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HomeMy WebLinkAbout32806 / 84-15A�ri1 5, 1984 # 15 RESOLUTION (C�RFIED LOST LAID OVE4 W I TH DRAL4N RESOLUTION AUTHORIZING AMENDMENTS WITH RESPECT TO INDUSTRIAL DEVELOPMENT REVENUE BONDS (OSHKOSH COMMUNITY YOUNG MEN'S CHRISTIAN ASSOCIATION, INC. PROJECT) SERIES 1981 WHEREAS, on January 13, 1981, the City of Oshkosh, Wisconsin ("City") issued and sold to initial purchasers $900,000 aggregate principal amount Industrial Development Revenue Bonds (Oshkosh Community Young Men's Christian Association, Inc. Project) Series 1981 ("Series 1981 Bonds") to finance costs of constructing an addition to and the remodeling of facilities of Oshkosh Community Young Men's Christian Association, Inc., a Wisconsin nonstock nonprofit corporation (the "Company"), on land owned by it in the City (the "Project") to be used in connection with the Company's business o£ operating a recreational facility and for related purposes; and WHEREAS, in connection with the issuance of the Series 1981 Bonds, (a) the Company and the City entered into a Mortgage Loan Agreement dated as of January 1, 1981, with respect to the Project ("Revenue Agreement") and (b) the Revenue Agreement was assigned and the payments thereunder pledged to First Wisconsin National Bank of Oshkosh, as Trustee ("Trustee") pursuant to an Indenture o£ Trust between the City and said Trustee dated as of January 1, 1981 ("Zndenture"), all as security for payment of the Series 1981 Bonds; and WfiEREAS, as additional security for the Series 1981 Bonds, the Company assigned its pledges receivable attributable to building construction as a result of the Oshkosh Community YMCA Capital Fund Campaign to the Trustee pursuant to an Assignment of Pledges Receivable Agreement dated as of January 1, 1981 ("Assignment"); and WHEREAS, the Company has requested that the Revenue Agreement and Indenture be amended in order to reflect the £ollowing changes: 2 That the term of the Series 1981 Bonds is extended to September 1, 1998; That the outstanding principal amount of the Series 1981 Bonds ($474,000 as o£ March 1, 1984), and the interest thereon, are to be paid in equal monthly install- ments of $4,611.09 which amount represents the monthly payment necessary to amortize a$474,000 loan over 174 months at 8% interest with even monthly payments of principal and interest; That the interest rate on the Series 1981 Bonds for the loan term is fixed at - 20 - RESOLUTION # 15 8% per annum, which rate will not be subject to adjustment; 4. That the assignment o£ pledges receivable from contributors to the Oshkosh Community YMCA Capital Eund made to the Trustee pursuant to the Assignment is released as additional security for the Series 1981 Bonds; 5. That if at any time during which the principal amount o£ the Series 1981 Bonds remains unpaid, the interest on the Series 1981 Bonds is deemed to be taxable, the Bondholders will be reim- bursed £or any back taxes and penalties assessed. Further, the Series 1981 Bonds will remain outstanding and, e£fective with the date that the interest is deemed to be taxable, the rate o£ interest on the Series 1981 Bonds will be adjusted to a rate equal to the announced prime rate of the First Wisconsin National Bank of Milwaukee, Milwaukee, Wisconsin, as adjusted from time to time, plus 1/2%, provided such rate is not less than the rate of eight percent (8%) per annum; and WHEREAS, Wis. Stats. Section 66.521(3)(g) provides the City with authority to consent to changes in the terms of the Revenue Agreement, the Indenture and the Series 1981 Bonds; and WHEREAS, the changes requested by the Company are necessary and desirable to fulfill the purposes of Wis. Stats. Section 66.521; and WHEREAS, the Company has caused to be prepared and herewith submitted to this Council forms of the following documents: (a) First Amendment to Mortgage Loan Aqreement between the Company and the City (annexed hereto as Exhibit A, incorporated herein by re£erence and referred to herein as the "Amendment"); and (b) First Supplemental Indenture o£ Trust between the City and the Trustee (annexed hereto as Exhibit B, incorporated herein by re£erence and referred to herein as the "Supplemental Indenture"). NOW, THEREFORE, BE IT RESOLVED BY THE COMMON COUNCIL OF THE CITY OF OSHKOSH, WISCONSIN, THAT: -Z- - 21 - RESOLUTION # 15 Subject to such changes or revisions therein as the City Attorney may approve, the Amendment and the Supplemental Indenture in substantially the forms submitted are hereby approved. The Mayor, City Comptroller and City Clerk, or persons authorized by law to sign on their behalf, are authorized on behalf of the City to execute and deliver the Amendment and the Supplemental Indenture. Said Mayor, City Comptroller and City Clerk and persons authorized by law to sign on their behalf and other officials of the City are hereby authorized to prepar2 and to execute, file and deliver, as appropriate, all such documents, financing statements, certificates and other instruments as may be required by this resolution or deemed necessary by said o£ficials or by the City Attorney to accomplish the changes envisioned hereby. BE IT FURTHER RESOLVED that this resolution is approved on behalf o£ the City only if it has previous approval of the bond holders and the Trustees. Adopted City Clerk Approved SIIBMITTED BY AYPROYED -3- - 22 - •;, , 1984. �' RESOLUTION # 15 FIRST AMENDMENT TO MORTGAGE LOAN AGREEMENT OSHKOSH COMMUNITY YOUNG MEN'S CHRISTIAN ASSOCIATION, INC. : .u, CITY OF OSHKOSH, WISCONSIN Dated as of March 1, 1984 - 22a - RESOLUTiON # 15 FIRST AMENDMENT TO MORTGAGE LOAN AGREEMENT This First Amendment to Mortgage Loan Agreement made and entered into as of March 1, 1984, by and between Oshkosh Community Young Men's Christian Association, Inc., a Wisconsin nonstock, nonprofit corporation (the "Company"), and the City of Oshkosh, Wisconsin, a municipality duly incorporated under the laws of the State of Wisconsin ("City"). W I T N E S S E T H: WHEREAS, on January 13, 1981, the City issued and sold $900,000 aggregate principal amount Industrial Development Revenue Bonds (Oshkosh Community Young Men's Christian Association, Inc. Project) Series 1981 initially dated as of January 1, 1981 ("Series 1981 Bonds") to £inance costs of constructing an addition to and the remodeling of facilities owned by the Company in the City on land described in Exhibit A hereto (the "Project") £or use in connection with the Company's business of operating a recreational £acility and £or related purposes; and WHEREAS, in connect.ion with the issuance o£ the Series 1981 Bonds, (a) the Company and the City entered into a Mortqage Loan Agreement dated as of January 1, 1981, with respect to the Project ("Revenue Agreement") and (b) the Revenue Agreement was assigned and the payments thereunder pledged to First Wisconsin National Bank o£ Oshkosh, as Trustee ("Trustee") pursuant to an Indenture of Trust between the City and said Trustee dated as of January 1, 1981 ("Indenture"), all as security £or payment o£ the Bonds; and WHEREAS, as additional security for the Bonds, the Company assigned its pledges receivable attributable to building construc- tion as a result of the Oshkosh Community YMCA Capital Fund Campaign to the Trustee pursuant to an Assiqnment of Pledges Receivable Agreement dated as of January 1, 1981 ("Assignment"); and WHEREAS, the City and the Trustee desire to enter into this First Amendment to Mortgage Loan Agreement in order to re£lect the following changes and to make other clari£ying chanqes: 1. That the term o£ the Series 1981 Bonds is extended to September 1, 1998; 2. That the outstanding principal amount of the Series 1981 Bonds ($474,000 as of March 1, 1984), and the interest thereon, are to be paid in equal monthly installments of 54,611.09, each due on the first day of each month, commencing April 1, 1984, and continuing through and including September 1, 1998, which amount represents the monthly payment necessary to amortize a $474,000 loan over 174 months at 8% interest with even monthly payments of principal and interest; - 22b - 3. That the interest rate on the loan term is fixed at 8% per be subject to adjustment; RESOLUTION # 15 Series 1981 Bonds for the annum, which rate will not 4. That the assignment of pledges receivable from contri- butors to the Oshkosh Community YMCA CapitaZ Fund made to the Trustee pursuant to the Assignment is released as additional security for the Series 1981 Bonds; 5. That if at any time during which the principal amount of the Series 1981 Bonds remains unpaid, the interest on the Series 1981 Bonds is deemed to be taxable, the Bondholders will be reimbursed for any back taxes and penalties assessed. Further, the Series 1981 Bonds will remain outstanding and, effective with the date that the interest is deemed to be taxable, the rate of interest on the Series 1981 Bonds will be adjusted to a rate equal to the announced prime rate of the Eirst Wisconsin National Bank of Milwaukee, Milwaukee, Wisconsin, as adjusted from time to time, plus 1/Z%, provided such rate is not less than the rate of eight percent (8%) per annum; and WHEREAS, the execution and delivery o£ this First Amendment to Mortgage Loan Aqreement has been consented to by the holders of all outstanding Bonds and hy Resolution o£ the Common Council o£ the City duly adopted on the day of , 1984 (a copy o£ which resolution is on file in the office of the City Clerk of the City). NOW, THEREFORE, in consideration of the premises and the covenants and undertakings herein expressed, the Company and the City hereby agree as follows: Section 1. Amendments and Restatements. (a) Paragraph 2 of the Preliminary Statement is hereby amended and restated to read as follows: Pursuant to the powers of the Issuer under the provisions of Section 66.521, Wisconsin Statutes as from time to time amended (the "Act"), and in accord with che procedures set £orth in a resolution adopted by the Common Council of the Issuer on December 18, 1980 (the "Resolution"), which has been adopted pursuant to such powers, the Issuer is obtaining funds for the purchase of the Initial Note through the issuance and sale o£ its Industrial Development Revenue Bond (Oshkosh Community Young Men's Christian Association, Inc. Project) Series 1981 (the "Series 1981 Bonds"), in the agqregate principal amount of $900,000. Pursuant to an Indenture of Trust dated as of January 1, 1981, between the Issuer and the Trustee (the "Indenture"), the Issuer will issue the Series 1981 Bonds, pledge and assign the Initial Note and assign its rights under this Agreement to First Wisconsin National -2- - 22c - RESOLUTION # 15 Bank of Oshkosh, Oshkosh, Wisconsin as Trustee (the "Trustee") under the Indenture as security for the Series 1981 Bonds. The Series 1981 Bonds will be payable solely out o£ the payments to be made by the Company on the Initial Note and any other Notes issued hereunder, or in the event of default thereo£, as otherwise authorized by the Resolution or the Indenture and permitted by law. (b) The definition of "Assignment" which appears in Section 1.1 is hereby deleted in its entirety. (c) The definition of "Initial Note" or "Note" which appears in Section 1.1 is hereby amended and restated to read as follows: "Initial Note" or "Note" means the Note No. 1 of the Company, dated January 1, 1981, in the principal amount of $900,000 in substantially the form attached hereto as Exhibit B being issued and sold by the Company to the Issuer pursuant hereto and any Note issued in exchange therefor pursuant to Section 6.4 hereof, including the Substitute Note. (d) The definition of "Notes" which appears in Section 1.1 is hereby amended and restated to read as follows: "Notes" means t.he Initial Note, the Additional Notes, the Substitute Note and any Notes issued in exchange there£or, pursuant to the Revenue Agreement. (ej There is hereby added to the list o£ de£ined terms set forth at Section 1.1 the following defined terms: "Prime Rate" means a rate of interest equal to the prime rate announced by First Wisconsin National Bank of Milwaukee, Milwaukee, Wisconsin, from time to time as the base rate for interest rate determinations. "Substitute Note" means the Substitute Note No. 1, of the Company dated as of March 1, 1984 in the principal amount of $474,000, in the form set forth on Exhibit C hereto, issued by the Company to the Issuer in exchange for the Initial Note. (£) Section 5.4 is hereby amended and restated to read as follows: Section 5.4. Mandatory Prepayment of Notes. The Company shall be obligated to prepay the amounts due under this Aqreement and the Notes prior to the expira- tion o£ this Agreement and prior to the full payment of the Bonds (or prior to making provision for payment thereof in accordance with the Indenture) if as a result o£ any changes in the Constitution of the State -3- - 22d - �g) follows: RESOLUTION # 15 of Wisconsin or the Constitution of the United States of America or o£ legislative or administrative action (whether state, federal or local) or o£ final decree, judgment or order of any court or administrative body (whether state, £ederal or local), this Agreement or the Notes shall have become void or unen£orceable or impossible of performance in accordance with the intent and purpose of the parties as expressed in this Agreement and the Notes. In the event that the obligation to prepay arises from an event described in this Section 5.4, the amounts payable under this Agreement and the Notes shall be a sum sufficient, together with other funds deposited in the Bond Fund and available for such purpose, to pay the principal of and interest on a11 the Bonds then outstandinq under the Indenture and to pay all reason- able and necessary fees and expenses of the Trustee and the Issuer accrued or to accrue through £inal payment of the Bonds on the redemption date. Section 5.5 is hereby amended and restated to read as Section 5.5. Notice of Prepayment. To prepay under Sections 5.2, 5.4 or 5.8(d) hereof, the Company shall give written notice to the Issuer and the Trustee within 30 days after the event authorizing or requiring the prepayment, and shall specify therein the date of closing of the prepayment, which date shall be not less than 45 days nor more than 90 days from the date the notice is mailed. To exercise prepayment under Section 5.3 hereof, the Company shall give written notice to the Issuer and the Trustee at least 45 days but no more than 120 days prior to the interest payment date in question, and shall specify therein the interest payment date in question which shall be the date of closing of the prepayment unless another closing date is acceptable to the Trustee. In the event of the Company's failure to give the notice within such 30-day period with respect to an obligation to prepay under Section 5.4 or Section 5.8(d), the Trustee shall give written notice to the Issuer and the Company speci£ying a date of closing not less than 15 days nor more than 60 days from the date the notice is mailed. (h) Present Section 5.8 is hereby deleted and replaced by a new Section 5.8 to read as follows: "Section 5.8. Occurrence of a Determination o£ Taxability. (a) (1) On the first date on which interest is payable under the Initial Note after the occurrence of '.�' - 22e - RESOLUTION # 15 a Determination o£ Taxability, the Company agrees to pay interest, computed at the rate per annum (on the basis of a 360-day year of twelve 30-day months) set £orth in subparagraph (2) below, on the outstanding principal amount of the Series 1981 Bonds on the date of the Event of Taxability, less any interest already paid from the date of the Event of Taxability to such interest payment date (or prior redemption or prepayment date, if any). On each date on which interest is payable under the Initial Note thereafter the Company shall pay interest, computed at the rate per annum (on the basis of a 360-day year of twelve 30-day months) set forth in subparagraph (2) below, on the then out- standing principal amount of the Series 1981 Bonds on each such interest payment date. With the exception of the additional interest allocable to that portion of the Series 1981 Bonds redeemed in whole or prepaid in part before the first interest payment date under the Initial Note a£ter the occurrence of a Determination of Taxability determined in accordance with subsection (b) of this Section 5.8, the interest set £orth in this subsection (a) of this Section 5.8 shall be payable with respect to the same period, at the same times and in the same manner as interest payments pursuant to the Initial Note which would otherwise have become due and payable a£ter the occurrence of a Determination of Taxability. (2) Interest payable on the Series 1981 Bonds for purposes of this Section shall be at a rate which is equal to the Prime Rate plus one-half percent (�,%). Interest payable on the Series 1981 Bonds on the first interest payment date after the occurrence o£ a Determina- tion o£ Taxability shall be based on the Prime Rate as in ef£ect at the open o£ business on the last business day preceding the monthly period during which the Event of Taxability occurred and thereafter shall be based on the Prime Rate as in effect at the open of business on the last business day of First Wisconsin National Bank of Milwaukee, Milwaukee, Wisconsin, preceding each monthly period. (3) The Company shall also pay any Bondholder (and any iormer Bondholders) the aggregate amount of all penalties, additions to tax (exclusive of any taxes imposed under Section Z1 of any successor provision of the Code), interest and other charges assessed against such Bondholders on account of a Determination of Taxability ("Additions to Tax"). (b) The additional interest required to be paid pursuant to subsection (a) of this Section 5.8 with respect to that portion of the Series 1981 Bonds redeemed in whole or prepaid in part prior to the first interest -5- - 22f - RESOLUTION # 15 payment date after the occurrence of a Determination of Taxability shall be paid to the Trustee and applied to the holders in question in the same manner as interest was paid to such holders in accordance with the Indenture. (cj An "Event of Taxability" means the date specified in a Determination of Taxability as the date interest paid or payable on the Series I981 Bonds becomes includable for Federal income tax purposes in the gross income of any Bondholder (other than a Bond- holder who is a"substantial user" or a"related person" within the meaning and for the purposes o£ Section 103(b}(10) of the Internal Revenue Code and the applicable regulations thereunder) as a consequence of any act, omission or event whatsoever, including any change of law, and regardless of whether the same was within or beyond the control of the Company. A "Determination of Taxability" means: (1) the £iling by the Company of a certificate with the Issuer and the Trustee stating that an Event of Taxability has occurred; (2) the filing by the Company of any statement, supplemental statement or other tax schedule, return or document which discloses that an Event of Taxability has occurred; (3) the receipt by the Company, the Issuer or the Trustee of notice from the Commissioner, any District Director or other authorized official of the Znternal Revenue Service to the effect that an Event of Taxability has occurred; (4) the receipt by the Trustee o£ notice from any Bondholder to the effect that the Internal Revenue Service has assessed as includable in the gross income of such Bondholder any interest on any Bond due to the occurrence of an Event o£ Taxability; or {5) the receipt by the Trustee of the opinion of nationally recoqnized bond counsel designated by the Trustee to the effect that an Event of Taxability has occurred; provided, however, that with respect to clauses (3), (4) and (5) above a Determination of Taxability shall not be deemed to have occurred until the Company has been notified of the allegation that an Event of Taxa- bility has occurred and either (i) the Company fails to arrange for commencement of a contest of such allegation in good faith and by appropriate legal proceeding (which shall be deemed to include a request for a -6- - 22g - RESOLUTION # 15 ruling £rom the IRS National Office in the case of clause (5)) within 30 days £ollowing such notification, or (ii) the Company does arrange for the commencement of such contest within such time, but thereafter due to the fault of the Company such contest is not pursued diligentZy, in good faith and by appropriate legal proceedings to a final order or judgment by a court or administrative body of competent jurisdiction, or (iiij such contest results in a final order or judgment of a court or administrative body of competent jurisdiction to the effect that an Event of Taxability has occurred and the time for any appeal of such order or judgment has expired. In the event that any such legal proceeding can be brought only by a bondholder (or bondholders), the bondholder (or bondholders) shall bring such pro- ceeding provided that within 30 days after written notice to the Company of the alleged Event of Taxa- bility the Company shall make a written request that the alleged Event of Taxability be appealed and shall furnish a written opinion of its independent counsel, satisfactory to such holder with respect to the iden- tity of such counsel and the substance of the opinion rendered, to the e£fect that a reasonable basis exists for appealinq the alleged Event of Taxability and describing such basis. The Company also agrees to indemnify and hold harmless such holder from and against any and all liability, damage, loss, cost or expense (including attorneys' £ees) which such holder may incur as the result of appealing the alleqed Event of Taxa- bility and further hereby aqrees to pay on demand all costs and expenses which such holder may incur in appealing such alleged Event of Taxability, and to £urnish such bond, letter of credit or other £orm of security £or its obligations hereunder as such holder may reasonably request. (d) Notwithstanding the other provisions o£ this Section 5.8, if, at any time after the occurrence of a Determination of Taxability hereunder, the Company shall so elect and notify the Trustee and the Issuer in writing, the Comgany may prepay the amounts due under this Agreement and the Note prior to the expiration of this Agreement and prior to £ull payment of the Series 1981 Bonds (or prior to making provision for payment thereof in accordance with the Indenture) by paying a sum sufficient, toqether with other £unds deposited in the Bond Fund and available for such purpose, to pay 100 percent of the principal as well as interest, computed at the rate per annum (on the basis of a 360-day year of twelve 30-day months) set £orth in subsection (a) of this Section 5.8, on the outstanding principal amount of the Series 1981 Bonds on the date of the Event of Taxability, less any interest already paid from the date of the Event of Taxability to the -7- - 22h - RESOLUTION # 15 redemption date, as well as any Additions to Tax, and to pay all reasonable and necessary fees and expenses of the Trustee and the Issuer accrued or to accrue through final payment of the Series 1981 Bonds on the redemption date. (i) Section 6.4 is hereby amended and restated to read as follows: Section 6.4. Issuance of Substitute Notes. Upon the surrender of any Note, the Company wi11 execute and deliver to the holder thereof a new Note or Notes in exchange there- for in an aggregate principal amount equal to the then unpaid principal amount o£ the Note surrendered and substan- tially in the form of the Note attached hereto as Exhibit C with appropriate insertions and variations, and bearing interest from the date to which interest has been paid on the Note surrendered. Pursuant to this Section 6.4 the Company will execute and deliver the Substitute Note to the holder of the Initial Note in exchange for the Initial Note. (j) There is hereby added to the Revenue Agreement a new Exhibit C to read as follows: EXHIBIT C SUBSTITUTE NOTE N0. 1 FOR VALUE RECEIVED, the undersigned, Oshkosh Community Young Men's Christian Association, Inc., a Wisconsin nonstock, nonprofit corporation (the "Company"), hereby promises to pay to the order of the City of Oshkosh, Wisconsin, a municipality orqanized and existing under the laws of the State of Wisconsin (the "City"), the principal sum of Four Hundred Seventy-Eour Thousand Dollars ($474,000) and to pay interest thereon at the rate o£ eight percent (8%) per annum. The principal of and interest on this Note shall be payable in 174 equal monthly installments of Four Thousand Six Hundred Eleven Dollars and Nine Cents ($4,611.09), each due on the first day of each month, commencinq April 1, 1984, and continuing through and includinq September 1, 1998. The Company promises to pay interest on any overdue principal and premium and, to the extent permitted by law, on any overdue interest, at the rate o£ 10% per annum. Such principal, premium, if any, and interest are payable at the o£fice of First Wisconsin National Bank of Oshkosh, Oshkosh, Wisconsin, the Trustee (the "Trustee"), under the Indenture of Trust dated as of 3anuary 1, 1981, as amended (the "Indenture"), from the City, or the office of any successor trustee under the Indenture. � - 22i - RESOLUTION # 15 This Note is issued under and secured by the Mortgage Loan Agreement dated as of January 1, 1981, as amended (the "Agreement") from the Company to the City. As provided in the Aqreement, Additional Notes may be issued and sold by the Company to the City, with the consent o£ the City and the written consent of the holders of two-thirds in aggregate principal amount of the Series 1981 Bonds to finance the cost of completing the Project referred to in the Agreement or to finance the cost of constructing or acquiring other improvements as permitted in the Agreement, among other purposes; and such Notes, if issued, together with this Note, shall be equally and ratably secured by the lien of the Agreement. Reference is hereby made to the Agreement for a description o£ the property thereby pledged, the nature and extent o£ the security £or such Notes and the rights of the holder thereof, the Company and the City in respect thereof, and the provisions for amending the Agreement, to all of which the holder hereof, by its acceptance hereof, assents. The principal of this Note is subject to prepayment by the Company from time to time, in the manner and under the circumstances set forth in the Agreement, in whole or in part, at a price equal to 100% of the principal amount hereof to be prenaid plus accrued and unpaid interest thereon to the date fixed for prepayment, together with the premium, i£ any, provided for in the Agreement upon such prepayment, which premium the Company promises to pay. In the event o£ loss of the federal tax exemption for interest payable on the City of Oshkosh, Winnebago County, Wisconsin Industrial Development Revenue Bonds (Oshkosh Community Young Men's Christian Association, Inc. Project) Series 1981 (the "Bonds"), the Company has agreed to pay interest on the Bonds at an increased rate as set forth in the Agreement and to reimburse the holder thereof for certain charges it incurs as a result o£ an Event of Taxability. At the option of the Company, at any time following a Determination o£ Taxability, the Company may pay all amounts necessary for the redemption of the Bonds at a price equal to 100% of the principal amount thereof plus interest (at an increased rate as set forth in the Agreement) from the date of Event of Taxability to the redemption date. In certain events and in the manner set forth in the Agreement, the entire principal amount of this Note may be declared to be due and payable. No recourse shall be had for the payment of the principal of, or premium, if any, or interest on this Note, or for any claim based thereon or on the Aqreement - 22J - � RESOLUTION # 15 or any agreement supplemental thereto, against any director or officer, past, present or £uture, of the Company or o£ any successor corporation, as such, either directly or through the Company or any such successor corporation, whether by virtue of any consti- tution, statute or rule of law or by the enforcement of any assessment or penalty, or otherwise, aII such liability, whether at common law, in equity, by any constitution, statute or otherwise, of directors or o£ficers, as such being released as a condition o£ and consideration for the execution of the Agreement and the issue of this Note. TN WITNESS WHEREOE, the Company has caused this Note to be duly executed and its corporate seal to be affixed hereto. DATED as of March 1, 1984 (SEAL) Attest: (Assistan Pay to OF OSHKOSH, dated as o£ undersigned. OSHKOSH COMMUNITY YOUNG MEN'S CHRISTIAN ASSOCIATION, INC. By: (Vice) President ecretary ENDORSEMENT the order of EIRST WISCONSIN NATIONAL BANK as Trustee under the Indenture of Trust January 1, 1981, as amended, from the CITY OF OSHKOSH By: Its -10- - 22k - y RESOLUTION # 15 Section 2. Ratification of Revenue Agreement. Except as expressly amended and supplemented by the provision of this First Amendment, the provisions of the Revenue Agreement shall remain in full force and effect. Section 3. Execution in Counterparts. This First Amendment may be simultaneously executed in several counterparts, each of which shall be an original and a12 of which shall constitute but one and the same instrument. Section 4. Applicable Law. In the event it should become necessary to interpret or construe the meaning of any word, phrase or sentence or other provision or requirement of this First Amendment, such interpretation and construction shall be in accordance with the laws and statutes of the State of Wisconsin. If any question of validity or enforcement of this First Amendment shaould arise, the laws and statutes of the State of Wisconsin shall apply. The section and other headinqs contained herein are for re£erence purposes only and shall not control or affect its interpretation in any respect. IN WITNESS WHEREOE, the Company and the City have caused this Eirst Amendment to tbe executed in their respective corporate names and their respective corporate seals to be hereunto af£ixed -11- - 221 - RESOLUTION # 15 and attested by their duly authorized of£icers, all as of the date first above written. OSHKOSH COMMUNITY YOUNG MEN'S CHRISTIAN ASSOCIATION, INC. By: (SEAL) Its (Assistant) Secretary Its (Vice) Pres CITY OF OSHKOSH, WISCONSIN By: Its Mayor (SEAL) Attest: City Clerk Countersigned: City Comptroller STATE OF WISCONSIN ) ) SS WINNEBAGO COUNTY ) On the day of , A.D., 1984, before me, a Notary Public in and £or said County, personally appeared , and , to me personally known, who being by me first duly sworn, did say that they are the Mayor, City Clerk and City Comptroller, respectively, of the City of Oshkosh, Wisconsin, the municipal corporation named in and which executed the within instrument, and that the seal affixed to said instrument is the seal of said municipal corporation, and that said instrument was signed and sealed on behalf o£ said municipal corporation by -12- - 22m - RESOLUTION # 15 authority of its Common Council and said , , and acknowledged said instrument to be the free act and deed of said municipal corporation. Notary Public, State of Wisconsin My commission: _ _ STATE OF WISCONSIN ) j SS WINNEBAGO COiJNTY ) On the day of , A.D., 1984, before me, a Notary Public in and £or said County, personally appeared and , to me person- ally known, who being by me first duly sworn, did say that they are (Vice) President and (Assistant) Secretary, respectively, of the Oshkosh Community Young Men's Christian Association, Inc. the company named in and which executed the within instrument, and that the seal aPfixed to said instrument is the seal of Oshkosh Community Young Men's Christian Association, Inc., and that said instrument was signed and sealed on behalf of said corporation by authority of its Board of Directors and said and acknowledged said instrument to be the free act and deed of said corporation. Notary Public, State of Wisconsin My commission: _ _ _ _ This document dra£ted by Brian G. Lanser, Quarles & Srady, 780 North Water Street, Milwaukee, Wisconsin 53202. SDS23B:C -13- - 22n - RESOLUTION # 15 EXHIBIT A PLEDGED REAL ESTATE Known as 324 Washington Avenue. Lots 3, 5, 6, 7, the East 55.0 ft. of Lot 14 and the East 6.0 ft. of the South 150.0 ft. of Lot 8, all in Block 39 in the Fourth Ward of the City of Oshkosh per Leach's Map of 1894, Winnebago County, Wisconsin. Also, the East 28.0 ft. of the West 56.0 ft. of Lot 17 of Block 39 according to MAP OE L STREET in the Eourth Ward, City of Oshkosh, Winnebago County, Wisconsin, per Leach's Map of 1894. SD523B:D - 220 - 0 RESOLUTION # 15 FIRST SUPPLEMENTAL INDENTURE OF TRUST CITY OF OSHKOSH, WISCONSZN �!� FIRST WISCONSIN NATIONAL BANK OF OSHKOSH As Trustee Dated as of March 1, 1984 - 2zP - RESOLUTION # 15 FIRST SUYPLEMENTAL INDENTURE OF TRUST This First Supplemental Indenture o£ Trust made and entered into as of March 1, 1984, by and between the City o£ Oshkosh, Wisconsin, a municipality duly incorporated under the laws of the State of Wisconsin ("City") and First Wisconsin National Bank of Oshkosh, a national banking association organized and existing under the laws of the United States, as Trustee ("Trustee"). W I T N E S S E T H: WHEREAS, on January 13, 1981, the City issued and sold $900,000 agqregate principal amount Industrial Development Revenue Bonds, (Oshkosh Community Young Men's Christian Association, Inc. Project) Series 1981 initially dated as of January 1, 1981 ("Series 1981 Bonds") to finance costs of constructing an addition to and the remodeling of facilities owned by Oshkosh Community Young Men's Christian Association, Inc., a Wisconsin nonstock, nonpro£it corporation (the "Company"), in the City on land described in Exhibit A hereto (the "Project") £or use in connection with the Company's business of operating a recreational facility and for related purposes; and WHEREAS, in connection with the issuance of the Series 1981 Bonds, (a) the Company and the City entered into a Mortgage Loan Agreement dated as o£ January 1, 1981, with respect to the Project ("Revenue Agreement") and (b) the Revenue Agreement was assigned and the payments thereunder pledged to First Wisconsin National Bank o£ Oshkosh, as Trustee ("Trustee") pursuant to an Indenture of Trust between the City and said Trustee dated as of January 1, 1981 ("Indenture"), all as security for payment of the Series 1981 Bonds; and WHEREAS, as additional security for the Series 1981 Bonds, the Company assigned its pledges receivable attributable to building construction as a result of the Oshkosh Community YMCA Capital Fund Campaiqn to the Trustee pursuant to an Assignment of Pledges Receivable Agreement dated as of January 1, 1981 ("Assign- ment"); and WHEREAS, the City and the Trustee desire to enter into this Eirst Supplemental Indenture in order to reflect the following changes and to make other clarifying changes: 1. That the term of the Series 1981 Bonds is extended to September 1, 1998; 2. That the outstanding principal amount of the Series 1981 Bonds ($474,000 as of March 1, 1984), and the interest thereon, are to be paid in equal monthly installments of $4,611.09, each due on the first day o£ each month, commencing April 1, 1984, and continuing through and including September 1, 1998, which amount - z2q - � RESOLUTION #F 15 represents the monthly payment necessary to amortize a 5474,000 loan over 174 months at 8% interest with even monthly payments of principal and interest; 3. That the interest rate on the Series 1981 Bonds for the loan term is fixed at S% per annum, which rate will not be subject to adjustment; 4. That the assiqnment of pledges receivable from con- tributors to the Oshkosh Community YMCA Capital Fund made to the Trustee pursuant to the Assignment is released as additional security for the Series 1981 Bonds; 5. That if at any time during which the principal amount of the Series 1981 Bonds remains unpaid, the interest on the Series 1981 Bonds is deemed to be taxable, the Bondholders wi11 be reimbursed for any back taxes and penalties assessed. Further, the Series 1981 Bonds wi11 remain outstanding and effective with the date that the interest is deemed to be taxable the rate of interest on the Series 1981 Bonds will be adjusted to a rate equal to the announced prime rate of the Eirst Wisconsin National Bank of Milwaukee, Milwaukee, Wiscon- sin, as adjusted from time to time plus 1/2°j„ provided such rate is not less than the rate of eight percent (8%) per annum; and WHEREAS, the execution and delivery of this First Supplemental Indenture has been consented to by the holders of all outstanding Bonds and by Resolution of the Common Council o£ the City duly adopted on the day of , 1984 (a copy of which resolu- tion is on file in the of£ice of the City Clerk of the City). NOW, THEREFORE, in consideration of the premises and the covenants and undertakings herein expressed, the City and the Trustee hereby agree as follows: Section 1. Amendments and Restatements. (a) Section II-2 is hereby amended and restated to read as follows: SECTION II-2. Issuance o£ Series 1981 Bonds. The Series 1981 Bonds shall be designated "City of Oshkosh, Winnebago County, Wisconsin Industrial Development Revenue