HomeMy WebLinkAbout33232 / 85-21MARCH 7, 1985
(CARRIED
PURPOSE:
LOST LAID OVER
#21 RESOLUTION
WITHDRAWN )
AMEND INDENTURE & MORTGAGE LOAN SECURITY AGREEMENT
TOWER WEST ENTERPRISES INDUSTRIAL DEVELOPMENT
REVENUE BONDS
INITIATED BY: TOWER WEST ENTERPRISES
BE IT RESOLVED by the Common Council of the City of Oshkosh that
the proper City officials are hereby authorized and directed to
approve the attached Agreement to Amend Indenture and Mortgage
Loan Security Agreement Relating to City of Oshkosh, Winnebago County,
Wisconsin Industrial Development Revenue Bonds (Tower West Enter-
prises Project) Series 1979.
SUBMITTED BY
9PYR0`�'ED
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Resolution # 21
AGREEMENT TO AMEND INDENTURE
and
MORTGAGE LOAN SECURITY AGBEEMENT
RELATING TO CITY OF OSHKOSH, WINNEBAGO COUNTY,
NISCONSIN INDUSTRIAL DEVELOPMENT REVENUE BONDS
(Tower West Enterprises Project) Series 1979
I. The Parties
The Parties to this Agreement are:
1.01
! . 02
1.03
1.04
1.05
1.06
1.07
1.08
2.01
2.02
2.03
2.04
Thomas D. Ganther ("Ganther" and/or "Partner(s)").
Thomas P. Kelly ("Kelly" and/or "Partner(s)").
Jerry E. Daun ("Daun" and/ot °Partner(s)").
Kermit G. Weiske ("Weiske" and/or "Partner(s)").
Tower West Enterprises ("Company").
City of,Oshkosh ("Oshkosh").
First Wisconsin National Bank of Oshkosh ("Bank" aad/or
"Trustee").
Tower West Development Corp. ("Development").
II. The Recitals
Ganther, Kelly, Daun aad Weiske are individuals who are
the partners of Company, which is a Wisconsin general
partnership located at Oshkosh, Wisconsin.
Oshkosh is a Wisconsin Municipality.
The Bank and the Trustee is a national banking
association located at Oshkosh, Wisconsin,
Development is a Wisconsin corporation organized and
owned by Gan[her.
2.05 Company owns land and a building in Che Cicy of Oshkosh,
Winnebago County, Wisconsin. It also ocrns an adjoining
parcel of land in the Tow❑ of Algoma, Winnebago County,
Wisconsin. The building was constructed with City of
Oshkosh Industrial Development Revenue Bonds (Tower Wes[
Enterprises Project) Series 1979 issued on July 1, 1979
(the "Boads"). The land and building are "Pledged
Property" for the purposes of the Bonds.
2.06 The Bonds are held in Trust by the Trustee and are owned
beneficially by the Bank.
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Resolution # 21
2.07 The Bonds are guaranteed personally by Ganther, Kelly,
Daun and Weiske. �
2.08 The business for which Company was formed has failed and
the Bank has asked for substan[ial payment performances
by Ganther, Kelly, Daun and Weiske under their
guaranties.
2.09 The guarantors, except for Ganther, are unable or
unwilling to perform under their guaranties.
2.10 Developmen[ has been formed for the purposes of
converting the property of Company to an alternative
use. This use will require substan[ial additional
capital expendi[ure.
2.11 The Bank is willing [o loan money to Gan[her and
Development for construction purposes upon terms and
conditions agreed upon by [hem and set forth in cer[ain
correspondence between them, dated December 31, 1984.
2.12 Ganther and Development are willing to borrow money and
invest it in construction upon terms and conditions
agreed upon by them and set forth in certain
corresondence between them, dated December 31, 1984.
2.13 Company and the Partners have agreed to dispose of the
partnership proper[ies under terms and conditions set
forth as follows:
2.131 Development will purchase from Company
its land and buildings as of the Date for
a nominal sum and will assume the ou[s-
tanding liabilities of Company, including
the Bonds, delinquent real estate taxes
and utilities and other banking indebted-
ness. Development will proceed to invest
substantial additionai capi[al i�� order
to convert the land and improvements into
a form sui[able for other commercial
uses, including medical and professional
offices. It may rent or sell the
property, or parts of the property from
time Co time.
2.132 Company will sell its land and buildings
as described in Section 2.131. It will
main[ain i[s existence as a partnership
while the Bonds are outs[anding, unless
the Parties otherwise agree.
