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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