event
the event Lessor sells its interest in thef Sale b
thereb Lessor. In
y be relieved of ail of Land, Lessor shall
created by this Ground Lease aftercthensale and obligations
shall result in the assumption b thereof
all such obligations and covenantstof Lessorehere�nd and such sale
not the purchaser of
terms of such sale expressly so provide, er' �`'hether or
Section I2.16 Title to
Improvements shall be the Facilities. All Faciiities and
Lease Term, but title prOPerty of Lessee durin
revert to the Lessor uto the Facilities and ImprovementsGshall
agrees to reconve pon the expiration thereof, and Lessee
y the Facilities and Improvements to the Lessor
upon such expiration of the Ground Lease
24
� /
� I
EXHIBIT g
Basic Rent
(Ground Lease)
� 1 • The Basic Rent from the e��,M��__
Lease Term until tho �__ .
�,,. _ . _
EXHIBIT A
Legal Description
(Ground Lease)
apply to the Chief Judge of the District Court of Ramsey
County, Minnesota, for the designatian by him or her of
the appraiser or appraisers not so designated. Such
procedure shall apply only to the first designation or
appointment of appraisers, when the need for independent
appraisal first arises. Thereafter, the three appraisers
so designated or appointed shall continue to serve unless
and until an appraiser is replaced by the party so
designating or appointing the same, or, in the case of the
appraisers' designated appraiser, by the appraisers. Upon
the appointment of a new appraiser by a party, the
parties ' appraisers shall confirm the appointment of the
third appraiser or select a new appraiser, in each case
within fifteen (15 ) days of the appointment of such new
appraiser, and if they are unable to a�ree upon the third
appraiser, resort shall be made to the Ramsey County
District Court Chief Judge, as provided above, for the
appointment of the third appraiser. All appraisers
hereunder shall be members of the American Institute of
Real Estate Appraisers and shall be experienced in the
setting of rentals for commercial property in the
Minneapolis-St. Paul metropolitan area. The appraisers so
selected shall promptly meet �o determine said fair market
rental value. Said fair market rental value shall be that
value agreed upon by two (2) or more of said appraisers .
Said fair market rental value shall be exclusive of
Additional Rent and shall be expressed in terms of dollars
of annual 3asic Rent. ?'he fair market rental value shall
be determined by the designated appraisers no later than
ninety (90) days after the anniversary of the commencement
date of the Ground Lease Te�m for the year in question.
(c) The parties hereto expressly agree to be bound
by the decision of the appraisers ���ting as herein
provided. If at least two of the three appraisers do not
agree on said fair market rental value within such ninety
(90) day period, such value shall be determined by
appropriate proceedings before the District Court of
Ramsey County, Minnesota. In any such action, each party
shall bear its own attorney' s fees and costs. While such
proceedin�s are pending, Basic Rent shall be payable in
the same amount as was payable during the preceding lease
year. .
(d) Basic Rent for each succeeding lease year shall
be calculated using the same procedure set forth above.
(e) Each party hereto shall pay the fees of the
appraiser designated by it and the expenses incurred by
such appraiser. The charges and expenses of the third
appraiser shall be paid by the parties hereto in equal
ahares.
�
EXHIBIT C
Permitted Fncur.lbrances
(Ground Lease)
_ Lessor warrants that the leasehold interest granted and conveyed
hereby is subject only to Lessor' s fee, state mineral reservations
and rights, if any; applicable Federal, State and Municipal laws
and regulations; and to the following additional Perriitted
Encumbrances:
l.
2.
3.
4.
5.
6.
7.
8.
9.
6/15/83
SALE RGREEMENT
THIS AGREEMENT is made as of June l, 1983, by and between
the Housing and Redevelopment Authority of the City of Saint Paul,
Minnesota, a Minnesota municipal corporation (the "HRA" ) , as
seller, and Civic Center Partners Limited Partnership, a Minnesota
limited partnership (the "Partnership") , as buyer.
1. Sale of Facilities. The HRA hereby agrees to sell,
and the Partnership hereby agrees to purchase, the buildings,
fixtures and improvements (the "Facilities" ) lacated on the tracts
or parcels of land described in Exhibit A hereto and all easements
and appurtenances thereto (the "Land") for the price set forth in -
paragraph 2 of this Agreement. The Facilities are commonly known
as the St. Paul Civic Center Complex, and include the Civic Center
Arena, the Civic Center Auditorium and �xhibition Hall, the
Meeting Room Concourse, and the Civic Center Parking Ramp and
Pedestrian Tunnel. The Facilities also include certain moveable
equipment located within the Facilities, which equipment is being
purchased by the HRA from the City of Saint Paul, Minnesota (the
"City" ) and is used in the operation and maintenance of the
Facilities (the "Equipment") . A schedule of the Equipment is
attached hereto as Exhibit B. The Land, Facilities and Equipment
are hereinafter referred to as the "Project".
2 . Purchase Price. The Partnership shall pay the HRA as
consideration for the Facilities the sum of $33, 191,000.00 (the
"Purchase Frice" ) . The Purchase Price shall be paid on the
� - Closing Date, as hereinafter defined, by wire transfer to such
amount of the HRA at such bank as the HRA may designate by written
notice to the Partnership.
3 . Ground Lease. In consideration of the purchase of the
Facilities by the Partnership, and as a condition to such
purchase, the HRA agrees to assign its leasehold interest in the
ground lease dated as of June 1 , 1983, between the City, as
lessor, and the HRA, as lessee (the "Ground Le3se" ) to the
Partnership on the Closing Date.
4. Representations and Warranties. The HRA hereby
assigns to the Partnership all representations, warranties and
covenants made by the City to the HRA in that certain Purchase
Agreement of even date herewith by and between the City, as
seller, and the HRA, as buyer (the "Purchase Agreement" ) . In
addition, the HRA hereby expressly covenants, represents and
warrants to and with the Partnership as follows:
(a) The HRA has, or will on the Closing Date have
good and marketable title to t�he Project, free and clear
of any and all liens, encumbrances, security interests,
leases, covenants, restrictions, reservations, agreements,
claims or other charges affecting the Project ( "Encum-
brances" ) , other than those matters ("Permitted
Encuiabrances") listed on Exhibit C hereto. The Project on
2
the Closing Date shall not be subject to any Encumbrance
other than Perrnitted Encumbrances . All Facilities are
located entirely within the boundary lines of the Land or
Iegally sufficient easements.
(b) The Project is or will be in substantial compli-
ance with all Zaws, municipal ordinances, orders and
requirements affecting the Project upon the completion of
the Improvements as contemplated by that certain Lease
Agreement dated as of June 1, 1983, by and between the
Partnership, as lessor, and the City, as lessee (the
"Lease" ) .
(c) The HRA shall indemnify, defend and hold the
Partnership forever harmless from and against any and all
expenses, agreements, obligations, liabilities� and claims
(including, but not li.mited to, attorney fees) in connec-
tion with the Project and/or the operation thereof
existing, arising or accruing on or beiore the Closing
Date.
(d) The Facilities are directly connected to
municipal sewer and water.
(e) There is or wiZl be no substantial structural or
other material defect in the Project or any part thereof
upon completion of the Improvements as contemplated by the
Lease.
(f) The HRA has delivered to the Partnership true,
correct and complete copies of all agreements or
3
acceptable summaries and lists thereof affecting the
Project or which may be binding on the purchaser of any
part thereof, including but not limited to: leases ,
occupancy or other tenancy agreements; leasing and
management agreements; service contracts whereby the City
is the provider or recipient of services with respect to
the Project; maintenance agreements; utility agreements;
and documents comprising the Permitted Encumbrances . As
to such agreements, the HRA represents that each (i)
consists of the documents so delivered and has not been
modified, supplemented or amended in any manner
whatsoever, (ii) is valid, enforceable and in full force
and effect, (iii) is free of any default by the City and,
to the best of the HR�'s knowledge, the other party or
part�es thereto, and (iv) is free of any circumstance
which with the giving of notice or lapse of time, or both,
would constitute a default by the City or, to the best of
the HRA's knowledge, the other party or parties thereto.
(g) There are no claims, actions or legal
proceedings, or threat thereof, with respect to the HRA
which would have a materially adverse effect upon the
Project or the HRA's ability to perform this Agreement.
The foregoing covenants, representations and warranties shall
survive the Closing.
5. Conditions Precedent; Title. In the event any of the
conditions set forth in this paragraph 5 shall not have been
4
the HRA on the Closin
g Date, provided the Partnership
agrees to pay up to $20, 000 of the title insurance
expense) ; Premium
- ��� �'he Partnership's receiving estoppel
certificates, dated not more than thirt
Y (30) da s
to the Closin y Prior
g Date, from each tenant �..a _�,
fulfiiled, or satisfactory substitute arrangements made therefor,
on or before the Closing Date then, and in any such event, the
Partnership, in its sole discretion, may terminate this Aqreement
by giving written notice thereof to the HRA on or before the
Closing Date. The Partnership' s obligation to perform its part of
this Agreement on the Closing Date is conditioned upon the
fulfillment of each of the following events on or before the (i)
expiration of the time period, if any, expressly set forth in any
of the following, or, (ii) if no such time period applies, the
Closinq Date:
(a) The detern,ination by the Partnership ttiat the
Land is presently zoned to permit, without condition or
the requirement of obtaining a special use or other
permit, the use now made thereof;
(b) The Partnership' s receipt of an ALTA Form B-1970
title insurance policy insuring the Partnership's
ownership of the Facilities and the Partnershig' s
leasehold estate in the Land, subject only to Permitted
Encumbrances, containing such affirmative insurance as the
Partnership may reasonably request (including, but not
limited to, contiguity of parcels, zoning, and easements
and party wall agreements.) , and deleting all standard
exceptions to coverage, (the attorneys fees, title
insurance premiums, and abstract continuation charges
incurred pursuant to this subparagraph shall be paid by
5 '
'I`he fulfillment of the conditions of this paragraph 5 are
for the Partnership' s benefit and the Partnership may, in its sole
discretion, waive (conditionally or absolutely} the fulfillment of
. any one or more of the conditions, or any part thereof, specified
herein only by giving written notice thereof to the HRA at any
time and from time to time on or before the Closing Date.
6. Damage or Destruction. In the event the Project or
any part thereof is damaged or destroyed by fire or other casualty
or cause on or prior to the Closing, the HRA shall promptly notify
the Partnership in writing of the accurrence thereof. The Partner-
ship may, in its sole discretion, elect at any time on or before
the Closing either to (a) terminate this Agreement by giving
written notice thereof to the HRA, or (b) continue this Agreement
in full force and effect by giving written notice thereof to the
HRP., in which event the Partnership shall be entitled to all
insurance proceeds paid or payable as a result of such damage or
destruction.
7 . Closing. The closing of the transaction herein
provided for shall take place on or before October 1, 1983,
immediately following the closing of the HRA's purchase of the
Facilities from the City, which closing shall be a condition to
the closing contemplated hereby, •in the offices of Briggs and
Morgan, 2200 First National Bank Building, St. Paul, Minnesota, as
mutually agreed to by the parties hereto (the "Closing Date") . At
the Closing, the HRA shall execute, where appropriate,
acknowledge, and/or deliver to the Partnership the following:
7
(a) Assignment of leasehold estate under the Ground
Lease;
(b) Bill of sale with general warranties of title as
, to the Facilities;
(c) Bill of sale with general warranties of title to
the Equipment;
(d) Certificate and restatement of each of the
warranties, representations and agreements contained in
paragraph 5 hereof; and
(e) Legal and actual possession of the Project and
and every part thereor.
All rents, other income and expenses shall be prorated as of the
Closing Date.
8. Miscellaneous.
(a) All the terms of this Agreement shall be binding
upon, inure to the benefit of, and be enforceable by, the
respective successors and assigns of the garties hereto.
The term "HRA" shall be synonymous with the term "seller"
and shall include all successors and assigns of the HRA,
and the term "Partnership" shall be synonymous with the
term "buyer" and include all successors and assigns of the
Partnership.
(b) Any notice, request or other communication
required or provided to be given under this Agreement
shall be in writing and shall be sufficiently given and
shall be deemed given when delivered personally or when
8
mailed by certified mail, return receipt requested,
postage prepaid.
(c) This Agreement shall be construed under and
- governed by the laws of Minnesota.
(d) Prior to closing the HRA hereby grants to the
Partnership, its agents and independent contractors, the
right to enter upon the Project at reasonable times and
from time to time for the purpose of inspecting and
surveying the same and for other purposes consistent with
the Par�nership's interest under this Agreement.
(e) This Agreement shall not be assigned by either
party �ithout the prior written consent of the other party
hereto.
(f) The covenants, warranties, representations and
agreements of the parties as contained in this Agreement
shall survive the closing and the execution and delivery
of the closing documents contemplated hereby.
9. Default; Termination. If the Partnership shall
default in any of its obligations under this Agreement, the HRA
may, by written notice specifying the nature of the default and
the date on which this Agreement shall terminate (which date shall
be not less than thirty (30) days after the giving of such
notice) , terminate this Agreement and upon sueh date, unless the
default so specified shall have been cured, this Agreement shall
terminate. Notwithstanding any other provision of this Agreement,
each party hereto, its successors and assigns, shall have the
9
right of specific performance hereunder, provided action to
enforce specific performance shall be commenced within six (6)
months of the date such right of action shall arise.
� _ 10. Improvements. As further consideration for the
purchase of the Facilities, the Partnership agrees to make
available the sum of $10,000,000.00 for the redevelopment of the
Civic Center Auditorium and Exhibition Hall and the Civic Center
Parking Ramp and Pedestrian Tunnel. Such funds shall be made
available by the Partnership by depositing said sum upon closing
with the Trustee pursuant to the terms of that certain Loan
Agreement, Indenture and Lease of even date herewith .
IN AGREEMENT, the parties hereto have caused this Agree-
ment to be duly executed and delivered as of the date first above
written.
SELLER:
HOUSING AND REDEVELOPMENT AUTHORITY
OF THE CITY OF SAINT PAUL, MINNESOTA
By
Its
And
Its
BUYER:
CIVIC CENTER PARTNERS LIMITED
PARTNERSHIP
By Churchill Civic Center, Inc. ,
Its General Partner
By
Its
10
EXHIBIT A
LEGAL DESCRIPTION
EXHIBIT B
SCHEDULE OF EQUIPMENT
� EXFiIBIT C
PERMITTED ENCUMBRANCES
J
j
6/15/83
GROiJb7D LEASL ASSIGNI�iTT
THIS AGREEMENT is made as of June l, 1983 by and between
the HOUSING AND REDEVELOPMENT AUTHORITY OF SAINT PAUL, MINNESO:'A,
a Minnesota municipal corporation ( "Assignor") , and CIVIC CENTER
PARTNERS LIMITED PARTNERSHIP, a Minnesota limited partnership,
( "Assignee") .
R E C Z T A L S
WHEREAS, by that certain Sale Agreement dated as of
June 1, 1983, between Assignor, as Seller, and Assignee, as Buyer_
(the "Contract") , Assignor agreed to sell to Assignee and Assignee
agreed to purchase from Assignor certain buildings and other
improvements known as the St. Paul Civic Center Complex (the
"Facilities" ) , all as more fully described in the Contract, which
Facilities are situated on the land described in Exhibit A hereto
(the "Land") ;
WHEREAS, the Contract provides, inter alia, that Assignor
shall assign to Assignee Assignor's leasehold estate under that
certain ground lease (the "Ground Lease") of the Land, which
Ground Lease is dated as of June 1, 1983 and is made by and
between the City of Saint Paul, Minnesota, as lessor, and
Assignor, as lessee;
WHEREAS, Assignee in consideration for such assignment has
agreed to assume all of the obligations of Assignor under the
Ground Lease from and after the date of such assignment;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto hereby agree
as follows:
� , 1 . Assignment of Lessee 's Interest in Ground Lease.
Assignor hereby assigns, sets over and transfers to Assignee all
of Assignor' s right, title and interest as lessee in, to and under
the Ground Lease, and Assignee hereby assumes all of the lessee's
liabilities and obligations under the Ground Lease arising or
accruing from and after the date hereof. Assignor agrees to
defend, indemnify and hold harmless Assignee from and against any
cost, expense or liability of whatever kind or nature with respect
to any claim, liabi��ty or obligation of lessee under the Ground •
Lease arising or accruing prior to the date hereof, and Assignee
agrees to indemnify �nd hold harmless Assignor fro� and against "
any cost, expense or liability of whatever kind or nature with
respect to any claim, liability or obligaticn of lessee under the
Ground Lease arising or accruing from and after the date hereof.
2. Miscellaneous. This Agreement and the obligations of
the parties hereunder shall survive the closing of the trans-
actions referred to in the Contract, shall be binding upon and
inure to the benefit of the parties hereto, their respective
successors and assigns, shall be .governed by and construed in
accordance with the laws of the State of Minnesota and may not be
modified or amended in any manner other than by a written
agreement signed by the party to be charged therewith.
2
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement as of the day and year first above written.
ASSIGNOR:
HOUSING AND REDEVELOPMENT
, AUTHORITY OF SAINT PAUL, MINNESOTA
By
Its
By
Its
ASSIGNEE:
CIVIC CENTER PARTNERS LIMITED
PARTNERSHIP
By C'hurchill Civic Center, Inc. ,
Its General Partner
By
Its
3
STATE OF MINNESOTA )
) ss. .
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this
day of , 1983, by � and
, the and -
, respectively of the HOUSING AND REDEVELOPMENT
AUTHORITY OF SAINT PAUL, MINNESOTA, a Minnesota municipal
corporation, on behalf of the corporation.
Notary Public
4
STATE OF MINNESOTA )
) ss . . �
COUNTY OF HENNEPIN )
, The foregoing instrument was acknowledged •before me this
day of , 1983 by ,
the of Churchill Civic Center, Inc. , a Minnesota
corporation and general partner of CIVIC CENTER PARTNERS LIMITED
PARTNERSHIP, a Minnesota limited partnership, on behalf of said
corporation and limited partnership.
Notary Public
Drafted by:
LINDQUIST & VENNUM (JBW)
4200 IDS Center
SO �outh Eighth Street
Minneapolis, Minnesota 55402
5
EXHIBIT A
LEGAL DESCRIPTION
,
.�
TABLE OF CONTEI+TTS
(Not a part of the Lease)
. Paqe
ARTICLE I - Definitions and Exhibits . . . . . . . . . . . 1-1
Section 1 . 1 Definitions . . . . . . . . . . . . . . 1-1
Section 1 . 2 Exhibits . . . . . . . . . . . . . . . . 1-7
ARTICLE II - Representations, Covenants and
Warranties . . . . . . . . . . . . . . . . . 2-1
Section 2 . 1 Representations of Lessee . . . . . . . 2-1
Section 2 . 2 Representations of Lessor . . . . . . . 2-1
ARTICLE III - Construction and Financing of
Improvements . . . . . . . . . . . . . . • . 3-1
Section 3 . 1 Cost of Improvements; Deposit af
Moneys . . . . . . . . . . . . . . . . 3-1
Section 3 . 2 Acquisition of Improvements; Payment
of Cost . . . . . . . . . . . . . . . 3-1
Section 3 . 3 Completion of Improvements; Lessee
Damages . . . . . . . . . . . . . . 3-1
Section 3 . 4 Construction Contract; Completion
Certificate . . . . . . . . . . . . . 3-2
Section 3 . 5 Change Orders . . . . . . . . . . . . . 3-2
Section 3 . 6 Builder ' s Risk . . . . . . . . . . . . . 3-2
Section 3 . 7 Enforcement of Construction
Contracts; Contractor Damages . . . . 3-2
Section 3 . 8 Ownership of Facilities and
Improvements . . . . . . . . . . . . . 3-3
ARTICLE IV - Lease of Leased Premises . . . . . . . . . . . 4-1
Section 4 . 1 Lease of Leased Premises; Title and
Condition . . . . . . . . . . . . . . . 4-1
Section 4 . 2 Possession, Use and Enjoyment . . . . . 4-1
Section 4 .3 Lessor ' s Access . . . . . . . . . . . . 4-2
ARTICLE V- Lease Term; Extention; Termination . . . . . . . 5-1
Section 5 . 1 Lease Term . . . . . . . . . . . . . . . 5-1
Section 5 . 2 Termination of Lease Term . . . . . . . 5-1
Section 5 .3 Surrender of Leased Premises . . . . . . 5-1
-i-
DRAFT N0. 10
, June 17, 1983
►�
RECEiVED
JUN 2 U 1q83
CITY ATTORNEY
LEASE AGREEMENT
between
CIVIC CENTER PARTNERS LIMITED PARTNERSHIP
as Lessor
and the
CITY OF SAINT PAUL, MINNESOTA
as Lessee
Dated as of June 1 , 1983