2.133 Ganther will ow❑ Development and cause it
Co act as described in Section 2.132. He
will hold harmless Company and the
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2.14
Partners from the
in Sec[ion 2.131.
Company to ac[ as
2.132.
Resolution # 21
liabilities described
He uill help to cause
described in Section
2.134 Ganther, Daun, Ke11y and Weiske will
continue to act as Partnecs of Company
and will cause it to ac[ as described in
Section 2.132.
2.135 Oshkosh will participate in amending the
Bond documents in order to facilitate the
Agreement of the other parties, but will
not do so if such actions would not
result in an unqualified approval of
counsel for the Bonds.
2.136 The Bank and Trustee will participate i❑
amending the Bond documents in order to
facili[ate the Agreement of the other
parties, but will no[ do so if such
actions would not resul[ in an un-
qualified approval of counsel for the
Bonds. The Bank also will loan to
Ganther and Development money for the
activities described in Section 3.05.
2.137 The ac:s and actions of each Party is
conditioned upon completion of the acts
and actions described in [his Agreement
as being required of each other par[y.
Each Party, in addition to the Bank,
Trustee and Oshkosh, shall participate in
amending the Bond documents in order to
facilita[e the Agreemen[ of the other
Parties, but will not do so if such
actions would no[ cesult in an
unqualified approval of counsel for [he
Bonds.
Oshkosh, Trustee and Bank are willing to amend [he Bonds
upon [he [erms and conditioas set Eorth in this
Agzeement.
2.15 The conversion of the Projecc to offices, including
condominium offices, will enhance the value of the
property, attract new business to the community and
create additional employment.
2.16 The Parties in[end by [his Agreement to amend cer[ain
sec[ions of [he Indenture of Trus[ from Lhe City of
Oshkosh to the First Wisconsin National Bank of Oshkosh,
Trustee, dated July 1, 1979 ("Inden[ure") and the
Mortgage Loan and Securi[y Agreemen[ beCween Tower West
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Enterprises and CiCy of Oshkosh
July 1, 1979 ("Mor[gage").
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Wisconsin, dated
2.17 The terms "Bondholder", "Company", "Guazan[y", "Note",
"Pledged Property","Project", "Trus[ee", and "Permitted
Encumbrances" shall have the same meaning as they have
under the Indenture and Mortgage.
IIL. The Agreement
THEREFORE, the Parties agree as follows:
3.01 :he Date. The Date of this Agreement is March 8, 1985.
3.02 The Recitals. The Recitals are a part of this
Agreement.
3.03 Agreement Conditioned Upon Approval of Bond Counsel.
The Cransactions contemplated by this Agreement and the
amendment of the Indenture and the Real Estate Mortgage
and Security Agreemenc are conditioned upon a favorable
written opinion by Messrs. Quarles and Brady, Bond
Counsel to Oshkosh and the Trustee, that such actions
will not adversely affect Che tax—exempt status of the
Bonds. The costs of obtaining such an opinion shall be
borne by Development.
3.04 Sale Permitted. Subject to approval of Bond Counsel,
Company may sell the Pledged Property to Developmen[ as
set forth in the Recitals; provided, however, that this
shall not affect any liability of the Compauy or the
Partners under the Indenture, the Note, the Guaranty or
the Mortgage.
3.041 Section 4.17 of the Mortgage is amended,
effective upon issuance of the opinion of
Bond Counsel, te orovide as follows:
Section 4.17. Sale, Etc. of Project.
The Pledged Property may be sold by the
Company to Tower West Development
Cocporation for use as ofFice space and
for related activities. Tower West
Development Corporation thereafter may
sell, upon the express wriC[en consent of
the holder of the Bonds, all or part of
the Pledged Property [o any Person or
organization for use as office space and
for related accivities provided that such
Pecson or organization ei[her (i) agrees
to oake all cr a proportionate part of
the payments called for in the Note and
under this Agreement and to perform and
observe a11 o[her agreamen[s on the
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Company's part contained herein, or (ii)
pays cash for such pact of [he Pledged
Property, whereupon the Note sha11 be
prepaid in whole or proportionate part in
accordance with Section 5.3 hereof and
the Bonds similarly shall be redeemed
pursuant to Sec[Lon III-1 of the Inden-
ture. Tower West Development Corpora[ion
may, without violating the provisions of
this Section 4.17 lease the Pledged
Property [o a person or organization for
the purposes of service activities which
are rela[ed [o the Projec[ so long as no
such leasing jeopardizes the tax exempt
nature of the interest on [he Bonds.
Notwithstanding the foregoing, excep[ in
the case where the Bonds are redeemed in
their en[irety as provided in this
Section, the Pledged Property, or any
portion thereof, sold by the Company
shall remain subject to the lien of this
Agreement on the Pledged Property, and
the Company shall remain primarily liable
with respect [o its paymenC obliga[ion
under Section 3.9 hereof or the Note and
all other agreements on its part
contained herein,
3.05 Removal and Disposal of Recreational Equipment a
Permitted Modification of Pledged Property. Subject to
approval by Bond Counsel, Company and/or Development may
remove and dispose of recreational equipment, including
lounge equipment and cacquetball cour[s, from the
Pledged Property, and may modify and improve the Pledged
Property for office and related uses, according to plans
and specifications which shall be approved in writing by
Bank and Trustee, and in so doing will no[ violate
Section 4.6 or Section 4.28 of the Mortgage. Any
proceeds dericed from the removal and disposition of any
equipmenC acquired with Bond proceeds will be used
ei[her to finance the modifications to the Pledged
Property or to redeem Bonds.
3.06 Conversion of the Pledged Property a Permitted
Modificatioa. Subject to approval by Bond Counsel,
Company and/oc Development may modiEy the Pledged
Property, including cons[ruction of office suites,
according to plans and specifications which shall be
approved in writing by Bank and Trus[ee, and in so doing
uill not violate Sections 4.27 or 4.29 of Che Mortgage.
3.07 Junior Mortgage is a Permi[ted Encumbrance. Subject to
approval by Bond Counsel, and to acquisition of the
Pledged Property, Development may grant a mor[gage to
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Bank in an amount not to exceed $605,000 in order to
finance [he transac[ions con[empla[ed by this�Agreement
and the said mor[gage shall be a Permi[ted Encumbrance
as defined in Acticle I, Section 1.1 of the Mor[gage.
3.08 ConsenC of 8ondholder. The Bank consents to the
agreements and [he amendments contained herein in its
capacity as Trustee and as holder of more [han b6 2J3%
of the Bonds so as to satisfy the requirements of
Article II of the Indenture (supplemental Indenture) and
Article 12 of the Indenture of Trust (Amendmen[ of
Revenue Agreement).
3.09 Waiver of Notice. The Company under the Indenture and
Mortgage, and [he Trustee and the Bank as holder of more
than 66 2/3% of the Bonds hereby waive nocice of
amendment of the Indenture and Mortgage under Article
II, Section 11.02 and Article 12, Section 12.02 of the
Indenture and Ar[icle VIII, Section 8.1 of [he Mor[gage.
3.10 Defaul[. Nothing con[ained herein shall be considered a
default under Sec. 9.01 of the Indenture.
3.11 Amendment Is Not a Waiver. Subject to approval of Bond
Counsel, and upon closing of the transactions contem-
plated by this Agreement, Developmenc shall cure all
defaults of Company under the Note, [he Indenture and
the Morcgage, hut permission so to cure sha11 not
otherwise constitute a waiver of any right that the
City, the Bank or the Trustee may have under the Note,
the Inden[ure or the Mortgage.
3.12 Simul[aneous Closings. The sale of the Pledged Property
by Company to Developmen[, the execution of this
Agreement; the execution by Ganther of his hold harmless
agceement, the additional loan by the Bank to Develo-
pmen[, and the execution by Development of its junior
mortgzge to Che Sank should take place simultaneously
and [he completion of each shall be a condi[ion of each
other.
3.13 6inding £ffect. This Agreement shall be binding upon
and inure to Che benefit of the Parties and [heir
successo:s and assigns.
3.14 Severability. In the event any provision of this
Agreement shall be held invalid or unenforceable by any
court of competent jurisdlccion, such holding shall no[
invalidate or render unenforceable any other provision
hereof.
3.15 Applicable Law. This Agree;ueni shall be governed by and
cons[rued in accordance with the laws of Che S[a[e of
Wisconsi:i.
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Resolution # 21
Executed by the Parties on the Date of this Agreement.
mas U. Ganther
mas P. Kelly
eiry �. llaun
Kermir G. Weiske
TOWEA WEST ENTERPRISES
By:
CITY OF OSHKOSH
By:
FIRST WISCONSIN NATIONAL BANK OF OSHKOSH
By:
TOWER WEST DEVELOPMENT CORP.
By:
APPROVED AS TO FORM BY
John W. Pence, City Attorney
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