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HomeMy WebLinkAboutD-754 Beverly Enterprises BondORDINANCE NO. ~- ORDINANCE AUTHORIZING AND APPROVING ALL DOCUMENTS, INSTRUMENTS, ACTIONS, AND MATTERS NECESSARY OR APPROPRIATE FOR, OR PERTAINING TO, THE ISSUANCE, SALE, AND DELIVERY BY CITY OF CARMEL, INDIANA OF ITS RETIREMENT RENTAL HOUSING REVENUE REFUNDING BONDS (BEVERLY ENTERPRISES-INDIANA, INC. PROJECT) SERIES 1992 RECITALS: A. City of Carmel, Indiana (the "Issuer"), is a municipal corporation duly organized and existing under the laws of the State of Indiana. B. The Issuer is empowered under the provisions of Indiana Code 36-7-11.9 and 36-7-12, as amended (the ~'Act"), to issue its revenue bonds for the purposes contemplated herein and in order to facilitate the refinancing of a retirement rental housing facility. C. Issuer issued $10,700,000 aggregate principal amount of its Retirement Rental Revenue Refunding Bonds (Encore Retirement Partners, Ltd. Project) Series 1985 (the "Series 1985 Bonds") under a Trust Indenture dated as of July 1, 1985 by and between the Issuer and Merchants National Bank & Trust Company of Indianapolis as trustee, the proceeds of which were used to refund Issuer's $10,700,000 Floating Rate Monthly Demand Retirement Rental Housing Revenue Bonds (Beverly Enterprises Project) Series 1983 Bonds (the "Series 1983 Bonds"), the proceeds of which were used to finance the costs of acquiring, constructing, and equipping a retirement rental housing facility located in Carmel, Indiana (the "Project"). D. The Issuer loaned the proceeds of the Series 1985 Bonds to Encore Retirement Partners, Ltd ("Encore") pursuant to a Loan Agreement dated as of July 1, 1985 (the "Series 1985 Loan Agreement") between the Issuer and Encore. E. Beverly Enterprises-Indiana, Inc., a California corporation (the "Company") purchased the Project from Encore and assumed all the obligations of Encore under the Series 1985 Loan Agreement. F. The Act authorizes the Issuer to refund any of its bonds by the issuance of its revenue refunding bonds. G. The Company has now requested, and the Issuer desires to definitively authorize and approve, the issuance, execution, sale, and delivery, of Issuer's interest bearing Retirement Rental Housing Revenue Refunding Bonds (Beverly Enterprises-Indiana, Inc. Project) Series 1992 (the "Series 1992 Bonds" or "Bonds"), to be dated as of March 1, 1992, in the aggregate principal amount of Ten Million Six Hundred Thousand Dollars ($10,600,000), said Series 1992 Bonds to be issued under and secured by an Indenture of Trust (the "Indenture"), to be dated as of March 1, 1992, from the Issuer to Merchants National Bank & Trust Company of Indianapolis, as trustee (the "Trustee" ) , the proceeds of .the sale of said Series 1992 Bonds to be loaned to the Company for the purpose of refunding the Series 1985 Bonds. H. The Issuer hereby determines that the issuance of the Series 1992 Bonds, and the loan of the proceeds thereof to the Company for the above purposes, will be in accordance with the provisions, and will further the purposes and the policies, of the Act. I. Contemporaneously with the execution of the Indenture, the Issuer and the Company will enter into a loan agreement (the "Loan Agreement"), to be dated of even date with the Indenture, specifying the terms and conditions pursuant to which the Issuer will loan the proceeds of the sale of the Series 1992 Bonds to the Company for the purposes set forth herein. J. The principal of, premium, if any, and interest on, the Series 1992 Bonds will be payable solely and exclusively from loan payments to be made by the Company under the provisions of the Loan Agreement and under certain circumstances as specified in the Loan Agreement and the Indenture. K. The Company is a wholly-owned subsidiary of Beverly California Corporation, a California corporation ("BCC"), which is a wholly-owned subsidiary of Beverly Enterprises, Inc., a Delaware Corporation ("BEI"). L. BCC and BEI shall each execute a Guaranty Agreement (individually the "BCC Guaranty" and the "BEI Guaranty" respectively, and collectively the "Guaranties") dated as of March 1, 1992 in favor of the Trustee, guaranteeing (as further security for the Series 1992 Bonds) the full and prompt payment of the Company's obligations under the Loan Agreement, under the terms described therein. M. Contemporaneously with the execution and delivery of the Loan Agreement, the Company will, in order to further secure its obligations under the Loan Agreement, also execute and deliver: (i) a Mortgage and Assignment of Rents (the "Mortgage"), to be dated on or about the date of the Loan Agreement, mortgaging the Project to the Trustee as security for the benefit of the holders of the Bonds, subject only to "Permitted Encumbrances" as such term is defined and used in the Mortgage; and, (ii) a Security -2- Agreement, to be dated of even date with the Loan Agreement, granting to the Trustee, as secured party, a first priority security interest in all of Company's right, title, and interest in and to its accounts, equipment and inventory (and other property described therein) arising from or constituting a portion of the Project. N. As additional security, BCC shall execute and deliver a Mortgage, Leasehold Mortgage, and Assignment of Rents dated as of March 1, 1992 (the "Leasehold Mortgage"), mortgaging to the Trustee BCC's interest in a nursing home facility located in Clewiston, Florida (the "Florida Facility"). O. As additional security, BCC will, in order to further secure the obligations of the Company under the Loan Agreement, execute and deliver a Security Agreement, to be dated of even date with the Loan Agreement, granting to the Trustee, as secured party a first priority security interest in all of BCC's right, title, and interest in and to its accounts, equipment and inventory (and other property described therein) arising from or constituting a portion of the Florida Facility. P. So that the "Project" (as more fully described in the Agreement) will comply with the provisions of the Act and Section 103(b)(4) of the Internal Revenue Code of 1954, as amended, the Issuer, the Company and the Trustee will execute a Second Amended and Restated Land Use Restriction Agreement (the "Land Use Restriction Agreement") imposing certain restrictions on the use of the Project which will be recorded in the real property records of Hamilton County, Indiana. Q. As further security for the payment of the principal of and the interest on the Series 1992 Bonds, the Issuer will assign to the Trustee under the Indenture, all of the right, title, and interest of the Issuer (excepting only certain rights as specified in such Indenture) in and to the Loan Agreement, the Mortgage and the Security Agreement. R. The principal of and interest on the Series 1992 Bonds will be payable solely and exclusively from loan payments to be made by the Company under the provisions of the Loan Agreement and other collateral pledged by the Company therefor. S. J.C. Bradford & Co. (the "Underwriter") will sell the Series 1992 Bonds pursuant to the terms of a Bond Purchase Agreement dated on or about March 15, 1992 (the "Bond Purchase Agreement"), and shall offer the Series 1992 Bonds pursuant to a Preliminary Official Statement dated as of February 11, 1992 and pursuant to a final Official Statement dated March 25, 1992. -3- T. The following documents have been presented to the Issuer for approval in connection with the issuance, sale, and delivery of the Series 1992 Bonds; 7. 8. 9. Form of the Indenture; Form of the Loan Agreement; Form of the Series 1992 Bonds; Form of the Mortgage; Form of the Security Agreement; Form of Guaranties; Form of the Bond Purchase Agreement; Form of Leasehold Mortgage; Form of Florida Security Agreement; and 10. Form of Second Amended and Restated Land Use Agreement. U. It appears to the Issuer that the execution and delivery of all of such documents and implementation thereof benefits the health and welfare of the State of Indiana, the City of Carmel, and Hamilton County, and the execution, issuance, and delivery of the Series 1992 Bonds, will further the purposes of the Act. NOW, THEREFORE, BE IT RESOLVED BY THE ISSUER, AS FOLLOWS: Section 1. Findings with Respect to the Project. It is hereby ascertained, determined and declared with respect to the Project as follows: A. The Issuer is authorized and empowered by the Act to acquire, construct, reconstruct, improve, rehabilitate and equip, own, sell, lease, exchange, transfer and otherwise dispose of (e, d, f), as defined in the Act, including housing facilities for the elderly, including land, rights in land, buildings and other structures, machinery, equipment, appurtenances and facilities incidental thereto, and other improvements necessary or convenient therefor, and to issue its revenue bonds for the purposes of paying all or any part of the costs of any (f), all to improve the prosperity and welfare of the State of Indiana and its inhabitants, to improve living conditions and health care in the State of Indiana, and to improve purchasing power and opportunities for gainful employment and its further empowered to issue its revenue refunding bonds to redeem bonds issued for such purposes. B. The Project constitutes an economic development facility within the meaning of the Act. C. The Project is appropriate to the needs and circumstances of, and makes a significant contribution to the grown of, the City of Carmel, provides or preserves gainful employment, and serves a public purpose by advancing the economic prosperity, the public -4- health and the general welfare of (c) and its people as set forth in the Act. D. Based upon the financial information about the Company filed with the Issuer, the Company is financially responsible and fully capable and willing to fulfill its obligations under the Loan Agreement, the Mortgage and the Land Use Restriction Agreement, including the obligation to make payments in the amounts and at the times required, to operate, maintain and repair the Project at its own expense and to carry out the other responsibilities to be imposed under the Loan Agreement, the Mortgage and the Land Use Restriction Agreement, due consideration having been given to the Company's assets, liabilities, net worth, earning trends, coverage of all fixed charges, the nature of the retirement center industry, its inherent stability, and other factors determinative of the capability of the Company financially and otherwise, to fulfill its obligations consistently with the purposes of the Act. Section 2. Authorization of the Issuance of the Series 1992 Bonds. Under and pursuant to the provisions of the Act, the Issuer hereby authorizes the execution, issuance, sale, and delivery of the Series 1992 Bonds to the Underwriter in consideration of payment therefor in accordance with the provisions of the Bond Purchase Agreement. Section 3. Approval of the Loan Agreement. The form, content, and provisions of the Loan Agreement, as presented to this meeting of the Issuer, are approved, and the Mayor and the Clerk- Treasurer, of the Issuer are hereby authorized, empowered, and directed to execute, acknowledge, and deliver said Loan Agreement in the name, and on behalf, of the Issuer. The Loan Agreement is to be in substantially the form now before this meeting of the Issuer, or to the full extent permitted under the Act, with such changes as shall be approved by the officers of the Issuer, their execution thereof to constitute conclusive evidence of their approval of any and all such revisions. The officers of the Issuer are hereby authorized, empowered, and directed, from and after the execution and delivery of the Loan Agreement, to do all acts and things, and execute all documents, as may be necessary or convenient to carry out, and comply with, the provisions of said Loan Agreement. Section 4. Approval of the Indenture. The form, content, and provisions of the Indenture, as presented to this meeting of the Issuer, are in all particulars approved, and the Mayor and.the Clerk-Treasurer of the Issuer are hereby authorized, empowered, and directed to execute, acknowledge and deliver said Indenture in the name, and on behalf, of the Issuer. The Indenture is to be in substantially the form now before this meeting of the Issuer, or to the full extent authorized by the Act, with such changes therein -5- as shall be approved by the officers of the Issuer executing the same, their execution to constitute conclusive evidence of their approval of any and all such revisions. The officers of the Issuer are hereby authorized, empowered and directed, from and after the execution and delivery of the Indenture, to do all acts and things, and execute all documents, as may be necessary or convenient to carry out, and comply with, the provisions of said Indenture. Section 5. Execution of Bonds and Authorization of All Other Necessary Action. The form of Series 1992 Bond presented to this meeting in accordance with the Indenture is hereby approved and adopted. The Mayor and the Clerk-Treasurer of the Issuer are hereby authorized and directed to execute and attest to, respectively, the Series 1992 Bonds when prepared, and to delver the Series 1992 Bonds to the Trustee for authentication and delivery of the Series 1992 Bonds to the Underwriter, upon payment of the purchase price pursuant to the conditions stated in the Indenture. The Series 1992 Bonds shall be executed in the name of the Issuer by the Mayor of the Issuer, attested by its Clerk- Treasurer, and its official seal or a facsimile thereof shall be affixed thereto or reproduced thereon. The signatures of the Mayor and Clerk-Treasurer may be either manual or facsimile signatures. The certificate of authentication of the Trustee shall appear on the Series 1992 Bonds, and no Series 1992 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 Series 1992 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 Series 1992 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 Series 1992 Bonds shall cease to be such officer or member of the Issuer before the Series 1992 Bonds so signed and sealed shall have been actually sold and delivered, such Series 1992 Bonds may nevertheless be sold and delivered as if the persons who signed or sealed such Series 1992 Bonds had not ceased to hold such offices. Any Series 1992 Bonds may be signed and sealed on behalf of the Issuer by such person who at the actual time of the execution of such Series 1992 Bonds shall hold the proper office, although at the date of such Series 1992 Bonds such person may not have held such office or may not have been so authorized. Section 6. Approval of Land Use Restriction Agreement. The form, content and provisions of the Land Use Restriction Agreement, as presented to this meeting of the Issuer, are in all particulars approved, and the Mayor and the Clerk-Treasurer of the Issuer are hereby authorized, empowered, and directed to execute, acknowledge and deliver said Land Use Restriction Agreement in the -6- name, and on behalf, of the Issuer. The Land Use Restriction Agreement is to be in substantially the form now before this meeting of the Issuer, or, to the maximum extent permitted by the Act, with such changes therein as shall be approved by the officers of the Issuer executing the same, their execution to constitute conclusive evidence of their approval of any and all such revisions. The officers of the Issuer are hereby authorized, empowered and directed, from and after the execution and delivery of the Indenture, to do all acts and things, and execute all documents, as may be necessary or convenient to carry out, and comply with, the provisions of said Land Use Restriction Agreement. Section 7. Approval of the Mortgage. The form, content, and provisions of the proposed Mortgage, as presented to this meeting of the Issuer, are in all particulars approved. Said Mortgage is to be in substantially the same form now before the meeting of the Issuer, or, to the maximum extent permitted by the Act, with such changes therein as shall be approved by the Trustee, its approval and acceptance thereof to constitute conclusive evidence of their approval of any and all such changes or revisions. Section 8. Approval of Leasehold Mortgage. The form, content, and provisions of the proposed Leasehold Mortgage, as presented to this meeting of the Issuer, are in all particulars approved. Said Leasehold Mortgage is to be in substantially the same form now before the meeting of the Issuer, or, to the maximum extent permitted by the Act, with such changes therein as shall be approved by the Trustee, its approval nd acceptance thereof to constitute conclusive evidence of approval of any and all such changes or revisions. Section 9. Approval of the Security Agreement. The form, content, and provisions of the Security Agreement, as presented to this meeting of the Issuer, are hereby in all particulars approved. Said Security Agreement is to be in substantially the same form now before the meeting of the Issuer, or, to the maximum extent permitted by the Act, with such changes therein as shall be approved by the Trustee, its approval and acceptance thereof to constitute conclusive evidence of approval of any and all such changes or revisions. Section 10. Approval of Florida Security Agreement. The form, content, and provisions of the Florida Security Agreement, as presented to this meeting of the Issuer, are hereby in all particulars approved. Said Florida Security Agreement is to be in substantially the same form now before the meeting of the Issuer, or, to the maximum extent permitted by the Act, with such changes therein as shall be approved by the Trustee, its approval and -7- acceptance thereof to constitute conclusive evidence of their approval of any and all such changes or revisions. Section 11. Approval of the Bond Purchase Agreement. The form, content, and provisions of the Bond Purchase Agreement, as presented to this meeting of the Issuer, are in all particulars approved, and the Mayor and the Clerk-Treasurer of the Issuer are hereby authorized, empowered, and directed to execute, acknowledge and deliver said Bond Purchase Agreement in the name, and on behalf, of the Issuer. The Bond Purchase Agreement is to be in substantially the form now before this meeting of the Issuer, or with such changes therein as shall be approved by the officers of the Issuer executing the same, their execution thereof to constitute conclusive evidence of their approval of any and all such changes or revisions. The officers of the Issuer are hereby authorized, empowered, and directed, from and after the execution and delivery of the Bond Purchase Agreement to do all acts and things, and execute all documents, as may be necessary or convenient to carry out, and comply with, the provisions of the Bond Purchase Agreement. Section 12. Approval of the Guaranties. The form, content, and provisions of the BCC Guaranty and the BEI Guaranty, as presented to this meeting of the Issuer, are in all particulars approved. Said Guaranties are to be in substantially the form now before this meeting of the Issuer, or, to the maximum extent permitted by the Act, with such changes therein as shall be approved by the Trustee executing the Guaranties, its execution thereof to constitute conclusive evidence of their approval of any and all such revisions. Section 13. Miscellaneous Acts. The appropriate officers of the Issuer are hereby authorized, empowered, and directed to do any and all such acts and things, and to execute, acknowledge, deliver, and, if applicable, file or record, or cause to be filed or recorded, in any appropriate public offices, all such documents, instruments, and certifications, in addition to those acts, things, documents, instruments, and certificates hereinbefore authorized and approved, as may, in their discretion, be necessary or desirable to implement or comply with the intent of this Ordinance, or any of the documents herein authorized and approved, for the authorization, issuance, and delivery by the Issuer of the Series 1992 Bonds. Section 14. Limited Obligation and Liability. The Series 1992 Bonds, and the interest payable thereon, are limited obligations of the Issuer, and shall not be deemed to constitute a general debt or liability of the Issuer, but shall be payable solely from such special sources and funds provided therefor in -8- accordance with the provisions of the Loan Agreement and the provisions of the Indenture. Neither the State of Indiana, nor any other political subdivision thereof, shall be liable for the payment of the principal of, premium, if any, or interest on, the Series 1992 Bonds, or for the performance of any pledge, mortgage, obligation, agreement, or certification, of any kind whatsoever of the Issuer, and neither the Series 1992 Bonds nor any of the pledges, mortgages, agreements, obligations, or certifications of the Issuer shall be construed to constitute an indebtedness of the Issuer or the State of Indiana, or any other political subdivision thereof, within the meaning of any constitutional or statutory provisions whatsoever. No recourse under, or upon, any statement, obligation, covenant, agreement, or certification contained in any of the foregoing documents, including without limitation, the Series 1992 Bonds and the Indenture; or in any other document or certification whatsoever; or under any judgment obtained against the Issuer or by the enforcement of any assessment or by any legal or equitable proceeding or by virtue of any constitution or statute or otherwise, or under any circumstances, under or independent of the foregoing documents, including, without limitation the Series 1992 Bonds and the Indenture; or any other document or certification, whatsoever, shall be had against any incorporator, member, director, or officer, as such, past, present, or future, of the Issuer, either directly or through the Issuer, or otherwise, for the payment for, or to,the Issuer,or any receiver thereof, or from, or to, the owners of the Series 1992 Bonds, for any sum that may be due and unpaid by the Issuer upon the Series 1992 Bonds or the interest payable thereon. Any and all personal liability of every nature, whether at common law or in equity or by statute or by constitution or otherwise, of any such incorporator, member, director, or officer, as such, to respond by reason of any act or omission on his or her party or otherwise for, directly or indirectly, the payment for, or to, the Issuer or any receiver thereof, or for, or to, the owner of the Series 1992 Bonds, of the principal of, or the premium, if any, or interest on, the Series 1992 Bonds, shall be deemed to have been waived and released as a condition of, and consideration for, the execution of the aforesaid documents and the issuance of the Series 1992 Bonds. Section 15. Appointment of Trustee. Merchants National Bank & Trust Company of Indianapolis is hereby designated Trustee under the Indenture. Section 16. Amendment to Dates. The dates of any of the documents referred to herein may, to the maximum extent permitted by the Act, be changed without any further action by the Issuer, -9- and the execution of the same by the Mayor or Clerk-Treasurer shall be sufficient in all respects to evidence the approval of said change by the Issuer. Section 17. Partial Invaliditv. If any one or more of the provisions of this Ordinance, or of any exhibit or attachment hereto, shall be held invalid, illegal, or unenforceable in any respect, by final decree of any court of lawful jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision hereof, or of any exhibit or attachments hereto, but this Ordinance, and the exhibits and attachments hereto, shall be construed the same as if such invalid, illegal, or unenforceable provision had never been contained herein, or therein, as the case may be. Section 18. Conflicting Resolutions Repealed. All resolutions or parts thereof in conflict herewith, are, to the extent of such conflict, hereby repealed, and this Ordinance shall take effect from and after its adoption. Approved and adopted by the Common Council, reflecting the following vote, this 2nd day of March, 1992. CITY OF CARMEL, INDIANA Mayor -10-