Bonds (Oshkosh Community Young Men's Christian Association, Inc. Project) Series 1981." They shall be originally issu- able as fu11y registered Bonds without coupons and may be in typewritten form. The originally issued Series 1981 Bonds shall be dated January 1, 1961, and shall bear interest at the rate of eight percent (8%) per annum. The Bonds shall be numbered -2- - 22r - RE�uL�_. •-� urwa�� a�•u ��,a�� be in the principal amounts set forth below: Principal Amount $405,Od0 $165,000 $165,000 $165,000 The outstanding principal of and the interest on the Series 1981 Bonds shall be payable in monthly installments on the first day of each month, commencing April 1, 1984, and continuing through and including September 1, 1998. Such installments shall be in the aggregate amount of $4,611.09 each, and shall be applied pro rata to each of the Series 1981 Bonds autstanding. Principal of the Series 1981 Bonds shall be payable to or upon the order of the Registered Owner or his legal representative upon presentation and surrender of the Series 1981 Bonds as they respectively become due at the principal office of the Trustee. Payments o£ interest on the Series 1981 Bonds shall be by check mailed by the Trustee to the Registered Owner thereaf at the address shown on the reqistry book without the necessity of surrendering the Bonds. (b) Section III-1 is hereby amended and restated to read as follows: SECTION III-1. Prepayment and Redemption Dates. The Series 1981 Bonds are callable far prepayment or redemption prior to maturity in the event the Pledged Property is damaqed or destroyed or is taken in a condemnation proceeding and the net proceeds are applied to the prepayment or redemp- tion of the Series 1981 Bonds pursuant to clause (b) of Section 4.13 of the Revenue Agreement or in the event the Notes are required to be prepaid under Section 5.4 of the Revenue Agreement. If called for prepayment or redemption in any such event, the Series 1981 Bonds shall be subject to prepayment or redemption by the Issuer at any time, in whole or, in the case of prepayment or redemption pursuant to Section 4.13(b) o£ the Revenue Agreement, in part, at 100 percent of the principal amount thereo£ plus accrued interest to the redemption date, but without premium. The Series 1981 Bonds are also subject to prepayment or redemption by the Issuer, prior to maturity at any time after it has furnished the Trustee with a certi£icate of completion of the Project pursuant to Section 3.4 of the -3- - 22s - �_, , s .� ,_ . , ,� RESOLUTION # 15 Revenue Agreement, in whole or in part, at 100 percent of the Principal amount thereof, plus accrued interest to the prepayment or redemption date, and without premium. Any prepayment of Bonds in part shall be on a pro rata basis. (c) There is hereby added to Article III a new section, Section III-2, to read as follows: SECTION III-2. Occurrence of a Determination of Taxabil- ity. In the event of a Determination of Taxability, as de£ined in Section 5.8 of the Revenue Agreement, the holders of the Series 1981 Bonds shall be entitled to interest at an increased rate on the principal amount of the Series 1981 Bonds outstanding at the time of the Event of Taxability, as defined in Section 5.8 of the Revenue Aqreement, as determined in accordance with Section 5.8 of the Revenue Agreement. The holders of the Series 1981 Bonds shall also be entitled to reimbursement £or certain expenses incurred as a result o£ the Event of Taxability, as described in Section 5.8(a)(3) o£ the Revenue Agreement. At the option of the Company, at any time following a Determination o£ Taxability, the Company may pay all amounts necessary for the redemption o£ the Series 1981 Bonds at a price equal to 100% of the principal amount thereof plus accrued interest (at the interest rate set £orth in Section 5.8(d) o£ the Revenue Agreement) to the redemption date and as otherwise described in Section S.B(d) of the Revenue Aqreement. (d) Present Section IV-3 is hereby deleted in its entirety. (e) Present Section 5.11 is hereby deleted in its entirety. (f) Section 11.02 is hereby amended and restated to read as follows: SECTION 11.02. Supplemental Indentures Requiring Consent of Bondholders. Exclusive of supplemental indentures covered by Section 11.01 hereof and subject to the terms and provisions contained in this Section, and not otherwise, the holders of not less than 66-2/3% in aggregate principal amount o£ the Bonds then outstandinq shall have the right, from time to time, anything contained in this Indenture to the contrary notwithstanding, to consent to and approve the execution by the Issuer and the Trustee of such other indenture or inden- tures supplemental hereto as shall be deemed necessary and desirable by the Issuer for the purpose o£ modi£yinq, alter- ing, amending, adding to or rescindinq, in any particular, any of the terms or provisions contained in this Indenture or in any supplemental indenture; provided, however, that nothing in this Section contained shall permit, or be con- strued as permitting, without the written consent of the holders of all outstandinq Bonds, (a) an extension of the � - 22t - RESOLUTION # 15 maturity of the principal of or the interest on any Bond issued hereunder, or (b) a reduction in the principal amount of, or redemption premium on, any bond or the rate of interest thereon, or (c) a privilege or priority of any Bond or Bonds over any other Bond or Bonds, or (d) a reduction in the aggregate principal amount of the Bonds required for consent to such supplemental indenture. 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, the Trustee shall, upon being satisfactorily indemni£ied with respect to expenses, cause notice o£ the proposed execution of such supplemental inden- ture to be mailed by certified or registered mail to each Registered Owner of Bonds then outstandinq. Such notice shall briefly 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. If, within sixty days or such longer period as shall be prescribed by the Issuer £ollowing the mailing of such notice, the holders of not less than 66-2/3% in aggregate principal amount of the Bonds outstanding at the time of the execution of any such supplemental indenture shall have consented to and approved the execution thereof as herein provided (or in the case of the execution o£ a supplemental indenture £or any of the purposes described in (a), (b), (c) or (d) hereof, the holders of 100% in aggregate principal amount of the Bonds outstanding shall have consented to and approved such execution), no holder of any Bond sha11 have any right to object to any o£ the terms and provisions contained herein, or the operation thereo£, or in any manner to question the propriety 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 inden- ture as in this Section permitted and provided, this Indenture shall be and be deemed to be modified and amended in accor- dance therewith. Anything herein to the contrary notwithstanding, a supplemental indenture under this Article shall not become effective unless and until the Company shall have consented to the execution and delivery of such supplemental indenture. In this regard, the Trustee shall cause notice of the proposed execution and delivery o£ any such supplemental indenture to be mailed by certified or reqistered mail to the Company at least fifteen days prior to the proposed date of execution and delivery of any such supplemental indenture. The Company shall be deemed to have consented to the execution and delivery of any such supplemental indenture if the Trustee does not receive a letter of protest or objection thereto signed by or on behalf of the Company on or before 4:30 o'clock, P.M., local time, of the fi£teenth day after the -5- - 22u - RESOLUTION # 15 mailinq of said notice and a copy of the proposed supplemen- tal indenture. Section 2. Release of Assignment. The Trustee hereby releases and cancels the Assignment of Pledges Receivable dated as of January 1, 1981 from the Company to the Trustee. Section 3. Legend on Bonds. At the time of registering any Bond hereafter presented to it for registration, or at the time of issuance of any new Bond or Bonds in exchange for or replacement of other Bonds pursuant to the Indenture, the Assignee shall attach to each such Bond a statement summarizing the changes made by this First Supplemental Indenture. Section 4. Ratification of Indenture. Except as expressly amended and suppZemented by the provision of this Supplemental Indenture, the provisions of the Indenture shall remain in full force and effect. Section 5. Execution in Counterparts. This Indenture may be simultaneously executed in several each of which shall be an oriqinal and all o£ which tute but one and the same instrument. Supplemental counterparts, shall consti- Section 6. Applicable Law. In the event it should become necessary to interpret or construe the meaning of any word, phrase or sentence or other provision or requirement of this Supplemental Indenture, such interpretation and �onstruction shall be in accordance with the laws and statutes of the State of Wisconsin. If any question of validity or enforcement of this Supplemental Indenture should arise, the laws and statutes o£ the State of Wisconsin shall apply. The section and other headings contained herein are for reference purposes only and shall not control or affect its interpretation in any respect. IN WITNESS WHEREOF, the City, acting by and through its Common Council, has caused this Supplemental Indenture to be executed by its Mayor and its City Comptroller and City Clerk thereunto duly authorized and its seal to be hereunto a££ixed and the Trustee has caused this Supplemental Indenture to be executed -6- - 22v - RESOLUTION # 15 by its duly authorized officers and its seal thereunto affixed all as of the day and year first above written. (SEAL) Attest: City Clerk Countersigned: City Comptroller (SEAL) Attest CITY OF OSHKOSH, WISCONSIN � FIRST WISCONSIN NATIONAL BANK OE OSHKOSH � -7- - 22w - ayor �� STATE OF WISCONSIN WINNEBAGO COUNTY ) ) SS ) RESOLUTION # 15 On the day of , A.D., 1984, before me, a Notary Public in and for said County, personally appeared to me personally known, who being by me first duly sworn, did say that they are the Mayor, City Clerk and City Comptroller, respectively, of the City of Oshkosh, Wisconsin, the municipal corporation named in and which executed the within instrument, and that the seal affixed to said instrument is the seal of said municipal corporation, and that said instrument was siqned and sealed in behalf of said municipal corporation by authority of its Common Council and said , and acknowledged said instrument to be the free act and deed of said municipal corporation. Notary Public, State of Wisconsin (NOTARIAL SEAL) My commission: STATE OF WISCONSIN WINNEBAGO COUNTY ) ) SS ) On this day o£ , A.D., 1984, before me, a Notary Public in and for said County, personally appeared and to me personally known, who being by me first duly sworn, did say that they are the and respectively, o£ First Wisconsin National Bank of Oshkosh, the Trustee named in and which executed the within instrument and that the seal affixed to said instrument is the seal o£ First Wisconsin National Bank of Oshkosh and that said instrument was siqned and sealed in behal£ of said association by authority of its Board of Directors and said and acknowledged said instrument to be the £ree act and deed of said association. Notary Public, State of Wisconsin (NOTARIAL SEAL) My commission: This document was drafted by Brian G. Lanser, Quarles & Brady, 780 North Water Street, Milwaukee, Wisconsin 53202. SDS23G C -8- - 22x - EXHIBIT A PLEDGED REAL ESTATE RESOLUTION # 15 Known as 324 Washington Avenue. Lots 3, 5, 6, 7, the East 55.0 ft. of Lot 14 and the East 6.0 £t. of the South 150.0 ft. of Lot 8, all in Block 39 in the Fourth Ward of the City o£ Oshkosh per Leach's Map of 1894, Winnebago County, Wisconsin. Also, the East 28.0 ft. of the West 56.0 ft. of Lot 17 of Block 39 according to MAP OF L STREET in the Fourth Ward, City of Oshkosh, Winnebago County, Wisconsin, per Leach's Map of 1894. SDS23C:D - 22y - �fi;....,n.YiE ' . n � � r� 'C �r n � r� � � r� r-� � v� N � n x �� �� � . � �P � i , ; ._. ._... ....._. .,, . o �� �m �� �a� o o m P� r � � m rrts iD r�r m r� � r� na�ro C� H r� F� m� ,�i�) O N ',b E f1' 'A � (D I-.' O H A+ F-' C r�' �G'0 0�� �G .. rr r G ?f r� • (D lD �' m O �C O N N� (p '.7 Ci N N P+ (1" (C . rt tn O O " N � X O N � x m N � r �n