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HomeMy WebLinkAboutD-442 Bond/Beverly Enterprises ORDINANCE OF THE CITY OF CARMEL, INDIANA AUTHORIZING AND PROVIDING FOR THE ISSUANCE OF CITY OF CARMEL, INDIANA RETIREMENT RENTAL HOUSING REVENUE REFUNDING BONDS (ENCORE RETIREMENT PARTNERS, LTD. PROJECT) SERIES 1985 IN A PRINCIPAL AMOUNT NOT TO EXCEED $10,700,000; TO PROVIDE FUNDS TO REFUND AND REDEEM $10,700,000 CITY OF CARMEL, INDIANA FLOATING RATE MONTHLY DEMAND RETIREMENT RENTAL HOUSING REVENUE BONDS (BEVERLY ENTERPRISES PROJECT) SERIES 1983; AUTHORIZING THE EXECUTION OF A LOAN AGREEMENT PROVIDING FOR THE PAYMENT OF AMOUNTS SUFFICIENT TO PAY THE PRINCIPAL OF, PREMIUM, IF ANY, AND INTEREST ON THE SERIES 1985 BONDS AND PROVIDING FOR THE LOAN OF BOND PROCEEDS TO ENCORE RETIREMENT PARTNERS, LTD. - 1984; AUTHORIZING THE EXECUTION OF AN INDENTURE OF TRUST; AUTHORIZING THE EXECUTION OF AN AMENDED AND RESTATED LAND USE RESTRICTION AGREEMENT; AUTHORIZING THE DELIVERY OF A MORTGAGE AND SECURITY AGREEMENT; SETTING FORTH THE TERMS AND CONDITIONS UPON WHICH THE SERIES 1985 BONDS ARE TO BE ISSUED; AND PROVIDING FOR OTHER MATTERS IN CONNECTION WITH THE ISSUANCE~ SALE AND DELIVERY OF THE BONDS. wHEREAS, the City of Carmel, Indiana (the "Issuer"), is a municipal corporation duly organized and existing under the laws of the State of Indiana (the "State"); WHEREAS, the Issuer has full power and is duly authorized by law to issue and sell its obligations for the purposes contemplated herein, pursuant to the provisions of Indiana Code, 36-7-12, as amended (the "Act"); WHEREAS, the Issuer issued, sold and delivered $10,700,000 aggregate principal amount of its Floating Rate Monthly Demand Retirement Rental Housing Revenue Bonds (Beverly Enterprises Project) Series 1983 (the "Series 1983 Bonds!'), to pay the cost of acquisition, construction, equipping and installing of a retirement care facility constituting economic development facilities within the meaning of the Act, located within the boundaries of Hamilton County, Indiana (the "Project"); WHEREAS, the Issuer now intends to issue, sell and deliver its Retirement Rental Housing Revenue Refunding Bonds (Encore Retirement Partners, Ltd. Project) Series 1985 (the "Series 1985 Bonds") in the aggregate principal amount not to exceed $10,700,000 for the purpose of providing funds to refund and redeem the Series 1983 Bonds; WHEREAS, the terms and provisions of the Series 1985 Bonds have now been substantially determined and resolved and said Series 1985 Bonds shall be issued with the terms and provisions set forth herein and in the Indenture of Trust dated as of July 1, 1985 (the "Indenture") between the Issuer and Merchants National Bank & Trust Company, as trustee (the "Trustee"); WHEREAS, the Issuer proposes to execute and deliver a Loan Agreement dated as of July 1, 1985 (the "Agreement") between the Issuer and Encore Retirement Partners, Ltd. 1984 (the "Developer") pursuant to which Agreement the Issuer will loan the proceeds of the Bonds to the Developer and will cause such proceeds to be deposited in an escrow fund created in the Indenture to be applied to refund and redeem the Series 1983 Bonds; WHEREAS, the Issuer has determined that the payments required from the Developer under the Agreement will be sufficient to pay the principal of, premium, if any, and interest on the Series 1985 Bonds; WHEREAS, the Issuer, as further security for the Bonds, will execute the Indenture pursuant to which the Issuer will p~edge the income and revenues received under the Agreement as security for the Bonds; WHEREAS, as security for the obligations of the Developer under the Agreement, the Developer will execute s Mortgage and Security Agreement dated as of July 1, 1985 (the "Mortgage") granting a security interest in the Project to the Trustee; WHEREAS, 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 "Code"), the Issuer, the Developer and the Trustee will execute an 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; WHEREAS, the Carmel Economic Development Commission has rendered its report regarding the proposed issuance of bonds for the purpose of refunding $10,700,000 City of Carmel, Indiana Floating Rate Monthly Demand Retirement Rental Housing Revenue Bonds (Beverly Enterprises Project) Series 1983, issued for the purpose of financing of proposed economic development facilities for Beverly Enterprises - Indiana, Inc.; WHEREAS, the Carmel Economic Development Commission also adopted on July 1985 a "Resolution Reporting on Refunding and Redemption of $10,700,000 City of Carmel, Indiana Floating -2- Rate Monthly Demand Retirement Rental Housing Revenue Bonds (Beverly Enterprises Project~ Series 1983" (the "Development Commission Resolution"), finding that the facilities financed with the proceeds of the Series 1983 Bonds have not and will not have an adverse competitive effect on similar facilities already operating in the applicable market area and finding that the financing of permanent positive impact on employment. in Carmel and Hamilton County; WHEREAS, the Carmel Economic Development Commission has heretofore approved and recommended the adoption of this form of Ordinance by this Common Council and has approved the substantially final forms of and has transmitted for approval by the Common Council the Loan Agreement, Indenture, Mortgage, Placement Agreement and Land Use Restriction Agreement; WHEREAS, the Developer has requested the Issuer to sell the Bonds on a negotiated basis to the investors which are institutional investors or other entities which customarily purchase debt securities in large denominations, located by Morgan Guaranty Trust Company of New York, as placement agent (the "Placement Agent"), pursuant to the terms of a Placement Agreement to be dated the date of issuance and sale of the Series 1985 Bonds (the "Placement Agreement") between the Placement Agent and the Issuer and the Developer; WHEREAS, it is necessary that the Issuer designate Merchants National Bank & Trust Company, Indianapolis, Indiana as Trustee under the Indenture; WHEREAS, copies of the forms of the following documents relating to the transactions described above have been filed with the Issuer and in accordance with Indiana Code 36-1-5-4, two copies of such documents are on file in the office of the Clerk-Treasurer for public inspection; A. The Agreement; B. The Indenture; C. The Mortgage; D. The Land Use Restriction AgreemenT; and E. The Placement Agreement. WHEREAS, the Issuer has determined that the Project benefits the health and welfare of the State, the City of Carmel, and Hamilton County, and that the Issuer, by issuing the Series 1985 Bond for the purposes contemplated herein, will be acting in furtherance of the public purposes of the Act; and WHEREAS, the Issu'er has determined that it is appropriate for the Issuer to issue the Series 1985 Bonds and use the proceeds thereof for the purposes set forth herein. NOW, THEREFORE BE IT RESOLVED by the Issuer as follows: 1. It is hereby ascertained, determined and declared 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 projects, as defined in the Act, ~ncluding 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 cost of any project, all to improve the prosperity and welfare of the State and its inhabitants, to improv~ living conditions and health care in the State, and to improve purchasing power and opportunities for gainful employment and is further empowered to issue its revenue refunding bonds to redeem bonds issued for such purposes° B. The Project constitutes economic development facility within the meaning of the Act. C. Based on the facts found by the ~Carmel Economic Development Commission as evidenced in the record of that body's proceedings and particularly in the Development Commission Resolution (which facts are hereby incorporated by reference) the Project has not and will not have an adverse competitive impact on other facilities of the same kind operating in the applicable market area and (2) the Project has contributed and will contribute significantly to the creation of permanent new job opportunities by the addition of new jobs. D. The Project is appropriate to the needs and circumstances of, and makes a significant contribution to the growth of, the City of Carmel and Hamilton County, provides or preserves gainful employment, and serves a public purpose by advancing the economic prosperity, the public health and the general welfare of the State and its people as set forth in the Act. E. Based upon the financial information about the Developer filed with the Issuer, the Developer is financially responsible and fully capable and willing to fulfill its obligations under the Agreement, the Mortgage and the Land Use -4- 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 Agreement, the Mortgage and the Land Use Restriction Agreement, due consideration having been given to the Developer's ratio of current assets to current 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 Developer, financially~ and otherwise, to fulfill its obligations consistently with the purposes of the Act. F. The Project complies with all applicable building and zoning laws and Hamilton County is able to cope satisfactorily with the impact of the Project and is able to provide, or cause to be provided when needed, the public facilities, including utilities and public services, that are necessary for the construction, operation, repair and maintenance of the Project and on account of any increases in population or other circumstances resulting therefrom. G. Adequate provision is made under the Agreement for the operation, repair and maintenance of the Project at the expense of the Developer and for the payment of the principal of, premium, if any, and interest on the Series 1985 Bonds when and as the same become due and payable, and for the payment by the Developer of all other costs incurred by the Issuer in connection with the financing, construction and administration of the Project which are not paid out of the proceeds from the sale of the Series 1983 Bond, the Series 1985 Bonds or otherwise. H. The costs to be paid from the proceeds of the Series 1985 Bonds with respect to the refunding of the Series 1983 Bonds are costs included in the purposes for which revenue refunding bonds may be issued pursuant to the Act. I. A negotiated sale of the Bonds is required and necessary, and is in the best interes~ of the Issuer, for the following reasons: the Series 1985 Bonds will be special and limited obligations of the Issuer payable solely out of revenues and proceeds derived by the Issuer under the Agreement, and the Developer will be obligated for the payment of all costs of the Issuer in connection with the financing, construction and administration of the Project and for operation and maintenance of the Project at no expense to the Issuer; the cost of issuance of the Series 1985 Bonds, which will be borne directly or indirectly by the Developer, would be greater if the Series 1985 Bonds are sold at public sale by -5- competitive bids than' if the Series 1985 Bonds are sold at negotiated sale, and a public sale by competitive bids would cause undue delay in the sale of the Series 1985 Bonds; revenue bonds having the characteristics of the Series 1985 Bonds are typically and usually sold at negotiated sale; the Developer has indicated that it may be unwilling to proceed unless a negotiated sale of the Series 1985 Bonds is authorized by the Issuer; and authorization of a negotiated sale of the Series 1985 Bonds is necessary in order to serve the purposes of the Act. 2. For the purpose of providing funds for the purposes described herein, the issuance of revenue bonds of the Issuer to be known as the "City of Carmel, Indiana Retirement .Rentat Housing Revenue Refunding Bonds (Encore Retirement Partners, Ltd. Project) Series 1985," is hereby authorized. The Developer has agreed that if Bond proceeds are not sufficient to provide funds to refund and redeem the Series 1983 Bonds, including payment of principal of and interest on the Series 1983 Bonds on their redemption date and costs of issuance of the Series 1985 Bonds, the Developer will provide the excess funds necessary to refund and redeem the Series 1983 Bonds. 3. The Series 1985 Bonds will be dated and will bear interest at a rate not to exceed 15% as p~ovided in the Indenture, and will mature on December 1, 2008. The form of the Series 1985 Bonds and the provisions for signatures, authentication, payment, registration and redemption shall be substantially as set forth in the Indenture hereinafter authorized. The Series 1985 Bonds will be issued in a principal amount not to exceed $10,700,000 in Authorized Denominations (as defined in the Indenture). The Series 1985 Bonds shall never constitute a general obligation of, an indebtedness of, or a charge against the general credit of the City of Carmel, nor are the bonds payable in any manner from revenues raised by'taxation. 4. The payments by the Developer under the Agreement (other than payments of certain expenses of Issuer relating to the Project and the Series 1985 Bonds) are sufficient to pay the principal of, premium, if any, and interest on the Series 1985 Bonds as the same become due and payable, and said payments will be pledged for that purpose pursuant to the Indenture. 5. The executionf delivery and performance of the Agreemens, the Land Use Restriction Agreement and the Indenture are hereby authorized. The Agreement, the Land Use Restriction Agreemen~ and the Indenture shall be in substantially the forms submitted at this meeting, with such changes, insertions or omissions as may be approved by the Mayor and the Clerk-Treasurer of the Issuer, with the review and advice of the City Attorney, whose approval thereof shall be conclusively evidenced by his execution of each such instrument; provided, however, that no such modification or addition shall change the maximum principal amount of, interest rate on ox term of the Series 1985 Bonds as approved by the Common Council by this Ordinance without further consideration by the Common Council, 6. The execution and delivery of the Series 1985 Bonds to Morgan Guaranty Trust Company of New York (the "Agent") for authentication, and the authentication and redelivery of the authenticated Bonds to or upon the order of the Placement Agent or its duly authorized attorney-in-fact against receipt by the Trustee of the purchase price for the Series 1985 Bonds, are hereby authorized. 7. The sale and delivery of the Series 1985 Bonds to the investors which are institutional investors or other entities which customarily purchase debt securities in large denominations, located by the Placement Agent, is hereby approved. The acceptance of the Placement Agreement is hereby authorized. The Placement Agreement shall be in substantially the form submitted at this meeting, with such changes~ insertions or omissions as may be approved by the Mayor and Clerk-Treasurer of the Issuer, with the review and advice of the City Attorney, whose approval thereof shall be conclusively evidenced by his execution of such instrument. 8. The use of a portion of the proceeds from the sale of the Series 1985 Bonds to refund and redeem the Series 1983 Bonds as provided in the Indenture is hereby authorized. Merchants National Bank & Trust Company as trustee under the Indenture of Trust dated as of December 1, 1983 (the "Series 1983 Indenture") pursuant to which the Series 1983 Bonds were issued is authorized to give the notice of redemption required thereunder at such time as directed by the'Developer, provided that such redemption of the Series 1983 Bonds shall be completed within 180 days from the date of issuance of the Series 1985 Bonds. Until such time, the proceeds from the sale of the Series 1985 Bonds shall be deposited in an Escrow Fund created under the Indenture. 9. Merchants Indianapolis, Indiana, Indenture. National is hereby Bank & Trust Company, designated Trustee under the 10. The Clerk-Treasurer of the Issuer is hereby authorized to attest and affiz the seal of the Issuer to the Series 1985 Bonds, the Indenture, the Agreement, the Land Use Restriction Agreement 'and any other document executed by the Mayor pursuant ~o this Resolution. 11. The Mayor and Clerk-Treasurer of the Issuer are hereby authorized to do and perform all such things and acts as each shall deem necessary or appropriate in furtherance of the issuance of the Series 1985 8onds and the carrying out of the transactions authorized by this Resolution or contemplated by the instruments referred to in this Resolution. 12. The Indenture, the Agreement, the Mortgage, the Land Use Restriction Agreement and the Placement Agreement are incorporated herein by reference thereto. 13. No covenant, obligation or agreement herein contained or contained in the Bonds, the Indenture, the Agreement, the Land Use Restriction Agreemen~ or the Placement Agreement shall be deemed to be a covenant, obligation or agreement of any officer, member, agent or employee of the Issuer in his individual capacity, and no such officer, member, agent or employee of the Issuer shall be personally liable on the Series 1985 Bonds or be subject to personal liability or accountability by reason of the issuance thereof° 14. If any section, paragraph, clause or provision of this Resolution shall be held invalid, the invalidity thereof shall not affect the remaining provisions. 15. The dates of any of the documents referred to herein may be changed without any further action by the Issuer, and the execution of the same by the Mayor shall be sufficient in all respects to evidence the approval of said change by the Issuer. 16~ Ail motions, orders, resolutions, and parts thereof, in conflict herewith, are hereby repealed, and this Resolution shall take effect and be in force immediately after its passage and approval. Adopted this /~ day of July, 1985. CARMEL COMMON COUNCIL Attes~ f / Clerk-Tre~/rer' [Signatures On Next Page] Presented 'by me to The Mayor of the~City of Carmel, on this day of July, 1985, at the hour of ~'//~)~_.m. Cierk-Treas~r~er Approved and signed by me on this /j day of July, 1985.