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HomeMy WebLinkAboutORD.2854.03-05-2001BILL NO. 2001-38 ORDINANCE NO. ^ ,' t ORDINANCE AUTHORIZING THE CITY TO ENTER INTO A THIRD SUPPLEMENTAL LEASE AGREEMENT WITH THE CAPE GIRARDEAU (MISSOURI) PUBLIC FACILITIES AUTHORITY. WHEREAS, the City of Cape Girardeau (Missouri) Public Facilities Authority (the "Corporation") and the City of Cape Girardeau, Missouri (the "City") have heretofore entered into a Lease Agreement dated as of April 1, 1993 (the "Original Lease"), as amended and supplemented by a First Supplemental Lease Agreement dated as of September 1, 1994 (the "First Supplemental Lease') and a Second Supplemental Lease Agreement dated as of June 1, 1997 (the "Second Supplemental Lease' and, collectively with the Original Lease and the First Supplemental Lease, the "Lease'), in connection with the issuance of certificates of participation; and WHEREAS, it will be less burdensome on the City administratively to renew the Lease term without requiring affirmative action of the City Council other than appropriation of Rental Payments (as defined therein) required thereunder; and WHEREAS, pursuant to Section 13.1 of the Original Lease and Section 1201 of the Trust Indenture dated as of April 1, 1993 (the "Original Indenture'), between the Corporation and BNY Trust Company of Missouri (as successor to Capital Bank of Cape Girardeau County), as amended and supplemented by a First Supplemental Trust Indenture dated as of September 1, 1994 (the "First Supplemental Indenture") and a Second Supplemental Indenture dated as of June 1, 1997 (the "Second Supplemental Indenture' and, collectively with the Original Indenture and the First Supplemental Indenture, the "Indenture'), the Corporation and the City are authorized, without the consent of or notice to any of the Bondowners or the Insurer (as defined therein) to enter into a Supplemental Lease or Supplemental Leases (as defined therein) in connection with any change therein which, in the judgement of the Trustee, is not prejudicial to the Trustee, the Bondowners or the Insurer, and it is hereby found and determined that the Third Supplemental Lease complies in all respects with Section 13.1 of the Original Lease and Section 1201 of the Original Indenture; NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF CAPE GIRARDEAU, MISSOURI, AS FOLLOWS: Section 1. Authorization and Approval of Third Supplemental Lease. The City Council hereby approves the Third Supplemental Lease Agreement dated as of March 1, 2001 (the "Third Supplemental Lease ), between the Corporation and the City, in substantially the form attached hereto as Exhibit A. The Mayor is authorized and directed to execute and deliver, on behalf of and as the act and deed of the City, the Third Supplemental Lease and to execute such other documents, certificates and instruments as may be necessary or desirable to carry out the intent of this Ordinance. The City Clerk is authorized and directed to attest to the execution of the Third Supplemental Lease and to any other documents, certificates and instruments as may be necessary or desirable to carry out the intent of this Ordinance. Section 2. Further Authority. The City shall, and the officers, agents and employees of the City are hereby authorized and directed to, take such further action, and execute such other documents, certificates and instruments as may be necessary or desirable to carry out and comply with the intent of this Ordinance. Section 3. Effective Date. This Ordinance shall take effect 10 days after its passage by the City Council. PASSED by the City Council of the City of Cape Girardeau, Missouri, this �� day of March, 2001. (SEAL) ATTEST:' City Clerk -2- �,a 4 e -,-- Mayor EXHIBIT A THIRD SUPPLEMENTAL LEASE AGREEMENT RESOLUTION AUTHORIZING THE CORPORATION TO ENTER INTO A THIRD SUPPLEMENTAL LEASE AGREEMENT WITH THE CITY OF CAPE GIRARDEAU, MISSOURI. WHEREAS, the City of Cape Girardeau (Missouri) Public Facilities Authority (the "Corporation") and the City of Cape Girardeau, Missouri (the "City") have heretofore entered into a Lease Agreement dated as of April 1, 1993 (the "Original Lease"), as amended and supplemented by a First Supplemental Lease Agreement dated as of September 1, 1994 (the "First Supplemental Lease") and a Second Supplemental Lease Agreement dated as of June 1, 1997 (the "Second Supplemental Lease" and, collectively with the Original Lease and the First Supplemental Lease, the "Lease"), in connection with the issuance of certificates of participation; and WHEREAS, it will be less burdensome on the City administratively to renew the Lease term without requiring affirmative action of the City Council other than appropriation of Rental Payments (as defined therein) required thereunder; and WHEREAS, pursuant to Section 13.1 of the Original Lease and Section 1201 of the Trust Indenture dated as of April 1, 1993 (the "Original Indenture"), between the Corporation and BNY Trust Company of Missouri (as successor to Capital Bank of Cape Girardeau County), as amended and supplemented by a First Supplemental Trust Indenture dated as of September 1, 1994 (the "First Supplemental Indenture") and a Second Supplemental Indenture dated as of June 1, 1997 (the "Second Supplemental Indenture" and, collectively with the Original Indenture and the First Supplemental Indenture, the "Indenture"), the Corporation and the City are authorized, without the consent of or notice to any of the Bondowners or the Insurer (as defined therein) to enter into a Supplemental Lease or Supplemental Leases (as defined therein) in connection with any change therein which, in the judgement of the Trustee, is not prejudicial to the Trustee, the Bondowners or the Insurer, and it is hereby found and determined that the Third Supplemental Lease complies in all respects with Section 13.1 of the Original Lease and Section 1201 of the Original Indenture; NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CAPE GIRARDEAU (MISSOURI) PUBLIC FACILITIES AUTHORITY, AS FOLLOWS: Section 1. Authorization and Approval of Third Supplemental Lease. The Board of Directors of the Corporation hereby approves the Third Supplemental Lease Agreement dated as of March 1, 2001 (the "Third Supplemental Lease "), between the Corporation and the City, in substantially the form attached hereto as Exhibit A. The President or Vice President of the Corporation is authorized and directed to execute and deliver, on behalf of and as the act and deed of the Corporation, the Third Supplemental Lease and to execute such other documents, certificates and instruments as may be necessary or desirable to carry out the intent of this Resolution. The Secretary of the Board of Directors is authorized and directed to attest to the execution of the Third Supplemental Lease and to any other documents, certificates and instruments as may be necessary or desirable to carry out the intent of this Resolution. Section 2. Further Authority. The Corporation shall, and the officers, agents and employees of the Corporation are hereby authorized and directed to, take such further action, and execute such other documents, certificates and instruments as may be necessary or desirable to carry out and comply with the intent of this Resolution. Section 3. Effective Date. This Resolution shall take effect immediately after its adoption by the Board of Directors of the Corporation. ADOPTED by the Board of Directors this day of February, 200 ATTEST: - 'A, , � 0 -A ("Yk'a-d Secretaroof the Corporation -2- President of the Corporation EXHIBIT A THIRD SUPPLEMENTAL LEASE AGREEMENT THIRD SUPPLEMENTAL LEASE AGREEMENT THIS THIRD SUPPLEMENTAL LEASE AGREEMENT, dated as of March 1, 2001 (the "Third Supplemental Lease"), between the CAPE GIRARDEAU (MISSOURI) PUBLIC FACILITIES AUTHORITY, a nonprofit corporation duly organized and existing under the laws of the State of Missouri (the "Corporation"), and the CITY OF CAPE GIRARDEAU, MISSOURI, a constitutional charter city and political subdivision duly organized and existing under the laws of the State of Missouri (the "City); RECITALS: 1. The City and the Corporation have heretofore entered into a Lease Agreement dated as of April 1, 1993 (the "Original Lease"), as amended and supplemented by a First Supplemental Lease Agreement dated as of September 1, 1994 (the "First Supplemental Lease") and a Second Supplemental Lease Agreement dated as of June 1, 1997 (the "Second Supplemental Lease" and, collectively with the Original Lease and the First Supplemental Lease, the "Lease") in connection with the issuance of certificates of participation. 2. Pursuant to Section 13.1 of the Original Lease and Section 1201 of the Trust Indenture dated as of April 1, 1993 (the "Original Indenture"), between the Corporation and BNY Trust Company of Missouri (as successor to Capital Bank of Cape Girardeau County), as amended and supplemented by a First Supplemental Trust Indenture dated as of September 1, 1994 (the "First Supplemental Indenture") and a Second Supplemental Indenture dated as of June 1, 1997 (the "Second Supplemental Indenture" and, collectively with the Original Indenture and the First Supplemental Indenture, the "Indenture"), the Corporation and the City are authorized, without the consent of or notice to any of the Bondowners or the Insurer (as defined therein) to enter into a Supplemental Lease or Supplemental Leases (as defined therein) in connection with any change therein which, in the judgement of the Trustee, is not prejudicial to the Trustee, the Bondowners or the Insurer, and it is hereby found and determined that this Third Supplemental Lease complies in all respects with Section 13.1 of the Original Lease and Section 1201 of the Original Indenture; NOW, THEREFORE, THIS THIRD SUPPLEMENTAL LEASE WITNESSETH: 1. Amendment to Section 3.2(b). The second paragraph of Section 3.2(b) of the Original Lease is hereby deleted in its entirety and the following is inserted in lieu thereof: In order for the City to exercise the option to renew this Lease, the City shall irrevocably budget, appropriate and set aside City funds in an amount sufficient to pay the anticipated Rental Payments and Additional Payments to become due during the forthcoming Renewal Term, as specified in the notice delivered by the Trustee pursuant to Section 5.1 hereof. 2. Applicability of Original Lease. Except as otherwise provided in this Third Supplemental Lease, the provisions of the Lease are hereby ratified, approved and confirmed and shall be applicable to the authorization, execution, authentication, issuance, redemption, payment, sale and delivery of the Certificates, the custody and the distribution of the proceeds and the security, payment, redemption and enforcement of payment thereof. This Third Supplemental Lease has been and shall be construed as having been authorized, executed and delivered under the provisions of Section 1201 of the Original Indenture. 3. Severability. If any provision of this Third Supplemental Lease is held or deemed to be invalid, inoperative or unenforceable as applied in any particular case in any jurisdiction or jurisdictions or in all jurisdictions, or in all cases because it conflicts with any other provision or provisions hereof or any constitution or statute or rule of public policy, or for any other reason, such circumstances shall not have the effect of rendering the provision in question inoperative or unenforceable in any other case or circumstance, or of rendering any other provision or provisions herein contained invalid, inoperative or unenforceable to any extent whatever. 4. Execution in Counterparts. This Third Supplemental 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. 5. Governing Law. This Third Supplemental Lease shall be governed exclusively by and be construed in accordance with the applicable laws of the State. IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental Lease to be executed in their respective corporate names as of the date first abcry .tten. CAPE GIRARDE U (MISSOURI) PUBLIC FACILITIES AUTHORITY PSI .(.Seal), � , .- - - >ITame:JMichael Miller Title: President ATTEST: Name: tayle L. Conrad Title: Secretary CITY OF CAPE GIRARDEAU, MISSOURI �4" (Seal) By: ` " I Name: Albert M. Spradling III Title: Mayor ATTEST: Name:' Gayle L. Conrad Title: City Clerk 2 CONSENT OF TRUSTEE The undersigned, BNY TRUST COMPANY OF MISSOURI (the "Trustee"), is Trustee under the Trust Indenture dated as of April 1, 1993 (the "Original Indenture"), between the Corporation and BNY Trust Company of Missouri (as successor to Capital Bank of Cape Girardeau County), as amended and supplemented by the First Supplemental Trust Indenture dated as of September 1, 1994 (the "First Supplemental Indenture") and the Second Supplemental Indenture dated as of June 1, 1997 (the "Second Supplemental Indenture" and, collectively with the Original Indenture and the First Supplemental Indenture, the "Indenture"). The Trustee finds that the proposed Third Supplemental Lease Agreement dated as of March 1, 2001 (the "Third Supplemental Lease"), attached as Exhibit A hereto, is not prejudicial to the Trustee, the Bondowners or the Insurer (each as defined in the Indenture) and that the Third Supplemental Lease complies in all respects with Section 13.1 of the Lease Agreement dated as of April 1, 1993 and Section 1201 of the Original Indenture. Accordingly, the Trustee hereby consents to the execution thereof by the City and the Corporation. Dated: March _, 2001. BNY TRUST COMPANY OF MISSOURI, as Trustee By Name: Title: