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Home My Public Portal About061-1991 - ORDINANCE OF THE CITY OF RICHMOND FOR THE ADOPTION AORDINANCE NO. 61 -1991 AN ORDINANCE OF THE CITY OF RICHMOND, INDIANA FOR THE ADOPTION AND EXECUTION OF A SUPPLEMENTAL TRUST INDENTURE IN CONNECTION WITH $1,435,000.00 CITY OF RICHMOND, INDIANA ECONOMIC DEVELOPMENT REVENUE REFUNDING BONDS (BEVERLY ENTERPRISES-INDIANA, INC. PROTECT) SERIES 1985; APPROVING AND AUTHORIZING THE EXECUTION AND DELIVERY OF A SUPPLEMENTAL TRUST INDENTURE WHEREAS, the City of Richmond, Indiana (the "Issuer") is a political subdivision organized and existing under laws of the State of Indiana; and WHEREAS, the Issuer has full power and is duly authorized by law to issue it's obligations pursuant to the provisions of Indiana Code Section 36-7-12, as amended (the "Act"); and WHEREAS, the Issuer previously has issued, sold, and delivered its $1,450,000.00 floating rate demand Economic Development Revenue Refunding Bonds (Beverly Enterprises - Indiana, Inc., Project) Series 1985 (the "Bonds"), to refund Issuer's 1983 Series A Economic Development Revenue Bonds, the proceeds of which were used to pay the cost of the acquisition, construction, equiping, improving, and installation of a nursing home facility located in the City of Richmond, Indiana, (the "Project"); and WHEREAS, the Issuer, as security for the Bonds has previously executed an Indenture of Trust, dated as of April 1, 1985 (the "Indenture"), between the Issuer and Merchants National Bank and Trust Company, as Trustee (the 'Trustee"), pursuant to which the Issuer pledged the income and revenues received under this agreement as security for the Bonds; and WHEREAS, the Issuer has been informed by Moody's Investors Service that certain modifications in the Trust Indenture regarding the definition of available monies are necessary in order for Moody's to maintain it's rating of the Bonds; and WHEREAS, the company has presented to the Issuer a form of Supplemental Trust Indenture dated as of August 1, 1991 (the "Supplemental Indenture") between the Issuer and the Trustee, pursuant to which the requested revisions to the Indenture and Bonds will be affected. NOW, THEREFORE, be it resolved by the Issuer as follows: 1. It is hereby ascertained and declared that the Issuer has found that amendment to the Trust Indenture regarding the definition of available monies is necessary in order to maintain the raring of the Bonds by Moody's Investors Service, and the Supplemental Trust Indenture filed with the Issuer is appropriate to the needs of the Project and public purposes of the Issuer, as authorized and empowered by the Act. 2. The Supplemental Indenture, in substantially the form presented this meeting with such changes, insertions, omissions, alterations and corrections as may be necessary or desireable and are approved by the Mayor of the Issuer, such necessity or desireability and approval to be conclusively presumed by his execution thereof, is hereby approved by the Issuer, and the Issuer hereby authorizes and directs it's Mayor to execute, and it's City Clerk to attest under the official seal of the Issuer, the Supplemental Trust Indenture and to deliver to the Trustee and the company the Supplemental Trust Indenture. 3. No covenant, stipulation, obligation, or agreement herein contained, or contained in the Indenture shall be deemed to be a convenant, stipulation, obligation or agreement of any member of the Issuer or any officer, member, agent, attorney or employee thereof in his or her individual capacity, and neither the members of the Issuer nor any official executing Indenture shall be liable personally thereon or be subject to any personal liability or accountability by reason of the execution thereof. 4. Except as otherwise expressly provided herein or in the Indenture or the Supplemental Indenture, nothing in this Ordinance or in the Indenture or Supplemental Indenture is intended or shall be construed to confer upon any person other than the Issuer and the respective parties to such agreements any right, remedy, or claim, legal or equitable, under and by reason of this Ordinance or any provision thereof or the Indenture or Supplemental Indenture, which are intended to be for the sole and exclusive benefit of the respective aforesaid parties. 5. All resolutions or ordinances of the Issuer in conflict with the provisions contained in this Ordinance are, to the extent of the conflict, hereby waived. 6. The provisions of this Ordinance are severable and if any provision shall be held to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect any of the remaining provisions of this Ordinance. 7. This Ordinance shall take effect immediately upon it's adoption. PASSED AND ADOPTED by the Common Council of the City of Richmond, Indiana, the 2�&y of /Tcg—d- , 1991. President of Common Council ATTEST: Mary Mofchandiouse, City Clerk {? &t PRESENTED by me to the Mayor of the City of Richmond, Indiana, this F day of , 1991. Mary Mirchanhf ouse, City Clerk APPROVED by me Frank H. Waltermann, Mayor of the City of Richmond, Indiana, this � day of�G&-, 1991. ATTEST: Mary Me hanth e, City Clerk STATE OF INDIANA ) ) SS: COUNTY OF WAYNE ) Before me, the undersigned, a Notary Public in and for said County and State, personally appeared .Sa ea G, L. _ flu f-1 ox/ Mary Merchanthouse, and Frank H. Waltermann, and acknowledged the execution of the foregoing instrument this -ELkday of _OC'4 - , 1991. Witness my hand and Notarial Seal. My Commission Expires: azg4 z!za Qq a d ,Notary residing in Wayne County,/Indiana OFcy�z INTEROFFICE MEMO CITY OF RIC14MOND 50 NORTH FIFTH ST - RICHMOND, INDIANA. 47374 /HDIANP DATE: September 30, 1991 TO: Mary Merchanthouse, City Cleric FROM : Bruce Metzger, City Attorney SUBJECT Ordinance - Supplemental Trust Indenture COPY TO: Sally Hutton, File Attached to this memorandum is an Ordinance approving a Supplemental Trust Indenture for the Beverly Enterprises Bonds that were issued in 1985. Also attached is a copy of a letter from Cohen & Grigsby and copies of the Supplemental Trust Indenture. Beverly Enterprises is asking the City to approve the Supplemental Trust Indenture to amend the definition of available monies in order to maintain their bond rating with Moody's Investor Service. llw COHEN & GBIGSBY A PROFESSIONAL CORPORATION ATToRNEYs AT LAw 2900 CNG TOWER 625 LIBERTY AVENAE PITTSBUHGH, PENNSYLVANIA 15222-3115 TELEPHONE(412) 394-4900 FAX (412) 391-3382 September 5, 1991 VIA FEDERAL EXPRESS Bruce Metzger, Esquire City Attorney City of Richmond, Indiana 50 North 5th Street Richmond, IN 47374 Re: $1,450,000 City of Richmond, Indiana Floating Rate Demand Economic Development Revenue Refunding Bonds (Beverly Enterprises -Indiana, Inc. Project) Series 1985 (the "Bonds") Dear Bruce: Enclosed, pursuant to our recent telephone conversation, are seven execution copies of a Supplemental Trust Indenture proposed for execution by the City of Richmond, Indiana, the issuer of the above -referenced Bonds, and Merchants National Bank & Trust Company, as Trustee under the original Trust Indenture dated as of April 1, 1985. As I indicated in our conversation, Beverly Enterprises -Indiana, Inc. (the "Company") requests that the City and the Trustee enter into this Supplemental Trust Indenture in order to amend the definition of "Available Moneys" contained in the original Indenture to insure that moneys deposited by the Company with the Trustee for payments on the Bonds are not subject to avoidance as a preferential transfer in the event of the bankruptcy or insolvency of the Company. Please review the enclosed Supplemental Trust Indenture and contact me regarding any comments or questions you may have. We would like this Supplemental Indenture to be considered for approval at the next scheduled City Council meeting during September, which I understand will be held on September 16. If there is any problem with submitting the Supplemental Indenture at such meeting for approval, please let me know at your earliest convenience. Also, please let me know when the Supplemental Indenture has been approved and return the documents, executed and attested on behalf of the City, to me upon such approval. COHEN & G$IGSBY September 5, 1991 Page 2 Thank you for your cooperation in this matter. I look forward to hearing from you. Yours very truly, COHEN & GRIGSBY By A Christopher J. Rayl CJR/bsp Enclosures cc: David L. Cavicke, Esquire Charles R. Brodbeck, Esquire Jack W. Elliott, Esquire S3:118698 SUPPLEMENTAL TRUST INDENTURE This Supplemental Trust Indenture dated as of August 1, 1991 between the CITY OF RICHMOND, INDIANA, a municipal corporation organized and existing under the laws of the State of Indiana (the "Issuer") and MERCHANTS NATIONAL BANK & TRUST COMPANY, a banking association organized and existing under and by virtue of the laws of the United States of America (the "Trustee"). W I T N E S S E T H: WHEREAS, the Issuer and the Trustee entered into a Trust Indenture dated as of April 1, 1985 (the "Trust Indenture"), pursuant to which the Issuer issued $1,450,000 aggregate principal amount of its Floating Rate Demand Economic Development Revenue Refunding Bonds (Beverly Enterprises -Indiana, Inc. Project) Series 1985 (the "Bonds"); WHEREAS, the Issuer has been informed by Moody's Investors Service ("Moody's") that certain modifications in the Trust Indenture regarding the definition of Available Moneys are necessary in order for Moody's to maintain its rating of the Bonds; WHEREAS, this amendment to the Trust Indenture (the "Supplemental Trust Indenture") is necessary in order to effect the foregoing modifications in the Trust Indenture; WHEREAS, the Issuer has requested the Trustee to enter into this Supplemental Trust Indenture in order to effect the modifications necessary to maintain the existing rating of the Bonds from Moody's; and WHEREAS, the Trust Indenture provides that Morgan Guaranty Trust Company of New York, as issuer of the Letter of Credit (as defined in the Trust Indenture), must consent to and approve amendments to the Trust Indenture. NOW THEREFORE, THIS SUPPLEMENTAL TRUST INDENTURE WITNESSETH: That, in consideration of the premises, the acceptance by the Trustee of the trusts hereby created and originally created by the Trust Indenture and of the mutual covenants herein set forth, and for other valuable consideration, the receipt of which is hereby acknowledged, and in order to secure the payment RICHMOND SUPPLEMENTAL INDENTURE -z- of the principal of, premium, if any, and interest on the Bonds according to their tenor and effect, and the performance and observance by the Issuer of all the covenants, express or implied, herein and in the Bonds on its part to be performed, it is agreed by and between the Issuer and the Trustee as follows: The definition of Available Moneys in Article I of the Trust Indenture is amended in its entirety to read as follows: "Available Moneys" means (a) with respect to any Bond Payment Date occurring during the term of the Letter of Credit, (i) moneys drawn under the Letter of Credit, or (ii) moneys deposited into the Bond Fund pursuant to Section 5.03(a) or 5.14 hereof or moneys deposited by Company with Trustee or Agent, in any such case, which moneys have been on deposit with Trustee or Agent for at least 366 days during and prior to which no Act of Bankruptcy shall have occurred and be continuing, (iii) the proceeds of the sale of refunding obligations, if, in the opinion of nationally recognized bankruptcy counsel, the application of such moneys will not constitute a voidable preference in the event of the occurrence of an Act of Bankruptcy and (iv) the proceeds from investment of moneys qualifying as Available Moneys under clause (i), (ii) or (iii) above, and (b) with respect to any Bond Payment Date not occurring during the term of the Letter of Credit, any moneys furnished to Trustee and the proceeds from the investment thereof. Except as expressly set forth herein, all terms and conditions of the Trust Indenture shall remain in full force and effect. [SEAL] Attest: BYtiL1i��,� Attest: By CITY OF RICHMOND, INDIANA By Title: MERCHANTS NATIONAL BANK & TRUST COMPANY By Title: RICHMOND SUPPLEMENTAL INDENTURE DISPOSITION OF ORDINANCE NO. iv / -199 / RESOLUTION NO. -199 by Common Council Ordinance No.CR [_ Resolution No. _ Elstro Lundy Brookbank Hankinson McBride Parker Morris Paust Hutton Date b - - Susp. rules Ist read Title only v ------------------------- Seconded ------ ---------- --------- -----`-- v -------------' ------ ------ Proof of Publicaton ------------------------- ------ ---------- --------- -------- -------------- ------ ------ Seconded Move to 2nd read ------------------------- ------ ---------- --------- -------- Seconded -------------- ------ ------ v Engrossment v' Seconded v Susp rules 3rd read - -•--------• ............. Seconded ...... '------- -------- -------- ------------- ------ ------ Passage ,� c ------ ---OR ------- ---------- ------------------- ------- ------- -------- ------- Rejection 0 Date Passed / CU _ 7 - COMMITTEE ASSIGNMENTS: Committee Date Commitee Hearing Date Reassigned to Council Agenda PUBLICATION AMENDMENTS: COMMENTS: