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Resolution 4505 - Amended Industrial Revenue Note for Kalispell Center Mall19'.9 O� RESOLUTION NO 4 S O S RESOLUTION RELATING TO INDUSTRIAL DEVELOPMENT REVENUE NOTE (ICALISPELL CENTER LIMITED PARTNERSHIP PROJECT); AUTHORIZING ISSUANCE OF A FIRST AMENDED AND RESTATED NOTE AND THE EXECUTION OF DOCUMENTS RELATING THERETO BE IT RESOLVED by the City Council of the City of Kalispell, Montana (the "City'), as follows: Section 1. $gcitals. 1.1. Pursuant to Montana Code Annotated, Title 90, Chapter 5, Part 1, as amended (the "Act"), and a resolution adopted by the City Council of the City on December 3, 1984 (the "Original Resolution'), the City authorized the issuance of its Industrial Development Revenue Note (Kalispell Center Limited Partnership Project), in the original principal amount of $10,000,000, and dated December 1714984 (the "Original Note'); and executed and delivered a Loan Agreement, dated December 17, 1984 (the "Loan Agreement"), between the City and Kalispell Center Limited Partnership, a Washington limited partnership (the "Original Borrower'); a Disbursing Agreement, dated December 17, 1984 (the "Disbursing Agreement', between the City, the Original Borrower and Washington Trust Bank, as purchaser of the Original Note (the "Lender"); and an Assignment of Loan and Disbursing Agreement, dated December 17, 1984 (the "Assignment-), from the City to the Lender. The Original Note was issued to finance the acquisition of certain land in the City and the acquisition, construction and equipping thereon of an approximately 171,000 square foot commercial shopping mall, a 134- room motor inn, restaurant, cocktail lounge, banquet facility and related facilities (collectively, the "Project'). 1.2. The Original Borrower has conveyed its interest in the Project and its rights, duties and obligations under the Loan Agreement, the Mortgage and the Disbursing Agreement to Cavanaughs Hospitality Limited Partnership, a Delaware limited partnership (the "Borrower"), which has assumed such rights, duties and obligations, all with the consent of the Lender. A Guaranty Agreement, dated December 17, 1984, from Barbieri Hospitality, Inc. to the Lender expired at the Completion Date (as defined in the Loan Agreement) and no longer secures the Original Note. 1.3. The Lender and representatives of the Borrower have requested that the City amend the Original Note to fix and, initially reduce, the interest rate thereon and to eliminate provisions of the Original Note that require its purchase from the holder by the Borrower. 1.4. As required by the Internal Revenue Code of 1986, as amended, in order to preserve the tax exemption of interest on the Original Note, the City Council on August 16, 1999, conducted a public hearing on the proposed amendment of the terms of the Original Note. All parties who appeared at the hearing were given an opportunity to express their views with respect to the proposal to amend the terms of the Note and interested persons were given the opportunity to submit written comments to the Finance Officer before the time of the hearing, which if so submitted were considered by this Council. 1.5. Draft forms of the following documents relating to the amendment of the Original Note have been prepared and submitted to this Council, and are hereby directed to be filed with the Clerk of Council-: (a) a form of the First Amended and Restated Note (the "First Amended and Restated Note'; and (b) an Agreement as to Note Amendment (the "Amending Agreement'j, which amends the Loan Agreement, the Disbursing Agreement, the Assignment and the Mortgage. 1991 Section 2. Ap=yal and Authorizatio—_ 2.1. Based on the public bearing, such written comments (if any) and such other facts and circumstances as this Council deems relevant, the City hereby agrees to the amendment of the terms of the Original Note as described herein and in the First Amended and Restated Note and the Amending Agreement and the City hereby authorizes the issuance of the First Amended and Restated Note to the Lender in exchange for the Original Note. The First Amended and Restated Note shall be subject to registration, transfer and exchange as provided in the Original Resolution. 2.2. The forms of the First Amended and Restated Note and the Amending Agreement referred to in Section 1.5 are hereby approved, subject to such modifications thereto, deletions therefrom and additions thereto as may be necessary and appropriate and approved by the City Manager and the City Attorney, which approval shall be conclusively evidenced by execution of the First Amended and Restated Note and the Amending Agreement by appropriate officers of the City. The First Amended and Restated Note and the Amending Agreement are directed to be executed in the name and on behalf of the City by the Mayor, the City Manager and the Finance Director. Copies of all of the documents shall be delivered, filed and recorded as provided therein. In the absence or disability of the Mayor, any of the documents authorized by this resolution to be executed, may be executed by the acting Mayor and in the absence or disability of the City Manager or the City Clerk by such officer of the City who, in the opinion of the City Attorney, may execute such documents. The Mayor, the City Manager and the Finance Director are also authorized and directed to execute such other instruments as may be required to give effect to the transactions herein contemplated. Section 3. Ailthentication of Proceeding . The Mayor, the City Manager, the Finance Director and other officers of the City are authorized and directed to furnish to the Lender and bond counsel certified copies of all proceedings and records of the City relating to the First Amended and Restate Note, and such other affidavits and certificates as may be required to show the facts relating to the legality and marketability of the First Amended and Restated Note as such facts appear from the books and records in the officers' custody and control or as otherwise known to them; and all such certified copies, certificates and affidavits, including any heretofore furnished, shall constitute representations of the City as to the truth of all statements of fact contained therein. Section 4. Tax Matters Relating to First Amended and Restated Note. The Mayor, the City Manager and the Finance Director, being the officers of the City charged with the responsibility for issuing the First Amended and Restated Note pursuant to this resolution, are authorized and directed to execute and deliver to the Lender a certificate, based on representations to be made by the Borrower, in accordance with the provisions of Section 148 of the Code, and Section 1.148-2(b) of the Regulations, stating that on the basis of facts, estimates and circumstances in existence on the date of issue and delivery of the First Amended and Restated Note, it is reasonably expected that the proceeds of the First Amended and Restated Note will be used in a manner that would not cause the Note to be an "arbitrage bond" within the meaning of Section 148 of the Code and the Regulations. The City shall file with the Secretary of the Treasury no later than November 15, 1999, a statement concerning the First Amended and Restated Note containing the information required by Section 149(e) of the Code. Passed and duly adopted by the City Council of the City of Kalispell this r day of September, 19". Attest: �U40-1 ��11/ - � Clerk of Council CLuN�1t~ �k-Sl��fL� �