Loading...
HomeMy Public PortalAbout018-1990-ORDINANCE OF THE CITY FOR THE ADOPTION AND EXECUTION Owagiff-L`Ie m►`L�>liYailEkI�) AN ORDINANCE OF THE CITY OF RICHMOND, INDIANA FOR THE ADOPTION AND EXECUTION OF AMENDMENTS TO BOND DOCUMENTS AND RELATED CERTIFICATES AND AGREEMENTS IN CONNECTION WITH THE REMARKETING OF $1,435,000 CITY OF RICHMOND, INDIANA ECONOMIC DEVELOPMENT REVENUE REFUNDING BONDS (BEVERLY ENTERPRISES-INDIANA, INC. PROJECT) SERIES 1985, AND THE AMENDMENT OF CERTAIN OF THE TERMS OF SUCH BONDS AND THE ESTABLISHMENT OF A FIXED INTEREST RATE PURSUANT TO THE TERMS OF SUCH BONDS, APPROVING AND AUTHORIZING THE EXECUTION AND DELIVERY OF CERTAIN OTHER DOCUMENTS REQUIRED IN CONNECTION WITH THE FOREGOING; APPROVAL OF THE APPOINTMENT OF A SUCCESSOR REMARKETING AGENT; APPROVING A PRELIMINARY REMARKETING MEMORANDUM AND AUTHORIZING A FINAL REMARKETING MEMORANDUM AND PROVIDING CERTAIN OTHER DETAILS IN CONNECTION THEREWITH. WHEREAS, the City of Richmond, Indiana (the "Issuer") is a political subdivision organized and existing under laws of the State of Indiana (the "State"); and WHEREAS, the Issuer has full power and is duly authorized by taw to issue its obligations pursuant to the provisions of the Indiana Code II 36-7-12, as amended (the "Act"); and WHEREAS, the Issuer previously has issued, sold, and delivered its $1,450,000 Floating Rate Demand Economic Development Revenue 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, equipping, improving, and installation of a nursing home facility located in the City of Richmond, Indiana (the "Project"); and WHEREAS, the issuer previously executed and delivered a Loan Agreement, dated as of April I, 1985 (the "Agreement"), between the Issuer and Beverly Enterprises -Indiana, Inc. (the "Company"), pursuant to which the Issuer loaned the proceeds of the Bonds to the Company; 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 8 Trust Company, as trustee (the "Trustee"), pursuant to which the Issuer pledged the income and revenues received under the Agreement as security for the Bonds; and WHEREAS, as further security for the Bonds, the Company shall execute a Mortgage and Security Agreement, dated as of May I, 1990 (the "Mortgage"), pursuant to which the Company shall grant to the Trustee a first mortgage lien in the real property constituting the Project and a first priority security interest in the personal property constituting the Project as further security for the Bonds; and WHEREAS, pursuant to the terms of the Indenture, the Company has elected to convert the interest rate on the Bonds to a Fixed Rate (as defined in the Indenture) and to request certain other revisions to the terms of the Indenture, the Agreement, the Bonds, and the documentation relating to the Bonds in conjunction with the remarketing of the Bonds in the principal amount of $1,436,000, occasioned by the conversion of the interest rate on the Bonds to a Fixed Rate; and WHEREAS, the Company has requested that the Issuer approve and adopt a Preliminary Remarketing Memorandum, dated April , 1990 (the "Preliminary Remarketing Memorandum"), and that the Issuer approve, adopt, and execute a Remarketing Memorandum, dated May I, 1990 (the "Remarketing Memorandum"), in connection with the remarketing of the Bonds; and WHEREAS, the Company has presented to the Issuer a form of First Supplemental Indenture of Trust, dated as of May I, 1990 (the "Supplemental Indenture"), between the Issuer and the Trustee, pursuant to which the requested revisions to the Indenture and the Bonds will be effected; and WHEREAS, the Company has presented to the Issuer a form of First Amendment to Loan Agreement, dated as of May I, 1990 (the "Amendment'), between the Issuer and the Company, pursuant to which the Agreement will be amended; and WHEREAS, Beverly California Corporation (formerly Beverly Enterprises) previously executed that certain Guaranty dated April I, 1985 ("Beverly California Guaranty") guaranteeing, upon the terms contained therein, the Bonds; and WHEREAS, in connection with the remarketing of the Bonds, Beverly Enterprises, Inc. ("BEI"), a Delaware corporation and the owner of 100% of the voting capital stock of Beverly California Corporation, which is the owner of 100% of the voting capital stock of the Company, has agreed to guarantee the obligations of the Company under the Agreement, as amended by the Amendment, pursuant to a Guaranty Agreement, dated as of May 1, 1990 (the "Guaranty"), between BEI and the Trustee; and WHEREAS, the conversion of the interest rate on the Bonds to a Fixed Rate will require the execution by the Issuer of a form of Fixed Rate Bond as set forth in Exhibit A to the Supplemental Indenture; and WHEREAS, copies of the forms of the following documents relating to the transactions described above have been filed with the Issuer; A. Supplemental Indenture; B. Mortgage; C. Amendment; D. Guaranty; E. Form of Fixed Rate Bond; F. The Preliminary Remarketing Memorandum; G. The Remarketing Memorandum. NOW, THEREFORE, BE IT ORDAINED by the Issuer as follows: I. FINDINGS. It is hereby ascertained, determined, and declared that the Issuer has found that the conversion of the interest rate of the Bonds to the Fixed Rate, and the remarketing of the Bonds occasioned by the conversion of the interest rate, and the documents filed with the Issuer to be executed in connection with such remarketing are appropriate to the needs of the Project and the public purposes of the Issuer, as authorized and empowered by the Act. 2. AUTHORIZATION OF EXECUTION AND DELIVERY OF SUPPLEMENTAL INDENTURE. The Supplemental Indenture, in substantially the form presented to this meeting with such changes, insertions, omissions, alterations, and corrections as may be necessary or desirable and are approved by the Mayor of the Issuer, such necessity or desirability and approval to be conclusively presumed by his execution thereof, is hereby approved by the Issuer, and the Issuer hereby authorizes and directs its Mayor to execute, and its City Clerk to attest under the official seal of the Issuer, the Supplemental Indenture and to deliver to the Trustee and the Company the Supplemental Indenture. 3. AUTHORIZATION OF MORTGAGE. The Mortgage, in substantially the form presented to this meeting with such changes, insertions, omissions, alterations, and corrections, as may be necessary or desirable as deemed by the Trustee upon its acceptance thereof, is hereby approved by the Issuer. 4. AUTHORIZATION OF EXECUTION AND DELIVERY OF AMENDMENT. The Amendment, in substantially the form presented to this meeting as with such changes, insertions, omissions, alterations, and corrections as may be necessary or desirable and are approved by the Mayor of the Issuer, such necessity or desirability and approval to be conclusively presumed by his execution thereof, is hereby approved by the Issuer, and the Issuer hereby authorizes and directs its Mayor to execute, and its City Clerk to attest under the official seal of the Issuer, the Amendment and to deliver and assign to the Trustee the Amendment. 5. APPROVAL AND AUTHORIZATION OF THE PRELIMINARY REMARKETING MEMORANDUM AND APPROVAL AND AUTHORIZATION TO EXECUTE THE REMARKETING MEMORANDUM. The Preliminary Remarketing Memorandum, in substantially the form presented to this meeting, with such changes, insertions, omissions, alterations, and corrections as may be required by applicable securities law or as may be necessary or desirable is hereby approved by the Issuer. The Remarketing Memorandum, in substantially the form presented to this meeting, with such changes, insertions, omissions, alterations, and corrections as may be required by applicable securities law or as may be necessary or desirable and are approved by the Mayor of the Issuer, such necessity or desirability is hereby approved by the Issuer and the Issuer hereby authorizes its Mayor to execute and its City Clerk to attest the Remarketing Memorandum, and to deliver the Remarketing Memorandum to J.C. Bradford & Co. (the "Remarketing Adviser"). The Remarketing Adviser is hereby authorized by the Issuer to make public and distribute the Remarketing Memorandum in connection with the sale and public remarketing of the Bonds. 6. APPROVAL AND AUTHORIZATION OF GUARANTY. The Guaranty, in substantially the form presented to this meeting with such changes, insertions, omissions, alterations, and corrections as may be necessary or desirable and are approved by the Trustee, such necessity or desirability and approval to be conclusively presumed by the Trustee's acceptance thereof, is hereby approved by the Issuer. 