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
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Seconded
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Proof of Publicaton
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Seconded
Move to 2nd read
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Seconded
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Engrossment
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Seconded
Susp rules 3rd read
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Seconded
Passage Z
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Rejection O
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Date Passed .3 •-/% -1?0
COMMITTEE ASSIGNMENTS:
Committee_
Commitee Hearing Date
Reassigned to Council Agenda
PUBLICATION DATES:
AMENDMENTS:
COMMENTS: