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HomeMy WebLinkAboutCC-02-17-86-01 Summer Trace A RESOLUTION AUTHORIZING THE EXECUTION OF THE FIRST SUPPLEMENTAL TRUST INDENTURE BETWEEN THE CITY OF CARMEL, INDIANA AND MERCHANTS NATIONAL BANK & TRUST COMPANY - SUMMER TRACE This Fist Supplemental Indenture is made and entered into this day of , 1986 between City of Carmel, Indiana (the "Issuer"), a municipal corporation organized and existing under the laws of the State of Indiana (the "State") and Merchants National Bank & Trust Company (the "Trustee") a banking association organized and existing under and by virtue of the laws of the United States of America with its principal corporate trust office in Indianapolis, Indiana, as trustee. WITNESSETH: WHEREAS, the Issuer and the Trustee entered into an Inden- ture of Trust dated as of July 1, 1985 (the "Indenture"), pur- suant to which the Issuer issued $10,700,000 aggregate principal amount of its Retirement Rental Housing Revenue Refunding Bonds (Encore Retirement Partners, Ltd. Project) Series 1985 (the "Bonds"); WHEREAS, the Issuer has issued the Bonds for the purposes of refunding and redeeming all of the Outstanding 1983 Bonds (as defined in the Indenture), issued to provide funds to finance certain land and facilities (the "Project"), currently owned by Encore Retirement Partners, Ltd.-1984, a New York limited part- nership; WHEREAS, the Issuer has been informed by Standard & Poor's Corporation ("S&P") and Moody's Investors Service ("Moody's") that certain modifications to the Indenture and the Agreement are necessary in order for S&P and Moody's, respectively, to issue its rating of the Bonds, including changes to Articles I and VIII and to Sections 3.07(b), 3.08(ii), 3.11(iii), 3.12, 4.07, 5.13, 9.01(g), 9.02, 9.07, 9.11, 10.07, and 10.15 of the Indenture and Section 4.9(d) of the Agreement; WHEREAS, an amendment to the Indenture (the "First Supple- mental Indenture") is necessary in order to effect the foregoing modifications in the Indenture; WHEREAS, Section ll.01(h) of the Indenture provides that the Issuer and the Trustee may, without._h 'sent of the registered owners of the Bonds, enter lnto ~ o~emental Indenture to effect changes to the Indenture to obtain a rating of the Bonds by S&P as described therein, if, in the judgment of the Trustee, such changes are not to the prejudice of the Trustee or the Owners of the Bonds; WHEREAS, the Issuer has requested the Trustee to enter into this First Supplemental Indenture in order to effect the modifi- cations necessary to obtain a rating of the Bonds from Moody's and S&P; WHEREAS, the Indenture provides that both the Developer and Chemical Bank as issuer of the Letter of Credit (as defined in the Indenture), must consent to and approve the execution of amendments to the Indenture; and WHEREAS, a copy of the First Supplemental Trust Indenture is attached to this resolution as Exhibit A. NOW, THEREFORE, be it resolved by the Common Council of the City of Carmel, Indiana that the First Supplemental Trust Inden- ture is approved in all respects and that the Mayor and Clerk- Treasurer are authorized on behalf of the Common Council to execute any and all documents necessary to effect the First Supplemental Trust Indenture. THE CITY OF CARMEL, INDIANA Attest: ~/ Presiding Officer By: Clerk-Treasurer EXHIBIT A FIRST SUPPLEMENTAL TRUST INDENTURE This First Supplemental Indenture is made and entered into this th day of 1985 between CITY OF CARMEL, INDIANA (the "--~ssuer"), a municipal corporation organized and existing under the taws of the State of Indiana (the "State") and MERCHANTS NATIONAL BANK & TRUST COMPANY (the "Trustee") a banking association organized and existing under and by virtue of the laws of the United States of America with its principal corporate trust office in Indianapolis, Indiana, as trustee. WITNESSETH: WHEREAS, the Issuer and the Trustee e~tered into an Indenture of Trust dated as of July 1, 1985 (the "Indenture"), pursuant to which the Issuer issued $10,700,000 aggregate principal amount of its Retirement Rental Housing Revenue Refunding Bonds (Encore Retirement Partners, Ltd. Project) Series 1985 (the "Bonds"); WHEREAS, the Issuer has issued the Bonds for the purposes of refunding and redeeming all of the Outstanding 1983 Bonds (as defined in the Indenture), issued to provide funds to finance certain land and facilities (the "Project"), currently owned by Encore Retirement Partners, Ltd.-1984, a New York limited partnership; WHEREAS, the Issuer has been informed by Standard & Poor's Corporation ("S&P") and Moody's Investors Service ("Moody's") that certain modifications to the Indenture and the Agreement are necessary in order for S&P and Moody's, respectively, to issue its rating of the Bonds, including changes to Articles I and VIII and to Sections 3.07(b), 3.08(ii), 3.11(iii), 3.12, 4.07, 5.13, 9.01(g), 9.02, 9.07, 9.11, 1C.07 and 10.15 of the Indenture and Section 4.9(d) of the Agreement; WHEREAS, this amendment to the Indenture (the "First Supplemental Indenture") is necessary in Grde~ to effect the foregoing modifications in the Indenture; WHEREAS, Section ll.01(h) of the Indenture provides that the Issuer and the Trustee may, without the consent of the registered owners of the Bonds, enter into a Supplemental Indenture to effect changes to the Indenture to obtain a rating of the Bonds by S&P as described therein, if, in the judgment of the Trustee, such changes-,~a~ ot to the prejudice of the Trustee or ~he Owners of the Donas; A-1 WHEREAS, the Issuer has requested The Trustee to enter into this First Supplemental Indenture in order to effect the modifications necessary to obtain a rating of the Bonds from Moody's and S&P; and WHEREAS, the Indenture provides that both the Developer and Chemical Bank as issuer of the Letter of Credit (as defined in the Indenture), must consent to and approve the execution of amendments to the Indenture. NOW THEREFORE, WITNESSETH: THIS FIRST SUPPLEMENTAL INDENTURE That, in consideration of the premises, the acceptance by the Trustee of the trusts hereby created and originally created by the 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 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: 1. The definition of "Act of Bankruptcy" set forth in Article I of the Indenture is deleted and the following is substituted therefor: "Act of Bankruptcy" means a filing of a petition of bankruptcy (or the other commencement of bankruptcy or similar proceedings) by or against Developer, any general partner of Developer or Issuer under any applicable bankruptcy, insolvency, reorganization or similar laws, as now or hereafter in effect. 2. The definition of "Subtitute Letter of Credit" forth in Article I of the Indenture is deleted and following is substituted therefor: the "Substitute Letter of Credit" means a letter of credit, a committed line of credit, policy of bond insurance, guarantee or standby bond purchase agreement: (i) issued by Bank or Substitute Bank; (ii) replacing any existing Letter of Credit; (iii) effective as of a date on or prior to the date of expirat5~ ~ the then existing Letter of Credit; (iv) ....... on substantially identical terms and conditions as A-2 the then existing Letter of Credit; and (v) having a term of not less than the earlier of one year or the maturity of the Series 1985 Bonds." 3. The reference in the eleventh line of subclause (1)(A) of Section 3.07(b) of the Indenture to "lowering the rating of the Series 1985 Bonds" is replaced with the phrase "reduction or withdraws] of the rating of the Series 1985 Bonds." 4. Section 3.08(ii) of the Indenture is deleted and the following phrase is substituted therefor: "(ii) state any condition to such redemption, including, in the case of optional redemption pursuant to Section 3.02 hereof, the condition that Available Moneys be on deposit with the Paying Agent on the redemption date," 5. Section 3.11(iii) of the Indenture is deleted and the following is substituted therefor: "(iii) the proceeds of the placement of such Series 1985 Bonds (except proceeds from the sale of such Series 1985 Bonds to Developer or any of its general partners, which may not be used unless, in the unqualified opinion of counsel experienced in bankrupucy matters and satisfactory to Trustee and Agent, such proceeds are Available Moneys);" 6. Tbs second paragraph of Section 3.12(a) of the Indenture is amended to substitute "Section 5.12" for the reference to "Section 5.13" of the Indenture in the last line of said paragraph. 7. Section 3.12 of the Indenture is amended by adding the following to the end of Section 3.12: "(g) Series 1985 Bonds purchased with moneys described in Section 3.11(iv) which are subsequently remarketed she11 not be delivered by Agent to the purchasers thereof until Agent has received a written notice from Bank that the Letter of Credit has been fully reinstated with respect to principal and interest on such Series 1985 Bonds." 8. Sect=on 4.~! ox the Indenture is deleted and the following ~s sustituted therefoI: A-3 "Trustee shall provide Moody's, if the Bonds are rated by Moody's, and S&P, if the Bonds are rated by S&P, with written notice, not more than thirty (30) days following the effective date of such event, of: (a) any change in Trustee, Agent or Remarketing Agens; (b) any material amendments or changes to or modification of the Agreement, this Indenture, the Reimbursement Agreement or the Letter of Credit; (c) any redemption of the Bonds in whole or any acceleration of the maturity of the Bodns; (d) the occurrence of any Default hereunder of which Trustee is required to take notice or ls given notice of pursuant to Section t0.01(h) hereof or a "Default" under Section 8~1(c) of the Agreement; (e) the expiration of the Letter of Credit o~ the delivery of a Substitute Letter of Credit. Any such no~ice given to Moody's shall be given by mailing such notice by first class mai], postage prepaid, to Moody's Investors Service, Municipal Department-Structured Finance Group, 99 Church Street, New York, New York 10007." 9. Subsection (2) of the second grammatical paragraph of Section 5.12 of the Indenture is hereby deleted and the following is substituted therefor: "to the extent moneys described in Section 3.11(i), (ii) and (iii) hereof are not available to make timely payment of the Purchase Price of Series 1985 Bonds delivered or deemed delivered for purchase pursuant To Section 3.03, 3.04 and 3.07 hereof.'' 10. The ~ef~rence to "Section 5.13°. of the Indenture in the last line oi ~.n~, 'econd grammatical paragraph of Section. the third sentence o~ Section 9.02 of the Indenture is hereb~ deleted and Section 5.12 of the Indenture is substituted therefor. A-4 it. Section 5.13 of the Indenture is amended by adding the following phrase to the end of the last sentence in Section 5.13: "provided that such Net Proceeds shall not be applied to the redemption of Bonds until such Net Proceeds constitute Available Moneys." 12. Section 9.01(g) is deleted and the following is substituted therefor: "(g) Receipt by Trustee, following a drawing under the Letter of Credit to pay accrued interest, or that portion of the Purchase Price equal to accrued interest, on the Bonds, of notice from the Bank that it has not been reimbursed in full by Developer for such drawing (or a prior drawing) together with interest thereon pursuant to the Reimbursement Agreement." 13. Section 9.02 of the Indenture is 'amended by adding the following to the end of Section 9.02: "Immediately upon the acceleration of the Bonds and a draw upon the Letter of Credit, the Bonds shall cease to bear interest." 14. The first paragragh of Section 9.07 is amended by adding in the sixth line after the word "Trustee," and before the words "be deposited" the phrase "(except that no such costs and expenses may be paid from proceeds fzom a drawing under the Letter of Credit)." 15. Section 9.07(c) of the Indenture is amended by adding the following phrase to the end of the second sentence of the second paragraph of Section 9.07(c): ",except for acceleration of the Bonds pursuant to Section 9.02 hereof, in which case, such date for payment shall be the date of acceleration." 16. Section 9.11 of the Indenture is amended by adding the following phrase to the end of the first sentence of Section 9.11: "and provided further that there shall not ~'~ waived any Default unless the Lettez~ ..... Credit has been fully reinstated as to Doth principal and interest." A-5 17. Section 10.07 of the Indenture is amended by adding the following sentence to the end of Section 10.07 of the Indenture: "Such removal shall not take effect until the appointment of a successor Trustee or temporary Trustee by the Owners or by Issuer, or by a court of competent jurisdiction." 18. The first sentence of Section 10.13 of the Indenture is deleted and the following is substituted therefor: "Remarketing Agent shall be a member of the National Association of Securities Dealers or a commercial bank or trust company having a capitalization of at least $50,000,000 and authorized by law to perform all the duties imposed upon it by this Indenture." 19. Section ~0.15 of the Indenture is amended by deleting the reference in the third line to "corporation or banking association" and substituting the phrase "commercial bank or trust company" therefor. 20. Article VIII is amended by adding the phrase, "with Available Moneys," before the phrase "to the Owners of ~he Bonds," in the second line of the first paragraph. 21. Except as expressly set forth herein, all ~erms and conditions of the Indenture shall remain in full force and effect. If there is any conflict between the Indenture and this First Supplemental Indenture, the provisions of this First Supplemental Indenture shall control. [SEALI THE CITY OF CARMEL, INDIANA Attest: ~~~__~ Clerk-T~surer MERCHANTS NATIONAL BANK & TRUST COMPANY Attest: By: By: Authorized Officer Authorized Officer A-6