THIRD MODIFICATION OF TIF LOAN DOCUMENTS

Transcription

1 THIRD MODIFICATION OF TIF LOAN DOCUMENTS THIS THIRD MODIFICATION OF TIF LOAN DOCUMENTS (this Modification ) is made as of the day of July, 2014, by and between THE TOWN OF FISHERS, INDIANA, ( Issuer ), a municipal corporation duly organized and existing under the laws of the State of Indiana, THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee, on behalf of, and at the request and with the consent of Old National Bank, as the owner (the Owner ) of 100% of certain Taxable Economic Development Revenue Bonds, Series 2006 A Bonds issued by the Town of Fishers, Indiana, and its successor and assigns (the Trustee ), and, a limited liability company duly organized and validly existing under the laws of the State of Indiana, and its successors and assigns (the Borrower and together with the Issuer, the Owner, and the Trustee, the Parties and each a Party to this Modification), RECITALS A. On or about December 1, 2006, pursuant to the terms of that certain Trust Indenture (the Indenture ), the Issuer issued its Taxable Economic Development Revenue Bonds, Series 2006 A (the Bonds ) in the amount of $9,600, B. Old National Bank (the Bondholder ) purchased the Bonds and represents it owns the TIF Bonds and is the sole bondholder. C. Pursuant to the terms of a Loan Agreement dated effective December 1, 2006, and entered into between the Town and Britton (the Loan Agreement ), the Town agreed to, and did, lend the funds raised through the issuance and sale of the Bonds (the Loan ) to Britton to be used to finance certain projects described in Exhibit A to the Loan Agreement (the Project ), and the Loan is evidenced by that certain Britton Park Development, LLC, Note, Series 2006A (the Note and together with the Loan Agreement, the Indenture, the Bonds, and all other documents executed ancillary thereto, the TIF Loan Documents ). D. The Project was not completed by August 1, 2009, as specified in the Loan Agreement. E. The parties recognize Britton Park Development, LLC no longer owns the real property that is the subject of the Project and does not currently have financial resources to complete the Project; F. Effective on or about January 28, 2010, the parties entered into a First Modification of TIF Loan Documents (the First Modification ) whereby the parties agreed to modify the Indenture and the Loan Agreement to extend the Project completion date specified therein to August 1, 2012, and to clarify the permitted uses of the Bond Interest Account and the Construction Fund, subject to the terms, covenants and provisions set forth herein; G. Effective on or about July, 2011, the parties entered into a Second Modification of TIF Loan Documents (the Second Modification ) whereby the parties THIRD MODIFICATION OF TIF LOAN DOCUMENTS PAGE 1

2 agreed to modify the Indenture and the Loan Agreement to extend the maturity of the Bonds as specified in Section 2.2 of the Indenture. H. The parties now desire to further modify the TIF Loan Documents to further extend the maturity of the Bonds as specified in Section 2.2 of the Indenture, subject to the terms, covenants and provisions set forth herein; AGREEMENTS NOW THEREFORE, for and in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Modification of Indenture. The Indenture is hereby amended by substituting the following new Section 2.2 in lieu of the existing modified Section 2.2: Section 2.2. Issuance of Series 2006 A Bonds. The Series 2006 A Bonds shall be designated Town of Fishers, Indiana Taxable Economic Development Revenue Bonds, Series 2006 A (Britton Park Development, LLC Project). The Series 2006 A Bonds shall be originally issuable as fully registered Bonds without coupons in denominations of $100,000 and any $5,000 integral multiples thereafter and shall be lettered and numbered R-1 and upward. Interest on the Series 2006 A Bonds shall be paid to the owners of such Bonds determined as of the close of business of the Record Date next preceding each Interest Payment Date at the registered addresses of such owners as they shall appear on the registration books of the Trustee notwithstanding the cancellation of any such Bonds upon any exchange or transfer thereof subsequent to the Record Date and prior to such Interest Payment Date, except that, if and to the extent that there shall be a default in the payment of the interest due on such interest payment date, such defaulted interest shall be paid to the owners in whose name any such Bonds (or any Bond issued upon transfer or exchange thereof) are registered at the close of business of the Special Record Date next preceding the date of payment of such defaulted interest. Payment of interest to all Bondholders shall be by check drawn on the main office of the Paying Agent and mailed to such Bondholder one business day prior to each Interest Payment Date. The Special Record Date shall be the date established by the Trustee for the payment of defaulted interest. The Series 2006 A Bonds shall be dated as of the date of their delivery. The interest on the Series 2006 A Bonds shall be payable on each February 1 and August 1, commencing on February 1, Each Series 2006 A Bond shall bear interest at a variable rate equal to the Adjustable Rate established for each LIBOR Interest Period, adjusted as of each Interest Adjustment Date. The initial interest rate per annum from the Original Issue Date until February 1, 2007 (the Initial Interest Adjustment Date ), shall be % per annum. On each Interest Adjustment Date, the rate of interest applicable to each Series 2006 A Bond will be adjusted to the then applicable Adjustable Rate established for each LIBOR Interest Period. Interest shall be calculated on THIRD MODIFICATION OF TIF LOAN DOCUMENTS PAGE 2

3 the basis of the actual number of days elapsed in a 365-day year and shall be compounded semi-annually on each February 1 and August 1 (i.e., if such interest is not paid on such dates (whether or not then due and payable), it will be added to the outstanding principal balance of the Series 2006 A Bond). On each Interest Adjustment Date, the Trustee shall determine, and notify the Borrower within five days of such Interest Adjustment Date, of the Adjustable Rate applicable to the LIBOR Interest Period beginning on such Interest Adjustment Date. The Series 2006 A Bonds shall bear interest from the Interest Payment Date next preceding the date of authentication thereof, unless such date of authentication shall be subsequent to a Record Date in which case they shall bear interest from the Interest Payment Date with respect to such Record Date, provided, however that if, as shown by the records of the Trustee, interest on the Series 2006 A Bonds shall be in default, Series 2006 A Bonds issued in exchange for Series 2006 A Bonds surrendered for transfer or exchange shall bear interest from the date to which interest has been paid in full on the Series 2006 A Bonds or, if no interest has been paid on the Series 2006 A Bonds, from the date of issuance and delivery of the Series 2006 A Bonds. Series 2006 A Bonds authenticated on or prior to January 15, 2007 shall bear interest from the date of delivery of the Series 2006 A Bonds. The Series 2006 A Bonds shall mature on August 1, 2010, and on each August 1, beginning on August 1, 2016 and ending on August 1, 2029, in the amounts set forth below: Date Amount Date Amount Date Amount Date Amount 8/1/2010 $215,000 8/1/2018 $475,000 8/1/2023 $650,000 8/1/2028 $940,000 8/1/2014 $0 8/1/2019 $500,000 8/1/2024 $700,000 8/1/2029 $1,000,000 8/1/2015 $0 8/1/2020 $540,000 8/1/2025 $775,000 8/1/2016 $430,000 8/1/2021 $575,000 8/1/2026 $850,000 8/1/2017 $460,000 8/1/2022 $600,000 8/1/2027 $890, Interest Expense. In consideration for the Issuer s consent to this Modification, on or before the due date for the relevant interest payments, Bondholder will deposit payments totaling $23, into the Bond Fund held by the Trustee, representing the additional interest accruing on the deferred principal payments during the two-year deferral period. It is anticipated by Bondholder that the source of the deposited pre-payments of interest shall be the collateral provided by the Guarantor under that certain Modified Bond Guaranty dated January 22, 2009, as the same may have been modified or amended. Notwithstanding the source of the pre-deposited interest payment, the Parties each acknowledge and agree that TIF revenues will not be utilized to pay the additional interest expense incurred by virtue of the two-year deferral provided for herein. THIRD MODIFICATION OF TIF LOAN DOCUMENTS PAGE 3

4 3. Continuing Effect. All other terms, conditions, provisions, representations and warranties set forth in the Loan Documents, including the Loan Agreement and the Indenture, not specifically relating to those items explicitly modified by or otherwise disclosed in this Modification shall remain unchanged and shall continue in full force and effect. This Modification shall, wherever possible, be construed in a manner consistent with the Loan Documents; provided, however, in the event of any irreconcilable inconsistency between the terms of this Modification and the terms of the Loan Documents, the terms of this Modification shall control. Capitalized terms used herein and not defined herein have the meanings ascribed thereto in the Loan Documents. 4. Waiver. No provision hereof shall constitute a waiver of any of the terms or conditions of the Loan Documents, other than those terms or conditions explicitly modified or otherwise affected hereby. IN WITNESS WHEREOF, the parties have executed this Modification as of the date first above written. [Signature Pages Follow] THIRD MODIFICATION OF TIF LOAN DOCUMENTS PAGE 4

5 ISSUER THE TOWN OF FISHERS, INDIANA, a municipal corporation duly organized and existing under the laws of the State of Indiana, By: President of the Town Council STATE OF INDIANA ) ) SS: COUNTY OF ) ACKNOWLEDGMENT Before me, a Notary Public in and for said County and State, personally appeared, the President of the Town Council for the Town of Fishers, Indiana, who acknowledged execution of the foregoing Third Modification of Loan Documents on behalf of the Town. WITNESS my hand and notarial seal this day of July, Notary Public My Commission Expires: County of Residence: THIRD MODIFICATION OF TIF LOAN DOCUMENTS PAGE 5

6 BORROWER, By: Paul Skjodt as Manager of Skjodt-Thomas Associates, LLC, the Managing Member of Britton Park Development, LLC STATE OF INDIANA ) ) SS: COUNTY OF ) ACKNOWLEDGMENT Before me, a Notary Public in and for said County and State, personally appeared Paul Skjodt, the manager of Skjodt-Thomas Associates, LLC, the managing member of Britton Park Development, LLC, who acknowledged execution of the foregoing Third Modification of Loan Documents on behalf of such Company. WITNESS my hand and notarial seal this day of July, Notary Public My Commission Expires: County of Residence: THIRD MODIFICATION OF TIF LOAN DOCUMENTS PAGE 6

7 TRUSTEE THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee of certain Taxable Economic Development Revenue Bonds, Series 2006 A Bonds issued by the Town of Fishers, Indiana, By: Print Title: STATE OF INDIANA ) ) SS: COUNTY OF ) ACKNOWLEDGMENT Before me, a Notary Public in and for said County and State, personally appeared, the authorized representative of The Bank of New York Mellon Trust Company, N.A., as Trustee of certain Taxable Economic Development Revenue Bonds, Series 2006 A Bonds issued by the Town of Fishers, Indiana, who acknowledged execution of the foregoing Third Modification of Loan Documents on behalf of such Trustee. WITNESS my hand and notarial seal this day of July, Notary Public My Commission Expires: County of Residence: THIRD MODIFICATION OF TIF LOAN DOCUMENTS PAGE 7

8 PURSUANT TO SECTIONS 9.2, 10.2, AND 10.3 OF THE INDENTURE, THIS THIRD MODIFICATION OF TIF LOAN DOCUMENTS IS HEREBY ACKNOWLEDGED, AGREED, AND CONSENTED TO BY OLD NATIONAL BANK, FOR ITSELF AND FOR ITS SUCCESSOR AND ASSIGNS, AS SOLE BONDHOLDER UNDER THE LOAN DOCUMENTS: BONDHOLDER OLD NATIONAL BANK, By: Print Title: STATE OF INDIANA ) ) SS: COUNTY OF ) ACKNOWLEDGMENT Before me, a Notary Public in and for said County and State, personally appeared, the authorized representative of Old National Bank, a national banking association, the Bondholder, who acknowledged execution of the foregoing Third Modification of Loan Documents on behalf of such Bondholder. WITNESS my hand and notarial seal this day of July, Notary Public My Commission Expires: County of Residence: THIRD MODIFICATION OF TIF LOAN DOCUMENTS PAGE 8