HomeMy Public PortalAbout074-1990- STRICKEN-ORDINANCE IN CONNECTION WITH THE REMARKETINGORDINANCE NO. 74-1990
AN ORDINANCE IN CONNECTION WITH THE REMARKETING OF THE CITY OF RICHMOND, INDIANA
FLOATING RATE DEMAND ECONOMIC DEVELOPMENT REVENUE REFUNDING BONDS (BEVERLY
ENTERPRISES- INDIANA, INC. PROJECT) SERIES 1985A; AND AUTHORIZING THE EXECUTION
AND DELIVERY OF A FIRST AMENDMENT TO LOAN AGREEMENT DATED AS OF NOVEMBER 1, 1990
TO THE LOAN AGREEMENT DATED AS OF APRIL 1, 1985 BY AND BETWEEN THE ISSUER AND
BEVERLY ENTERPRISES-INDIANA, INC., AS BORROWER; AUTHORIZING THE EXECUTION AND
DELIVERY OF A FIRST SUPPLEMENTAL INDENTURE OF TRUST DATED AS OF NOVEMBER 1, 1990,
TO THE INDENTURE OF TRUST DATED AS OF APRIL 1, 1985, BY AND BETWEEN THE ISSUER AND
MERCHANTS NATIONAL BANK & TRUST COMPANY AS TRUSTEE; AUTHORIZING THE
REPLACEMENT OF THE REMARKETING AGENT; APPROVING THE FORM OF A REMARKETING
AGREEMENT BETWEEN MERRILL LYNCH, PIERCE, FENNER & SMITH, INCORPORATED AND THE
BORROWER; APPROVING THE FORM OF A MORTGAGE FROM THE BORROWER TO THE TRUSTEE;
APPROVING THE FORM OF A FIRST AMENDED AND RESTATED GUARANTY AGREEMENT FROM
BEVERLY ENTERPRISES, INC. TO THE TRUSTEE; APPROVING AND AUTHORIZING THE
PREPARATION AND DISTRIBUTION OF A PRIVATE PLACEMENT MEMORANDUM IN CONNECTION
WITH THE REMARKETING OF SUCH BONDS; AUTHORIZING THE EXECUTION AND DELIVERY OF
CERTAIN DOCUMENTS IN CONNECTION WITH THE REMARKETING OF SAID BONDS; AND
PROVIDING FOR CERTAIN OTHER MATTERS IN CONNECTION WITH THE REMARKETING OF SAID
BONDS.
WHEREAS; the City of Richmond, Indiana (the "Issuer") has previously issued its Floating
Rate Demand Economic Development Revenue Refunding Bonds (Beverly
Enterprises -Indiana, Inc. Project Series 1985 (the"Bonds") pursuant to an
Indenture of Trust dated as of April 1, 1985 (the "Indenture"), by and between
the Issuer and Merchants National Bank & Trust Company as trustee (the
"Trustee") and has loaned the proceeds of the Bonds to Beverly Enterprises -
Indiana, Inc.. (the "Company") pursuant to a Loan Agreement, dated as of April
1, 1985 (the "Agreement"), by and between the Company and the Issuer;
WHEREAS; pursuant to Section 3.03 of the Indenture, the company has given notice of its
intent to cause the Bonds to bear interest at a fixed rate until the final maturity
of the Bonds;
WHEREAS;
the Company will grant to the Trustee, for the benefit of the Bondholders, a
first mortgage lien on the Project (as defined in the Indenture) (the
"Mortgage");
WHEREAS;
Beverly Enterprises, Inc., a Delaware corporation ("Beverly") entered into a
Guaranty Agreement, dated as of April 1, 1985, in which Beverly guaranteed
the payment of principal of, premium, if any, and interest on the Bonds, and
now desires to guarantee to the Trustee for the benefit of the bondholders,
certain additional payments with respect to the Bonds, pursuant to a first
Amended and Restated Guaranty Agreement, dated as of November 1, 1990 (the
"Restated Guaranty");
WHEREAS;
the Indenture creates a position of Remarketing Agent (the "Remarketing
Agent") thereunder and provides that such Remarketing Agent shall perform
the duties thereunder of setting interest rates and as purchaser and remarketer
of Bonds and, pursuant to the terms of the Indenture, Chemical Bank, N.A.
("Chemical") was appointed to the office of Remarketing Agent under the
Indenture;
WHEREAS;
the Company has informed the Issuer that it desires to replace Chemical as
Remarketing Agent and has requested that the Issuer, pursuant tot he terms of
Section 10.13 of the Indenture replace Chemical with Merrill Lynch, Pierce,
Fenner & Smith Incorporated ("Merrill Lynch") as Remarketing Agent under
the Indenture in connection with the Remarketing Agent's duties as the
Authority's designee for setting interest rates under the Indenture;
WHEREAS;
the Company has presented a form of Remarketing Agreement, dated as of
November 1, 1990 (the "Remarketing' Agreement"), by and between the
Issuer, the Company and Merrill Lynch;
WHEREAS;
the Company desires to have the Indenture amended to, among other things
create a debt service reserve fund to be funded by a credit facility, cash or a
combination thereof.
WHEREAS; the Company has presented to the Issuer a form of First Supplemental Trust
Indenture, dated as of November 1, 1990 (the "First Supplemental"), between
the Issuer and the Trustee;
WHEREAS; the Company desires the amendment of the Agreement to, among other things,
(a) provide for monthly loan payments, (b) provide for the funding of a debt
service reserve fund, (c) grant a first priority security interest to the
Trustee in gross revenues of the Company, (d) provide for the direct deposit to
the Trustee by the Company, for the benefit of the Bondholders, the gross
revenues from the Project in the event the Company fails to make certain
payments when due under the Loan Agreement and (e) provide for additional
covenants of the Company for the benefit of the Bondholders;
WHEREAS; the Company has presented to the Issuer a form of First Amendment to Loan
Agreement, dated as of November 1, 1990 (the "First Amendment"), between
the Issuer and the Company;
WHEREAS; the conversion of the interest rate on the Bonds to a Fixed Rate will require the
execution by the Issuer of the Bonds in the form set forth in Exhibit N to the
Indenture.
NOW THEREFORE, THE CITY OF RICHMOND, INDIANA DOES HEREBY RESOLVE, as
follows:
SECTION 1. The form, terms and provisions of the First Amendment and the First
Supplemental; are hereby approved in all respects, and the Mayor and the Clerk
or any Deputy Clerk of the Issuer are hereby authorized and directed to execute
and deliver the First Amendment and the First Supplemental in substantially the
forms presented at this meeting, together with such changes, modifications and
deletions as they, with the advice of counsel, may deem necessary and
appropriate, such execution and delivery shall be conclusive evidence of the
approval and authorization thereof by the Issuer.
SECTION 2. Subject to the written consent of the Company and the written approval by the
Bank (as defined in the Indenture), pursuant to Section 10.13 of the Indenture,
the Issuer hereby replaces Chemical as Remarketing Agent under the
Remarketing Agreement as the Issuer's designee for setting interest rates on the
Bonds under the Indenture and appoints Merrill Lynch as Remarketing Agent in
such capacity, such appointment to be effective upon the delivery by Merrill
Lynch to the Trustee of an acceptance of its appointment and an agreement to
perform the duties of the Remarketing Agent under the Indenture.
SECTION 3. The form, terms and provisions of the Remarketing Agreement are hereby
approved in all respects in substantially the form presented at this meeting,
subject to such changes, modifications and deletions as may be approved in the
Remarketing Agreement; and the execution and delivery of the First
Supplemental pursuant to Section 1 hereof shall be conclusive evidence of the
approval and authorization of such changes, modifications or deletions by the
Issuer.
SECTION 4. In order to secure the payment of the obligations of the Company under the
Agreement and in order to secure the performance and observance of all of the
covenants, agreements and obligations of the Company under the Agreement, the
form, terms and provisions of the Mortgage are hereby approval The Mortgage
shall be in substantially the form presented to the Issuer at this meeting,
subject to such changes, modifications and deletions as may be approved and made
therein by the parties thereto; and, the execution and delivery of the First
Supplemental pursuant to Section 1 hereof shall be conclusive evidence of the
approval of the Issuer of any such changes, insertions or deletions.
SECTION 5. In order to secure the payment of monthly payments by the Company under the
Agreement, the form of the Restated Guaranty is hereby approved. The Restated
Guaranty shall be in substantially the form presented to the Issuer at this
meeting, subject to such changes, modifications and deletions as may be approved
and made in the Restated Guaranty by Beverly; and the executions and delivery of
the First Supplemental pursuant to Section 1 hereof shall be conclusive evidence
of the Issuer of any such changes, modifications and deletions.
SECTION 6. The Issuer hereby authorizes and directs the preparation of a Private Placement
Memorandum (the "Placement Memorandum"), in connection with the pending
sale of the Bonds, to be presented to the Issuer at its next specially called
meeting, at which meeting the Issuer shall consider the approval of the form of
such Placement Memorandum and the authorization of the use of the Placement
Memorandum. The execution and delivery of the first Supplemental pursuant to
Section 1 hereof shall be conclusive evidence of the approval of the Issuer of the
Placement Memorandum and its use.
SECTION 7. The form of the Bonds to bear interest at a fixed rate pursuant to Section 2.02 of
the Indenture, in substantially the form of Exhibit B to the Indenture and the
Supplemental Indenture is hereby approved. The Mayor and the Clerk or any
Deputy Clerk of the Issuer are hereby authorized and directed to execute and
seal, and the Trustee is hereby authorized to authenticate and deliver to or upon
the order of the Remarketing Agent, the Bonds in substantially the form of
Exhibit B of the Indenture, subject to such changes, modifications and deletions
to reflect the change of the interest rate determination method as they with the
advice of counsel, may deem necessary and appropriate, all pursuant to the
terms, provisions and conditions of the Indenture, as amended; and such
execution and sealing shall be conclusive evidence of the approval and
authorization thereof by the Issuer.
SECTION 8. The Mayor, Clerk, every Deputy Clerk, other officers, employees and agents of
the Issuer are hereby authorized and directed to execute such additional
instruments, certificates and documents, including financing statements and
reports to the necessary or appropriate to carry out the provisions of this
ordinance, the Indenture and the bonds.
SECTION 9. In case any one or more of the provisions of this ordinance, the Indenture or the
Bonds shall for any reason be held to be illegal or invalid, such illegality or
invalidity shall not affect any other provisions of this resolution, the Indenture
or the Bonds, as the case may be, and they shall be construed and enforced s if
such illegal or invalid provision had not been contained therein.
SECTION 10. This ordinance shall take effect immediately upon its adoption.
PASSED AND ADOPTED by the Common Council of the City of Richmond, Indiana this
day of 1990.
President of Common Council
ATTEST:
City Clerk
PRESENTED by me to the Mayor of the City of Richmond, Indiana this day of
,1990.
City Clerk
APPROVED by me, Frank H. Waltermann, Mayor of the City of Richmond, Indiana this day
of
1990.
ATTEST:
City Clerk
Mayor
CERTIFICATION
I, the undersigned, do hereby certify that I an the duly
appointed, qualified and acting Clerk of the City of Richmond,
Indiana (the "Issuer"), and as such Clerk, I further certify that
the foregoing is a true, correct and complete copy of an ordinance
duly adopted by the Issuer at a. duly convened meeting held October
15, 1990, on the same occasion signed by the Mayor and now in full
force and effect, all as appears from the records in my possession
and under my control.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
the seal of the Issuer this _ day of , 1990.
Secretary