7. APPOINTMENT OF REMARKETING AGENT. The Issuer, consents to and acknowledges the Company's appointment of J.C. Bradford 8 Co., as co -remarketing agent until the conversion of the Bonds to the Fixed Rate, at which time J. C. Bradford & Co., will become the sole Remarketing Agent under the Indenture. 8. NO PERSONAL LIABILITY. No covenant, stipulation, obligation, or agreement herein contained or contained in the Agreement, the Indenture, the Amendment, the Guaranty, the Bonds, the Supplemental Indenture, the Preliminary Remarketing Memorandum, or the Remarketing Memorandum, or the Mortgage, shall be deemed to be a covenant, 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 the Bonds shall be liable personally thereon or be subject to any personal liability or accountability by reason of the issuance thereof. 9. NO THIRD PARTY BENEFICIARIES. Except as otherwise expressly provided herein or in the Agreement, the Indenture, the Amendment, the Guaranty, the Mortgage, or the Supplemental Indenture, nothing in this Ordinance or in the Agreement, the Indenture, the Amendment, the Guaranty, the Mortgage or the Supplemental Indenture, expressed or implied, is intended or shall be construed to confer upon any person, firm, or corporation other than the Issuer, the respective parties to such agreements, and the holders of the Bonds, any right, remedy, or claim, legal or equitable, under and by reason of this Ordinance or any provision thereof or of the Agreement, the Indenture, the Amendment, the Guaranty, the Mortgage, or the Supplemental Indenture, which are intended to be for the sole and exclusive benefit of the respective aforesaid parties. 10. PREREQUISITES PERFORMED. All acts, conditions, and things relating to the passage of this Ordinance, and to the execution and delivery by the Issuer of the Supplemental Indenture, the Amendment, and the Remarketing Memorandum, required by the Constitution or laws of the State to happen, exist, and be performed precedent to and in the passage hereof, precedent to the remarketing of the Bonds, and precedent to the execution and delivery of the Supplemental Indenture, and the Amendment, have happened, exist, and have been performed as so required. 1 1 . GENERAL. AUTHORITY. The members, officers, attorneys, agents, and employees of the Issuer are hereby authorized to do all acts and things required of them by this Ordinance, the Agreement, the Indenture, the Amendment, or the Supplemental Indenture, or desirable or consistent with the requirements hereof or the Agreement, the Indenture, the Amendment, or the Supplemental Indenture, for the full, punctual, and complete performance of all the terms, covenants, and agreements on the part of the Issuer contained in the Bonds, the Agreement, the Indenture, the Amendment, the Supplemental Indenture, and this Ordinance. 12. EXECUTION OF BONDS AND AUTHORIZATION OF ALL OTHER NECESSARY ACTION. The form of Fixed Rate Bond presented to this meeting in accordance with the Indenture and the Supplemental Indenture is hereby approved and adopted. The Mayor and the City Clerk of the Issuer are hereby authorized and directed to execute and attest to, respectively, the Bonds when prepared and to deliver the Bonds to the Trustee for authentication and delivery of the Bonds to J.C. Bradford Co., upon payment of the purchase price pursuant to the conditions stated in the Indenture. The Bonds shall be executed in the name of the Issuer by the Mayor of the Issuer, attested by its City Clerk, and its official seal or a facsimile thereof shall be affixed thereto or reproduced thereon. The signatures of the Mayor and City Clerk may be either manual or facsimile signatures. The certificate of authentication of the Trustee shall appear on the Bonds, and no Bond shall be valid or obligatory for any purpose or be entitled to any security or benefit under this Ordinance unless such certificate shall have been duly executed on such Bond. The authorized signature for the Trustee shall be either manual or in facsimile; provided, however, that at least one of the signatures, including that of the authorized signatory for the Trustee, appearing on the Bonds, shall at all times be a manual signature. In case any one or more of the officers or members of the Issuer who shall have signed or sealed any of the Bonds shall cease to be such officer or member of the Issuer before the Bonds so signed and sealed shall have been actually sold and delivered, such Bonds may nevertheless be sold and delivered as if the persons who signed or sealed such Bonds had not ceased to hold such offices. Any Bonds may be signed and sealed on behalf of the Issuer by such person who at the actual time of the execution of such Bonds shall hold the proper office, although at the date of such Bonds such person may not have held such office or may not have been so authorized. The Mayor of the Issuer, the City Clerk of the Issuer, and Issuer's counsel are designated agents of the Issuer in connection with the remarketing of the Bonds, and are authorized and empowered, collectively or individually, to take all action and steps to execute and deliver any and all instruments, documents, or contracts on behalf of the Issuer which are necessary or desirable in connection with the remarketing of the Bonds and which are not inconsistent with the terms and provisions of this Ordinance and other actions relating to the Bonds heretofore taken by the Issuer. 13. LIMITED OBLIGATIONS. The Bonds are limited obligations of the Issuer and, as provided in the Indenture, are payable solely from payments to be made by the Company, from proceeds of the Mortgage, from the Guaranty and from the Beverly California Guaranty. THE BONDS SHALT_ NOT BE DEEMED TO CONSTITUTE A GENERAL OBLIGATION OF ISSUER, THE STATE OF INDIANA, OR ANY POLITICAL SUBDIVISION THEREOF, OR A PLEDGE OF THE FAITH AND CREDIT OF ISSUER, THE STATE OF INDIANA, OR ANY POLITICAL SUBDIVISION THEREOF, BUT SHALL BE A LIMITED OBLIGATION OF THE ISSUER PAYABLE SOLELY FROM THE MONEYS PLEDGED THEREFOR UNDER THE INDENTURE. 14. REPEALING CLAUSE. All resolutions or ordinances (or parts thereof) of the Issuer in conflict with the provisions herein contained are, to the extent of such conflict, hereby waived. 15. SEVERABILITY OF INVALID PROVISIONS. The provisions of this Ordinance are severable, and if any provision, sentence, clause, section, or part hereof shall be held to be illegal, invalid, or unconstitutional or inapplicable to any person, entity, or circumstances, such illegality, invalidity, or unconstitutionality or inapplicability shall not affect or impair any of the remaining provisions, sentences, clauses, sections, or parts of this Ordinance or their application to other persons, entities, or circumstances. It is hereby declared to be the Issuer's intent that this Ordinance would have been adopted if such illegal, invalid, or unconstitutional provision, sentence, clause, section, or part had not been included herein and if the person, entity, or circumstances to which this Ordinance or any part hereof is inapplicable had been specifically exempted herefrom; provided, however, that neither the principal and purchase price of nor the premium, if any, or interest on the Bonds shall ever constitute an indebtedness of the Issuer or a charge against the general credit of the Issuer within the meaning of any constitutional or statutory limitation or ever constitute or give rise to any pecuniary or other liability, of the Issuer. 16. EFFECTIVE DATE. This Ordinance shall take effect immediately upon its adoption. PASSE.D AND ADOPTED by the Common Council of the City of Richmond, Indiana this /9Ze day of a4�2- A 1990. P ident of Comm n Council ATTEST: City CIA PRESENTED by me to the Mayor of the City of Richmond, Indiana this2-:?1 ,40' day of `dT7a�c _,1990. i APPROVED by me, Frank H. Waltermann, Mayor of the City of Rich ond, Ind! na this 22,ay of 1990. Mayor ATTEST: ,222wt� 22;: ter/ - City CIA DISPOSITION OF ORDINANCE NO. /F -1994) RESOLUTION NO. -199— by Common Council )rdinance No. /Y Resolution No. _ Elstro Lundy Hankinson McBride Parker Hutton Morris Paust Brookbank Date 3 /9 - 9d Susp. rules Ist read Title only --- " ------- Seconded - Proof of Publicaton ---- - - - ----------------------- Seconded Move to 2nd read v ------------------------------------------------------ Seconded v Engrossment ------------------------ ----- ------ ---------------------- Seconded Susp rules 3rd read ------ ---------- -------- ------ ------ ------ ------ ---------- ------------------------- Seconded Passage Z - ---O!Rj� ------ ---------------------- -------- ------ — ------- -------- `- ----------- Rejection O I Date Passed .3 •-/% -1?0 COMMITTEE ASSIGNMENTS: Committee_ Commitee Hearing Date Reassigned to Council Agenda PUBLICATION DATES: AMENDMENTS: COMMENTS: